BURTON & SLATER

[2017] FamCA 57

FAMILY COURT OF AUSTRALIA

BURTON & SLATER [2017] FamCA 57

FAMILY LAW – CHILDREN – Best interests – Where the child enjoys a meaningful relationship with both parents – Where the mother concedes the child’s relationship with the father should be restored – Where an equal time arrangement would not be in the best interests of the child – Decided the child should have a single, stable home – Ordered the child live with the mother and spend substantial time with the father

FAMILY LAW – PRACTICE AND PROCEDURE – Adjournments – Where the matter is listed for final hearing – Where the mother conceded at commencement of the trial the child was probably not sexually abused by the father and the father posed no risk of any harm to the child – When the mother’s concessions altered the complexion of the case and the parties proposals for the child’s future  – Where the mother acknowledged her compliance with previous orders had been poor and adjournment of proceedings would allow her to demonstrate her commitment to the implementation of orders restoring the child’s relationship with the father – Order that the proceedings be adjourned for eight months

Family Law Act 1975 (Cth), ss 4, 60B, 60CA, 60CC, 61B, 61DA, 64B, 65AA, 65D, 65DAA, 65DAC, 65DAE

APPLICANT: Mr Burton

RESPONDENT: Ms Slater

INDEPENDENT CHILDREN’S LAWYER: Ms Marr, Legal Aid NSW Tamworth

FILE NUMBER: NCC 2912 of 2013

DATE DELIVERED: 1 February 2017

PLACE DELIVERED: Newcastle

PLACE HEARD: Newcastle

JUDGMENT OF: Justice Austin

HEARING DATE: 30, 31 January & 1 February 2017

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Curtis

SOLICITOR FOR THE APPLICANT: Leyden Legal

COUNSEL FOR THE RESPONDENT: Mr Heazlewood

SOLICITOR FOR THE RESPONDENT: Stacks Law Firm Tamworth

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: Ms Flintoff

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Ms Marr, Legal Aid NSW Tamworth

Pending further orders, it is ordered

1. All former orders relating to the child B, born … 2009, (“the child”) are discharged.

2. Subject to compliance with Order 4 hereof, the mother shall have sole parental responsibility for decisions about all “major long-term issues” (as defined in the Family Law Act) related to the child.

3. Subject to compliance with Order 4 hereof, the child shall live with the mother.

4. The mother:

   (a)Is restrained from causing or permitting any change to the child’s name;

   (b)Shall do all such things necessary to continue receiving counselling from Dr C (or any other medical practitioner, psychologist, or therapist recommended by Drs C or D) for as long as is deemed reasonably necessary by those persons;

   (c)Shall cause the child to be referred to and to attend upon Heather Vernon at E Town, NSW (or such other psychologist or therapist recommended by Dr D, with the consent of the father) for counselling for as long as is deemed reasonably necessary by those persons;

   (d)Is restrained from causing or permitting the child to consult with any psychologist or therapist other than in accordance with Order 4(c) hereof;

   (e)Shall keep the father informed in writing of the details of all appointments made for the child with any medical practitioner, psychologist, therapist or other treating health professional in advance of such appointed consultations;

   (f)Shall authorise any medical practitioner, psychologist, therapist or other treating health professional consulted by the child to communicate with the father about the condition and treatment of the child; and

   (g)Shall provide, as and when required, her consent to the father’s attendance at any school function at which students’ parents are ordinarily invited to attend.

5. The parties shall take all reasonable steps to ensure that the child spends time with the father as follows, or as otherwise agreed:

   (a)During NSW public school terms, each alternate week from the conclusion of school on Thursday until the commencement of school on the following Monday (or Tuesday if Monday is not a school day), commencing on Thursday 2 February 2017 and otherwise on the first Thursday of each term.

   (b)During the Autumn, Winter, and Spring NSW public school holidays, for the first half of such holidays in every odd numbered year and for the second half of such holidays in every even numbered year.

   (c)During the Summer NSW public school holidays, for the first half of such holidays in the years when the holidays commence in an odd numbered year and for the second half of such holidays in the years when the holidays commence in an even numbered year.

6. Order 5 hereof is suspended during the following periods:

   (a)From 3.00 pm on Christmas Eve until 3.00 pm on Boxing Day each year, during which period the child will spend time with the father from 3.00 pm on Christmas Eve until 3.00 pm on Christmas Day and with the mother from 3.00 pm on Christmas Day until 3.00 pm on Boxing Day in odd numbered years, with the same arrangements in reverse in even numbered years.

   (b)From 9.00 am until 5.00 pm on each Mother’s Day and Father’s Day, during which periods the child shall spend time with the mother on Mother’s Day and with the father on Father’s Day.

7. For the purposes of implementation of Orders 5 and 6 hereof:

   (a)The NSW public school holidays are deemed to commence at the conclusion of school on the last day of term, deemed to end at the commencement of school on the day upon which the child is due to return to school, and the mid-point is noon on the day halfway between those first and last days; and

   (b)The parties shall respectively ensure the child’s:

   (i)Collection from school, whenever the child’s residence or expenditure of time with a party is to commence at or about the conclusion of school during school term;

   (ii)Return to school, whenever the child’s residence or expenditure of time with a party is to conclude at or about the commencement of school during school term; and otherwise

   (iii)Collection from and return to the McDonald’s Restaurant at F Town, NSW.

8. Unless otherwise agreed, the parties shall take all reasonable steps to ensure the child communicates privately by telephone with:

   (a)The father each Wednesday at 6.00 pm when the child is living with the mother, and for that purpose the father shall telephone the child on the telephone number provided to him by the mother and the mother shall ensure the child is able to receive the father’s calls on that number at that time.

   (b)The mother each Wednesday at 6.00 pm when the child is spending time with the father, and for that purpose the mother shall telephone the child on the telephone number provided to her by the father and the father shall ensure the child is able to receive the mother’s calls on that number at that time.

   (c)The parent with whom the child is not then staying, on the child’s birthdays at 6.00 pm, and for that purpose the parent with whom the child is not staying shall telephone the child on the telephone number provided by the other parent for that purpose and the parent with whom the child is staying shall ensure the child is able to receive the other parent’s calls on that number at that time.

9. Each party is restrained from denigrating the other in the presence or hearing of the child and from permitting the child to remain in the presence or hearing of another person denigrating the other.

10. Each party shall notify the other of any medical emergency, illness or injury suffered by the child whilst in their respective care warranting treatment by a third party, and shall authorise any treating health professionals to communicate with the other parent about the condition and treatment of the child.

11. The mother shall authorise and request the principal of any school attended by the child to provide to the father, at the father’s expense, copies of all school reports and school photograph order forms relating to the child.

12. Each party shall forthwith inform the other, and keep the other informed, in writing of their respective current residential address, mobile telephone number, and email address.

13. In the event of either party notifying either the police or a prescribed child welfare authority that the child has been or is the subject of actual or potential abuse, the notifying party shall simultaneously, or as soon as possible thereafter, provide to the person to whom the notification is made:

    (a)A copy of these orders;

    (b)       A copy of these reasons for judgment; and

    (c)       A copy of the Family Report dated 28 October 2016.

14. Leave is granted to the parties and the Independent Children’s Lawyer to provide to any medical practitioner, psychologist, or therapist consulted by either the mother or child pursuant to Order 4 hereof:

    (a)       A copy of these orders;

    (b)       A copy of these reasons for judgment; and

    (c)       A copy of the Family Report dated 28 October 2016.

15. Leave is granted to the parties and the Independent Children’s Lawyer to provide a copy of these orders to the principal of any school attended by the child.

16. The Director of Child Dispute Services at the Newcastle registry of the Family Court of Australia and the Independent Children’s Lawyer shall ensure that the effect of these orders, and if deemed appropriate by the Director, the reasons for such orders, are forthwith explained to the child.

17. Pursuant to s 65DA(2) and s 62B of the Family Law Act, particulars of the obligations that these orders create, particulars of the consequences that may follow contravention of these orders, and details of assistance to comply with these orders are set out in the attached Fact Sheet, which forms part of these orders.

18. Any and all other outstanding applications for interim relief are dismissed.

it is further ordered

1. The parties’ and Independent Children’s Lawyer’s respective applications for final parenting orders pursuant to Part VII of the Family Law Act are adjourned part-heard to 9.30 am on Thursday 28 September 2017 for further procedural directions.

2. Leave is granted to re-list the proceedings for further procedural directions on seven days notice.

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 Burton & Slater 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: NCC 2912 of 2013

Mr Burton

Applicant

And

Ms Slater

Respondent

And

Independent Children’s Lawyer

EX TEMPORE

REASONS FOR JUDGMENT

Introduction

1. This litigation concerns the only child – a daughter – of the applicant father and respondent mother. Unfortunately, the parties’ antipathy towards one another clouded their judgment throughout the litigation about the nature of the orders which would promote the child’s best interests.

2. The litigation was sparked by the mother’s belief the father sexually abused the child, but once the trial began, she openly conceded the child was probably not sexually abused by him and, furthermore, he presented no unacceptable risk of harm to the child. The father was not re-assured by the mother’s concession because his distrust of her is so deeply ingrained. He disbelieved her concession was genuine, considered it was a forensic artifice, and feared she would continue to undermine the child’s relationship with him unless the child lived with him instead.

3. Nonetheless, the mother’s concession changed the complexion of the case and motivated the parties to make radically altered proposals for the child’s future. Essentially, the choice for the child’s future was narrowed to either the permanent reversal of her residence, for which the father advocated, or the temporary retention of her residence with the mother to gauge the mother’s genuine compliance with orders restoring the child’s meaningful relationship with the father, for which the mother and Independent Children’s Lawyer both advocated.

4. Given the mother’s admission the evidence could not justify findings that the father either sexually abused the child or posed an unacceptable risk of harm to her, she implicitly acknowledged her compliance with past parenting orders (being the final orders made in July 2014 and the interim orders made in July 2016) had been lamentably poor. Consequently, in order to justify the child’s continued residence with her, she understood the need for her to demonstrate her unqualified commitment to both the retention and promotion of the meaningful relationship between the child and the father by her assiduous compliance with orders regulating the child’s expenditure of time and communication with him. Consequently, the mother applied for an adjournment of the trial on the basis that the Court would then make interim parenting orders, which reprieve would then enable her to prove her commitment to faithful implementation of the orders restoring the child’s relationship with the father.

5. The Independent Children’s Lawyer acceded to the application, as did the father after some further delay, but having agreed the trial should be adjourned for that purpose, the parties and Independent Children’s Lawyer could not then agree upon the suite of interim parenting orders that should be made. They remained at odds over, particularly, the allocation of parental responsibility for the child and the amount of time the child should spend in the father’s care. These reasons decide only that interim dispute.

Background

1. The child who is the subject of the proceedings was born in 2009 and is now seven years of age.

2. The parties commenced a relationship in 2007 and finally ended the relationship in early 2015. There was a minor disagreement over the timing of their final separation but it is unnecessary to determine that dispute.

3. Their relationship extended beyond earlier litigation instituted between them over the child. During an earlier separation, proceedings were instituted in the Federal Circuit Court of Australia. That litigation was concluded by final orders made in July 2014, with the parties’ consent, providing for the parties to have equal shared parental responsibility for the child, for her to live with the mother, and for her to spend substantial amounts of time with the father. Those orders applied uneventfully until August 2015.

4. In August 2015, the mother formed a view the child had been sexually abused by the father and she decided to prohibit any further personal interaction between them, which decision she notified to the child’s school. The child did not see or speak with the father again until she was re-introduced to him in the company of the Family Consultant in October 2016. For an initial period of months following August 2015, the child was not permitted to spend time with the father because the terms of an interim family violence order precluded it, but when that order was discharged the parenting orders were not revived.

5. In April 2016, the father commenced the present proceedings and, in July 2016, interim orders were made providing for the child to spend supervised time with the father at a contact centre for two hours each fortnight. Those orders were never implemented, apparently because the child expressed reluctance to the contact centre staff to see the father and the contact centre staff therefore decided not to force the supervised visits. Nevertheless, the parties did subsequently arrange three short visits between the child and the father in December 2016 and January 2017, which visits were supervised privately by a person trusted by the mother.

Proposals

1. Since the parties agreed to convert the final trial into only an interim hearing, their respective proposals changed radically.

2. The father outlined his interim proposal orally. Essentially, it entailed him having sole parental responsibility for the child and the child living with the parties for “equal time”.

3. The mother tendered a minute of the interim orders she proposed (Exhibit M2). Essentially, she sought sole parental responsibility for the child, for the child to live with her, and for the child to spend “substantial and significant time” with the father after two short introductory visits (amounting to three nights each alternate weekend and half of all school holidays).

4. The Independent Children’s Lawyer broadly supported the mother’s proposal, but disagreed with the need for the two introductory visits between the child and father.

Evidence

1. The father relied upon:

   (a)His affidavit filed on 18 January 2017;

   (b)The affidavit of the paternal grandmother filed on 16 January 2017; and

   (c)The affidavit of the paternal grandfather filed on 16 January 2017.

2. The father was earlier denied leave to rely upon the evidence of the paternal aunt.

3. The mother relied upon:

   (a)Her affidavit filed on 18 January 2017; and

   (b)The affidavit of her partner, Mr G, filed on 18 January 2017.

4. The parties and Independent Children’s Lawyer also relied upon the numerous reports compiled by the Family Consultants appointed in both these and the prior proceedings, they being:

   (a)The memorandum dated 10 February 2014;

   (b)The memorandum dated 28 April 2014;

   (c)The memorandum dated 26 July 2016; and

   (d)The Family Report dated 28 October 2016.

5. An earlier interlocutory application made by the mother for the entirety of the Family Report to be ruled inadmissible was dismissed.

6. The mother’s cross-examination was incomplete at the time her adjournment application was granted, but the parties and Independent Children’s Lawyer agreed the disputed interim parenting orders could be properly determined on the basis of the evidence as it stood at that point in time.

Legal principles

1. Orders in respect of children are made under Part VII of the Family Law Act 1975 (Cth) (“the Act”), where the meaning of a “parenting order” is defined (s 64B).

2. When invited to make a parenting order, the Court is enjoined to bear in mind both the objects of the legislation and the principles which underpin those objects (s 60B) in determining the nature of the parenting orders which ought be made (s 65D).

3. When making parenting orders the Court is mandated to regard the child’s best interests as the paramount consideration (ss 60CA, 65AA). The Act specifies the criteria which must be considered in arriving at a conclusion as to what is in the child’s best interests (s 60CC).

4. The Act imports a rebuttable presumption that a child’s best interests are served by an order allocating equal shared parental responsibility for the child to the parents (s 61DA). Parental responsibility is defined to encompass all duties, powers, responsibilities and authority conferred by law upon parents (s 61B). The legislation dictates the manner in which shared parental responsibility is to be exercised in respect of decisions relating to “major long-term issues” concerning the child (s 65DAC), being matters such as education, religion, culture, health, name, and changed living arrangements (s 4), and also in respect of decisions which do not relate to such significant issues (s 65DAE).

5. The presumption of equal shared parental responsibility does not apply in certain circumstances, including in instances of child abuse and family violence (s 61DA(2)), and the presumption may be rebutted if the Court is satisfied it would not be in the child’s best interests for the parents to have equal shared parental responsibility (s 61DA(4)). The presumption says nothing about the amount of time the child should live or spend with each parent, but the manner in which parental responsibility for the child is allocated by the Court may bear on that issue.

1. In the event an order is made allocating equal shared parental responsibility to the child’s parents, the Court is then obliged to consider both the advisability and practicability of the child living for equal time with both parents, or alternatively, living primarily with one and spending substantial and significant time with the other (s 65DAA). If parental responsibility for the child is allocated in some other way, then the exercise of the Court’s discretion about the child’s care arrangements is at large, though the discretion must still be exercised in the context of the child’s best interests being the paramount consideration.

Child’s best interests

Section 60CC(2)(a)

1. The child uncontroversially enjoys a meaningful relationship with the mother and derives benefit from it.

2. The father understands any significant re-structure of the child’s settled residential arrangements would likely cause the child distress, at least in the short term. He admitted in evidence:

   I understand that [the child] may be upset or suffer a level of anxiety if the Court orders the change of residence [as he proposed at trial].

3. During cross-examination he also conceded the closeness of the relationship between the child and mother. Were it not otherwise obvious, his ultimate interim proposal for the child to live with the mother for equal time was testament to his belief in the continuing importance of the child’s relationship with the mother.

4. The closeness and importance of the child’s relationship with the father was also abundantly clear from the evidence, though the mother did not resoundingly confirm her acknowledgement of the fact. Nonetheless, the importance of the child’s relationship with the father and her derivation of benefit from that relationship was evident from both the observations made by the Family Consultant about the child’s intimate and joyful interaction with the father under observation in October 2016 and the father’s evidence about her enjoyment of their three short visits together in December 2016 and January 2017.

5. Although the mother did not expressly concede in evidence the importance of the child’s relationship with the father, her counsel submitted on her behalf in the Case Outline filed for her on 25 January 2017:

   Quite obviously it is important for [the child] to have a meaningful relationship with both parents.

   It is clear that [the child] enjoys a good relationship with both parents.

6. The mother’s ultimate interim proposal for the child to spend substantial and significant unsupervised time with the father manifested her acceptance that the child should have her relationship with the father restored so she is able to derive the benefit from it she desirably should.

Section 60CC(2)(b)

1. The mother’s concession that the father poses no risk of any harm to the child renders it unnecessary to analyse the evidence adduced in the (now abandoned) attempt to prove the existence of such risk. Nevertheless, the issue should not escape attention entirely because it bears upon the parties’ enmity towards each other and therefore indirectly upon their parenting capacity.

2. On the state of the evidence as it currently stands, despite the father’s belief to the contrary, it is unlikely the mother deliberately coached the child to fabricate the allegations of sexual abuse against him. That is because the child repeated the allegations to impartial investigators and third parties when the mother was not present. She made allegations of impropriety against the father in formal interviews with police officers, staff of the NSW Joint Investigation Response Team, her counsellor, contact centre staff, and the Family Consultant.

3. Of course, that does not mean the allegations were truthful, as the mother belatedly came to realise. The allegations were probably false for a variety of reasons, including:

   (a)Some of them at least were inherently implausible (for example: the father had inserted cold rocks into her bottom);

   (b)The mother admitted to the Family Consultant and in evidence she was aware young children like the child were capable of lies, particularly when they are immersed in an atmosphere of deep distrust and conflict between parents, as this child was and is;

   (c)The father voluntarily participated in a formal police interview and vehemently denied his guilt, despite being suspected of her abuse and entitled to maintain his silence and privilege against self-incrimination;

   (d)The investigating authorities concluded the evidence did not warrant the father being charged with any criminal offence, he was never charged, and the investigation of the allegations is closed;

   (e)The mother conceded both to the Family Consultant and in evidence that she had never suspected the father was capable of the child’s sexual abuse before her allegations were first made in August 2015; and

   (f)The child eventually voluntarily retracted her allegations against the father by admitting her mendacity to the Family Consultant in October 2016, to her counsellor in November 2016, and to the mother herself in January 2017.

4. The mother’s error, in and after August 2015, was reposing unconditional faith in the literal truth of every word uttered by the child to her about the father and paternal family. The mother is evidently an intelligent woman, but her guileless acceptance of anything the child said to her proved her lack of insight. The sad fact is that the parties currently loathe one another and it could hardly be doubted the child is well aware of their sentiments, even if they have not expressly informed the child of them. By all accounts, the child is perceptive and has sufficient maturity to realise her parents’ profound dislike of each other. She is caught in the middle of their animosity and undoubtedly feels the need to demonstrate her loyalty to and love for each of them. It is likely she felt compelled to make adverse reports about each parent to the other as a way of demonstrating allegiance. A small example illustrates the point. The mother adduced evidence of the child having told her on numerous occasions that the father and members of the paternal family intended to shoot them, but the paternal grandmother gave evidence of the child having also told her the mother intended to shoot her. It is highly unlikely the mother or any member of the paternal family ever said anything at all to the child about an intention to shoot anybody. It would be most surprising if, as the child alleged, the mother and members of the paternal family all coincidentally told the child they were going to shoot one or more members of the other family. They were most probably false stories.

5. The evidence demonstrated the mother has impulsively jumped to conclusions about the child’s possible sexual abuse by other people too. She made prior allegations that the child was abused in some way by a peer at a day care centre and perhaps also by a paternal aunt and her husband. Whether the mother is hyper-vigilant about the risk of the child’s sexual exploitation because of her own unfortunate experiences as a child need not be decided, but it is relatively clear she erroneously concluded the child was at risk of harm with the father, and further, unjustifiably held to that view long beyond the time by which she should have abandoned the notion.

Section 60CC(3)

1. None of the s 60CC(3) factors were addressed by the parties or Independent Children’s Lawyer in their submissions, but some of those factors are germane to the interim parenting orders that should be made in the child’s best interests.

2. The father has an unremitting lack of faith in the mother’s capacity or willingness to allow restoration of the child’s relationship with him. Although he honestly believes the mother deliberately caused the child’s concoction of the sexual abuse allegations against him, for reasons to which I have already adverted, there was a logical basis for the mother to have acted cautiously if the child’s revelations to her were not coached. Indeed, she might have been criticised for not having reported the child’s first revelations in August 2015 for independent investigation and assessment. It was only those allegations which caused her to act. She did not terminate the child’s interaction with the father following his alleged sexual assault of her in April 2015. She put her own feelings to one side and allowed the child to continue seeing the father. Although she unreasonably clung to the belief in the father’s sexual abuse of the child for too long, her belated admissions the father did not sexually abuse the child and he does not constitute a risk of any harm to her should have been gratefully embraced by the father as a positive step by the mother towards greater enlightenment. His unwillingness to countenance even the possibility that the mother’s epiphany was genuine reflects poorly upon him. He seemed consumed by resentment and his evidence invited an inference that the outcome of these proceedings was as much to do with his exacting retribution and recovering the time he and his family lost with the child as it was with advocating for orders that promote the child’s best interests.

3. Even if, as the father believes, the mother deliberately sabotaged the child’s relationship with him and she has no genuine intention to change, the mother should be held to account for the ostensible truth and accuracy of her evidence that she will now ensure promotion of the child’s relationship with the father.

4. Historically, the mother’s conduct has impaired the child’s relationship with the father, though that probably more often occurred inadvertently rather than deliberately. Such a conclusion is manifest from her allowing the child to infer her ill-will towards the father, her involvement of the child in the parental conflict, and her abdication of parental responsibility for the child by expecting the child to decide whether she sees the father.

5. The mother plainly disdains the father. She told both her counsellor in June 2015 and the Family Consultant in October 2016 that she was “dry retching” just because she saw him. She told the Family Consultant she could hide her adverse feelings about the father from the child, but she was deceiving herself. The child was present when the mother was grossly distressed and summoned police for help against the father in the past. More recently, when attending the Family Consultant appointment in October 2016, the mother took photographs of the father’s car in the child’s presence and the child was apparently well aware of her visceral illness that day. The mother was impelled to concede in cross-examination that her conduct and presentation probably did “project her fear of the father” onto the child, which she said she regretted and for which she now professed some insight.

6. The mother told the Family Consultant the child had been so anxious about seeing the father again once the family violence order against him was dismissed that she wet herself and was tearful. She admitted the child knew the family violence order had been dismissed, which could only be because the mother told her or allowed her to be informed. She told the Family Consultant she thought the child would be “traumatised” and “distressed” at the prospect of even having to see the father. She reported the child had nightmares, wet the bed, and ground her teeth just knowing she had to attend the consultation with the Family Consultant. Despite the mother’s apprehension of the child’s reaction, when the child met and played with the father that day she was overjoyed.

7. Although the contents of the Family Report are so far untested, the Family Consultant reported that the child’s school counsellor held concerns that “the mother’s own fears may be impacting” on the child. She also reported that staff of the NSW child welfare authority wondered about the genesis of the child’s alleged fear of the father. The Family Consultant did not have much doubt. She reported:

   The information available to me at this time would appear to support that the mother has at the very least failed to protect [the child] from her own emotional state.

8. In circumstances where that opinion is assumed, for the time being, to be correct, the mother was foolish to expect the child to make her own decisions about the nature of her interaction with the father. That was a decision for the mother as the parent to make, to say nothing of her obligation to comply with existent Court orders. The child was not mature enough to make those decisions for herself. If, as it seems, the child was under so much pressure to please the mother by demonstrating allegiance to her through rejection of the father, it is little wonder the child told the mother and others from time to time that she did not wish to see the father. It thereby relieved the pressure upon her in the mother’s household.

9. Self-evidently, conduct of that ilk by the mother is liable to cause deterioration of the child’s relationship with the father unless remedial steps are taken to redress that dynamic. Hopefully, the mother’s radically revised position in this litigation represents genuine recognition of her past lack of insight and impaired parenting capacity.

Conclusions and orders

1. The presumption of equal shared parental responsibility for the child is rebutted by the evidence, which proves the child’s best interests would not be served by such an order (s 61DA(4)). The mother and Independent Children’s Lawyer were correct to make that submission.

2. Although the orders made in July 2014 granted the parties equal shared parental responsibility for the child, the father believes he was excluded from many of the important decisions made by the mother about the child. The interim orders made in July 2016 vested parental responsibility exclusively in the mother so she need not have conferred with the father about the child after that time, though there is room for argument about how she could have shown greater insight and goodwill by allowing the father greater involvement in important decisions about the child.

3. Significantly, in cross-examination, the father said:

   Whether or not the mother and I can ever talk again, I don’t know. It’s obvious we can’t at the moment.

4. He thought they could perhaps communicate in writing through email or text messages, though he seemed uncertain. Email and text messages are just a medium for communication and their availability for use will hardly ensure their use in a constructive way. The law requires shared parental responsibility to be exercised in a way that requires courteous consultation, genuine willingness to compromise, and an earnest attempt to reach consensus (s 65DAC). That process is well beyond the capacity of both parties at the moment, so the allocation of equal shared parental responsibility to them is ill-advised. Significantly, neither party sought an order for equal shared parental responsibility. Both sought individual investiture with parental responsibility.

5. Given no order will be made granting the parents equal shared parental responsibility, s 65DAA of the Act is not engaged and the Court is not obliged to consider the residential alternatives for the child favoured by that statutory provision. Nonetheless, they remain apposite because the father proposed an “equal time” regime and that he have sole parental responsibility for the child, whereas the mother and Independent Children’s Lawyer favoured orders for the mother to have sole parental responsibility, for the child to live with the mother, and for her to spend “substantial and significant time” with the father.

6. The proposal for equal time is rejected. The parties apparently live in reasonable proximity within the same rural area, which would not necessarily render the arrangement impracticable, but their current animosity suggests such an arrangement would not be in the child’s best interests. An equal time arrangement envisages a high level of cooperation and flexibility between parents because the subject child operates from two homes. The parties’ distrust of one another presently eradicates their willingness or capacity for that level of cooperation and flexibility.

7. The child should continue to have a single, stable home. For the moment at least, she should remain living with the mother, with whom she has always lived. The mother should also have sole parental responsibility for her for the moment. The permanence of that arrangement, however, hinges upon the mother’s willingness to vindicate her evidence by demonstrating her commitment to restoration of the child’s valuable relationship with the father and her compliance with a number of other remedial ideas proposed by the parties. If that effort proves beyond her then, upon resumption of the trial, reversal of the child’s residence will likely be an option of keen interest.

8. The allocation of sole parental responsibility to, and the child’s residence with, the mother is conditional upon the mother doing and abstaining from certain things, some of which were even isolated proposals made by the mother. Those things include the mother:

   (a)Not changing the child’s name, because the father alleged the mother said she might do so;

   (b)Ensuring both she and the child accept counselling from nominated therapists;

   (c)Ensuring the child is not referred to therapists without either other professional recommendations and the father’s consent;

   (d)Keeping the father informed about the child’s appointments, in advance of those appointments;

   (e)Authorising the father to liaise with the child’s doctors and therapists; and

   (f)Authorising the father to attend the child’s school events.

9. As the mother now ostensibly accepts, the child will benefit from visiting the father for substantial amounts of time and by communicating with him regularly. To partly atone for the hiatus in their relationship, the child should spend four nights per fortnight with the father, not just the three nights proposed by the mother. She could not explain why three would be better than four. Four is better for the child because it gives her more time within which to recover and consolidate her relationship with the father and it enables him greater involvement in her educational and extra-curricular activities. There was no dispute the child should spend half of all school holidays and other special occasions with the father. I reject the mother’s proposal for two short introductory visits, the rationale for which was not satisfactorily explained.

10. The parties disagreed over the alternate venue for changeovers when the child was neither collected from nor returned to school. Little, if any, evidence was adduced on the topic so the McDonalds Restaurant at F Town, NSW is selected because the parties have used that venue before. It is a public venue and probably has CCTV surveillance of its precincts. Those considerations will hopefully deter the parties from verbal and physical confrontation.

11. The orders permit the child to communicate by telephone with the father once per week when she lives with the mother and once per week with the mother when she spends time with the father during school holidays. There is no need to make express provision for the mother to speak with the child when the child only spends four consecutive nights with the father each fortnight. On her birthdays, the child can speak by telephone with the parent with whom she is not then staying.

12. An order is made requiring these orders, these reasons, and a copy of the Family Report to be provided to police and the NSW child welfare authority if any further allegations are made to those authorities about the child’s abuse. It is important that any fresh investigation begin with an understanding of the context in which these proceedings began and then evolved.

13. With the consent of the parties and Independent Children’s Lawyer, an order is made requiring a Family Consultant and the Independent Children’s Lawyer to forthwith explain to the child these orders and, if thought appropriate, the reasons for the orders. It is best the child has an independent explanation rather than a sanitised version from either of the parties.

1. The remaining substantive orders are self-explanatory and could not be the subject of reasonable opposition.

2. The proceedings are adjourned for about eight months to enable the parties’ compliance with the orders to be gauged. In the event of breach, liberty is granted to restore the matter to the list on seven days notice. Otherwise, the proceedings will be reviewed in about eight months, at which time the likely alternatives will either be settlement of the dispute on a final basis or resumption of the trial (presumably with the evidence of both parties re-opened and the possibility of an updated Family Report) to determine final orders.

I certify that the preceding sixty one (61) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Austin delivered on 1 February 2017.

Associate: 

Date:  9 February 2017