Buchanan and Morgan

[2018] FamCA 798

FAMILY COURT OF AUSTRALIA

BUCHANAN & MORGAN [2018] FamCA 798

FAMILY LAW – CHILDREN – Where there is one subject child – Where there are competing residence applications – Where residence for the child with the father is confirmed – determination in accordance with the best interests of the child – Where the child’s relationship with the father is at risk if the child was to live with the mother – Where the child is ordered to spend substantial and significant time with the mother – Where there has been involvement and intervention by the Department of Family and Community Services – Where there has been proceedings in the Children’s Court -where there are allegations of sexual harm – Where the mother is alleged to have engaged in sexually inappropriate conduct with the step-children - Where the matter is heard in the Magellan protocol – Where the mother posed a risk to the father’s children of a previous relationship – Where the mother denies the allegations of sexual harm – Where it is determined that the mother does not pose a risk to the subject child – Where the father’s two children from a prior relationship suffered neglect and abuse in the care of their biological mother – Where the mother’s behaviour added further trauma – Where proceedings were originally commenced in the Federal Circuit Court of Australia and transferred to the Family Court of Australia.

FAMILY LAW – CHILDREN – Parental responsibility – Where there are competing proposals for parental responsibility – Where the presumption of sole parental responsibility applies – Where the father must consult the mother about long-term decisions – Where there is a high level of animosity between the parents.

FAMILY LAW – PROPERTY – Where the parties settled the substantial aspects of the property proceedings prior to final hearing – Where there is a property split of the remaining asset pool in favour of the wife – Where there was financial contribution by the paternal and maternal families – Where the parties otherwise retain all property currently in possession to the exclusion of the other – Where the parties therefore indemnify each other against sole debts.

Family Law Act 1975 (Cth) s 60CC, s 64B

APPLICANT: Ms Buchanan

RESPONDENT: Mr Morgan

INDEPENDENT CHILDREN’S LAWYER: Legal Aid NSW, Gosford Family Law

FILE NUMBER:	NCC	2166	of 2		2016
DATE DELIVERED:	5 October 2018
PLACE DELIVERED:	Newcastle

PLACE HEARD: Newcastle

JUDGMENT OF: Cleary J

HEARING DATE: 22-25 & 29 January 2018 and 6 March 2018

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Mooney

SOLICITOR FOR THE APPLICANT: Catalyst Lawyers

COUNSEL FOR THE RESPONDENT: Mr Boyd

SOLICITOR FOR THE RESPONDENT: Richardson Legal

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: Mr Allen

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Legal Aid NSW Gosford Family Law

Orders

Parenting

1. That all prior parenting orders in relation to X born … 2014 (the child) are discharged.

2. That the father have sole parental responsibility for the child.

   2.1In the event that any issues arises the father shall:

   2.1.1Advise the mother in writing of the matter which requires a decision and of the proposal of the mother in that regard;

   2.1.2Invite the written response of the mother within a nominated period of time to be reasonable in the circumstances;

   2.1.3Genuinely consider the response of the mother and take her views and proposals, if any, into account before coming to a decision; and

   2.1.4Promptly advise the mother in writing of the decision taken.

3. The child shall live with the father.

4. That the child shall spend time with the mother as follows:

   4.1      Until the child starts school:

   Week One: From 8.00 am Wednesday to 5.00 pm Friday;

   Week Two: From 8.00 am Thursday to 5.00 pm Sunday.

   4.2Once the child starts school:

   4.2.1During school term: Each alternate weekend from 8:00am Wednesday to return to school the following Monday morning; commencing on the second Wednesday of each school term in even numbered years and the first Wednesday of term in odd numbered years;

   4.2.2For one half of each school holiday period with such halves to be agreed between the parents but failing agreement the first half in odd numbered years and the second half in even numbered years.

5. Notwithstanding any other Orders the child shall send time with each parent as follows:

   Christmas

   5.1In even numbered years:

   5.1.1With the mother from 12 pm, 24 December to 5.00 pm 25 December;

   5.1.2With the father from 5.00 pm, 25 December to 5.00 pm 26 December.

   5.2In odd numbered years:

   5.2.1With the father from 12.00 pm 24 December to 5.00 pm 25 December;

   5.2.2With the mother from 5.00 pm, 25 December to 5.00 pm 26 December.

   Father’s Day

   5.3On the Father’s Day weekend, if not already with the father, from 5.00 pm Saturday to return to school Monday after Father’s Day.

   Mother’s Day

   5.4On the Mother’s Day weekend, if not already with the mother, from 6.00 pm Saturday to return to school Monday after Mother’s Day.

6. That unless changeover occurs at school or pre-school, or at a location as agreed in writing by the parents, the parent with whom the child is due to spend time shall collect him from the residence of the other parent at the commencement of the child’s time with that parent.

   6.1Changeover may be affected by a nominee if notice in writing has been provided by the collecting parent to the other parent.

7. The child shall be at liberty to call the parent with whom he is not spending time upon his reasonable request.

8. Each parent shall be at liberty to call the child each night that he is not in that parents care at such times as appropriate to his night-time routine and, in the absence of an agreement as to a suitable time, then 6.00 pm.

9. Each parent is restrained from denigrating the other parent or the family of the other parent in the presence of or within the hearing of the child and shall use their best endeavours to prevent any third party from doing so.

10. Each parent is restrained from discussing these proceedings and the allegations made in these proceedings in the presence of or within the hearing of the child.

11. Each parent is restrained from filming or recording the other parent during change over.

12. Each parent shall within 24 hours of the date of these orders and within 48 hours of any change provide the other parent with the following information:

    12.1    Their residential address;

    12.2    A telephone number upon which the child may be contacted;

    12.3An email address or telephone number by which written communication is to be received.

13. Where these orders provide for an agreement to be made in writing such writing may include SMS to a number or Email to an email address provided in Order 12.3 above.

14. These orders shall be taken as sufficient authority for each parent to be provided with information in relation to any educational, health, therapeutic or allied health service including but not limited to:

    14.1     Doctors;

    14.2     Dentists;

    14.3     Therapeutic and allied health services;

    14.4     Pre-School and school.

Property

1. That forthwith the parties shall do all acts and things and sign all documents necessary to cause the balance of the proceeds of sale of the D Town property held in the Trust Account of B Lawyers to be paid to the parties as to 55 percent to the wife and 45 percent to the husband.

2. That except as specifically provided for in these orders, each party shall:

   16.1     Be declared to be the sole owner and beneficiary to the exclusion of the other of all superannuation, annuities, retirement pensions, life insurance policies and the like of whatsoever nature and wheresoever located held in each of their respective names;

   16.2     Be solely liable for all debts and liabilities held in his or her name as at the date of these orders including but not limited to credit cards, personal loans, mortgages, motor vehicle leases, taxation liabilities and the like;

   16.3     Do all acts and things and sign all documents necessary to close and/or discharge whatever the case may be, all joint credit cards, bank accounts, investments, utilities and any and all joint liabilities;

   16.4     Be declared the sole legal and beneficial owner of all other items of property presently in their respective possession or control including but not limited to all money, shares, motor vehicles, furniture, furnishings and personal effects.

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 Buchanan & Morgan 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 NEWCASTLE

FILE NUMBER: NCC2166/2016

Ms Buchanan

Applicant

And

Mr Morgan

Respondent

And

Independent Children’s Lawyer

REASONS FOR JUDGMENT

Introduction

1. These are competing applications for:

   1.1Parenting orders in respect of one subject child, X (the child) born in 2014, a boy aged three years and nine months at the date of trial;

   1.2Adjustment of interests in matrimonial property.

2. The parties’ relationship was of six to seven years from 2009 to June 2016.

3. The parenting matter was conducted under the Magellan protocol. The subject child was considered to be at risk in the care of the mother following allegations of sexual harm raised by the father’s two children in relation to the conduct of the mother whilst they were in her care.

4. For that reason on 16 August 2016 the child came into the full time care of the father and has been living with him since that date.

5. At time of trial the child was spending time with his Mother four nights a fortnight in two blocks. One block being from Wednesday morning to Friday afternoon and the second block being Thursday morning to Saturday afternoon.

The Trial

1. Both parties were legally represented.

2. The matter was allocated five hearing days commencing 22 January to 25 January, and the 29 January 2018. The trial was not concluded in the allocated time. A further day, 6 March 2018 was allocated. Judgment was thereafter reserved.

The Parties

The Applicant Mother - Ms Buchanan

1. The applicant in this matter is Ms Buchanan now aged 39. She continues to work on a casual basis. She spends time with the parties’ child six days/four nights per fortnight.

2. The mother lives alone in C Town on the Coast of NSW in a property owned by her parents. They are contributing to her support by not requiring rent to be paid.

3. The maternal grandparents live nearby in the township of D Town. Together with the maternal aunt they are involved in the care and supervision of the child when he is spending time with the mother.

The Respondent Father - Mr Morgan

1. The respondent is the father Mr Morgan aged 41 years.

2. He is a works in a professional occupation. He entered into a franchised business which was not a commercial success. He then returned to his former profession.

3. The father lives at E Town in the home of his parents and shares a bedroom with the child.

4. His intention at time of trial was to find independent accommodation but to continue to call on the assistance of his parents with the care and supervision of the child.

Applications - Parenting

Applicant Mother

1. The mother proposes parenting orders as follows:

   15.1That she have sole parental responsibility for the child;

   15.2That the child live with her;

   15.3That the child spend time with the father in a fortnightly pattern as follows:

   15.1.1Week One: After school Wednesday until 8.00 am Friday;

   15.1.2Week Two: After school Friday to 8:00am Monday

   This equates to a pattern of alternate weekends and two weeknights in each alternative week.[1]

   15.4Changeover to occur at child’s educational facility or Coles at E Town.

   15.5Communication each alternate night between the child and the parent whom the child is not currently with.

   15.6Specific issues.

   [1] Exhibit 2

Respondent Father

1. The father proposes parenting orders as follows:[2]

   [2] Amended Further Response filed 8/12/2017

   16.1That he have sole parental responsibility;

   16.2That the child live with him;

   16.3That the child spends time with the mother in two stages:

   16.3.1Until the child starts school in a fortnightly pattern as follows, equating to:

   16.3.1.1In Week One: 5.00 pm Thursday until 5.00 pm Friday;

   16.3.1.2In Week Two: 5.00 pm Thursday until 5.00 pm Saturday;

   16.3.1.3For three nights in each of the school holiday periods.

   This equates to alternating half weekends and one overnight stay each alternate weekend, thus three nights with the mother per fortnight.

   16.3.2After the child starts school:

   16.3.2.1On each alternate weekend of term from after school Friday until before school Monday;

   16.3.2.2For one week of each term holiday and alternate weeks during the Christmas school holiday period.

   16.4Communication via telephone/skype twice per week.

   16.5Changeovers to be collected from and delivery to the father’s home.

   16.6Specific issues.

History of Relevant Events

The Relationship

1. The parties met and began a relationship at some time during 2009. The parties do not refer to where they met nor to a date of first meeting.

2. At that time both were employed in their respective professions.

3. The father asserts that the parties began ‘dating’ in 2009, ceased their relationship for a period of months, then resumed the relationship.

4. The detail and background provided by the father makes it more probable that his version of events is accurate.

5. The mother had been previously married. There were no children of that marriage.

6. The father has three children from two prior relationships. There are two boys Y and Z who were then aged six and four, living with their mother in Canberra.

7. There was also W, an infant then of a few months old, living with her mother.

8. In March 2010 the mother purchased a property at F Street, Suburb G (“the Suburb G property”). She acquired the property with savings and a mortgage from the Commonwealth Bank.

9. The parties began living together in August 2010 when the father moved into the Suburb G property.

10. The mother’s father proposed that a Caveat be placed on the property to ‘protect’ the mother. There was an overt mistrust between the two extended families from the outset of the relationship.

11. The father asserts that in late 2010 during that period of dissent there was a separation of the parties for about three months (September 2010 – November 2010).

12. During that time by September 2010 the parents of the father, through their corporate entity, H Pty Ltd, had settled the purchase of a property at J Street, Suburb K (“the Suburb K property”). They allowed the father to live there without requiring rent or contribution to the mortgage. He made no financial contributions other than minor renovations.

13. In November 2010 the parties reconciled.

14. In April 2011 the mother moved out of the Suburb G property, and moved into the Suburb K property with the father.

15. On 3 May 2011 the mother leased the Suburb G property until its sale two years later.

16. After the mother moved in, the father began paying rent to his parents at a non- commercial rate for the property.

17. The mother in her affidavit makes no reference to this change of accommodation.

18. In September 2012 the mother and the father’s parents contributed in equal shares to the purchase of a property at L Street, Suburb M (“the Suburb M property”).

19. The father says he was not involved to any extent in this exercise, which was for an investment.

20. The parties married in 2013 in the US.

21. In the second half of that year the mother’s Suburb G property, the Suburb K property and the Suburb M property were all sold.

22. In December 2013 a property was purchased at N Street, D Town (“the D Town property”).

23. The D Town property was acquired in equal shares by H Pty Ltd and the mother.

Birth of subject child

1. The subject child X was born in 2014.

Father’s two children

1. In October 2014 the father urgently removed his two older children, by then aged 11 and 9, into the care of himself and the mother. He did so due to concern about their safety and welfare in the care of their own mother and after consultation with welfare authorities in the ACT. There had however not been any assessment of the needs of the children.

2. The evidence suggests that the two boys had been neglected and probably abused. They came into their father’s household at a time when he was working long hours and travelling. The mother had the primary care of the parties’ six month old baby. The mother took on the role of step mother to the children willingly and out of compassion for the father but had probably not anticipated the complexity of the children’s needs. Neither had the father. It was not an ideal placement.

Separation of the parties

1. By May 2016, the parties had separated, reconciled briefly, and then separated finally in June 2016.

2. The father had an extra marital relationship with Ms O, for about a year prior to the separation of the parties. That relationship continued for a year after the parties separated. At date of trial there was some indication it might resume.

3. On separation the subject child lived with the mother. The mother did not facilitate time for the child with the father.

4. The father and his two children, together with Ms O, formed a household.

5. The parties agreed to sell the D Town property. Contracts for sale were exchanged in the next month. The sale price was $850,000.

6. The net proceeds of sale after payments to each party and payment of the preparation of the Single Expert Report is $100,000. Those funds are the only matrimonial assets held jointly.

Disclosures of abuse

1. In July 2016 the father’s son Y, then aged 12, disclosed to his father and his own mother Ms P, that the mother had in late 2015, directed the younger boy Z to sit without his pants, on Y’s face. There were further allegations made by the two boys of other sexually inappropriate conduct by the mother with them as well as physical abuse.

2. The father reported the disclosures of the boys to the Department of Family and Community Services (“FACS”).

3. On 16 August 2016 the two boys, and two other boys known to them, were extensively interviewed by JIRT[3].

   [3] Exhibit 21

4. The boys gave detailed accounts of things that had worried them about their step-mother. Both gave accounts of one boy being forced to sit on the face of the other which were not entirely consistent. Each one spoke of being shown videos of naked adults, “girls naked dancing”, “ people bending their penises and doing things to them”, with references to the mother saying  “don’t tell Dad” and “Quick turn it off and play your x-box” (when the father came home).

5. Y spoke of the mother referring to his sister W as “b-i-t-c-h” and that child’s mother as a “s-l-u-t”. He spelt the words out himself and said “[W] didn’t want to see us because of [Ms Buchanan].”

6. It is likely that the mother felt the unfairness of having to care for the father’s two other children as well as their own child. It is also likely that she was unable to conceal those feelings from the children themselves at times when she was under pressure with their supervision.

7. On that evening caseworkers had a meeting with the mother at her sister’s home. The mother was advised that FACS had received information alleging she had perpetrated sexual harm and that a criminal investigation was ongoing.[4]

   [4] Magellan Report dated 28/02/2017, page 3

8. During the home visit the mother alleged “she was a victim of domestic violence perpetrated by the father during the relationship and that [Mr Morgan] (the father) had raped her throughout their relationship”[5] There is no evidence at all to support that statement of the mother, which appears to have been reactive to her situation.

   [5] Magellan Report dated 28/02/2017, page 4

Change of residence for child

1. The mother entered into a time limited safety plan and the child was removed that night into the care of his father. Thereafter, for about four months, the mother and other maternal family members had time with the child formally supervised by workers from Q Group, a non-government organisation.

Proceedings commence in the Federal Circuit Court

1. On 19 August 2016 the mother filed an Application in the Federal Circuit Court (“FCC”) seeking orders in respect of property only.

2. On 24 August 2016 the father filed a response in respect to property and parenting. He proposed that the child live with him and have time with the mother at a contact service each alternate Saturday.

3. Interim orders by consent were made on that day. Notation D to those orders was as follows:

   Without admission the applicant (mother) undertakes to comply with the current safety plan as agreed with FACS.[6]

   [6] Federal Circuit Court orders dated 24/08/2016

4. Two days later, on 26 August 2016, the mother filed an application in the FCC asking in essence for the father to return the child to her care or for a recovery order to issue.

5. That application was made in the circumstances of an ongoing police investigation and was swiftly dismissed.

6. FACS became aware, it appears, of the mother’s application and felt less confident about the Safety Plan the mother had entered into ten days prior.

7. On 2 September 2016 FACS successfully applied to the Children’s’ Court at R Town for an Emergency Care and Protection Order [ECPO] for the child. That order was subsequently extended.

8. The child remained living with the father and supervised visits for the mother with the child continued.

JIRT interview with mother

1. On 16 September 2016 the mother was interviewed by JIRT.

2. The following allegations were put to her:

   ·mother punished Y by forcing Z to sit on his face without pants or underwear on;

   ·mother forced Y and Z to watch pornographic material;

   ·mother made Z and Y take photos of her naked, opening her legs and doing cartwheels;

   ·mother “dry humped” Z while only wearing underwear while the boys were naked;

   ·mother threw the child against the bedhead;

   ·mother made sexualised gestures towards Z and Y with a straw (in the shape of a penis);

   ·mother forces Z and Y to wear dust masks.

3. The mother denied wrong doing of any kind.

4. She denied ever hitting throwing or losing patience with the subject child. She conceded that she had shown the boys a novelty sex toy, a straw in the shape of a penis. She said the boys had “cracked up laughing” at it. She denied the allegation that she had licked and sucked it in their presence. She said she kept it in the cupboard and she didn’t think the father knew it was there.

5. The mother denied showing the children naked photos of herself. When asked about R rated videos, the mother said “their mother (Ms P) let them watch R-rated videos. They’d beg to.” There was no concession that she had allowed them to do so.

6. The evidence suggest that the mother is a sensual woman who dressed attractively and enjoyed the father’s appreciation of the way she presented. The paternal grandfather, who felt very differently, described that the mother “provocatively dressed in front of them, low cut dresses, very short shorts, the briefest of brief bikinis.”

7. The evidence reveals a willingness on the mother’s part to allow the two boys hints and glimpses of adult sexuality.

8. The mother spoke vengefully in the interview about the father, who she blamed for her loss of the full time care of the subject child. She described the father going to Canberra [in 2014] to collect his two sons as saying “He got them, no goodbye for the mother. He used her smoking marijuana and drinking alcohol against her to get them.”

9. I note that the mother was supportive of the children coming into her household with the father at the time.

10. Her willingness to mislead in this way during the interview, and her initial meeting with case workers, makes her a less than reliable witness in these proceedings.

11. I accept that her motivation was desperation to have the subject child back living with her. That may be a partial excuse for saying what she did but it does not affect the consequences.

FACS intervenes

1. On 6 October 2016 FACS was joined to these proceedings as an intervener.

Risk assessment for child with mother

1. On 27 October 2016 S Town Community Services completed a risk assessment of the subject child in the care of his mother. The outcome was that the child was at low risk of harm and was not in need of care and protection. However it was substantiated that the mother had left the child aged about six months and Z (aged nine years) unattended in a car.

2. I note that the incident must have occurred in 2014 soon after the two boys came into the father’s care. The mother had no particular reason to understand at that time whether it was reasonable or legitimate to expect a nine year old to be able to supervise a baby in that setting.

Report of earlier trauma for Y and Z

1. On 10 November 2016 FACS received a report in relation to risk of psychological harm to Z and Y occurring before they came into the care of their father in 2014.

2. The report advised that they had witnessed their own mother being raped when they were in her care[7].

   [7] Magellan Report dated 28/02/2017, page 6, point 4.

3. In my view this evidence has considerable significance for this case. It must be the case, if the report is true, that the boys would have been traumatised by witnessing that criminal assault on their mother. Further, they were made brutally aware of adult sexual conduct in those sickening circumstances.

4. It is reasonable to infer that they were alert to sexuality in a way that more innocent and well protected children are not. The mother in these proceedings was usually kind to them and physically affectionate but she was unwittingly dealing with children who had been psychologically injured.

5. The evidence suggests that by what she probably saw as shared playfulness or indulgence of young boys, actually aggravated their psychological injury. That is not to say that her behaviour was responsible or appropriate.

Further Interim Application by Mother

1. On 16 November 2016 the mother filed an Application in a case again proposing that the child live with her, but in the home of the maternal grandparents; the latter to act as supervisors.

Risk substantiated

1. On 17 November 2016 JIRT completed their investigation for Z and Y and substantiated allegations of sexual harm. The mother was identified as a person causing harm as follows:

   For causing actual psychological harm to [Z] and [Y] (specifically for directing [Z] to sit on [Y’s] face; for licking and rubbing a penis straw and making inappropriate comments about it in front of [Z] and [Y]; and for leaving [Z] and the child unattended in a car). Police suspended the matter due to there being insufficient evidence to support a criminal case for ‘incite act of indecency’.

2. The Magellan report stated that FACS was not aware of any evidence to suggest that the subject child had been exposed to inappropriate sexual acts/behaviours perpetrated by [the mother]. Further that FACS was not currently aware of any evidence of harm to the child or information to suggest that he has been adversely affected as a result of the harm caused to Z and Y while he was in Ms Buchanan’s [the mother] care.[8]

   [8] Magellan Report dated 28/02/2017 pages 6 & 7

FACS withdraws as Intervener

1. On 23 November 2016, FACS was removed as a party to proceedings.

2. On 30 November 2016 the father filed a response proposing more time for the child with the mother supervised by the maternal grandparents.

Transfer from the FCC to Family Court

1. On 21 December 2016, the proceedings were transferred to this Court.

Magellan

1. On 25 January 2017 the proceedings were allocated into the Magellan protocol.

2. A Magellan Report incorporating the history of investigation and conclusions as set out in these reasons, was prepared and forwarded to this Court.

3. In March 2017 the father made a decision in consultation with his parents and the school principal that his two older children should leave his household and move to live with their mother and their maternal grandparents in Canberra. The move was facilitated by the paternal grandparents who have maintained regular contact with the two boys. They are now 13 and almost 15 years of age.

4. The father did not maintain contact in the same way as the paternal grandparents had. He communicated with them but did not visit. The Single Expert expressed his surprise about that.[9] Given the tumultuous experience they had during the two and a half years in the father’s care it does appear to be a failure of understanding and/or capacity of the father to meet the emotional needs of his children. His explanation was that he did not want to visit them unless he could take their brother (the subject child) too.

   [9] Single Expert Report dated 4/08/2017, par 11

5. At around the same time the father’s daughter W moved to Queensland to live with her mother. The father maintains some communication with the child but her mother has lost confidence in the value of the relationship for the child with her father.

Property orders

1. In April 2017 the parties substantially resolved their property dispute. A relatively small pool remains for division.

2. In July 2017 interviews took place for the Single Expert Report.

3. On 15 August 2017 the father moved out of the property.

Interim parenting orders – August 2017

1. On 24 August 2017 orders were made by consent for the mother to have substantial time with the child. The requirement for supervision was abandoned.

2. Despite this progress, for the benefit of the child, the bitterness which characterised the dispute remained and the parties were unable to move forward and fully resolve remaining issues.

3. On 6 March 2018 the trial concluded.

Evidence

1. The documents relied on in respect of the application were as follows: 

The [Applicant] Mother

(a)Minute of Order[10] in substitution for Amended Initiating Application filed 20/10/2016;

[10] Exhibit two

(b)Affidavit of Ms Buchanan - mother filed 01/12/2017;

(c)Financial Statement of mother filed 1/12/2017;

(d)Affidavit of Mr T Buchanan - maternal grandfather filed 01/12/2017;

(e)Affidavit of Ms U Buchanan - maternal grandmother filed 01/12/2017;

(f)Affidavit of Mr V - friend of maternal grandparents filed 01/12/2017;

(g)Affidavit of Ms V – friend of maternal grandparents filed 01/12/2107;

The [Respondent] Father

(h)Amended Further Response to Amended Initiating Application filed 8/12/2017;

(i)Affidavit of Mr Morgan - father filed 5/12/2017;

(j)Financial Statement of Father filed 6/12/2017;

(k)Affidavit of Ms AA Morgan - paternal grandmother filed 30/11/2017;

(l)Affidavit of Mr BB Morgan - paternal grandfather filed 01/12/2017;

The Independent Children’s Lawyer

(m)Affidavit of Ms CC –Caseworker FACS filed 24/11/2016;

Reports

(n)Report of Single Expert –Dr DD dated 4/08/2017;

(o)Magellan Report dated 28/02/2017.

The Law

1. The objects of the Family Law Act 1975 (Cth) (“the Act”) in relation to parenting orders are to ensure that:

   a)Children have the benefit of both of their parents having a meaningful involvement in their lives to the maximum extent consistent with their best interests;

   b)Children are protected from physical and psychological harm;

   c)Children receive adequate and proper parenting to help them achieve their full potential; and

   d)Parents fulfil their duties and meet their responsibilities concerning the care welfare and development of their children.

2. These are applications for parenting orders pursuant to s 64B (2) of the Act. In deciding whether to make a particular parenting order in relation to a child, a court must have regard to the best interests of the child as the paramount consideration. The way a court determines what is in a child’s best interests is by considering the matters set out in s 60CC(2) and (3) of the Act.

3. There is also a presumption when making a parenting order; that it is in the best interests of the child for the parents to have equal shared parental responsibility for the child. The presumption may be rebutted by evidence that equal sharing of parental responsibility would not be in the best interests of the child in question.

4. I have contemplated the issues of parental responsibility, residence, time to be spent and communication between child and parent as well as any other specific issues.

5. I have considered the mandatory factors and conclude that the following matters are relevant to the best interests of the subject child.

Parental Responsibility

1. The evidence given by the mother revealed her inner focus on the loss of the full time care of the child and the perceived injustice of allegations having been made about her which led to that outcome.

2. At times she appeared to be lost for words but she did not appear to be inarticulate. She often appeared not to understand but she is not unintelligent.

3. My impression is that she just shut down.

4. Her sole focus is having the child returned to her care and for sole parental responsibility.

5. She blames the father for her situation and finds his actions unforgivable.

6. She has labelled him as a narcissistic psychopath and asserted that she believes he is one.

7. I am urged by the Independent Children’s Lawyer to make an order for equal shared parental responsibility.

8. Given the bitter resentment of the mother about her role as primary carer being so abruptly ended, I consider there is very little prospect of consultation and compromise with regard to long term decisions for this child who is not yet school age.

9. The mother was angry with the father at the time of separation in June 2016. The evidence suggests she had reason to be. There was a concealed relationship for the father. However the mother allowed her feelings to take priority over the emotional need of the parties’ two year old child to spend as much time as he could with both his parents.

10. The father found himself as full-time carer of the child in August 2016 in confronting circumstances. Two of his children raised such serious complaints about the conduct of the mother that the subject child was removed from her care.

11. The paternal grandparents were outraged and strongly supportive of keeping the child away from his mother for his own safety.

12. To his credit the father reacted to events as they unfolded. In late 2016 it emerged that his older children had had an even more abusive experience of growing up than he had known. They had seen their mother being sexually assaulted. They had shown sexualised behaviour at school before they came into their father’s care.

13. Although the father was very unhappy about the mother’s past conduct, he did pay attention to the child’s needs and time was expanded, ultimately without supervision, in August 2017.

14. I conclude that the father is the parent more likely to raise issues and consider the point of view of the other parent.

15. For that reason an order for sole parental responsibility is the better course.

Primary Considerations

The benefit to the child of having a meaningful relationship with both of the child’s parents

1. Clearly the child has a meaningful relationship with each parent which should be supported and maintained. The opinion of the Single Expert was that both parents loved the child and held him in high esteem.[11]

The need to protect the child from physical or psychological harm or from being subjected or exposed to abuse or family violence

[11] Single Expert Report dated 4/08/2017, par 135

1. The child has come to no harm.

2. He was on one occasion left by the mother in a car supervised only by a nine year old brother who had just arrived in the family. The mother acknowledged that had been a mistake.

3. The mother took on the care of the father’s two older children when she was a first time mother with a six month old baby.

4. The father’s absence for work created a pressured family life but it was the older children who did not fare so well.

Additional Considerations

Any views expressed by the child and any factors (such as the child’s maturity or level of understanding) that the Court thinks are relevant to the weight it should give to the child’s views

1. In July 2017, when he was observed by the Single Expert, the child was just over three years of age. Obviously too young to hold or articulate a view.

2. The observations conducted by the Single Expert provide critical information about the quality of relationship the child has with each of his parents.

3. The child was assessed by the Single Expert as forthright and observant.

4. The single expert observed: “the child saw his father, and ran to him quite gleefully and they had a big cuddle.”[12]

   [12] Single Expert Report dated 4/08/2017, par 68

5. The child was assessed to feel “quite settled safe and secure” in the company of this father.[13] Likewise he ran into his mothers’ arms and remained closely cuddling her for the next fifteen minutes[14].

   [13] Single Expert Report dated 4/08/2017, par 70

   [14] Single Expert Report dated 4/08/2017, par 71

6. The overall assessment was that he (the child) has good attachments to both parents and is able to manage the transition between them.

7. At that time the child had been living full time with the father for almost one year.

8. Initially he did not see his mother at all for about four months.

9. After the 21 December 2016 he began to spend supervised day time two days per week with his mother.

10. Time increased in April 2017. Then in August 2017, by consent, time was varied to the current arrangement of four nights/six days per fortnight.

11. Despite the level of disruption for such a young child he has done well.

12. Significantly despite personal bitterness toward the other parent, neither has undermined the relationship of the child with the other. He loves them both dearly.

The nature of the relationship of the child with each of their parents and other persons (including any grandparent or other relative of the child)

1. The child has his most important relationships with each of his parents.

2. Through his mother he has a relationship of love and affection with both of his maternal grandparents, and appropriately with the maternal aunt and her family. Having heard the evidence of the maternal grandparents I conclude that each of the maternal grandparents understands the need to protect the child from adult issues, including their own feelings about the removal of the child from the mothers’ care. The maternal aunt did not give evidence. I am unable to come to any conclusion about her protective capacity.

3. I have no reason to doubt that the mother loves her sister and relied on her for support and advice. The difficulty is I have no way of assessing whether that advise and support is child focused.

4. Through the father the child has a relationship of love and affection with both of his paternal grandparents.

5. He has a close bond with his two half bothers Y and Z, now aged almost 15 and 13 respectively, with whom he lived for the first two years of his life.

6. He has not seen his brothers since March 2017 when they left their father’s home and moved to live with their maternal grandparents in Canberra. He does have regular electronic communication with his brothers through FaceTime.

7. There is a benefit to the child in maintaining that bond which can only be done through arrangements by the father.

8. I accept and agree with the opinion of Dr DD that the relationship between the mother and the two older boys Y and Z could not and probably should not be restored.

9. The child also has a connection with his half-sister W who is almost nine years old. W spent irregular amounts of time in the household constituted by the parties. She spent time by arrangement with her father after the separation of the parties. W has lived in Queensland with her mother and step-father since May 2017.

1. The connection may be a tenuous one, but there is a benefit to the child in maintaining this relationship with W.

2. The partner of the father was O. That relationship was in place at least from 2015. It began as an illicit relationship while the father was married to the mother.

3. Ms O has a daughter EE, who is aged three and a half, the same age as the subject child.

4. The father chose not to call Ms O as a witness. They are presently not living together but may do so in future when the father moves out of his parents’ home.

5. I am unable to assess the capacity of Ms O to meet the needs of the child and to promote the relationship between the child and his mother.

The extent to which each of the child’s parents has fulfilled or failed to fulfil the parent’s obligations to maintain the child

1. The father presently has majority care of the child. For the period of November 2017 to January 2019 the mother has been assessed to pay $26.64 per week in child support. Prior to that assessment the mother paid either nil or the statutory minimum.[15]

   [15] Exhibit 35

2. Accordingly, the father and his family have provided almost entirely for the financial needs of the child since separation.

3. During the relationship the father was in paid employment supporting the mother and child. The mother also earned income. She still does.

4. Throughout the relationship the paternal grandparents assisted with suitable accommodation by buying property together with the mother, in which the parties lived.

5. Post-separation each party has been financially assisted, if not supported, by their respective parents.

6. The father proposed a particular school for the child to be enrolled in for 2020 and secondary school. The mother endorsed the choice.

7. The likely outcome will be that the paternal grandparents will pay the associated school fees as they have done for their two eldest grandsons.

The likely effect of any changes in the child’s circumstances including the likely effect on the child of any separation from either of his or her parents, or any other child or other person

1. A further change by increasing time for the child to spend with the mother will be of benefit for him.

2. Once the child starts school in 2020 a full weekend will be expanded to create one block of 5 nights in each fortnight. Holiday time too will be enjoyable and beneficial.

The practical difficulty and expense of a child spending time with and communicating with a parent

1. The two households of the parties are about five kilometres apart, approximately 10 minutes by car.

The capacity of the child’s parents and any other person to provide for the needs of the child, including emotional and intellectual needs

1. The applicant mother provided most of the day to day care for the subject child until August 2016 when he was removed from her care by welfare authorities.

2. The mother commented to Police in September 2016 during an interview, “He [the child] was the only thing that made my life worthwhile.”

3. The mother willingly took on the role of step-mother to the father’s two older children in October 2014. At that time the subject child was only six months old.

4. It was a huge commitment to take on in those circumstances, especially as the father did not adjust his life to any real extent. He expected the mother to manage.

5. She aged 35, had just had her first child. She had no reason to know much about the care of the boys aged 11 and almost 10. Nor did she or the father know the extent of the neglect and likely trauma they had experienced in their own mothers care. They were vulnerable and emotionally needy children.

The maturity, sex, lifestyle and background of the child and either of their parents and any other characteristics of the child that the court thinks are relevant

1. The child is now a four year old boy. He is his mother’s only child and the light of her life. He is the youngest of the father’s four children and has had the benefit of the father being more mature and settled than he was when the older children were born.

Any family violence involving the child or a member of the child’s family, and if a family violence order applies, or has applied, to the child or a member of the child’s family – any relevant inferences that can be drawn from the order

1. The mother makes allegations of violence directed at her by the father in the early years of their relationship.[16]

   [16] Affidavit of Mother filed 1/12/2017, par 67-77

2. If established each incident would represent an assault.

3. The allegations are:

   2010:

   (a)That the father stalked the mother in the dark, followed her into the home, slapped her across the face with sufficient force to cause her to fall backwards onto the bed;[17]

   (b)That the father had sexual intercourse with her, including anal intercourse forcefully and without consent causing bleeding and pain;[18]

   2011:

   (c)That the father without explanation hit the mother across the face causing her to fall back on the bed;[19]

   2014:

   (d)That the father dragged the mother downstairs in their house and had sexual intercourse with her forcefully and without consent.[20]

   [17] Affidavit of Mother filed 1/12/2017, pars 69-70

   [18] Affidavit of Mother filed 1/12/2017, par 74

   [19] Affidavit of Mother filed 1/12/2017, par 75

   [20] Affidavit of Mother filed 1/12/2017, par 76

4. The father denied any violence in a sexual context ever at all. He stated that the mother was “the most adventurous partner I’ve ever had.” I inferred his meaning to be sexual compatibility in their relationship, with sex being mutually enjoyable.

5. There are also allegations of emotional violence:

   (a)That the father humiliated the mother to third parties by forcing her to acknowledge to two friends by telephone on speaker that she had sex with a friend’s brother during a holiday. Likewise the father forced a ‘confession’ by the mother to his parents, one of whom attended the parties home and berated the mother;[21]

   (b)That in 2014 the father had sexual intercourse with a friend of the mothers next to her sleeping in the marital bed;

   (c)The father denied the allegations.

   [21] Affidavit of Mother filed 1 December 2017, paragraphs 72-73.

6. There are allegations of violent behaviour that the father became frustrated and punched walls and kicked a vacuum cleaner into a wall which made a hole in the wall.

7. The father admitted to having broken a few mobile phones.

8. The father also recalled tripping over a vacuum cleaner which was forced against the wall making a small hole.

9. The mother agreed that she had not reported incidents to the Police or any other family member of friend, nor had she sought medical advice.

10. The father denies all allegations of violent assault, violent conduct and emotional abuse.

11. To the extent that counsel for father asked the court to infer that the mother not reporting the incidents to any authority or third party is inconsistent with the incidents having taken place, I reject that submission. The mother’s evidence was that in May 2016 when the parties separated she did not want the relationship to stop. Such a hope could be the motivation for non-reporting.

12. However, without any corroborative evidence, I cannot make a finding that such incidents of family violence did take place.

13. I do note that in her interview with the police in September 2016 the mother commented about the separation which she effected in June 2016 after receiving evidence of the father’s longstanding infidelity with Ms O, “I didn’t want it to be over.”[22] Earlier in the interview the mother made different comments, “(he’s) quite abusive”, “there’s been family violence over the years.”

    [22] JIRT Interview 16/09/16

14. There is incongruity in not wanting a violent a relationship to be over but it is possible that both sets of comments were truthful.

Whether it would be preferable to make the order that would be least likely to lead to the institution of future proceedings in relation to the child

1. In this matter the fewer opportunities there are for the child to be present in the company of both his parents, the less stressful his life is likely to be.

2. For that reason, once he is at school, unbroken blocks of term and holiday time with each parent, and most changeovers at school, should provide a settled arrangement unlikely to be the cause of further applications to a Court.

Any other fact or circumstance that the court thinks is relevant

1. The child has his best chance of maintaining connection with his older siblings through his father but also the paternal grandparents who have diligently and lovingly stayed in contact with all their grandchildren independently of the father.

Conclusion

1. The Single Expert recommended that “there needs to be a move to the child spending quality time with his mother”.[23] That happened by consent within weeks of the report being released. The concession in that regard was made by the father.

   [23] Single Expert Report dated 4/08/2017, par 142

2. There was a tentative recommendation that “it may be in the child’s interests over time that the mother becomes the primary custodial parent for the child but that a step up process needs to occur.”

3. I am not satisfied that the mother has the capacity and willingness to strongly support the relationship for the child and his father if that were to occur. In my view there is a real risk that the mother would close the father out.

4. I have accepted the opinion about substantial time with each parent but chosen to leave the child in the residence of the father where he has thrived and been stable.

5. Other than being too particular about episodes of minimal lateness by the mother, the father has supported the child’s relationship with the mother very well.

Adjustment of Interests in Property

1. When proceedings commenced there were three additional respondents to the proceedings with potential for complex argument about the interests and contribution of third parties.

2. The parties have been able to reduce those disputes to whether or not there should be a superannuation split and the percentage division of the remnant of the proceeds of sale of the D Town property.

Applications

1. The mother proposes that she receive:

   (a)The balance of proceeds of the sale of the family home held in a trust account;

   (b)A splitting order with respect of superannuation with an allocation to her of $48,594 from the husband’s superannuation fund;

   (c)That the parties each otherwise keep the assets with any associated liabilities currently in their possession.

2. The father proposes that he receive:

   a)The balance of the proceeds of the sale of the former family home held in trust;

   b)That there be a splitting order with respect of superannuation in favour of the mother of $25,000 from his superannuation fund;

   c)That each party keep assets (including wedding jewellery) present in their possession.

Conclusion

1. The decision cannot accurately reflect all that happened for the parties with the support and assistance of their respective parents. That support is ongoing for both of them.

2. The mother provided her property as the matrimonial home early in the relationship. She provided full time care to the parties’ child.

3. The father has debt from a failed business for which he will be responsible.

4. Both parties have the capacity to work and earn income.

5. Each party had their respective superannuation funds from the beginning. They both have another twenty years at least to work and contribute to superannuation.

6. The father has had the obligation to maintain the child which will be ongoing. That is a significant factor under s 75(2) of the Act.

7. A just outcome taking those contributions and factors into account is an order for division of the funds in trust slightly in favour of the mother.

8. All other assets to be retained according to current possession.

9. Orders are made accordingly.

I certify that the preceding two hundred and four (204) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Cleary delivered on 5 October 2018.

Associate:

Date:  5 October 2018