Binetto and Massani

FAMILY COURT OF AUSTRALIA

BINETTO & MASSANI

[2017] FamCA 106

FAMILY LAW – PARENTING – where orders were made in 2007 for a week-about arrangement of child then aged two – child severely disabled – mother wishes to alter orders to weekend time for father – where father apposes change – where parents have different standards of care but both reasonable and satisfactory – where there is no basis for change.

Evidence Act 1995 (Cth)
Family Law Act 1975 (Cth)

Palmer v R (1998) 192 CLR 1
Mazorski and Albright [2007] FamCA 520

APPLICANT:

Mr Binetto

RESPONDENT:

Ms Massani

INDEPENDENT CHILDREN’S LAWYER:

FILE NUMBER:

MLC

10811

2015

DATE DELIVERED:

1 March 2017

PLACE DELIVERED:

Melbourne

PLACE HEARD:

Melbourne

JUDGMENT OF:

Cronin J

HEARING DATE:

20, 21 February 2017

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Mr Marchetti

SOLICITOR FOR THE APPLICANT:

Trapski Family Law

COUNSEL FOR THE RESPONDENT:

In Person

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER:	Ms Dosanjh
SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER:	Hartleys Lawyers

Orders

That all existing parenting orders are discharged.
That the father and the mother have equal shared parental responsibility for B born … 2005.
That the child live with the parents on a rotating basis commencing at 6 pm on Monday 6 March 2017 as follows:
(a)With the father from 6 pm on Monday to 6 pm on the following Saturday; and
(b)With the mother from 6 pm on the Saturday until 6 pm on the following Monday week.
That, at the relevant time, the child be changed over between the parents outside the Big W store at Suburb C Central Shopping Centre.
That the terms set out in the attached notice prepared under s 65DA(2) and S 62B of the Family Law Act 1975 (Cth) are incorporated into this order and shall apply to both parents.
The application of the father filed 9 December 2016 and the response of the mother filed 16 December 2016 are otherwise dismissed.
That pursuant to s.65DA(2) and s.62B, the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders and details of who can assist parties adjust to and comply with an order are set out in the Fact Sheet attached hereto and these particulars are included in these orders.

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 Binetto & Massani 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 MELBOURNE

FILE NUMBER: MLC 10811 of 2015

Mr Binetto

Applicant

And

Ms Massani

Respondent

INDEPENDENT CHILDREN’S LAWYER

REASONS FOR JUDGMENT

B is 11 years of age and has significant difficulties. He is described by the family report writer as having severe and multiple disabilities. That writer went on to say the child’s needs were “many and complex”. The child has lived in a week-about arrangement since his earliest years but now, the dispute centres on what the future arrangements should be for him.
Mr Binetto is the child’s father. He is 43 years of age and employed by a major bank. He is now married to Ms D and they have a child of their relationship aged almost two years. Ms D has three other children ranging in ages from 11 down to seven. The father of those three children shares regularly in their care.
Ms Massani is the child’s mother. She is 33 years old, is not engaged in the paid workforce and has not currently repartnered.

2007

The relationship between the father and the mother was a short one. They lived together between 2005 and 2006. They have not lived together since. In 2007, they had court proceedings in the Federal Magistrates Court and orders were agreed that they should share the care of the child. One of their consensual arrangements was for “shared parental responsibility” of the child. What is most striking about the 2007 orders is that the child was just two years old. The orders reflect that each had legal advice before the court made them. The obvious inference is that with a child so young, both parents considered that the other had the capacity to care for the child.

Legal representation

In the present proceedings which began in earnest in 2015, both parties had legal representation until just days before the final hearing began when the mother’s solicitors advised they were ceasing to act. That left the mother in a position where she had to not just represent her own interests but also cross-examine the father for whom she has little or no respect. At various points in the hearing, the mother conceded that her evidence was sparse. For example, she pointed to the filing of an affidavit by Professor F. She agreed that it did nothing to assist the court and she would no longer rely upon it. She wanted to call Mr E the family report writer, a social worker with considerable experience, but then having considered her situation and having agreed to talk to him, she decided not to require him for cross-examination. She confirmed that there was no evidence from a therapist about the child’s current needs and could only point to a letter that was attached to a previous affidavit that is now 18 months old. When I gave her an opportunity to contact the therapist to call her to attend to give evidence, that person indicated that she would have to get permission from her employer and in any event could not do it immediately. The mother then told me that she contacted her solicitor who indicated that by the time the decision to file the therapist’s evidence was contemplated, the timetable no longer permitted it. That was an unusual explanation because leave could have been sought or an approach could have been made to the father’s lawyers. It was a significant omission. When I inquired whether she still wished to call the therapist to establish just what the child’s needs were, she declined to delay the hearing and wanted to proceed.
The child’s interests were advocated for by an Independent Children’s Lawyer.

Expert evidence

In addition to an Independent Children’s Lawyer, in 2016, Senior Registrar FitzGibbon had ordered that the child be assessed by a child psychiatrist. It is not clear why that order was necessary and I was reminded by counsel for the father that the subject had been raised when the hearing was set down in October 2016. It was difficult at that time to obtain an understanding of what issues each of the parties was advocating. In any event, the mother’s evidence (drawn by her solicitor) said that the Senior Registrar’s orders required that the child “attend upon a child psychologist”. The order did not say that at all; it was a reference to a psychiatrist. The solicitors had apparently made inquiries of Professor F who was said to be a neuropsychologist. The mother attended Professor F with the child but the father did not.
In the hearing, the Independent Children’s Lawyer explained about the inability to get a psychiatrist but, notwithstanding it is an entirely different professional discipline, decided to get Professor F. The father had not agreed to use Professor F and accordingly, the mother went ahead and a report and affidavit were prepared. It was not suggested that Professor F could express an opinion as to the impact on the child of a reduction in time (as pursued by the mother) bearing in mind, there was no evidence of his intellectual functioning from a psychiatric point of view. It is common ground that the child understands what is said to him and that he can communicate back. However, only the father proffered a view that, by comparison to the other children in his household, the child communicates at the level of about a five year old. All agreed that the evidence was not particularly helpful on what impact any change of time would have but the father’s position (approved and supported by the Independent Children’s Lawyer) was that the child would miss the long-standing routine. Without being able to point to any specific evidence, the mother disagreed and said that the child does not want to go to his father and is resistant. None of her evidence about that was put to the father or his wife nor indeed, Mr E.
At its highest, the mother’s evidence was that the child was never happy in the shared care arrangement and would complain each time he returned home to her. Apart from the unchallenged evidence of what the child says, the context for the statements was missing and, more importantly, so was any expert evaluation as to what the child was meaning and why it was being said. I deal with the child’s “resistance’ below in the context of observations about his general happiness.
When Mr E, the family report writer, assessed the child, the only observation remotely connected to the assertion of resistance by the child was as follows:
[33]When observed with [Ms Massani], [the child] referred to (the father’s wife) in unflattering terms (not discouraged by [Ms Massani]) explaining that sometimes she and her children are sometimes mean to him wherever (sic) he could not provide details as to what he meant by “mean”.
It was hard to get a sense of how the evidence of Professor F could have assisted and when the mother was asked, she agreed it was not something upon which she relied but the evidence of a psychiatrist may have assisted.

The issues

Three issues were identified as encapsulating the parties’ dispute. They were as follows:
(a)should the order of 2007 of (what purports to be) equal shared parental responsibility continue (the father’s position) or should there be an order for a sole parental responsibility (the mother’s position)?;
(b)what is the capacity of each parent to care for the child?;
(c)if there is to be any sort of change in the child’s care, how will it impact upon him?

The specific proposals

The father originally proposed the arrangements of week-about continue but after he had read the report of Mr E, he altered that to wanting an arrangement of nine days with the mother and five days with him. The catalyst for that change was said to be the workability of the new arrangement which suited his family’s needs but also those of the child’s interests.
The mother proposed orders that the child live with her and spend alternate weekends with the father. Initially, she proposed that those orders be on condition that the father complete some training with the Royal Children’s Hospital but she ultimately withdrew that conditional requirement. That was sensible because after sharing in the child’s care for 11 years, it made little sense.
The mother questioned the father about what “training” he had done about medication. The father’s evidence was that he had consulted with the doctors and felt that he had sufficient experience to do whatever needed to be done for the child. The mother disagrees. There is no evidence that the requirements of training for delivery of medication were necessary as pursued by the mother. She cross-examined the father at length about what training he had undertaken about a number of matters other than medication and I accept he handles all problems adequately. There is no evidence to the contrary. There is also no expert evidence to indicate to me that any more “training” would make any difference. The mother said she was given advice about the need for therapy for the child but that evidence was not before the court. In any event, in respect of therapy, the father said that the child has group therapy at school and individual therapy arranged by the mother.
If there was an allegation that the father lacks parental capacity or responsibility, the mother must link the issue with the impact on the child. The mother failed to do so. The court does not know how much therapy is needed as distinct from what might be desirable. There were also questions about whether the father had training about the child’s dental needs but I note that the father’s wife has some training in this area. The wife was not challenged about her capacity to assist or that his needs were not being met.
There is obviously a distinction between what the mother would see as optimal care for the child and what the father sees as appropriate. The mother has not sought to exclude the father from the child’s life either before or after a serious illness in 2015. There is no better example than the orders of the court made on 3 December 2015. At that time, the mother had taken the child from a hospital and excluded the father who immediately brought proceedings. On 3 December 2015, when counsel represented both of them, a consent order was executed by both parties before Senior Registrar FitzGibbon indicating that they should return to the week-about arrangement. At that time, the record shows that the mother was expressing concern about the father’s capacity to provide what the child needed. To that extent, the following notation appeared on the orders:
The parties agree that the father will provide the mother’s solicitors with confirmation that his residence is appropriately equipped and he has completed the appropriate training to care for [the child].
There was no doubt the wife does not accept that the father has done the training to her optimal level but at no stage has she brought any application to suspend the father’s time on any urgency basis and it is not the foundation for her present application.
Of the three issues to which I have referred, for the reasons that follow, first, there is no basis to rebut or reject the presumption of equal shared parental responsibility or to make an order to the contrary. I make that finding even though the communication levels between the parties must be seen as poor.
Secondly, I find that both parents have sufficient capacity to care for the child. On that basis, I have no concerns such that I could justify reducing the father’s time on the basis of his capacity to provide that care.
Thirdly, the evidence supports a conclusion that despite the child’s limited communication skills, any significant alteration to his time with the father, would not be easily accepted or understood, nor would it be in the child’s best interests

The background to the dispute

Subsequent to the orders of 2007, the parties had a further litigious period in 2009 but that dispute seemed to settle down and the week-about arrangement continued. It was the mother’s case that the child has never been happy in the shared care arrangement and would complain each time he returned home. When the mother was being cross-examined by the Independent Children’s Lawyer, she described a number of situations in which the child was not only distressed when being delivered to his father but also very resistant to going. When I asked the Independent Children’s Lawyer whether she intended to investigate the matter, she said she was not pursing it. None of the allegations of that nature were put to the father and none of any substance of that nature, to the father’s wife. None of those problems was detailed in the report of Mr E and Mr E was not required for cross-examination.
Ms G provided an affidavit on behalf of the mother and she was not required for cross-examination. She described herself as a close friend of the mother having known her since December 2014. They were living together from March 2015. She described an incident in May 2015 where the mother was preparing the child to be transferred to the father and the child cried and said he wanted to stay home.
Ms G said that over the last 12 months, she had witnessed the child’s level of distress at changeover. She accompanied the child and the mother to the handover point. She saw the child crying and the child saying that he only wanted to stay for a weekend. That evidence is unchallenged and corroborates the mother’s version of events.
Unfortunately, the evidence of Ms G was not raised with Mr E even if he could give some explanation. The absence of a psychiatrist’s report might have explained why this sort of distress has been going on for so long. None of those assertions of problems at handover was raised with the father. Even if one ignores the evidentiary issue of the testing of those allegations, it is curious that these issues were never the subject of discussion between the parties nor importantly, the pursuit by them of some professional assistance. The child is a child who has had substantial involvement with the medical profession including, as I have said, the neuropsychologist upon whom the child had attended. No evidence was provided as to why the child at the age of 11, would have such separation anxiety.
The mother was unable to say what happened in the father’s household but she did get an opportunity to cross-examine both the father and his wife. Their unchallenged evidence is that the child is excited upon arrival and wants to know where his baby sister is along with the other children. There is no evidence of distress at the father’s house. Significantly, there is no evidence that the child is distressed at school. The mother did indicate that she has attended school (notwithstanding that it was not her time for the caring of the child) to reassure him. Why he needed that reassurance, was unsaid.
Mr E reported that he spoke to the vice principal of the specialist school who described the child as having made progress and achieving a number of goals. She noted the mother’s attendance at school during the father’s week but did not indicate that that was unhelpful. Nothing in the evidence of Mr E gleaned from discussions with the vice principal of the school, indicated that the school has any concern about the father’s care of the child.
Absent some evidence from an expert to say what is occurring in the child’s mind, the conflict in the evidence between the mother and the father’s wife over how excited the child is in his father’s care is perplexing. In my view, the appropriate finding is to say that as the mother asserted this has been going on for years, she would well have known of its importance as a deciding factor and should have brought evidence that might have explained the dilemma. The evidence from the father’s side indicates no such problem once the child is in the care of his father. It may be disconcerting that the mother continues to attend the school albeit that the school is not concerned about it, but there was no order sought by the father of an injunctive nature, to preclude the mother continuing to do so.
Some insight might also be obtained from the dislike that is palpable between the mother and the father’s wife. Interestingly, and perhaps tellingly, the mother observed that her relationship with the father had deteriorated once he met his now wife. She blamed the wife for that situation and accused her of verbal abuse. She complained of having been banned from attending the father’s home forcing the changeover to occur at a shopping centre. As the mother’s evidence proceeded, she volunteered that the child had spoken of his father as being “mean” and not understanding his needs. She said that the child complained that his father did not listen to him and just puts him in his bedroom. She went on to say that the child described his father as telling him lies and offering him things but then not fulfilling his promises. He described his father as “not fair”. In relation to the father’s wife, she said the child described her as “the witch” and that the wife was “horrible”. The child apparently complained to the mother that the father and his wife fought all the time. None of this evidence was contained in the mother’s affidavit. None of this was put to the father. None of this was indicated in either of the reports of Mr E. As a consequence, I offered the father an opportunity to call his wife.

The mother’s evidence was then interrupted to allow the wife to give evidence and she did so. She denied there was any problem in her relationship with the child and had never heard the word “witch” used. She volunteered that often the child said that he loved her and she had never heard the child saying anything bad about his father. When asked about her children’s relationship with the child, she described it as an adoring one. She was able to tell the court all of the details about what role the father played in the child’s life. With that evidence in chief, the mother began to cross-examine the wife. Her interest can be seen in the questions she asked. She asked a lot of questions about what role the wife played and what common interests she and the child had. She was asked whether there was any yelling in the house and she denied there was. She was able to describe how the child was cared for and the sorts of discussions that took place and the games that were played with her children. Nothing of a critical nature was put to the father’s wife to indicate that there was substance to the things that were supposedly said by the child. Whilst I have already mentioned the fact that the mother was without legal representation during the hearing, she has been represented for a long time and as such, there was no obvious explanation as to why these matters were not raised in any affidavit material or, more importantly, why, they were not put to the father and/or his wife. In my view, there is little substance to the allegations and the inference I have drawn is that they are discussed by the mother with the child rather than him volunteering complaints. There is no evidence from the school to indicate any welfare officer or teacher has heard such a complaint nor evidence from the myriad of therapists and doctors involved in the child’s life, that any such issue been raised there.
In my view, the complaint about the child’s distress, is not a factor that influences this decision.

The accident May 2015

In May 2015, whilst in the father’s care, the child had an asthma attack. In an ambulance on the way to hospital, he went into cardiac arrest. At hospital, he was placed on life support. He required open heart surgery.
It was not disputed that as a result of the trauma, the child is now legally blind and has significant other disabilities.
The child, although blind, reacts to light and shapes. For example, he cannot see a television set but loves to listen to the commentary of football games. He knows players’ names and shares the interests of his father. He is able to communicate about wins and losses and can identify with players whose names he recognises.
The child is unable to walk or stand and relies on a wheelchair for mobility. He has to be hoisted into beds, vehicles in which he travels and he uses a commode in the shower. His speech is limited although his parents understand him. He requires assistance to be fed and now has a feeding tube.
The child spent seven months in hospital and both parents were involved in the preparation for his return to outside life. It is contentious however that the father says that the child was improperly removed from hospital and retained by the mother but that problem was not canvassed in this hearing. It is important to note that again, consent orders were agreed upon between the parties just weeks after the child’s discharge from hospital. Those orders resolved that contentious issue and the child returned to the week-about arrangement.

Finances

It may have been an irrelevant distraction from the issues identified earlier but the parties litigated about the financial support undoubtedly needed for the child’s care. Distraction though it may be, that focus indicates the respective credibility of the parties.
The mother maintained what could only be described as the high moral ground about the father’s attitude to the child’s care. She accused him of poor judgment and lacking in responsibility. Before making any critical findings, two observations should be made.
First, s 69ZN of the Family Law Act 1975 (Cth) (“the Act”) requires a court to have regard to a number of principles in determining a parenting matter. Two of those principles are relevant here. They are consideration of:
· The needs of the child…and the impact that the conduct of the proceedings may have on the child in determining the conduct of the proceedings; and
· The proceedings being, as far as possible, conducted in the way that will promote cooperative and child-focussed parenting by the parents.
The court is conscious that these parents have to care for the child well into the future but exaggeration, embellishment and inaccuracies often tell a lot about parental responsibility and inclusiveness. That is the case here. Even so, criticisms and adverse findings against either parent should only be made with caution. Here, there was not only no trust and communication between the parties as indicated by their written documentation but also by the way in which each was cross-examined. There is no indication that their respective views about the other will change. That has an impact on the child but also makes the question of the issue of equal shared parental responsibility quite difficult.
In that context, the mother did not hold back from her criticisms of the father. This was not just a case of her highlighting what she saw as his deficits as a parent by comparison to hers, she maintained he was not interested in the child’s welfare and development.
The mother went further than highlighting parenting issues and said that of a “Gofundme” page set up by the father, he raised funds for the child and “retained all those funds for himself” save for a small amount of money she acknowledged he gave her.
There can be no doubt that the inference to be drawn from the evidence of the mother was that the father was using the funds, inappropriately. The evidence does not support such an assertion. The father explained what he has used the funds for and it was not put to him that he had made any personal gain. The mother’s claim was therefore puzzling.
In addition to that claim, the mother did not acknowledge that the father had provided her with financial assistance. He gave her $1200 in August 2016 and $5000 in September 2016. Whilst each of those payments may explain the small amount I earlier mentioned, it was only when asked how that came about that the mother acknowledged that she had requested the money and the father had provided it.
There is another concern. As the child was being readied to leave hospital, the helpful staff informed both parents of the availability of funding to assist them with the care of the child through the Victorian Department of Health and Human Services. The mother made the application and although it undoubtedly took time, her explanation about its implementation was implausible. She maintained that she informed the father of a window of opportunity for him to attend a meeting with department officials when the funding package was finalised. I do not accept that she made that offer. At around the same time that the meeting with the mother took place, the parties were in court. No mention was made during those court proceedings of the impending meeting.
The mother maintained that she told the father about the prospective meeting but said he told her the date did not suit him. She claimed the Department of Health and Human Services could not change it and in any event, it was to be at her home. She said that he told her he would not go to her home. I find that that conversation did not occur as she maintained.
More importantly however, what she told the Department of Health and Human Services was wrong. The records of the department were produced in evidence and they showed statements attributed to the mother in which she maintained that she had sole care of the child and received no respite. The very clear inference was that the father was not involved in the child’s life. That particular document was not signed by the mother but rather by an official of the department for the purposes of obtaining government funding. It was signed on 17 May 2016 only days after both parents were in this court and consent orders were made for the equal sharing of the child.
To compound what I consider to be her misleading evidence, the mother maintained that it was the department representatives who told her that these details had to be put that way to get the funding. She said that she explained that there was litigation going on with the father. She said that they were aware of the shared care arrangement. I find the explanation which was not supported by any objective evidence implausible. I accept that the father did not know that the funding package was being pursued as a result of that meeting nor importantly, that the funds had begun to flow.
The mother received significant funding on the basis of an incorrect care arrangement. She adamantly and vociferously said that this was not her money. If so, she could only be seen as a trustee because the child is 11 years of age and could not possibly control such a large amount of money. But to accuse the father of personal gain when she had access to unexplained funds in her capacity as a trustee was difficult to understand. I find it indicates the depth of bitterness the mother holds towards the father. No doubt this money could have been (and should have been) used by the father too for the child’s needs. The document relating to the package is a large sum of public money but it was designed to cover the needs of the child each day regardless of whose care was involved. In other words, this package should have been one to cover the needs of the child in his father’s care.
Ironically, one of the criticisms of the father by the mother was that he had done nothing about therapy for the child. That money was clearly intended for such purposes. The mother argued that the father knew about the details but I reject that. It was remarkable that the mother had to be asked questions in cross-examination about what money was in the account and how much she received. At present, the money seems to be about $8000 per month although on one month, the amount was $10,000. This funding is for the child’s benefit and the mother receives her own stream of income from the Commonwealth Government through NewStart allowance. In addition, she had the assistance from the father. When asked to produce the details of the balance of the account, she baulked and asked what the relevance of the question was. It was abundantly clear that she saw no right of the father to know the details of the package.
There is no apparent accounting or control over that funding and on the basis of the mother’s reaction when asked about it, I doubt very much whether the father could have obtained access to the money even if he had known about it.
All of this affects the mother’s credibility in maintaining that the father is not interested in the child and more importantly, her accusation that he used the child’s funds for personal gain. I found nothing in the father’s evidence about which I should be concerned but I cannot say the same about the mother.
A second issue concerns credibility generally and where it fits into a case such as this. Part 3.7 of the Evidence Act 1995 (Cth) concerns credibility evidence. Section 69ZT(1)(c) provides that Part 3.7 of the Evidence Act does not apply to child related proceedings. But that said, the truthfulness of a witness generally can, and does, affect how a court determines the facts in issue. Here, the fact-in-issue is the father’s capacity to care for the child but also his desire to be involved in decision-making processes of significance for the future of the child. There is undoubtedly a fine line between credit and facts-in-issue. The credibility of evidence is undoubtedly inextricably bound up with the credibility of its deponent (Palmer v R (1998) 192 CLR 1 per McHugh J).
There is a temptation in this case to reject the mother’s credibility by virtue of the funding issue but having regard to the unusual nature of some of the very modest disputes in this case, that would take the focus away from the child. I find the mother was generally an aggressive witness who has an altruistic view that she alone knows what is best for the child. One such example concerns her criticisms of the father about the medical needs of the child. Her view was that she was simply following the medical team advice and the father was not. She maintained he had not done things that he was required to do in terms of training. The father’s view was that he had spoken to the doctors and knew just what to do. The father’s evidence was plausible. He was restrained and willingly acknowledged the significant parenting problems that the mother has to deal with. The mother also has practical assistance with the child. The funding details showed that money was being made available for what she described as “respite” but in reality, she is provided with assistance from a carer.
The father was complimentary of the mother’s role in the care of the child. He adopted the family report writer’s view that both parents needed the other to support the child. Unfortunately, I find the converse is not accepted by the mother. She saw no benefit to the child in having the father participate in decisions of a long term nature and most importantly, saw no benefit for the child in long periods of time beyond a weekend in the father’s care.
Thus, with great caution about being critical of parents who have a difficult task in relation to raising children such as the child, I cannot accept the mother’s version of things based on her implausible evidence about the child’s resistance, his complaints about the father and the allegations about improper use of funding. Credibility also becomes relevant on the issue of family violence.

Family violence

In his affidavit filed 9 December 2016, the father made no reference to any family violence issues. By her answering material filed 16 December 2016, the mother asserted:
·[5]        The father was emotionally, psychologically and physically abusive during the relationship including an incident in which he assaulted her in November 2006;
·[65]      In response to a dispute between the parties on 3 November 2016 about whether the child could have a drink prior to surgery in which the mother said he was not allowed to, she said the father responded “Yes he can, learn to read you fucking idiot”;
·   The father abused her in 2015 saying that the abuse was “so intense” that she had no option but to obtain an intervention order “for my protection”;
·   At [75qq] the mother said again that communication was not good “due to the violence” the father inflicted upon her during the relationship.
The assertion about what happened in 2006 was generally denied by the father in his affidavit in reply. It was therefore self-evident that the issue of violence as between the parties was a fact in issue. Apart from the unparticularised and vague statement, the matter was not raised again. The mother’s assertions come down to a question of weight.
Section 69ZT(2) of the Act provides that the court may give such weight (if any) as it thinks fit to evidence that has been admitted as a consequence of any particular provision of the Evidence Act not applying. The mother did not raise her family violence allegations in cross-examination of the father.
In his report dated 17 April 2016, Mr E described [12] the “previously cooperative relationship between the parents” as being stressed and strained. Nothing seems to have been suggested to indicate that family violence was a problem. Mr E did a second report dated 17 February 2017. This time, the intervention order was raised at [21] and Mr E observed that despite its existence, the mother “perplexedly” insisted on going to the father’s home to hand over parts of the feeding pump equipment and the bulky and heavy liquid food supplements that had been delivered to her home by the hospital. The lack of fear or concern by the mother troubled Mr E. No suggestion was put to the court that her fear and concern exists today.
The intervention order was attached to the mother’s affidavit but it is noticeable that it was consented to by the father without admission of the facts apparently underlying it. The difficulty for the court is that those facts were not provided. It is one thing to have an order but another to understand the basis of the complaint giving rise to it. Section 60CC(3)(k) requires the court to take into account any family violence order in respect of the child as well as a member of the child’s family taking into account the following:
(a)      The nature of the order;
(b)      The circumstances in which the order was made;
(c)      Any evidence admitted in proceedings for the order;
(d)Any findings made by the court in, or in proceedings for, the order; and
(e)Any other relevant matter.
I repeat what I have earlier said about the fact that this affidavit was drawn by the mother’s lawyer who presumably would have been aware of not only the requirement to establish the allegation but the requirements of s 60CC(3). The assertion set out in the first dot point above is not evidence that can be given any weight. The mere assertion that a family violence order was made particularly one in circumstances where there was no admission as to the facts upon which it was made, leaves the court in a situation where no finding can be made that the unparticularised and very general allegations have occurred. It is to be remembered that family violence is defined in s 4AB of the Act to mean violent, threatening or other behaviour by a person that coerces or controls a member of the person’s family or causes the family member to be fearful. The elements of that accusation that are missing in this case relate to the last two aspects. There is no better example of the lack of credence in the allegation than reference to Mr E’s concern about the mother’s insistence on being present at the father’s home and more recently, at the shopping centre changeovers.
The existing family violence order continues for a few more weeks but it is of concern that when the order was obtained, the police were the applicants and at that time, the child was named as the person requiring protection. No evidence was called from the police to indicate why they thought it necessary to intervene in this family’s life.
There is not sufficient basis for the court to find that family violence has occurred at all in this case.

The injury 2016

In March 2016, the child was in the care of the father. The mother attended school awaiting the arrival of the school bus one morning only to find that the father had brought him. When the mother went into the school, she saw that the child had injuries to his face, mouth and nose and that his lower lip was split and covered in dried blood. She said she asked the father what had happened. She said the father replied that he was unsure but that at 3.00am, he had heard the child screaming and found the child’s head was caught between the mattress and the safety rail of the bed. Rather than accept that explanation, the mother asked the child what had happened and he said that someone had hit him in the face in the middle of the night but he did not see who it was because he was blind. She then took the child to the doctor who in turn referred the matter to the children’s hospital. The matter was reported by the hospital to the Department of Health and Human Services. No evidence was provided about the department investigation other than it was said the inquiry was closed because the cause of the injuries was inconclusive.

Consistent with the paucity of evidence provided by the mother, she said:
[51][The child] later told me and my sister [Ms H] that “Dad punched me”. On several occasions after that, [the child] would have panic attacks and he has told me “Dad bad man, kids bad, hurt me”.
The mother went on to say that she remained “concerned” for the child’s welfare in the care of the father as any injuries that he received “seem” to only occur at the father’s home.
Contrary to the mother’s evidence, the father said that not only did the Department of Human Services close their file but so did police. He described both of those organisations as having no concerns regarding the child’s safety in his care. As for the injuries, the father described the child turning over in his sleep and hitting his head on the rails of his bed, a problem now overcome by the provision of protective padding.
The obvious inference to be drawn from the mother’s evidence was that either the child was inflicted with injuries by the father or that he was negligent in some way in not protecting the child. The way the affidavit was drawn was at best unhelpful.
The mother did not suggest to the father that either of those two scenarios was an ongoing problem and the focus of her attention in cross-examination was on the father’s lack of interest in therapy or his undertaking of training associated with medication. Graphic photographs of the child were attached to the mother’s affidavit but no attempt was made to link the injuries with any cause or possible explanation. Simply handing photographs of that nature to a court does not prove anything and creates a distraction. If the hospital was concerned that the injuries were deliberately inflicted or arose out of negligent action, presumably the expert opinion could have been provided to show the father’s explanation to be implausible. Equally concerning is the fact that by her affidavit, the mother quoted the child unashamedly accusing the father or his step-children as being responsible for the injuries. As such, the context in which that allegation was made was critical. How that allegation sat with the investigators at the hospital, the Victoria Police and the Department of Health and Human Services, remained unsaid.
The mother did not rely on the 2016 injuries as being a reason why the specific orders she proposed would protect the child. There can be no argument that the court has the responsibility to provide protection for the child both in respect of injuries deliberately inflicted and those sustained as a result of negligent behaviour by a parent. The Independent Children’s Lawyer showed no interest in either of those issues. The absence of the presentation of any evidence by any party or the Independent Children’s Lawyer must indicate that allegations of assault or indeed negligence, were not being pursued because they could not be sustained. One must then question why the evidence was presented by the mother bearing in mind the affidavit was drawn by a solicitor.
Mr E interviewed everyone in February 2017 and had the opportunity to not only raise the injuries with the parties and the father’s wife. He also had the opportunity to examine the various investigations to which I have already referred. Mr E did not raise the matter with the father. He did raise the subject of the child’s care with the mother. Mr E said this:
[24](The mother) remains adamant that [the child] continues to be neglected, unkempt and at times bruised when he is returned to her. (Comments made by the vice-principal of (the school) did not support such claims. She reports [the child] is generally clean and appropriately attired when present at the school.)
The significance of that is perplexing. The child obviously attended the school in 2016 in an injured state. Thus, in addition to the investigations just mentioned, the school had an opportunity to not only observe the injuries but also make its own inquiries as to how they occurred. By reference to the quote from Mr E, the school obviously has no concerns.
On the basis of the lack of evidence presented by the mother and the positive aspects of the evidence supporting the father’s care, the allegations of the mother in relation to injury and in particular bruising, do not support a finding that the child is at risk in the father’s care such as to justify a reduction in time.

The standard of care of the child

Notwithstanding the mother’s consent to the week-about arrangement upon the attendance at court on 12 May 2016, she maintained that the child was returned to her care at times thereafter having lost weight and with bruising to his legs. In September 2016, she was sufficiently concerned that the child could not hold his food down, as well as having bruising to his legs, to take him to the Royal Children’s Hospital. She described sitting in the emergency department the whole day and night until a day later when the hospital decided to admit him. She said that the hospital was very concerned about the child’s weight loss and said the hospital told her that the child was “lucky” that she had brought him in. Nothing more was said. I again express concern about an affidavit drawn by a lawyer that simply throws out an assertion with no apparent connection to any issue in dispute. The father’s general reply to the issue of illnesses was that the child was susceptible to infections and illnesses. He referred to an incident to which the mother had also referred in February 2016 where she described that the child’s genitals were covered in mucous. The father’s response was that he had noticed that but that the infection began when the child was in the mother’s care. He did not say how he treated the problem. A court in those circumstances is left with a vacuum save that the mother went on later to say that she took the child to the Royal Children’s Hospital where they suggested he needed to be circumcised. The inference I have drawn is that the hospital’s view was consistent with that of the father namely that the child was susceptible to infection. They provided a solution.
The mother’s evidence was that in February 2016, the child was returned home with “teeth dirty, mucous all around his nose, face dirty from food, dirty hair with flaking dandruff scalp, a dirty nappy in the front pocket of” his school bag. This evidence was clearly led for the purposes of indicating either neglect by the father or a lack of care. Unfortunately, the allegation suffers from the same problem as a number of others. It will be apparent that the changeover of the child occurs at 3.00pm each Friday. When the father was challenged about the specifics of February 2016, he retorted that the child had been at school and then there was a one hour bus ride. That evidence was given in response to a question the mother put to the father in which she said that there were “numerous occasions” when he was returned in that sort of condition. The mother did take issue with the father’s answer and looking at the schedule arising from the orders, the explanation seemed plausible. But the mother took up the issue again by asking about holiday periods. She said that the child suffered facial scratches because his finger nails had not been cut. The father’s response to that was that when he observed the nails needed cutting, he undertook the task but he observed also that even the smallest amount of nail would create a scratch for the child because he has significant movement with his hands as part of his disability.
When the child was eventually admitted to hospital in September 2016 in relation to the weight loss, he remained there for a month and his nutritional diet was changed in an effort to increase his weight. That led to a feeding tube being inserted so that proper nutrition could be provided. That led to further surgery including a “peg” being inserted into the child’s stomach for feeding purposes rather than using the gastric tube. Even there, problems arose. In November 2016 when the child was returned to the mother after school having been in the father’s care for that week, there was pus coming from around the peg. She said she sent a text message to the father asking whether the dressing had been changed during the week. She quoted a text message from the father apologising and saying that he had not. The clear inference to be drawn from the statement was that the child had been in his father’s care for a whole week and the dressing had not been changed. However, the father’s affidavit in reply indicated that he had changed the dressing each day that week save for the day prior to delivering the child back to his mother. He too complained that the child had been given to him without the dressing changed but he simply did it himself.
The mother had an opportunity to test this particular issue in cross-examination but she did not do so. The inference from [71] of her affidavit was that the dressing had not been changed for the full week yet the father’s response was quite the opposite. The mother’s evidence was therefore quite misleading.
This issue too could have been taken up with the family consultant. At its highest, the family report writer observed that this “apparatus” and its management was a source of further conflict between the parents. The court was not told the nature of that conflict nor how the matter might be resolved.
In her final address to the court, the mother indicated again her concern about the father’s capacity as a parent but to the family consultant, she said that the existing regime no longer met the child’s complex needs. She gave two main reasons. The first was that she was at home on a full-time basis whereas the father had to work full-time and had a young family to attend to. Secondly, she alleged that the father was “generally un-attuned” and not appropriately responsive to the “medical, physical and emotional needs” of the child. Nothing in the evidence supports the latter allegation and I find that each parent has a different perspective about just how complex the child’s needs are and how they can be addressed. The issues associated with hygiene are common problems but having heard the evidence of the father which is corroborated by his wife, there is no basis for me to find that the father is neglectful of the child.

Provision for the needs of the child

I have already mentioned the question of the family report writer being perplexed about the attendance of the mother on the father’s residence and indeed at handover, notwithstanding the intervention order. To some extent, there is a need for that to occur.
To cater for the child’s needs, the hospital prepares specially arranged food which is provided to the child by way of a pump and various tubing. That was described by everybody as quite heavy. It comes in two boxes. All of that is delivered to the mother. She in turn, delivers what is needed by the child during the period of time that he spends with the father. In addition to the pump and tubing, there is a battery charger. The process of arranging all of this is complicated.
As I understand the mother’s position, the hospital was not interested in splitting the equipment and the food into two parts but one must question why with the funding the mother has, permanent pumping arrangements and tubing are not acquired. That would then leave the question of only the nutrition. There appears to be no logical reason why the father could not be the recipient of the delivery and he could then take responsibility for splitting up the food and delivery of the boxes to the mother. The changeover of the child is now occurring at a shopping centre so it would not be difficult to make those arrangements.
The complications associated with feeding and the provision of the food and equipment are not a basis of concern such as to alter the existing arrangements for time with the child.

What would be the impact of a change?

The evidence of the father supported by his wife enables a finding that the child is welcome in their household, loved by the extended family and well cared for. He is included in activities within the household. The mother’s only evidence to refute that lies in what she describes as the complaints by the child and the problems that have arisen that I have earlier described. The child’s life involves so many people including teachers, therapists, welfare workers and sadly even the police. No evidence was called by the mother to indicate that what the father said about what occurs in his household was not accurate.
Mr E in his final report said:
[50]A reduction of the magnitude sought by (the mother) is likely to entail a considerable sense of loss, grief and disruption for the child who, irrespective of some problems she has identified, has been used to being able to readily and regularly access (the father).
Mr E also made reference to the diagnosis of autism in the child in the context of a reduction in time and although his statement is obtuse and the court was not given an opportunity to have it clarified, the conclusion I have drawn is that he considers that with autism, change for the child would not be easy.
The report writer went on to say that [54] all of the factors associated with a shared care arrangement in this case were not present and that consequently, “consideration” should be given to “reducing the amount of time” with the father. For the reasons earlier outlined, the father accepted “as did his wife” that that solution was a pragmatic one. It seems to me that what Mr E was talking about however was that if the mother could demonstrate conclusively that she was more available for the child than the father and therefore able to provide the child with a broader range of activities outside of the school, then it should be encouraged and supported by way of orders. That was not the basis upon which the father agreed to the change but in any event, I could not find on the evidence that the mother has demonstrated “conclusively” that she has been able to do that. There is no doubt the mother is very focussed on the child’s needs but there is no evidence as to the extent of those needs leaving the court in a position where it has to make a subjective judgment. In this case, the subjective judgment I have made is that both parents are focussed on his needs but each has a different perspective as to the extent. I further find that there is nothing in the evidence to support a conclusion that the father does not provide adequate care and fulfilment of those needs.
Thus, to the extent that it is necessary to say so, the “consideration” suggested by the family report writer of a reduction from seven nights to five nights is very artificial and not supported by any evidence that I can find but as the father has agreed that it is an appropriate outcome for his family, that sort of order should be made. There is in my view, no basis to alter the arrangement to the extent that the mother would seek it bearing in mind the unchallenged warning of the family report writer that to do so would entail for the child, a considerable sense of loss, grief and disruption.

The submissions

The Independent Children’s Lawyer simply adopted the views of Mr E. That was generally unhelpful because Mr E’s evidence was cursory. The Independent Children’s Lawyer argued that the arrangement had been in place for ten years and was not perfect but going reasonably well. That perspective is doubtful if one considers all of the problems that the parties have as distinct from those suffered by the child. The Independent Children’s Lawyer observed that there were no significant concerns from external agencies but neither was there any evidence one way or the other. She submitted that there was “nothing” to suggest that the child doesn’t want to go to the father. Quite the contrary, there is. The difficulty is the court’s perception of the statements that the child is said to have made to the mother and to Ms G. The mother was not challenged (and nor was Ms G required for cross-examination) by the Independent Children’s Lawyer about whether those expressed views by the child were influenced. There was evidence of the mother regularly attending school to see whether the child was “okay”. There was evidence that the mother has a particular parting embrace with the child which she conceded could be emotional at a time when she was reassuring the child that he was going to his father and all would be well. No investigation was undertaken in relation to those matters nor were they explored as to whether that was influencing the child in some way and causing the statements. The absence of that investigation has indicated to me that the Independent Children’s Lawyer was not troubled about the nature of the relationship between the mother and the child.
Counsel for the father dealt with all of the factual disputes as being inconsistent with the mother’s consent to the shared care arrangement after the traumas in 2015 and 2016. He submitted that the court could draw comfort from the fact that the family report writer had observed and assessed the home environments and had seen the child in both settings and had still come up with positive view that there was no basis to change.
The mother’s final proposals did not really change. In relation to parental responsibility, her view was that there was no basis to involve the father because he had not shown the interest to date and it was now too late for him to put his hand up. Both as a matter of fact and as matter of law, I reject that submission.

The legal issues

Section 60CA of the Act requires the court to consider the best interests of the child as the paramount consideration and in determining that, is obliged to consider the factors set out in s 60CC of the Act.

Section 60CC (2)

Two primary considerations in the assessment are first, what benefit the child would receive from having a meaningful relationship with both parents and secondly, the requirement that the court (by any orders) protect the child from physical or psychological harm in being subjected to or exposed to “abuse, neglect or family violence”. If there is a conflict between the two principles, the protection of the child must prevail.
Both parents say that the child has a relationship with each of them and although I have some doubt whether the mother sees the father’s relationship with the child as beneficial, she at least says that the relationship required by the child can be sustained by weekend time when the father can focus on the child without distractions from his family. The father acknowledges the valuable relationship between the child and the mother but maintains that it can continue successfully with much less time than she promotes.
As the authorities say, (Mazorski and Albright [2007] FamCA 520) the court has to look prospectively rather than retrospectively. The future is often a reflection of history. The father has a long track record of care of the child. The criticisms by the mother of lack of interest are not borne out by the facts. He has relied upon the mother from time to time and not attended as many meetings and appointments as she but that is not unusual in any parenting situation. Parents do the best they can and in circumstances where the mother was available (even to her own financial detriment) the disparity of availability is no more than an indicator for the court to look at whether or not the less involved parent has not been able to provide appropriate care when he did take on the role. In this case, the father’s evidence, which I accept, is that there have been occasions when he could not do what the mother could do and I see no reason to criticise him for that. The child was not disadvantaged as a consequence and in relation to such things as training, there is no evidence that the professionals have been concerned about the father’s lack of that training. If there was, the mother would have produced it.

It is important to recognise that part of the meaningful relationship concept is the other members of the father’s family who, on the evidence are wholly supportive and the child enjoys that situation. I reject the mother’s view for the reasons earlier outlined that the child is resistant to continuing the extent of the current arrangement.
In respect of the second part of s 60CC (2), I have set out the assertions of the mother about the father’s conduct directed to highlighting how she sees the child as being at risk in the father’s care. She maintains both violence by the father and poor quality care. In respect of the latter, for the reasons set out above, I reject the suggestion that the father’s quality of care is poor even if it does not necessarily meet the standard sought by the mother as there is no expert evidence from the myriad professionals who could provide some insight into that question.
Family violence by definition includes neglect but the evidence does not support such a finding against the father. There is no basis to find that the other aspects of the family violence test are met in relation to the child.
The evidence about the family violence order was at best vague and at worst, confusing. To draw any adverse inference against the father as the mother sought was inappropriate. The requirements of s 60CC were not fulfilled.
Thus, in respect of the primary considerations, in balancing various factors to achieve a best interests’ outcome, I find that the child does benefit from the relationship he currently has with his father and there must be other factors present to justify a move away from that current arrangement.
Section 60CC(3) is a list of other mandatory considerations.
Section 60CC(3)(a) directs consideration to the views of the child. Having regard to the child’s disabilities, I am unable to find that his views should be taken into account. Mr E did not interview him because he considered it unprofitable. The evidence of the mother was mainly directed to the child’s distress. No expert evidence was brought about the child’s intellectual capacity and understanding. It would not be possible to draw any conclusions to indicate just what his views are because the perceptions portrayed by both families are diametrically opposed. Those views however are those of the adults rather than the child’s. I am not able to give any weight to his views.
Section 60CC (3)(b), (c), (ca), (e), (f) and (i) have all been considered and explained in the earlier narrative. Both parents love the child and want what is best for him even if they disagree how that can happen. The father’s long-standing role means that the court could have had the opportunity to examine the whole of the child’s life to see whether that standard of care and/or violence has been persistent or something recent. The focus has certainly been on the period subsequent to the 2015 hospitalisation but until then, the evidence does not support a finding of neglect or lack of care.
In respect of the period from the asthma/heart attack to the facial injuries, the complaints of the mother have been about lack of interest on the part of the father. The mother raised issues of inappropriate behaviour towards the child by other members in the father’s household but those were not ignored by the father. As the case unfolded, the mother raised no serious allegations against the father’s other household members.
It is appropriate therefore to find that the issues of capacity, responsibility and nature of the relationship are all in favour of the extant arrangement.
As for s 60CC(3)(j) and (f), I have already discussed the allegations and the unclear basis upon which the orders were made in the magistrates’ court. There is insufficient evidence to find that there are family violence issues in this case.
It is important that the court bring proceedings to an end. The child and hence, these parties, have had enough trauma. There will be a need for constant vigilance for years to come to ensure that whatever happens, the child is cared for as best each parent can provide. Looking prospectively, there is no reason for me to be concerned that this litigation is a ruse by the father or not a genuine reflection of his views about the child’s needs. I reject the mother’s views about the father but at the same time acknowledge her importance in the child’s life. In my view, the fact that there is not equality of care or effort is not an issue that affects the child’s welfare.
There is a need therefore to enable the parties to move on. Their arrangements have continued for all of the child’s life and the mother’s view that the father is not the appropriate carer for the child in such a continuing role is rejected. Both parents have a lot to offer the child. To reduce the father’s time to that promoted by the mother is not in the child’s best interests as his care is reasonable and the family is supportive of the child.
All of the factors therefore point to a significant period of time being required by the child of his father’s attention. There is therefore no basis to change the status quo at least on the grounds urged by the mother. There is a basis to accept his proposed reduced time.

Equal shared parental responsibility

Section 61DA of the Act provides that when making a parenting order the court must apply the presumption of equal shared parental responsibility. Both parties clearly understood that provision. The mother sought sole parental responsibility whilst the father the opposite.
Whilst the mother articulated a position where she would advise the father of her intentions and ultimately her decision, there is a clear distinction between all parenting decisions and those that are of a major long term nature. Rather than such an order focusing on major long-term decisions as defined in the Act, the mother’s proposed order would relate to all decisions of a parental responsibility nature. The definition of parental responsibility is set out in s 61B of the Act. It provides the following meaning:
All the duties, powers, responsibilities and authority which, by law, parents have in relation to children.
The fact that the mother says that she has made all of the decisions in the past is not to the point. The exclusion of the father from any decisions must be a concern where the mother acknowledges that he has not shown interest in the past and in final submissions says that it is too little too late. I have grave concerns that she would not involve the father in not just major decisions (so defined) but also day to day matters.
Whilst she articulated that it would be difficult for her to approach the father and consult about decisions as required by s 65DAC of the Act, that is not a basis to refuse to make the order. That is because s 61DA requires attention to two specific rebuttal issues first before contemplating whether the joint parenting order should be made regardless of the presumption.
The presumption is rebutted if there has been family violence. No such finding can be made here.
The presumption may be rebutted where it is not in the best interests of the child for the parents to have equal shared parental responsibility. The evidence here does not support such a proposition because the child needs both parents to make decisions about his future. Whilst the father has been criticised for not involving himself in therapy and training along with other hospital matters, the mother has been secretive and unco-operative about the financial aspects.
In this case, the child needs both parents and each should at this stage be required to make the concerted effort. If there is future evidence of a dilemma about that, the court may have to exclude the parent who is not co-operative.
Because the decision-making proposal of the mother covers all responsibilities and not just major long-term issues, I would not be prepared to exclude the father in the child’s best interests.
Absent the rebuttal or removal of the presumption, the court is obliged to consider s 65DAA but that is unnecessary because of the father’s position about time. In my view, the proposed order is in the child’s best interests but it is also practicable from every perspective. I do not need to consider the provisions of s 65DAA further.

I certify that the preceding One Hundred and Nineteen (119) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Cronin delivered on 1 March 2017.

Associate:

Date: 1 March 2017

[2017] FamCA 106

1 March 2017

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Family Law

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