Caffold and Jedik

FEDERAL CIRCUIT COURT OF AUSTRALIA

CAFFOLD & JEDIK

[2018] FCCA 854

Catchwords:
FAMILY LAW – Parenting– one child aged 13 diagnosed with cystic fibrosis – where the mother seeking orders for child to live with the mother and the father on a week-about basis and for equal shared responsibility of the child – held in child’s best interest to live with the father and for the father to have sole parental responsibility.

Legislation:

Family Law Act 1975, ss.60CA, 60CC, 61B, 61DA

Applicant:

MS CAFFOLD

Respondent:

MS JEDIK

File Number:

BRC 10430 of 2016

Judgment of:

Judge Egan

Hearing date:

27 February 2018

Date of Last Submission:

27 February 2018

Delivered at:

Brisbane

Delivered on:

27 February 2018

REPRESENTATION

Counsel for the Applicant:

Ms Kristy Crabb

Solicitors for the Applicant:

Pippa Colman & Associates Law Practice Pty Ltd

Counsel for the Respondent:

Mr Guy Andrew

Solicitors for the Respondent:

Griffiths Parry Lawyers

ORDERS

THE COURT ORDERS ON A FINAL BASIS:

That all previous orders and parenting plans be discharged.

Parental Responsibility

That the father have sole parental responsibility in relation to the child, X, born (omitted) 2004 (“the child”).

Living arrangements

That the child live with the father.

Time and communication

That the child spend time with and communicate with the mother as follows, unless otherwise agreed by the parents:
(a)During the school term:
(i)Each alternate weekend from after school on Friday (or 3.15pm on a non-school day) until before school the following Monday (or 8.15am on a non-school day);
(ii)At all other times as agreed between the parents, or as requested by the child.
(b)During the school holiday period:
(i)In relation to the Christmas school holiday period:
(ii)Subject to Order five (5) herein, with the mother on the first week of each school holiday period and each alternate week thereafter for the remainder of the holiday period, commencing 2018 and continuing for each even-numbered year;
(iii)Subject to Order five (5) herein, with the mother on the second week of each school holiday period and each alternate week thereafter for the remainder of the holiday period, commencing 2019 and continuing for each odd-numbered year;
(iv)And changeovers are to take place each Sunday at 4.30pm.
(c)For the avoidance of doubt, the school holiday period shall commence on the day that follows the last day of the school term, and shall recommence on the first day of the school term that the child is required to attend. In other words, the school holiday period includes pupil-free days and Public Holidays.
That each parent is at liberty to elect to spend up to two (2) consecutive weeks block time with the child during school holiday periods (or such other longer period as agreed between the parents), to enable that parent to travel on holiday with the child, on the following terms:
(a)The travelling parent shall provide the other parent no less than two (2) months’ written notice of their intention of their election;
(b)The other parent’s lost time with the child shall be made up on dates and times to be agreed by the parties as soon as possible;
(c)This two week block will not coincide with Christmas day or interfere with any time allowed for in Order (8) or (9); and
(d)All other time pursuant to these Orders is suspended during a parent’s block time with the child.

Changeovers

That in relation to changeovers that do not occur at school, unless agreed otherwise between the parties in writing, changeovers are to occur at a halfway point between the parents’ home and if this is not agreed upon, at the (omitted) Service Station on (omitted).

Special Days

That the child shall spend time with the mother and father on special days as outlined below (with all other time set out in these Orders to be suspended during said special days).

Christmas

That in all even numbered years (commencing 2018), the child shall spend time with the father from 2.00pm on Christmas Eve until 2.00pm on Boxing Day.
That in all odd numbered years (commencing 2019), the child shall spend time with the mother from 2.00pm on Christmas Eve until 2.00pm on Boxing Day.

Easter

That the child shall spend time with the parent whose care the child is not in from 12.30pm on Easter Sunday until 7.00pm on Easter Monday and with the other parent at all other times over the Easter period (being Good Friday to Easter Monday).

Child’s birthday

That the child shall spend time with the mother and father on the child’s birthday ((omitted)) at times to be agreed between the parents and failing agreement as follows:
(a)On school days, the child shall spend time with the parent whose care she is not in from after school on her birthday until before school or 9.00am the following day;
(b)On non-school, days from 12.00pm on her birthday until before school or 9.00am the following day.

Parents’ birthdays

That if the child is in the father’s care on the mother’s birthday ((omitted)), then the child shall remain in or return to the mother’s care for her birthday:
(a)On a school day from 3:15pm until 6:15pm; and
(b)On a non-school day from 9:00am until 4:30pm.
That if the child is to be in the mother’s care on the father’s birthday ((omitted)), then the child shall remain in or return to the father’s care for his birthday:
(a)On a school days from 3.15pm until 6.15pm; and
(b)On a non-school day from 9.00am until 4.30pm.

Father’s Day and Mother’s Day

That the child shall spend time with the father from 9.00am until 5.00pm on Father’s Day (the first Sunday of September) each year.
That the child shall spend time with the mother from 9.00am until 5.00pm on Mother’s Day (the second Sunday in May) each year.

Extra-curricular activities

That both the mother and father shall accommodate to the best of their ability the child participating in and attending sporting, cultural or community activities in which she is registered and anything else she wishes to participate in.
That neither parent shall enrol the child in any of these activities without the permission of the other parent.
That neither parent shall unreasonably withhold such consent for these activities to occur.

Contact details of parents

That each parent shall keep the other informed of his/her residential address, email address, and mobile telephone number and that should there be a change to any of those details each party shall notify the other of any change within forty-eight (48) hours.
That each parent shall use their best endeavours to reply to any phone message, SMS text message or email which is sent by the other parent and concerns the child, within twenty-four (24) hours.

Contact details of the child

That both parents shall be permitted to contact the child whilst she is in the care of the other parent at all reasonable times by way of phone call to the child’s mobile phone, email or SMS text message and the parent who has the care of the child shall facilitate the call/communication and permit the child to reply without interference or censure.

Hospital admissions

That on the occasions when the child is admitted to hospital:
(a)Each parent shall respect the reasonable wishes of the child and work together to avoid dispute or conflict that could hinder the child’s health and well-being;
(b)Each parent will spend a forty-eight (48) hour rotation with the child on the hospital ward floor during any admission period except for the first day and last day of admission;
(c)If the admission is less than forty-eight (48) hours, the parents will spend equal time with the child;
(d)The time of changeover for each forty-eight (48) hour’s rotational visit for each parent shall be 9.00am. The leaving parent shall vacate the hospital before 9.00am so that the arriving parent arrives to only the child in the hospital room; and
(e)The parents shall work with the child’s medical practitioners such that treatments and tests take place on both the mother’s and the father’s rotation, and the parents shall use their best endeavours to avoid such treatments and tests taking place only or mostly during one parent’s rotation;
(f)Notwithstanding the immediately preceding sub-clause, each parent shall be at liberty to attend with the child’s treating medical practitioners during appointments with the child (to the extent that parents are permitted to attend), even if that means that the parents are in the same room; and
(g)Each parent shall encourage the educational needs of the child in hospital by allowing her to keep up with her school work so that she does not fall behind her peers. The child should have access to the internet so that she can contact her teachers at (omitted) College for assistance and access to school based work sites such as “(omitted)” or other such sites.

Hospital outpatient’s clinics

That each parent be at liberty to attend the child’s scheduled Cystic Fibrosis or Gastro Outpatient’s Clinic appointment and any other appointments either at the (omitted) Hospital (“(omitted)”) or elsewhere. Any appointments made by the (omitted) shall be attended by the child.
That leave be granted for either parent to provide a copy of these Orders to each of the child’s current and future treating professionals.
That the father will be responsible for arranging outpatient appointments, and for that purpose:
(a)The father shall notify the mother as soon as practicable of the date or dates of the child’s outpatient appointments; and
(b)The father shall use his best endeavours to schedule all (or as many as possible) of such appointments for the same day.

Health and well-being decisions

That in the exercise of his sole parental responsibility the father shall:
(a)Only use mainstream recognised health-care practitioners as recommended by the medical staff of (omitted) Hospital (or other such hospital as attended by the child) or recognised members of the mainstream medical community e.g. General Practitioners, Physiotherapists, Radiographers, Psychologists etc. There shall be no authorisation or use of alternative health practitioners on the child; and
(b)Inform the mother as soon as reasonably practical of any medical condition significant health issue or illness that the child suffers; and
(c)Inform the mother as soon as possible if the child has any unplanned changes or re-scheduling of medical appointments.
(d)Each parent shall ensure that the child strictly complies with the treatment regime as prescribed or recommended by the child’s treating medical professionals, including ensuring that the child is given a daily (omitted) and whatever other food supplements that have been recommended by her treating medical professionals.

Education and schooling

That unless there is a significant change in circumstances of the child, she shall remain at her current school which is (omitted) College and that:
(a)Both the mother and father respect the child’s wishes (within reason) with regard to her education and wellbeing; and
(b)The child shall be allowed the opportunity to attend any school activity such as year level camps, outdoor education trips, sporting competitions, excursions and field trips that are availed to her.
That the parties recognise that the child is now settled in her current school and this will not be changed regardless of the employment of the father.
That leave be granted for either parent to provide a copy of these Orders to the child’s school.

Change to school correspondence and events

That both parents shall be at liberty to obtain any and all information concerning the child’s schooling and for this purpose:
(a)Both parents shall have access to the school reports of the child by electronic means through an arrangement with the school;
(b)That school photographs of the child are available to either parent after payment to the photography business which took the photographs;
(c)School correspondence shall be available to either parent on request; and
(d)Both parents shall be at liberty to attend the school for the purpose of parent/teacher nights, school sports days, school fetes and any other school activities in which the child is involved.

Our Children website

That the parents shall forthwith subscribe to the Our Children website, or such other similar website as agreed, and they each shall maintain a subscription and pay their own requisite fee.
That wherever possible, the parents shall utilise this website to communicate matters in relation to the child, including:
(a)Using the message board to relay messages;
(b)Update appointment times and locations;
(c)Update details of medical practitioners;
(d)Upload school reports and medical reports;
(e)Upload photos and results.

Other Orders

That during the time the child is with either parent, that parent shall:
(a)Not criticise or denigrate the other party or the other parent’s family (including their partner or spouse) in the presence or hearing of the child;
(b)Make a genuine effort to promote a positive relationship between the child and the other parent and their family;
(c)Respect the privacy of the other parent and not question the child about the personal life of the other parent;
(d)Speak of the other parent (and their families) respectfully; and
(e)Not involve the child in discussions of an adult nature, including but not limited to discussions regarding these Orders and the child’s care arrangements.
That neither party will cause posts/articles/images/video and the like to be published or uploaded to (or linked on) social media or mainstream media that refers to either parent in a way that is critical or derogatory in nature, and further, that neither party will allow, facilitate or permit any other person to so do.

THE COURT ORDERS BY CONSENT ON A FINAL BASIS:

Passports and travel

That each parent shall, within seven (7) days upon request by the other parent, complete and sign a passport application for the child, and complete and sign all necessary documentation so as to renew her passport from time to time, and the costs shall be met by the requesting parent.
That neither party shall remove the child from the Commonwealth of Australia without first obtaining the other parent’s prior written consent, and that parent shall not unreasonably withhold their consent.
That in the event of overseas travel that the travelling parent provide, at least two 2 months in advance, a copy of the air travel tickets, itinerary and any details of accommodation for the duration of the overseas trip.
That the child’s passport is to remain in the custody of the father provided that:
(a)if the mother is to travel overseas with the child, the father will provide the child’s passport to the mother not less than two weeks prior date of travel provided that the mother gives notice as set out in clause 37 above.
(b)The mother will return the child’s passport to the father not more than 48 hours after her return with the child to Australia.

IT IS NOTED:

A. That pursuant to s.65DA(2) of the Family Law Act 1975 the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders are set out in the document attached to these Orders titled “Parenting orders – obligations, consequences and who can help”.

IT IS NOTED that publication of this judgment under the pseudonym Caffold & Jedik is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT BRISBANE

BRC 10430 of 2016

MS CAFFOLD

Applicant

And

MR JEDIK

Respondent

REASONS FOR JUDGMENT

I have before me parenting and parental responsibility applications made by each of the parents of a child X born on (omitted) 2004. The mother was born on (omitted) 1969 and appears to be in good health. The father was born on (omitted) 1966 and similarly appears to be in good health. The mother and father commenced living together in about 1995 and they were married on (omitted) 1998. It is common ground that they separated on 14 February 2011 when the child X was almost seven years of age. They were divorced on 1 November 2015. The current arrangements of the mother are that she lives in a same-sex marriage relationship with one Ms M.
The mother is employed, as is Ms M. They live on a property situated at (omitted), which is to the (omitted) highway called (omitted). There is no suggestion that the accommodation in which the mother and her partner live is unsuitable for the purpose of the child spending time with the mother. (omitted) is situated approximately 15 to 20 minutes’ drive away from the father’s place of residence. The father lives at a suburb called (omitted) which is near (omitted) on the (omitted). The father lives in a residence with his partner Ms W.
Ms W has three children who reside with her, Mr Jedik, and the child X, pursuant to consent orders of the Court which were made on 10 March 2017 by Judge Spelleken. The children who reside in the same house as Mr Jedik and Ms W are of a similar age and the evidence is that they all get on well together. The arrangement whereby the child has lived in that domestic arrangement has been one in place for a number of years, and has presented as a safe and stable environment for the child X. There is in this case no suggestion that the factors referred to in s.60CC(2)(b) of the Family Law Act 1975 (“the Act”) are in play in respect of the child X insofar as time spent by her living at her father’s home.
Mr Jedik is a (occupation omitted) at the (employer omitted) which is situated at (omitted), a short distance away from his home on the (omitted). The child has been enrolled at such school for a number of years and there is no suggestion that her schooling is other than appropriately catered for in such educational institution. There was one recent example of misbehaviour on the part of the child concerning inappropriate social media comment.
As to that, I remark that it is not uncommon for children approaching the age of 14 to use the internet inappropriately and to regret their actions immediately thereafter. The nature of the transgression on the part of the child X giving rise to an in-school suspension from class in my view falls into that category. On all accounts, she seems to be a well-adjusted child and it is likely, in my opinion, that the same type of transgression will not occur again.
The history of the relationship between the parties is that they separated on 14 February 2011 in what has been referred to as the “first occasion of retention”. The mother had unilaterally broken an agreement entered into between her and the father in relation to her taking the child to North Queensland for a one week trip. Whereas the child was to be in the mother’s care for one week only from 18 March 2011 until about 25 March 2011, the mother unilaterally disregarded the agreement that she had entered into with the father and stayed an extra two weeks with X away from the father.
The father had purchased and provided return air tickets for the purpose of such travel but, as it turned out, the mother drove to and from North Queensland, and the father asserts that not only was there a breach of the agreement, but also that the mother cashed in the return air tickets. I am unable to make any finding as to the latter, but I do find that, contrary to the agreement reached between her and the father, the mother unilaterally took it upon herself to cause anguish and concern to the father by not sticking to an agreed plan.

Thereafter there was contact between the mother and the child by agreement with the father. Indeed, from mid-2011 until August 2014, the mother and the father instituted a fifty-fifty apportionment of time whereby the child would spend one week with one parent and the other week with the other parent. There is some minor dispute as to how for long that fifty-fifty arrangement was in place. On the father’s case, such arrangement endured until August of 2014, whereas on the mother’s case it was slightly different, but for all intents and purposes, the fifty-fifty arrangement worked for that approximate period of time.
It then transpired that, largely at the behest of the child, there was a period of some eight months between about August 2014 until April 2015 when the mother had very little contact with the child. During that period of time, the father was, of course, the main provider of comfort and nurture to the child. The evidence of the mother is that she only spent one night with the child X during that eight month period. From April 2015 until December 2016, the mother and father were again able to negotiate a shared parenting arrangement whereby the child would spend alternate weekends with the mother whilst still living predominantly with the father.
That arrangement worked fairly well until what is referred to in the evidence adduced before me as the “second retention period”. That evidence relates to another occasion whereby the mother unilaterally broke an agreement entered into between her and the father relating to the time which the mother would spend with the child. It was agreed between the mother and father that the child would be returned to the father on the 26^th day of December 2016 but, contrary to such agreement, the mother kept the child and did not return until the 10^thday of January 2017.
Again, that demonstrated an unwillingness on the part of the mother to recognise that once an agreement was made in relation to time being spent by the child with either parent, that such agreement should in all good conscience be stuck to. It also demonstrates a lack of insight on the part of the mother that such breach of agreement would give rise to anxiety and concern on the part of the father, and further cement on the part of the father any ill will that he might hold toward his former partner.
I find that there were anxieties and concerns of the father which were in fact the result of the unilateral decision on the part of the mother to not comply with the agreement she had entered into with the father. Consequent upon such later breach of agreement, the child did not have time with her mother until shortly after the making of consent orders on 10 March 2017, whereby contact with the mother was resumed.
No doubt between the time that the child had not been returned to the father on 26 December 2016 and the time of resumption of contact shortly after 10 March 2017, the child would also have been experiencing substantial anxiety and uncertainty wholly created by what she must have known arose out of a breach of an agreement on the part of her mother.
Those feelings of uncertainty and anxiety are relevant for the consideration of comments made by the writer of a family report in mid-2017 whereby the child expressed concern to such report writer that in relation to the child spending particular time with the mother, she was happy to do so, as long as the father agreed to it. In context, I consider that when she so reported that to the family report writer, she was reliving in some substantial way the consequence of her mother breaching, most recently, the agreement relating to time being spent by her with the mother in the second retention period.
This family dynamic cannot simply be looked at in the context of time spent by the child with one or other of her parents. The child suffers from cystic fibrosis which is a serious condition. The evidence which I accept is that upon diagnosis the father was far more prepared to accept the reality of the situation and to deal with his daughter’s condition in a responsible and emotionally caring manner than was the mother.
I find that throughout the years of treatment for such condition, the father has predominately attended to the needs of his daughter and has been particularly concerned about her receiving care of the highest standard. There is no doubt that each of the mother and the father in my view love and cherish their daughter, but the attitude of the mother has been one whereby she has been less accepting of the reality of the condition, either as to its severity or as to how it properly ought to be dealt with.
Those matters have been identified in the family report of Ms I. Relevantly, Ms I, the family report writer, also identified the fact that it was probably due to the father’s greater perception and receptive nature in terms of his daughter’s condition that the daughter saw him as the parent with whom she has a greater bond. And I find that that is the case.
The father, in my mind, has at all times tried to do his best for his daughter in a difficult situation, and in circumstances which have not always been easy for him to do so. In that regard, I refer to a substantial area of conflict which has dogged the ongoing relationship between the mother and the father since early March 2016.
On 3 March 2016, the mother was motivated, for whatever reason, to send a threatening text message to the father. That text message read as follows:
The only arrangement I will accept is fifty-fifty. I am already ahead of you. I have the mediation process started and a lawyer ready to go. I also have a fighting fund. I know that you are in legal limbo - you have no legal right to keep her. I know that the courts will not give you full custody. I also know that every time you denied me access to my daughter, you dug yourself into a nice little hole. I’ve got every text - especially that wonderful missive about Christmas Day and Boxing Day.
Every time you make a major decision about her future - cancelling her psychology appointments, allowing her to leave the state, taking her out of her old school, enrolling her in extra-curricular activities, allowing other to care for her (instead of giving her to me) - you made that hole even deeper. You have spent two years alienating my daughter from me. You used her fragile emotions to make me believe something was wrong with her when in actual fact the problem was with your manipulation.
I know that you make X show you her text messages to me and that you often write them for her. I know that you bully her so badly when there are no other adults around that she breaks down in tears. I know you also do this with the other children in your care.
And the last thing I know - I will fight you tooth and nail - I don’t care what it costs me - or you - I will get X back and this time there will be an ironclad legal document that you will not be able to ignore.
As I indicated earlier, there is no particular evidence as to why the mother was motivated to write such a threatening text - to send such a threatening communication to the father. Be that as it may, it is clear from the content of such text that there was a great deal of bitterness on the part of the mother exuding from every sentence, and that the mother was threatening or making substantial threats to the father thereby.
On the same day that the mother sent the text to the father, but later at 6.59 pm, an email was anonymously sent to a state government email service which I assume is a repository of allegations about misconduct on the part of the people in the community. The email in question can be found on page 22 of exhibit 1. It is an anonymous email and the identity of the sender was not able to be established during the course of evidence. Under the heading “Concerned Parent”, the following was said in the body of the email:
Hi. My daughter’s school friend blank -
and there has been a redaction -
told her she has woken up to her stepfather raping her. I told the girl’s school about this because the man is a (omitted). I believe the school is protecting him. His name is MR JEDIK and (omitted)-
and there is a redaction:
...on the (omitted). I am very scared of what he will do to my little girl as he knows where we live.
There is a coincidence and contemporaneity of time between the sending of the text by the mother and the sending of the email last referred to which immediately raises one’s suspicions as to the origin of such an email. On page 26 of exhibit 1, a further email was received, the content of which was as follows:
MR JEDIK has threatened to kill my family for reporting him to you about the horrible things he is doing to his daughters and their friends. Police and the department have been contacted and so has (omitted). Why are you protecting the paedo? You make me sick. My lawyer will be in touch with you.
Another email of similar content was sent as follows:
I’ve told the police about what that sick fuck (omitted) MR JEDIK has been doing to my daughter and what he has been doing to his little girls and the other little girls (omitted). I hope he rots in hell and you do, too.
What transpired consequent upon the sending of at least the email of 3 March 2016 on page 22 of exhibit 1, is that complaints were made between 3 March 2016 and 4 March 2016 to the (omitted) College. There is also evidence, which I accept, that on 10 March 2016 an email was circulated by (omitted) College to staff and parents advising them that anonymous correspondence had been received by the school relating to child safety concerns and that authorities had been contacted.
Similarly, the Channel 7 (omitted) had run a bulletin on their news concerning the allegations, albeit that the father had not been identified, other than in the emails referred to above sent to (omitted). Subsequently, police from the Child Protection Unit of the Queensland Police interviewed the father on 28 March 2013.
In my view, it is no coincidence that such police interview took place based upon the vile nature of the allegations that had been made, albeit anonymously, against the father. In the light of the evidence which has been adduced at trial, and subsequent to the police interview of the father on 28 March 2016, the children of Ms W were drawn into this sordid tale. They were forced to undertake interviews with police, by which such young children would have had engendered in them such emotional turmoil and upheaval which one can only imagine.
What subsequently transpired is that the wheels of government took over. I say that because after all relevant interviews had taken place, the police closed their investigation in about April 2016. They found, based upon searching interviews with each of the children in the care of the father, as well as with others, that there was no substance to any of the allegations.
Not unexpectedly, the Department of Child Safety, Youth and Women had the allegations, unfounded as they were, passed onto it. Thereafter, on 18 October 2016, the mother filed an initiating application which relevantly sought orders of fifty/fifty shared parenting of the child. However, at the time of the filing by her of that initiating application, a notice of risk was also filed whereby, relevantly, the notice recorded that there had been child abuse (or that there was a risk of child abuse) and that a child to whom the proceedings related was at risk of abuse by the father.
Under question 2(b) of the notice of risk document, the mother inserted into the document the following words:
I was made aware of a police investigation regarding sexual abuse by the father but I have no further information. This concerns me.
Not only is that statement factually misleading, in my view it is part of a concocted tale which has been commenced at the behest of the mother for the purpose of enhancing her application for parenting orders and parental responsibility orders in this matter to be made in her favour. It would have been well known by the mother, as at the date of the filing of her application on 18 October 2016 that the police had carried out investigations the subject of the emails referred to above, and that the police had closed their investigation in April of 2016.
The mother was an integral part of that investigation insofar as the police interviewed her, and I have no doubt that she intended to mislead the Court by inserting into paragraph 2(b) of the notice of risk the false and misleading information which she did. At this point it is important to recognise that the mother’s partner, Ms M, is a (omitted) by occupation. She is a person well versed in social media, and during the course of her evidence she was cross-examined about her use of social media in relation to various campaigns advanced by her in her role as a supporter of an anti-domestic violence organisation called (omitted).
When Ms M was giving evidence, she was cross-examined about a Facebook post made by her on her private Facebook page on 28 October 2017. That Facebook entry was as follows:
So. My mental health is really shot. I have bipolar and have been relatively stable for some time, but right now … not so great. I was supposed to meet friends in Brisbane today. It was on the way and I found myself almost steering into a truck. I pulled myself together and drove home - the ….. was with me and I didn’t want to hurt him. The hardest part is that I literally have no one to lean on. I don’t drink so I can’t wipe myself out. I don’t do drugs other than my bipolar meds (I have one day of those left, so it’s not like I could take a month’s worth).
I’ve been going downhill for months and absolutely no one has noticed anything. Yes. I know. I need to go and see the doctor. I’ve deliberately held off doing this knowing my medical records would be requisitioned during the Family Court. The unmentionable has painted me as “volatile” and “psychotic” due to my mental health. I’m not, actually, but these fuckers will use any weapon. Anyway. That’s me right now. For what it’s worth.
During cross-examination I found Ms M’s responses to be evasive, unconvincing, unreliable and untruthful. I was unimpressed with her evidence to the effect that her reference to finding herself almost steering into a truck was not a suicidal thought. If one almost finds oneself steering into a truck and records it on their private Facebook page, I see no other conclusion open. To that extent, I am concerned that the provisions of section 60CC(2)(b) apply in respect of the care of the child, X, when in the presence of Ms M, either in a motor vehicle, or at other times when she might be suffering either the depression or stress that she referred to during the course of her evidence.
To the extent that Ms M has recorded that she had been going downhill for months and absolutely no one had noticed anything, I believe that she was including Ms Caffold when she so wrote. I find Ms Caffold’s evidence to the effect that she knew about the sending of the Facebook post before it was sent, and having discussed its content with Ms M before it was sent, as untruthful.
Referring back to Ms M's Facebook post where she said that she needed to go to see a doctor, but that she had deliberately held off doing so, knowing that her medical records would be requisitioned for the purpose of these Court proceedings – or for Family Court proceedings – namely, proceedings in this Court – I find that in so writing, Ms M was, in fact, conveying her intention to deceive the Court as to her actual medical and psychiatric state by holding off from seeing a doctor. And that obvious deception, in my mind, supports my findings as to her general unreliability and uncreditworthiness as a witness.
Her next evidence is an indication of how she views the father. When referring to the father, she used the words “the unmentionable”. Such strong language is an indication of how disparate the co-parenting possibilities for the future are as between the father on the one part, and the mother on the other, bearing in mind that Ms M is an integral part of the mother’s life. When asked about her reference to the term – or the words, “But these fuckers will use any weapon”, I similarly disbelieve Ms M when she stated that the “fuckers”, as she referred to them, were the lawyers for Mr Jedik. In fact, I find that in using those words, she was referring to Mr Jedik and his partner.
The family report dated 21 June 2017 has been prepared by one Ms I, a social worker and consultant. In paragraphs 60 to 64 inclusive of the report, Ms I recorded that X had expressed to her a clear preference to live with her father with whom she felt comfortable and safe. When specifically addressing the issue of future parenting arrangements, at paragraph 64 of the report, Ms I recorded that X had said that she liked the current parenting arrangements and did not think she would happy if the judge decided that she should live fifty-fifty with each parent asserting, “I enjoy spending most of my time with dad. It’s close to school and all my friends are around.”
Since the preparation of such report in June of 2017, the mother and her partner, Ms M, have moved their place of residence from a 45 minute driving distance away from X’s present home to a place of residence some 15 to 20 minutes away from such home. It was submitted that because the mother is much closer, that that gives rise to fifty-fifty parenting being the preferred basis on which any order should proceed.
In my view, the fact that the mother has moved closer to the child’s current residence does not support such a proposition. I consider that the mother has so poisoned the relationship between herself and the father by her sending of the email of 3 March 2016, that any viable and productive co-parenting arrangement between her and the father is impossible. If a person is prepared to go to the lengths which I find the mother did in sending the email of 3 March 2016 so as to advance her parenting case, then I am not assured that the mother is capable – is not incapable of much worse acts either initiated by her, or in conjunction with her partner, Ms M.
Ms I, in cross-examination, indicated that the closing of the gap in terms of distance made the prospect of extra time being spent by the child with the mother as a viable option, she conceded that if there was a finding that the mother was responsible for the making of the vile and horrific allegations of sexual abuse, then it would be difficult to justify any substantial increasing time. I have found that the mother either by herself or in conjunction with Ms M, sent the email – the first email of 3 March 2016 to the Government reporting agency and that she subsequently sent an email to the school making the base allegations – base and unfounded allegations - against Mr Jedik.
I find that it is likely that Ms M somehow arranged for the reporting of the making of the unfounded allegations in the Channel 7 news program, the coincidence of time is telling. There was some suggestion during the course of the evidence that the father had in some way failed to adequately care for the child by ceasing psychology sessions with a psychologist by the name of (omitted). I find that there is no merit in any such suggestion.
Neither is there any merit in any suggestion that the child ought to attend any counselling of any nature so as to monitor her mental needs. Indeed, there is no evidence that the child has any mental health issue needs. I see no point in sending a child - in a parent sending a child - to be examined to within an inch of their life on an ongoing basis by psychologists or other health professionals when there is no need for that to happen.
I find that the husband’s partner is caring well for the needs of X in conjunction with the father. Both the father and his partner impressed me as being sensible and caring people. During the course of evidence reference was made to a report which has been prepared by one Dr T, who is the co-lead for cystic fibrosis services at the (omitted) Hospital. That report is dated 12 December 2017 and was prepared consequent upon the making of an order by his Honour Judge Baumann seeking an update as to the child’s cystic fibrosis condition.

On page 3 of that report, Dr T stated that:
X was an astute and sensitive young lady who was acutely aware of the relationship between her parents, who felt at risk of betraying or disappointing her parents through any decisions she makes regarding parenting arrangements.
It was said that a crucial aspect of any decision making process - I take it as one relating to where she is to live and on what basis she is to so live - was one whereby X’s own wishes were to be taken into account. It was said that mental health was a powerful determinant of clinical outcomes of cystic fibrosis and therefore any ongoing stress arising through parental conflict and difficult placement arrangements could be detrimental to her future health and wellbeing. I consider that such a statement is central to - and a reinforcement of - the relevant considerations which must be borne in mind in this case.
I do not consider that any change in the current living arrangements will do anything other than jeopardise the future welfare of X. X is well settled. She is, on the evidence, a happy child who is doing well at school. I find that were she to have further time with her mother, certainly on a fifty/fifty basis, it would only increase the chance of her mother, in a deceptive way, seeking to undermine the child’s relationship with her father, as she has so attempted in the past.
Dr T went on in her report to state that it was not in the best interests - it was not in X’s best interests - to be exposed to negative opinions about either of her parents from any member or the family, including partners and siblings as this may engender feelings of guilt, sadness and confusion. On the one hand, the father is prepared to take all necessary steps to ensure that the child is well cared for in a general - on a general day-to-day basis as well as in relation to her medical needs. During the course of his evidence - during cross-examination - I was impressed by the fact that he readily conceded that the mother loved and cared for the child and was a good mother to her during the time that she spent with X.
I was also impressed about the father’s general attitude to the mother in terms of facilitating contact between the mother and the child, notwithstanding that the mother had perpetrated upon him one of the most vile acts that a parent could perpetrate, namely the making of hurtful and anonymous accusations of sexual misconduct. On the other hand, I view the mother and her partner as being deceptive and unprepared to extend any olive branch towards the father, the reasons for which are unfathomable.
A further issue of concern to me is Ms M’s bipolar condition. There is no evidence as to her current state. There is evidence, though, that as at October 2017 she was down to her last tablet.
There is a report dated 21 November 2017 prepared by a general practitioner by the name of (omitted) who runs a practice from (omitted). The report is some three months old and makes no reference to the fact that Ms M expressed suicidal thoughts as per her Facebook post of 28 October 2017, which I have referred to earlier, and to that extent, I find it unreliable.
The Medicare Better Access referral document, which appears as exhibit M3 to the affidavit of Ms M filed on 5 February 2018, is a referral to one Ms J for psychological treatment. No report from Ms J, who is presumably a psychologist, has been presented to the Court by way of evidence, and accordingly, Ms M’s picture is unclear. S.60CA of the Family Law Act provides that when making a particular parenting order a Court must have regard to the best interests of the child as the paramount consideration in making any such order.
S.61DA of the Act by subsection (1) provides that when making a parenting order in relation to a child the Court must apply a presumption that it is in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child. Section 61DA(2) of the Act provides that the last mentioned presumption does not apply if there are reasonable grounds to believe that a parent of the child has engaged in abuse of the child, family violence – or family violence.
The actions of the mother in making the false allegations of sexual impropriety on the part of the father are in my view, tantamount to child abuse insofar as the mother must have known that the child would be subjected to emotional upheaval by being interviewed by police in relation to such allegations, something which she must have known would occur as a result of the sending of the email. That alone provides a basis for the presumption of joint shared parental responsibility being rebutted.
In any event, I am otherwise satisfied pursuant to the provisions of section 61DA(4) that the presumption has in this case been rebutted by evidence which I accept that establishes that it would not be in the best interests of the child for the child’s parents to have equal shared parental responsibility.
First, the relationship between the mother and the father has been so poisoned that, in my view, they are unlikely to ever arrive at a consensual sensible agreement relating to the long-term interests and future of the child should a disagreement arise between them. It is likely that because of such poisoned relationship, that there will be ongoing and unending litigation between the two relating to matters of parental responsibility which otherwise sensible people might be able to easily agree upon.
I therefore conclude based on my earlier findings, that the father is the only tenable option for a parental responsibility order being made and for the reasons I will next address concerning section 60CC(3) of the Family Law Act. I intend to order that the father have sole parental responsibility in relation to the child X. In doing so, I recognise the definition of parental responsibility as set out in s.61B of the Act.
Turning to the considerations which must be taken into account when making a parenting order, I recognise that pursuant to s.60CC(2) of the Act, that one must consider the benefit to the child of having a meaningful relationship with both of the child’s parents. I have already addressed the question of my concerns relating to the child being in the company of Ms M, particularly when Ms M might be driving a motor vehicle and unsettled in her state of mind. So to that extent when making the parenting order, I am mindful of such considerations as set out in s.60CC(2)(b) of the Act.
Insofar as in issues relating to the child having a meaningful relationship with both of her parents, the child, in my view, already had a meaningful relationship. Each relationship is meaningful to a different extent relative to the interaction of each child with each particular parent from any relationship, and is dependent upon many differing factors. In this case, as alluded to earlier, I am struck by the deception used by the mother as a weapon for the purpose of these proceedings.
S.60CC(3) considerations which are relevant in this case are as follows:
a)The child X has expressed a preference to live with her father and not to have the current time arrangements spent by her with her mother varied. She is a child of almost 14 years and is therefore able to have her views as expressed taken into account and considered relevant, and I do so when making the orders which I intend to make.
b)Though the child has what I would consider a passable relationship with her mother, the child has by far a more extensive emotional contact relationship with her father which in all respects is appropriate.
c)The father has steadfastly stuck to a regimen of caring for his child both in an emotional and medical sense. The mother, on the other hand, has been disassociated from her child’s complex medical needs on many occasions and has exhibited an uncertain lifestyle associated with unstable living arrangements and otherwise living arrangements which have caused concern to her daughter as set out in the family report. It occurs to me that the needs of the mother to spend time with the child are more paramount in the mind of the mother than the need of the child to spend time with each of her parents so as to develop and nurture a meaningful relationship with both of them. My comments in that regard apply similarly to considerations under subparagraph (ca).
d)I consider that a change in the child’s circumstances would have an adverse effect upon her emotional wellbeing and upon her education. She is close to her school where she presently lives. There is little need for extensive travel. She is close to her friends and to her sporting activities and she is otherwise happy. I am not convinced that any change in her circumstances would benefit her at all.
e)I consider the father to be far better placed, bearing in mind his long history of care for his child as well as his current stable domestic arrangements to provide for the needs of X including her emotional and intellectual needs. I therefore will not change the existing arrangements in terms of time or living arrangements.

I certify that the preceding fifty-nine (59) paragraphs are a true copy of the reasons for judgment of Judge Egan

Date: 12 April 2018

[2018] FCCA 854

27 February 2018

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