Carone and Yantis

[2011] FamCA 853

FAMILY COURT OF AUSTRALIA

CARONE & YANTIS [2011] FamCA 853

FAMILY LAW – CHILDREN – Best interests of the child – Whether there is an unacceptable risk of abuse or violence – Whether there is an unacceptable risk of emotional harm – Allegations of drug and alcohol use – Weight to be given to the child’s wishes – Whether the father should be restrained from bringing the child into contact with the child’s godmother and aunt – Whether the mother should be restrained from bringing the child into contact with her former partner – Sole parental responsibility – Where the parents are unable to effectively communicate with each other.

Leighton & Carey [2010] FamCAFC 94

Family Law Act 1975 (Cth) Sections 60CA, 60CC, 61B, 61C, 61DA, 65DAA, 65DAC
Evidence Act 1995 (Cth) s 140

APPLICANT: MOTHER Ms Carone

RESPONDENT FATHER: Mr Yantis

FILE NUMBER: PAC 5829 of 2008

DATE DELIVERED: 3 November 2011

PLACE DELIVERED: Parramatta

PLACE HEARD: Parramatta

JUDGMENT OF: Justice Loughnan

HEARING DATES: 5, 6, 7 July & 24 October 2011

REPRESENTATION

COUNSEL FOR THE APPLICANT MOTHER: Ms Conte Mills

SOLICITOR FOR THE APPLICANT MOTHER Phillip A Wilkins & Associates

COUNSEL FOR THE RESPONDENT FATHER Mr R. White

SOLICITOR FOR THE RESPONDENT FATHER Tiyce & Partners Lawyers

COUNSEL FOR THE INDEPENDENT CHILD LAWYER Mr W. Lloyd

SOLICITOR FOR THE CHILD Gonzalez & Co

Orders

1.That all previous orders be discharged.

2.That the father shall have sole parental responsibility for N Yantis born … December 2002 (hereinafter “the child”).

3.Unless the parties otherwise agree, the child shall live with the mother as follows:

A.On a fortnightly cycle as follows:

i.on Thursday from after school until the commencement of school the next morning in the first week with the mother to collect the child from school at the commencement of her time with the child and to deliver the child to school at the conclusion of her time with the child.

ii.in the second week from after school on Friday until before school on Monday, and if the Monday is a public holiday, the mother shall spend time with the child until before school on Tuesday.

B.During the school holiday period as follows:

i.for the first half of the school holidays commencing at the end of terms one, two and three, commencing after the last day of the school term in even numbered years.

ii.for the second half of the school holiday periods commencing at the end of terms one, two and three in odd numbered years.

iii.for the first half of the school holiday period commencing at the end of term four, commencing after school on the last day of the term in even numbered years.

iv.for the second half of the school holiday period commencing at the end of term four in odd numbered years.

v.at such other times as agreed between the mother and father in writing.

4.If Fathers Day falls on a weekend when the child is not living with the father pursuant to these orders, the child shall spend time with the father on that weekend from after school on Friday until before school on Monday.

5.If Mothers Day falls on a weekend when the child is not living with the mother pursuant to these orders, the child shall spend time with the mother on that weekend from after school on Friday until before school on Monday.

6.That the child shall spend time with the father from after school or 3pm on Holy Thursday until before school on the following Tuesday in even numbered years.

7.That the child shall live with the father at all other times.

8.Unless otherwise agreed between the mother and father in writing, for the purposes of facilitating orders (3) to (7) inclusive herein:

A.The mother shall be responsible for collecting the child at the commencement of her time with the child pursuant to these orders:

i.from the child’s school if the child is attending school immediately prior to the commencement of her time with the child; or,

ii.from the KFC restaurant at Suburb W if the child is not attending school immediately prior to the mother’s time with the child

B.At the conclusion of the mother’s time with the child pursuant to these orders, the father shall be responsible for collecting the child from:

i.the child’s school if the child is attending school immediately after the conclusion of her time with the child; or

ii. the KFC at Suburb W if the child is not attending school immediately after the conclusion of the mother’s time with the child.

9.The father is at liberty to enrol the child into S Public School or into such other school on which the parties agree, for the balance of his primary school education and in the event that the agreed school is an independent or parochial school, until the father has paid employment and can afford to contribute, the necessary school fees shall be paid by the mother.

10.The mother shall have telephone communication with the child each Wednesday between 6:00pm and 6:30pm with the mother to initiate the telephone calls and the father to facilitate all such calls.

11.The father and mother are restrained by themselves and/or their servants and/or agents from denigrating the other parent or the family members of the other parent in the presence and/or hearing of the child and shall remove the child from the presence of any other person who is doing so.

12.The father and mother are restrained by themselves and/or their servants and/or agents from physically disciplining the child.

13.The father and mother are restrained from consuming illegal drugs for 12 hours before and during any period when the child is in their care and they are restrained from leaving the child in the care of any person who to their knowledge or observation has consumed or is likely to consume illegal drugs during those periods.

14.The parties are restrained from discussing any dispute between them in the presence or hearing of the child.

15.The mother and the father are to provide each other with the names and contact details of any medical practitioners treating the child as soon as possible and shall keep each other informed of any planned or emergency medical treatment received by the child as soon as practicable.

16.The father shall give the mother at least 6 weeks prior written notice if he proposes to have the child circumcised.

17.The father shall make available to the mother the child’s school reports and copies of applications for the purpose of purchasing the child’s school photographs at the mother’s expense.

18.For the purposes of Order 3B herein:

a.school holiday time shall commence after school on the last day of the term and shall conclude at 10:00am on the last day of the school holiday period.

b.changeover during the halfway point of the school holidays shall be at 6pm on the middle day of the school holidays or in the event that the holidays contain an even number of days, on the day following the middle day of the holidays.

c.If a pupil free holiday falls on a day immediately preceding the first or last day or a school holiday, then that day shall be added to the school holiday period.

19.Any agreed alterations to these Orders shall be reflected between the parties in writing for which purposes email or SMS message shall be acceptable.

20.Both the parents are restrained from removing or attempting to remove the child from the Commonwealth of Australia, unless by order of this court or with the express written consent of the other parent.

21.That the Marshal of the Family Court of Australia and all officers of the Australian Federal Police and of the Police forces in the States and Territories of the Commonwealth of Australia are requested to give effect to these orders and to take all necessary steps to prohibit either party from removing or attempting to remove the child and to prohibit the child from removing or attempting to remove himself from the Commonwealth of Australia, unless by order of this court or with the express written consent of the other parent.

22.The Commissioner of the Australian Federal Police is requested to take all necessary steps to place the name of N Yantis, male, born … December 2002 on the report watch list, also know as the PACE alert system, at all points of arrival and departure in the Commonwealth of Australia and to maintain that entry for 5 years from the date of these orders.

23.When the child is living with the mother pursuant to these Orders in excess of four days, the father shall be at liberty to contact the child by telephone between 6:00pm and 6:30pm on the fifth day that the child is spending time with the mother and every fifth day thereafter, and the mother shall facilitate such contact.

24.The Court Noted that the parties agree that the child should be educated at a Catholic School in the area of the home of the parent with whom he lives for most of the time.

25.The Court Noted that the mother agrees to pay the fees associated with the child’s attendance at a Catholic School until such time as the father is employed and able to contribute.

26.The parties are at liberty to restore the matter before Justice Loughnan within 28 days of the date of delivery of judgment, or such further time as they might agree, upon notice to the Court and each other, in relation to any agreement about a change to the wording of the Orders or an argument that the wording does not reflect the reasons for judgment.

27.Pursuant to s 62B and 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 attached Fact Sheet.

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

FAMILY COURT OF AUSTRALIA AT PARRAMATTA

FILE NUMBER: PAC 5829 of 2008

Ms Carone

Applicant

and

Mr Yantis

Respondent

REASONS FOR JUDGMENT

introduction

1. N Yantis (“the child”) is 8 years of age. He is the son of Ms Carone and Mr Yantis. His parents did not live together on a full-time basis. He lived with his mother until January 2009 and spent time with his father. He lived with the father since then and spent time with the mother. The father proposes that the child continue to live with him and spend time with the mother each alternate weekend during school term, each alternate Thursday afternoon and for half the school holidays. The mother proposes that the child live with her and spend time with the father each alternate weekend during school term and for half the school holidays. Each of the parents seeks sole parental responsibility for the child. The key issues relate to the risks of harm to the child and the parenting capacities of his father and mother.

applications

1. By a Minute of Orders handed up by her counsel in the course of final submissions, the mother seeks:

   1.That the child [N Yantis] born … December 2002 live with the mother.

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

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

   (a)Each alternate weekend from after school Friday until before school Monday;

   (b)For one half of each school holiday period being the first half in even numbered years commencing 2012 and the second half in odd numbered years commencing 2011;

   (c)On Father’s Day from 9:00am until 6.00pm in the event that the child would otherwise be with the mother;

   (d)5.00pm Christmas Eve until 5.00pm Boxing Day in 102 and each alternate year thereafter; and

   (e)At other times as agreed.

   4.For the purpose of changeover, the father shall collect the child from the child’s school at the commencement of his time with the child and deliver the child to the child’s school at the conclusion of his time with the child on school days and at all other times changeover shall occur at the McDonalds Restaurant at [Suburb W] or as otherwise agreed.

   5.That the mother shall keep the father informed at all times of matter relating to the child’s schooling, health, medical treatment and appointments including the child’s treating doctor, speech therapist and specialist as well as all extracurricular activities the child may be involved in.

   6.The father shall ensure that the child attends upon all medical and specialist appointments that may fall on a day that the child is spending time with him.

   7.That each party shall notify the other in the event of a medical emergency, illness or injury the child may suffer as soon as reasonably practicable whilst the child is in that party’s care.

   8.That each party shall authorise any school that the child may attend to provide to both parties copies of the child’s school reports, parent/teacher notifications, newsletters, school photographs and the like.

   9.That each party be restrained from denigrating the other or members of their respective families in the presence or hearing of the child.

   10.That each party be restrained from physically disciplining the child.

   11.That the child shall attend a Catholic School in the [western Sydney] District from 2012 as agreed or failing agreement at [P Primary School], and in 2015 [M College].

   12.That the parties do all things to ensure that [Ms C] does not come into contact with the child unless otherwise agreed between the parties.

   13.That the parties do all things to ensure that [Ms B] does not come into contact with the child unless otherwise agreed between the parties.

   Notation: The Court Notes the mother will pay the fees associated with [the child’s] attendance at a Catholic School until such time as the father is employed and able to contribute.

2. By a Minute of Orders included in his Case Outline document the father seeks:

   1.That all previous orders be discharged.

   2.That the father shall have sole parental responsibility for [N Yantis] born … December 2002 (hereinafter “the child”).

   3.That the child shall live with the mother as follows:

   A.       On a fortnightly cycle as follows:

   i.on Thursday from after school until 8:30pm [when?] in the first week with the mother to collect the child from school at the commencement of her time with the child and to deliver the child to the KFC restaurant at [Suburb W] at the conclusion of her time with the child.

   ii.in the second week from after school on Friday until before school on Monday, and if the Monday is a public holiday, the mother shall spend time with the child until before school on Tuesday.

   B.During the school holiday period as follows:

   i.for the first half of the school holidays commencing at the end of terms one, two and three, commencing after the last day of the school term in even numbered years.

   ii.for the second half of the school holiday period commencing at the end of terms one, two and three in odd numbered years.

   iii.for the first half of the school holiday period commencing at the end of term four, commencing after school on the last day of the term in even numbered years.

   iv.for the second half of the school holiday period commencing at the end of term four in odd numbered years.

   v.at such other times as agreed between the mother and father in writing.

   4.If Fathers Day falls on a weekend that the child is not living with the father pursuant to these orders, the child shall spend time with the father on that weekend from after school on Friday until before school on Monday.

   5.If Mothers Day falls on a weekend that the child is not living with the mother pursuant to these orders, the father’s time with the child shall be suspended on this weekend from after school Friday until before school Monday.

   6.That the child shall spend time with the father from after school or 3pm on Holy Thursday until before school on Tuesday in even numbered years.

   7.That the child shall live with the father at all other times.

   8.Unless otherwise agreed between the mother and father in writing, for the purposes of facilitating orders (3) to (7) inclusive herein:

   A.The mother shall be responsible for collecting the child at the commencement of her time with the child pursuant to these orders:

   i.from the child’s school if the child is attending school immediately prior to the commencement of her time with the child; or,

   ii.from the KFC restaurant at [Suburb W] if the child is not attending school immediately prior to the mother’s time with the child

   B.At the conclusion of the mother’s time with the child pursuant to these orders, the mother shall be responsible for delivering the child to:

   i.    the child’s school if the child is attending school immediately after the conclusion of her time with the child; or

   ii. the KFC at [Suburb W] if the child is not attending school immediately after the conclusion of the mother’s time with the child.

   9.That the child shall be enrolled into [S] Public School for the remainder of his primary school education as at Term 3 in 2011.

   10.That the mother be and is hereby restrained by herself or by her servants and/or agents from bringing the child into contact with the mother’s friend, Mr [X].

   11.That the father and the mother shall be and are hereby restrained by themselves and/or their servants and/or agents from denigrating the other parent or the family members of the other parent in the presence and/or hearing of the child and shall remove the child from the presence of any other person who is doing so.

   12.That the mother shall have telephone communication with the child each Wednesday between 6:00pm and 6:30pm with the mother to initiate the telephone calls and the father to facilitate all such calls.

   13.The mother and the father are to provide each other with the names and contact details of any medical practitioners treating the child as soon as possible and shall keep each other informed of any planned or emergency medical treatment received by the child as soon as practicable.

   14.The father shall make available to the mother the child’s school reports and copies of applications for the purpose of purchasing the child’s school photographs at the mother’s expense.

   15.For the purposes of orders (3B) herein:

   a.   school holiday time shall commence after school on the last day of the term and shall conclude at 10:00am on the last day of the school holiday period.

   b.   changeover during the halfway point of the school holidays shall be at 6pm.

   c.   If a pupil free holiday falls on a day immediately preceding the first or last day or a school holiday, then that day shall be added to the school holiday period.

   16.Any agreed alterations to these orders shall be reflected between the parties in writing for which purposes email or SMS message shall be acceptable.

   17.That the parties be and are hereby restrained from discussing any dispute between them in the presence or hearing of the child.

   18.That the Commissioner of the Australian Federal Police and the Secretary of the Minister of Immigration shall take all necessary steps to immediately place the name of [N Yantis], male, born … December 2002 on the report watch list, also know as the PACE alert system, at all points of arrival and departure in the Commonwealth of Australia. The Australian Federal Police maintain an airport watch of the said child and all flights leaving any international airport in all states and territories of the Commonwealth of Australia.

   19.That both the parents are hereby restrained from removing or attempting to remove the child from the Commonwealth of Australia, unless by order of this court or with the express written consent of the other parent.

   20.That the Marshall of the Federal Magistrates Court of Australia and all officers of the Australian Federal Police and of the Police forces in the states and territories of the Commonwealth of Australia are requested to give effect to these orders and to take all necessary steps to prohibit either party from removing or attempting to remove the child and prohibiting the child from removing or attempting to remove himself from the Commonwealth of Australia, unless by order of this court or with the express written consent of the other parent.

   21.When the child is living with the mother pursuant to these orders in excess of four days, the father shall be at liberty to contact the child by telephone between 6:00pm and 6:30pm on the fifth day that the child is spending time with the mother and every fifth day thereafter, and the mother shall facilitate such contact.

   22.That the child be permitted to spend time unsupervised time with his godmother, [Ms C].

1. The mother’s proposals changed at the point of final submissions. The amendments are reflected in the terms quoted above. It was then conceded in the father’s case that he too would like the boy to attend a Catholic primary school but on the basis that, until he has paid employment, the payment of school fees would be a matter for the mother.

2. There is no formal minute of the orders sought by the Independent Children’s Lawyer (“ICL”). Learned counsel for the ICL said that the orders pressed on behalf of the child were in accordance with the father’s general proposal with the child living with the mother every alternate weekend, one overnight in the off week and for half the school holidays and provision for special days. Injunctions are sought in relation to drugs, alcohol and physical discipline. It is not argued that the undertaking in relation to the child’s godmother should be continued. The child should attend at S Public School or a Catholic School close to the father, on the basis that the mother pays the fees. An order was sought on behalf of the ICL against the mother for costs in the sum of $2,000. That application is resisted on behalf of the mother and time was sought to obtain instructions on the issue. I reserved the question of the costs of the ICL.

written evidence

1. The mother relies on:

   Amended Initiating Application filed 18 May 2011

   Affidavit of the mother sworn 13 May 2011 and filed 17 May 2011

   Affidavit of Mr H sworn 6 May 2011 and filed 17 May 2011

   Affidavit of Mr D sworn 16 May 2011 and filed 17 May 2011

   Affidavit of Ms H sworn and filed 17 May 2011

2. The father relies on:

   Response to Initiating Application filed 17 June 2011

   Affidavit of the father sworn 11 June 2011 and filed 14 June 2011

   Affidavit of Ms C sworn 9 June 2011 and filed 14 June 2011

   Affidavit of Ms B filed 14 June 2011

1. A Notice of Abuse and Family Violence was filed by the mother on 22 September 2009

Expert Evidence

1. The following expert evidence was relied on:

   Report dated of Dr R dated 9 February 2010.

   Report dated of Dr R dated 25 November 2010.

   Magellan Report dated 9 November 2009.

   Children and Parents Issues Assessment dated 12 March 2009.

THE HEARING

1. The matter was listed for hearing over three days commencing 5 July 2011. The first day was taken up with cross-examination of the mother and concluded with the mother still in cross-examination on behalf of the ICL. At the commencement of the second day I asked counsel to prepare a trial plan to account for the remainder of the listed time and was told that the hearing required at least another 15 hours and perhaps 17 hours. Counsel agreed that the matter could not be contained within the remaining 10 available hours. I then allocated 24 October 2011 to conclude the matter. No earlier dates were convenient to all counsel. Without objection from counsel, the father’s cross-examination immediately followed that of the mother. That permitted a better comparison of the evidence of the parents. In circumstances where the matter was to be adjourned part heard I thought that would allow the parties to have the benefit of the testing of the main elements of each other’s case and for the outcome of that testing to be put to the expert. The father’s re-examination concluded at about 4.15 pm on the second day of the trial. The mother’s supporting witnesses, Ms H, Mr D were cross-examined on the third day as was Dr R and at about 4.30 pm Dr R’s oral evidence was completed. At about 5.00 pm on that day the matter was adjourned part-heard to 24 October 2011 for cross-examination of two supporting witnesses in the father’s case, Ms C and Ms B and for submissions.

2. On 24 October 2011 Ms C and Ms B were cross-examined and submissions were made. Judgment was reserved, as were the costs of the ICL and the parties were excused on delivery of judgment.

relevant people

1. The child, N, was born in December 2002 and as at the date of the hearing he was 8 years of age.

2. The following are persons of particular significance in his life:

3. The mother was born in 1966 and, as at the date of hearing, she was 45 years of age. She works as a health care provider with O Community Care. She works on a permanent part-time basis from 8 am to 3 or 4 pm, Monday to Friday. She earns about $2,500 per fortnight and can have a fortnightly surplus of $500. She has casual employment with another Clinic and does the occasional afternoon shift until 10 pm. The mother has a child from a previous relationship, namely V.  He was born in August 1992 and was 18 years of age when the hearing commenced. He lives independently of the mother.

4. The father was born in Iraq in 1974 and as at the date of hearing, he was 37 years of age. He moved to Australia in December 1999. He is unemployed.

5. Mr D is a friend of the mother. He lives in a western Sydney suburb, is 50 years of age and is unemployed. He told Dr R that he changed his name in 1988 at the request of his then fiancée because no one could pronounce it. He and the mother met on the internet in 2006, had a brief intimate relationship and lived together from 1 August 2008 until 21 January 2009. He and the mother both say that they have remained (just) friends since then. They see each other once or twice a week.

6. Ms C is the child’s godmother. She is about 50 years of age and works as an administration manager and a part-time carer. She was a friend of the mother’s mother and has been a friend of one or more of the mother’s sisters for many years. The mother has known her for about 12 years.

short history

1. The mother is 45 years of age and the father is 37. They commenced a relationship in 2001 and although they did not live together on a full-time basis, they finally separated in April 2007.

The issues

1. Apart from parental responsibility and living arrangements, the ICL identified the following issues:

   ·    Is there an unacceptable risk of sexual / psychological abuse of the child?

   ·    The child’s relationship with Ms C.

   ·    The mother’s alleged drug and alcohol abuse.

   ·    The nature of the relationship between the child and the mother and father.

   ·    The parenting capacity of both parents.

   ·    Child’s wishes and weight to be given to those wishes.

   ·    Allegations of violence and abuse between the parents.

   ·    Restraining orders with respect to Mr D and/or Ms C.

   ·    The allegations that Ms C involved the child in sexual touching.

   ·    Cultural issues pertaining to the mother and the father.

   ·    Whether Mr D constitutes a risk to the child’s welfare and safety.

   ·    The father’s alleged anger issues.

   ·    Whether the child’s school should be changed.

   ·    Ability to facilitate a meaningful relationship with the other parent.

2. The mother’s counsel identified the following additional issue:

   ·    Capacity of both parents, including whether any parent has a psychiatric condition which would affect capacity.

background facts

1. The father came to Australia in 1999.

2. In 2001 the father was prescribed Zoloft by his doctor.

3. The mother has a child from a previous relationship, namely V, who was born in 1992.

4. The parties met in May 2001.  They commenced a relationship but did not live together. The mother says that the father was verbally abusive toward her from the commencement of their relationship.

5. In January 2002, the father was treated in hospital.  The mother says that he refused nursing care, and demanded that she shower and dress him and attend to his care.  She says he became aggressive and hit her on around 15 occasions, saying that she was not providing him with enough care.  The mother says, at this point, she was afraid to leave the relationship.

6. In June 2002, the mother informed the father that she was pregnant. She says that the father pushed V out of the room, slammed and locked the lounge room door and slapped and pushed her. The father says that the mother’s pregnancy was a very difficult time for him because he is a strict … Catholic and it is considered improper for a child to be born out of wedlock. He agrees that he was angry at this time but denies assaulting the mother. The parties then separated for a period of three months.

7. The child was born in December 2002.

8. The mother says that from December 2002 until mid 2005, the father did not want his family or friends to know about the child.

9. The father met the child for the first time in January 2003.  The mother says she gradually allowed the father back into their lives. He apologised for his previous behaviour and, on occasion, gave the mother approximately $50.00.

10. Between 2003 and 2005, the mother says that the father became increasingly verbally and physically abusive towards her and on occasion, demanded that she have sex with him. She says she was frightened and unsure of how to end the relationship.

11. In 2003, at the child’s christening, Ms C became his godmother at the mother’s request.

12. In mid 2005, the mother’s brother, Mr Carone, told her that he had spoken to the father to request that he leave the mother and V alone.  The parties separated at this time.

13. The father commenced spending one night a week with the child at mother’s house.

14. In about 2006 the mother met Mr D through a social internet site.

15. In mid 2006 or in November 2006 the parties resumed their relationship.

16. In February 2007 the parties co-operated in having the child’s name changed from N Carone to N Yantis.

17. In either January or April 2007, the parties separated.

18. In around April 2007, the mother commenced part time employment with A Company as a personal care assistant.  During this time, the child was cared for by his godmother on Friday nights and was collected by the father on Saturday mornings. The father would then return the child to the mother on Sunday evenings. 

19. The mother says that on 14 August 2007, after she ran in the City to Surf, the father came to her home and raped her. The father says that the parties had consensual sexual intercourse at that time.

20. In 2007 when the mother enrolled the child in T School for the 2008 school year she told the school that she had good support from the father. In cross-examination the mother said that she meant to convey only that he had agreed to pay the school fees.

21. At some time in 2008 the mother travelled to Queensland with Mr D leaving the child with the father and Ms C.

22. The mother’s elder son moved out of the mother’s home to live with his father.

23. In May 2008, the child commenced spending time with the father on alternate weekends. The father says he had been spending about one day each week with the child from May 2007.

24. In around mid August 2008, the father alleges that the mother’s elder son disclosed to him that he had seen the mother and Mr D smoking drugs at her home.

25. The parents were invited to attend a meeting at the child’s school on 22 August 2008 in relation to the child’s speech. The father attended but the mother did not. The meeting was attended by the father, Ms Y (the Principal) and Mrs I. They waited 15 minutes for the mother and then the meeting proceeded in her absence. It was noted that the mother had told the school representative that she had the child assessed (in respect of his speech) but that despite several requests (to the mother) the school had not been provided with a copy of the report. From the school records[1] the concerns raised were:

    [1] Exhibit 8.

    Sounds:          [The child] can’t pronounce them but can display the sign

    Words:[The child] cannot be understood easily; he has to repeat words a few times to be understood

    Reading:        [The child] can’t be understood easily he has to repeat words.

    Class Discussion:

    [The child] can’t be understood and has to be asked to repeat

    Consequences:         language development & reading are being hampered

    [The child] is becoming anxious as he becomes more aware that he can’t be understood.
    [The child] is becoming more withdrawn in class discussion as he realises he will be asked to repeat his contribution

    [The child’s] feelings on the matter:

    [The child] told his teacher he had seen someone who was helping him but, Mum said it was too much money
    [The child] also said he doesn’t feel good when people don’t know what he is saying.

26. The school records note that the father gave an assurance that he would make an appointment with his GP to seek a referral to a Speech Pathologist. He said that he would inform the school of the date of the appointment.

27. On 3 September 2008 the mother attended at the school and was given the information provided at the meeting. The school notes record that she said she couldn’t afford speech (therapy) and she didn’t have time. She was told that there was free speech pathology through Medicare. The notes record that it was suggested to the mother that she should let the father make arrangements. The notes also record that the mother was happy for the father to organise speech therapy. She said that for her to take the child to speech pathology the appointments would need to be in her local area. The effect of the mother’s evidence in cross-examination is that she had already taken the child to a Speech Pathologist who concluded that he had a mild lisp and a problem with a couple of words. In cross-examination the mother rejected saying anything to the child about not taking him to a Speech Pathologist due to the cost and insisted that she had been advised that nothing needed to be done. She also rejected that she had said anything about not being able to afford the cost of treatment to the school. The mother’s comments as recorded by the school are inconsistent with her oral evidence. It is likely that the school notes are correct.

28. In September 2008, the father made arrangements for the child to see a Speech Pathologist. The school records note that and that he also made arrangements to see a Paediatrician.

29. The mother says that the father continued to be verbally abusive and make threats toward her throughout 2008.

30. On 1 October 2008, the parties attended mediation at a Family Relationship Centre.

31. In October 2008, the mother stopped allowing the father to spend time with the child.

32. On 16 October 2008 the father rang the school and asked if he could see the child at school as the mother had stopped him having access visits. He saw the child at school from 11.20 am to 11.30 am on 3 November 2008; from 10.50 am to 11.33 am on 10 November 2008 and from 10.45 am to 11.30 am on 17 November 2008.

33. On 17 November 2008, the mother says the child told her that the father had been attending his school to visit every Monday at lunchtime. She attended the school the next day to discuss the issue. The school records[2] that on 9 November 2008 the mother made an appointment about the father’s visits. The notes record:

    I explained when he was visiting and suggested that as there were only 2 more visits (wk 9 & 10) maybe she should allow this. She agreed.

    [The mother] also told me that [the child] would be leaving the school at the end of the year and moving and not telling anyone where she was going. I explained that I needed to know which school [the child] would be attending. She said she would let me know.

    [2] Exhibit 8.

34. On 1 December 2008, Mr D moved into the mother’s home.  The mother says she asked him to move in as she needed protection.

35. On 5 December 2008, by arrangement with the school but without the mother’s permission, the father collected the child from school and took the child to see a Paediatrician. The father sent the mother a text message saying he had taken the child from school.

36. On 8 December 2008, the mother commenced these proceedings by filing an Initiating Application in the Family Court.

37. On 15 December 2008 orders were made by Judicial Register Johnston, as his Honour was then, in the following terms:

    1.I order that the parties attend a Child Dispute Conference at this Registry at 9.00 am on 17 December 2008.

    2.I order that these proceedings be adjourned before me at 11.00 am on 17 December 2008.

    3.I order that the father deliver the child [N Yantis] born … December 2002 at 5.00 pm today at McDonalds ….

38. The mother lived opposite the child’s school. The mother and Mr D erected signs in the mother’s front yard complaining about the school. The signs were erected on or about 15 December 2008.

39. Signs bore the following text:

    [text of signs omitted to comply with s 121 Family Law Act 1975 (Cth)]

40. Some of the signs were written by Mr D and at least one was written by the mother. The idea to erect the signs may have come from Mr D. The mother concedes that in erecting the signs she acted irrationally and that she made a mistake in doing so. She denies that the reference to the father being an “Iraq man” was intended to prejudice the community against the father. Just stopping there - that is likely to be untrue. It is difficult to imagine another reason for that detail to be included on a sign.

41. The mother denies that she intended to turn parents of children at the school against the father. That is likely to be untrue. The mother conceded that she and Mr D approached parents at pick up time about the issues to do with the child. She concedes that they should not have done that and that they should not have handed out letters to parents.

42. The mother says she did not consider that children would read the signs. If true, that was naïve. The signs were erected in the mother’s front yard, across the road from the school.

43. In his oral evidence before me, Mr D said that, in hindsight, he too considers that the signs and the actions taken by him and the mother were inappropriate.

44. That matter was reported to DoCS by the school. It is alleged that parents and children at the child’s school were subjected to abuse and harassment by the mother and Mr D. The mother and Mr D deny that allegation.

45. On or about 16 December 2008 the mother had Mr D deliver a letter to the school on her behalf. The letter contained words to the effect that she was too stoned and drunk to come to the school herself and was a very bad mother. Mr D says that he dictated the letter. The mother and Mr D say that she was neither stoned nor drunk but meant those comments, sarcastically.

46. On 16 December 2008, the father filed a Response.

47. It is alleged that Mr D made the child wear a school shirt that had been written on. The evidence[3] is not complete but it appears that on the back of the shirt was written, apparently by the child, “[N] Love the school” and “I love my teacher …..”. The mother contends that the shirt was the child’s initiative and that he intended to express genuine affection for the school and his teacher. Again, the school complained to DoCS.

    [3] Exhibits 7 & 11.

48. On 17 December 2008, Judicial Register Johnston, made the following orders:

    1.That an Independent Children’s Lawyer be appointed for the child [N Yantis] born on … December 2002 and the Court requests the Director of the Legal Aid Commission of New South Wales to make the appropriate arrangements.

    2.That each of the parties forward forthwith to the said Director a copy of all documents filed by them in these proceedings.

    3.That these proceedings are adjourned to the Judicial Registrar’s Duty List call-over at 9:30 am on 27 January 2009.

    4.That until 6:00 pm on 27 January 2009 the child [N Yantis] born on … December 2002 shall live with his mother from 9:00 am each Monday until 5:00 pm each Tuesday and from 9:00 am each Thursday until 5:00 pm each Friday commencing on 22 December 2008 on the basis that the mother is to ensure that the child is not to be brought into contact with Mr [D].

    5.That until 6:00 pm on 29 January 2009 the child shall live with his father at all other times, commencing from 5:00 pm on Friday, 19 December 2008.

    6.That for the purposes of changeover this shall occur at McDonalds Restaurant, …

    7.That the Court notes that the details of Mr [D] have been included in a sealed envelope and placed in a secure place and are not to be made available to any person without an order of the Court.

    8.That pursuant to s.62B and 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 and details of who can assist parties adjust to and comply with an order are set out in the Fact Sheet attached hereto and these particulars are included in these orders.

1. The mother was present in Court but did not have legal representation. She says she did not realise that orders had been made or her obligations in relation to the child spending time with herself and the father.

2. The School Principal saw the child with Mr D that day.

3. On 19 December 2008, the mother and the child went on holiday to Wiseman’s Ferry.

4. On 19 and 20 December 2008 the mother did not make the child available to the father pursuant to Court Orders.

5. On 22 December 2008 the father filed an Application in a Case for a recovery order and seeking full time care of the child and a Contravention Application.

6. On 24 December 2008, I made the following orders:

   1.The Court deemed service sufficient of the father’s Application in a Case filed 22 December 2008.

   2.It is noted there is no appearance by or on behalf of the mother at 10:15 am today.

   3.The Court was satisfied it is appropriate to deal with the matter on an undefended basis.

   4.That the operation of Order 4 made by this Court on 17 December 2008 is stayed pending further order.

   5.It is noted that the effect of that order is that the child [N Yantis] born … December 2002 live with the father until 6:00 pm on 27 January 2009 and will not live with the mother or spend time with the mother until that date and time.

   6.That the Marshal of this Court, all officers of the Australian Federal Police and of each of the Police Forces of the States and Territories of Australia be authorised and directed with such assistance as they may require and if necessary by force, to stop and search any vehicle, vessel or aircraft and to enter and search any premises or place in which there is, at any time, reasonable cause to believe that the child [N YANTIS] (male) born … December 2002 may be found and to recover the child and to deliver the child to the father.

   7.The Court requested that the Registry Manager of this Court at Parramatta, or his nominee, provide to Debra Harris, counsel pro bono for the father, the details contained in an envelope sealed at the direction of the Court on 17 December 2008 in relation to Mr [D] for the purposes only of that information being provided to authorities authorised pursuant to a Recovery Order issued today and not otherwise.

7. On 24 December 2008 the Police attended at the mother’s home and spoke to Mr D. He gave them the mother’s mobile telephone number. A Police Officer spoke to the mother.

8. On 31 December 2008, the father filed an Application in a Case.

9. On 2 January 2009, the mother returned from holiday with the child. She says that she was then verbally assaulted by the next door neighbour, Mr E, who screamed at her using words to the effect “you are a slut…how dare you take a child away from a father…I am going to kill you”. 

10. On 5 January 2009, the mother contacted a women’s refuge and was told to go to Liverpool Police Station and that the police would then escort her and the child to the refuge.  It is not clear whether that was done. It would seem strange that the police would assist the mother in that way, in the face of a current recovery order.

11. The mother stayed at the refuge until 20 January 2009. She returned home at midnight on 20 January 2009. At 2.00 am the next morning the Police arrived at the home. Mr D was sleeping in the lounge room at the front of the house and opened the door to the police. The police asked if the child was at home and initially Mr D said that he was not. The police pressed Mr D and he conceded that the child was at home. Mr D woke the mother. The police asked the mother to wake the child and to deliver the child to them. That took some time. The mother could not fully wake the child. She partially dressed him and the police took the child from the mother’s home and delivered him to the father. The child has been mainly in his father’s care since that time.

12. The father says that on that same day, his car was stolen. I gather that he sees a link between those events. Ms C and Ms B refer to damage to motor vehicles that they suggest was caused by the mother or Mr D or at their initiative.

13. The father says that when the child came to him he was constipated. The father asked his cousin to help. The cousin collected a suppository from a Pharmacy, delivered it to the father and the father put it in the child’s rectum.

14. On 27 January 2009, the parties entered into consent orders in the following terms:

    1.That these proceedings are adjourned to the Judicial Registrars Duty List call-over at 9.30am on 16 March 2009 and for interim hearing on that day.

    2.All parties have liberty to issue at least 3 Subpoenae each.

    3.That until further order the child [N YANTIS] born … December 2002 live with the father.

    4.That until further order the mother’s time with the child be suspended.

    5.That the mother have telephone communication with the child each Sunday, Wednesday and Friday between 6.00pm and 6.30pm with the mother to initiate the telephone calls and the father to facilitate all such calls.

    6.That both the father and the mother be and are hereby restrained from removing [N Yantis] from the Commonwealth of Australia unless by an order of this Court and until further order the said child’s name is to be placed on the Airport Watch list and the Independent Children’s Lawyer provide a copy of this Order to the Australian Federal Police.

    7.That both the father and mother file and serve any further application and/or Response 14 days prior to the next return date.

    8.That the father and the mother be and are hereby restrained from discussing these Court proceedings with the child, the child’s school principal and the child’s classroom teacher.

    9.That the mother is restrained from entering upon the grounds [T School].

1. The mother says that she consented to those orders because she did not wish to see the child under supervision and without (her having) protection from the father. She did not wish for the child to form the view that she was dangerous for him to be with.

2. Mr D moved out of the mother’s home in January 2009.

3. In February 2009, the mother was evicted from her home.  The mother alleges that the father had contacted her landlord on several occasions and told him that the mother was living with a paedophile, smoking illegal drugs and that she had stolen the child from him.

4. Between February 2009 and July 2009, the mother says that the father denied her sisters (presumably Ms J and Ms H) access to the child approximately 10 times.

5. The father agreed to the child seeing his mother on her birthday – late March 2009.

6. On 4 March 2009, the parties attended a Legal Aid Conference. No agreement was reached. 

7. It is the mother’s evidence that in March 2009 the child told her that in January 2009 the father pushed something up his bottom and that made him cry. She did not inform the police or the Department of Community Services at that time but subsequently made reference to that disclosure in her Notice of Child Abuse filed in September 2009.

8. In April 2009 the father took the child for speech therapy.

9. On 28 May 2009, the mother says she was driving past the child’s school on her way to work.  She stopped the car and gave him a hug and kiss. That was a breach of the Court orders. The mother says that the father saw this and pushed her away.

10. The mother says that on several occasions throughout early 2009, during her telephone conversations with the child, he spoke of these Court proceedings. The inference being that the father or someone associated with him had discussed the proceedings with the boy.

11. On 9 June 2009, the mother was served with an Apprehended Violence Order (AVO). She sought the issue of an AVO against the father. Interim Apprehended Violence Orders were made on 8 July 2009 at the Local Court for the protection of the mother and the father from each other.  Both applications were subsequently withdrawn.

12. In July 2009, the father undertook and completed the PPP parenting program.

13. On 23 July 2009 the father gave a police statement.

14. On 26 July 2009, the mother says that the father refused to allow the child to speak with her on the phone.

15. On 4 August 2009, the mother filed an Application in a Case seeking interim parenting orders.

16. From 22 September 2009 the mother saw the child under supervision on Friday afternoons.

17. On 22 September 2009 the mother filed a Notice of Child Abuse or Family Violence. In that notice the mother alleged:

    6

    1.Some time in the first half of 2006 I say [Ms C] touch [the child] on the bottom in an obvious sexual way. She said “he has a very sexy ass” and “He is a big little boy isn’t he”.

    2.Thereafter until Oct 2008 I saw [Ms C] touch [the child] around the genitals and on the bottom about 20 times.

    3.Thereafter until Oct 2008 I saw [Ms C] ask [the child] and / or let him fondle her breasts about 20 times.

    4.On 27 January 2009 [the child] told me that [the father] had pushed an object into his bottom and made him cry.

1. As to the alleged risk of abuse the Notice contains the following:

   10

   1.Whilst [the child] lives with [the father] & doesn’t see his mother there are controles in place (or checks and balances) to protect [the child] from abuse described at part E paragraph 6.

   2.Whilst [the child] lives with [the father] & doesn’t see his mother [the father] is free to give [the child] to [Ms C] and she can continue to touch and fondle him as described at part E paragraph 6.

2. The first allegation in paragraph 10 of the Notice makes no sense. It may be that the mother intended to assert that there were “no controls in place..  (or checks or balances)”.

3. As to the alleged family violence the Notice contains the following:

   14

   1.Rape on 2 occasions that were witnessed.

   2.Hitting kicking spitting & verbal abuse on about 50 occasions.

   3.2 counts of pushing one onto the road.

   Note! Too many to list please refer to affidavits filed & described at paragraph 16.

4. As to the first allegation, in her affidavit the mother refers only to a rape on 14 August 2009. In cross-examination she explained that by “witnessed” she did not mean that someone saw the rape but that she told someone of the rape after the event.

5. As to the alleged risk of family violence the Notice contains the following:

   18

   1.Whilst the father is free to approach the mother to Court [the child] for access, the mother and [the child] are at risk of receiving his anger in the form of verbal and physical violence.

   2.Whilst [Ms C] has uninterrupted access to [the child] the mother is subjected to her verbal abuse and contact.

1. On 28 September 2009, interim orders were made in terms agreed to by the parties as follows:

   1.That the further hearing of all extant applications is adjourned before Registrar Bartlett to 10.00am on 11 November 2009.

   2.That pursuant to S.91B of the Family Law Act 1975 as amended the Director-General of the Department of Community Services be requested to intervene in these proceedings in relation to [N Yantis] born on … December 2002 (“the child”).

   3.That the Department of Community Services is requested to prepare a Magellan Report as to the mother’s allegations contained in her Notice of Child Abuse (Form 4) filed on 22 September 2009 and that such report be filed at this court no later than 2 November 2009, and Registrar Bartlett or the Court is to release that report to the parties when it is available.

   4.That Registrar Bartlett is to forward to the Director-General of the Department of Community Services by 4pm on 30 September 2009 a copy of all materials relevant to the current application and for this purpose leave is granted to release to the Director-General a copy of any Expert’s Report or Family Report.

   5.That leave is granted to the Director-General to search the Court record and make a copy of any document relating to the proceedings, pursuant to Rule 24.13 of the Family Law Rules 2004.

2. Between approximately September 2009 and August 2010, the mother spent time with the child each Friday from 3.00pm to 6.00pm. This time was supervised by the mother’s brother in law, Mr H. 

3. On 29 September 2009, the mother filed an Application in a Case seeking an injunction that the parties be restrained from allowing the child to have contact with Ms C.

4. On 6 October 2009, Ryan J made the following orders:

   IT IS NOTED:

   1.That the Court notes the undertakings by [the father] which is Exhibit A and [Ms C] which is Exhibit B as set out hereunder:-

   EXHIBIT A

   I, [Mr Yantis] do hereby undertake to the Court to personally supervise any time to be spent between [the child N] and his Godmother, [Ms C].

   EXHIBIT B

   I, [Ms C] hereby undertake to this Court to accept the personal supervision of [Mr Yantis] of any time we might arrange for [the child N] to spend with me.

   2.That the Court notes that the Application in a Case filed by [the mother] on 29 September 2009 is consequently withdrawn and dismissed.

   IT IS ORDERED:

   3.By consent that other than as is provided for in the interim orders made on 28 September 2009 [the mother’s] Application in a Case filed on 4 August 2009 is withdrawn and dismissed.

   4.That the father has leave to make an oral application for his costs in relation to the mother’s Application in a Case filed on 29 September 2009.

   5.That the Independent Children’s Lawyer has leave to make an oral application for costs in relation to the mother’s Application in a Case filed on 29 September 2009.

   6.That by consent the mother shall pay the father’s costs of her Application in a Case filed on 29 September 2009 the sum of $577.50 within three months.

   7.That by consent the mother shall pay the Independent Children’s Lawyer’s costs of her Application in a Case filed on 29 September 2009 the sum of $577.50 within three months.

1. Ms C concedes that she stayed with the child for some hours on one occasion after those undertakings were noted in circumstances where Ms B was present but the father was not. She said that the child was ill and crying out for her.

2. On 2 November 2009 a Magellan report was provided by the Department of Human Services, Community Services. On 9 November 2009, the Magellan Report was released.  The Department advised that the Director-General would not intervene in the proceedings.

3. In November 2009 the father was prescribed Aropax for depression.

4. On 11 December 2009, Registrar Bartlett made orders by consent that Dr R be appointed as the single expert in the matter. 

5. On 9 February 2010, Dr R’s report was released to the parties. 

6. On 5 February 2010, the father says that he was assaulted by Mr D.

7. On 10 February 2010, the mother says the child disclosed to her that he had been physically abused by the father.

8. On 26 February 2010, the child was hospitalised having suffered an asthma attack.

9. On 7 April 2010, the mother says the child told her that he had been left by his father at a man’s house and that the man hit him. 

10. In May 2010 the mother completed a 5 session, post separation, parenting group “Keeping Kids in Mind” under the auspices of Centacare.

11. In August 2010, the parties attended mediation. They agreed that the mother would spend unsupervised time with the child each Friday from 3.00 pm to 6.00 pm and that the child would otherwise live with the father.  

12. On 25 November 2010, Dr R released an addendum to his initial report.

13. On 23 December 2010, the parties agreed that the child would spend time with the mother from Thursdays until Saturdays during the summer school holidays.

14. On 30 March 2011, the mother says that the child disclosed to her that the father had “bashed” him.

15. On 22 April 2011, the child told the mother that the father was changing his school. 

16. On a date that the mother does not identify she says that the child told her that the father asked him to observe Ramadan and not eat meat for 40 days. The father denies any such statement noting that by faith he is Catholic not Islamic. The mother was asked whether she believed that the father would impose an aspect of Islamic fasting on the boy. Her answer suggests that she never had any such concern. That begs the question, why did she raise it?

17. On 18 May 2011, the mother filed an Amended Initiating Application.

CREDIBILITY

1. This case involved allegations of physical abuse by the father against the mother and the child. The alleged behaviours are said to have occurred in private or at least in the absence of any independent witnesses. There is nothing by way of official records from a doctor, hospital, police or criminal court. In those circumstances the credit of witnesses is important.

2. The mother gave her evidence with little affect. She seemed a very co-operative witness, to the point of agreeing to propositions put in cross-examination that make little sense of her case. Much of the mother’s evidence makes no sense. For example the mother says she considered and considers Ms C a potential source of abuse of the child because of conduct the mother observed in 2005 and since and yet she relied on Ms Cy to baby sit the child over the following 3 years or so.

3. Ms H is the mother’s older sister. She lives with her husband Mr H in the house they own in …. She works as an allied health care assistant. She suffers from Dyslexia and her affidavit is appropriately endorsed. She does not have a good memory for dates. She was not successfully challenged in relation to her evidence. She was asked if she had seen the father strike the child. She reported that he had hit the child when N was a baby. She said that the mother was present on that occasion. When she was told that the mother had given evidence that she had never seen the father hit the child, Ms H said something like “it was just a slap on the bottom - it was nothing.” If it was nothing, why had she raised it? The details of the evidence of Ms H about the events following the alleged rape of the mother on 14 August 2007 do not fully accord with those of the mother. Both Ms H and the mother made the same mistake about the date. To some extent then, one of them relied on the evidence of the other, rather than their own independent recollection. I take it that Ms H set out to exaggerate her complaints against the father.

4. Mr D made concessions against interest – both against his own credibility and the mother’s case. He conceded that he sought to mislead the police on 21 January 2009 when they came to his house at 2.00 am looking for the child. He conceded that he gave the mother poor advice in relation to her dealings with the child’s school.

5. The father’s evidence was not successfully challenged on any significant issue.

6. Ms C was cross-examined at some length and was not successfully challenged on any important issue. In particular she was not successfully challenged in respect of her denial of allegations that she had sexually assaulted the child. In final submissions it was conceded in the mother’s case that I could not find that the events occurred or that there was an unacceptable risk to the child arising out of the allegations. She conceded that she had seen the child without the father’s supervision on one occasion when the child was in pain and needed her. Having the read the undertaking she gave more carefully, it might be said that she did not breach it. Her obligation was only to ‘accept’ the father’s supervision. Nevertheless, the event in question was at least a breach of the father’s undertaking and against the spirit of the notations made by the Court. I should say that Ms C did not take that point. She was unabashed about caring for the boy when he was in pain.

7. Ms B was not successfully challenged on any important issue. She thought that the father had been in attendance on the occasion that she and Ms C minded the boy while he was in pain. That is not Ms C’s evidence. Nothing turns on that question.

1. Dr R gave evidence as the single expert and his credit is not in issue.

THE EXPERT EVIDENCE

THE MAGELLAN REPORT

1. The Court has had the assistance of a Report prepared by the then NSW Department of Community Services 2 November 2009.

2. The Report records 23 risk of harm reports in relation to the child. The dates in the narrative of the report are different to some of the dates in the table included in the report. Doing the best I can, I think that the record of notifications is as follows:

Date of Contact	Primary Risk of Harm
18 November 2002 (unborn)	Risk of physical harm
26 August 2008	Risk of sexual harm/injury
4 September 2008	Drug use by carer
3 December 2008	Risk of psychological harm
5 December 2008	Risk of psychological harm
6 December 2008	Legal guardianship issues
6 December 2008	Risk of sexual harm/injury
8 December 2008	Legal guardianship issues
8 December 2008	Psychological mistreatment
9 December 2008	Drug use by carer
9 December 2008	No harm or risk issues
15 December 2008	Risk of psychological harm
15 December 2008	Risk of sexual harm/injury
16 December 2008	Drug use by carer
16 December 2008	Drug use by carer
18 December 2008	Legal guardianship issues
29 December 2008	Emotional state of carer
29 December 2008	Risk of psychological harm
28 January 2009	Risk of sexual harm/injury
2 February 2009	Risk of sexual harm/injury
6 May 2009	Risk of sexual harm/injury
10 May 2009	Risk of sexual harm/injury
30 September 2009	Legal guardianship issues

1. The (unborn) child first came to attention in 2002 with a notification as to the mother being a suicide risk. There were no notifications between that time and 2008. The majority of the reports concerned periods when he lived with his mother.

2. Many of the notifications were not followed up by the Department and were seen as ‘for information only’. The report of 26 August 2008 related to the mother having a new partner with a history of drug use. The school was contacted and apart from a concern about the child not continuing with speech therapy, the school had no concerns. The Department closed the report.

3. The report of 5 December 2008 included an allegation that the mother’s partner was a sex offender. The report notes that police information confirmed the allegation and recent charge (I assume relating to Mr D) and that the DPP later dropped the charges. The report notes a concern that the mother was not aware of the charges.

4. The reports of 6 and 9 December 2008 related to drug use by the mother and Mr D. It was alleged that they had a telescope on their front veranda, pointed at the school. The Department could not contact the mother over this period.

5. The report of 16 December 2008 arose out of the signs erected in the mother’s front yard. The report of 28 January 2009 had the telescope moved inside the house but still pointing at the school, through a window.

6. As to the mother’s Notice of Abuse, the Magellan report records that the suppository incident had not been referred to the Department (presumably, apart from the Notice) and that the allegations in respect of Ms C were not investigated beyond contacting the child’s school. As a result of that contact, the Department was told by the school that the child had become withdrawn at the end of 2008 and in early 2009 but that since then he had “settled / he is no longer withdrawn / he is residing with his father and is always well presented at school”. 

THE EVIDENCE OF THE SINGLE EXPERT

1. Dr R is a Child Adult and Family Psychiatrist. His primary report is dated 9 February 2010. The report is not provided under cover of an affidavit but no issue was taken with that fact.

2. Dr R interviewed the parties, the child, Ms C, Mr D and Ms H in January 2010. This was after the child had lived mainly with the father for about one year.

3. Dr R opined that the child has a close loving relationship with both parents. He thinks that both parents are capable and caring.

4. In Dr R’s opinion, the father is very strict and appears to have an authoritarian aspect to his approach to the child but he also has a strong connection with the child. The father expressed a degree of anger and resentment. His background is from war torn Iraq. He lost his parents at an early age, moved to Greece as a refugee and then came to Australia. His only close relative is a brother in the United States. He has not had any relationships prior to his relationship with the mother and that was not stable, nor did it involve them living together. Dr R thinks that the father is consumed with the child and with his estranged relationship with the mother. He thinks that the father is very controlled emotionally and defended and yet emotionally vulnerable and fragile.

5. In Dr R’s opinion, the mother has significant issues and dependent personality traits that are of concern but there is a close bond between mother and child and a strong attachment. She comes from a disrupted background – she lost a brother at a young age, has a sister with bipolar disorder and personality difficulties and had no contact with her natural father. Her mother was controlling. Dr R thought that the involvement of Ms C in the lives of the members of the mother’s family and in that of the child, has been inappropriate. The mother forms dependent relationships. Dr R mentioned those with her older sisters, with Ms C and with Mr D. Perhaps affected by learning difficulties as a child, she acted irrationally at times – making the school signs and not trying to understand and thereby ignoring, Court orders. Dr R did not accept that the mother has had a problem with the use of alcohol or illegal drugs. By the same token he did not accept any of the allegations of abuse – that would include the allegations of the mother against the father.

6. Dr R thought that the child was developing normally for his age. There have been signs of stress – bowel problems and anger outbursts but most likely they have been directly affected by the acrimony and battle between his parents. His speech problems are minor and should improve. He is intimidated by his father and is clearly more attached to his mother than the father. The child said he wants a 7/7 arrangement but Dr R thought that he really wants to spend more time with his mother than with his father.

7. Dr R formed the view that the allegations of abuse are not supported by clear evidence but that the child is at risk because of the battle between the parents.

8. In his main report Dr R canvassed the possible outcomes, more time with the father or more time with the mother and recommended an arrangement of virtually equal time – 4 days with the mother and 3 days with the father.

9. Dr R prepared an addendum to his report dated 25 November 2010 after reviewing material produced to the Court on subpoena. That material, particularly the school and police material in relation to Mr D lead him to change his recommendations. On reflection he thought that a shared parenting arrangement would not work as there is too much conflict between the parents. He thought that the mother has demonstrated more personality problems than the father and on the other hand, that he has demonstrated more stability that the mother. He remained concerned about the father supporting the mother’s contact with the child given her lack of regard for him. He did not think that either parent is an unacceptable risk to the child but noted the mother’s lack of stability and the (poor) choices she has made. In the latter regard he mentioned the fact that she had other relationships when she was with the father and that caused her doubt as to whether he was the child’s father; her involvement with people such as Ms C and Mr D; and her (in)ability to choose healthy people to assist her in her life.

10. The revised recommendation from Dr R is that the child live mainly with the father and spend 3 weekends out of 4 and half the school holidays with the mother.

THE ORAL EVIDENCE OF THE SINGLE EXPERT

1. Obviously the main challenges to Dr R’s opinions came in cross-examination on behalf of the mother. He was asked about his observations that the child has a close relationship with his mother and confirmed that that remains his opinion. Dr R was asked about the child’s wish to live with his mother. He thought that the child’s stated wish for a 7/7 arrangement might have reflected him missing his mother after a period of living with his father. He thought that it was too difficult to compare the strength of the relationships between the child and each parent. Instead he noted that the child seemed keener to be with his mother on the day of the interview. Dr R said that the child needs and thrives on having a close relationship with his mother and father.

2. As to the observation on page 3 of the first report that Family Consultant, Dr WT, made to the effect had the child was concerned about upsetting his father and concerned about his father’s reaction, Dr R said he thought the child was acutely aware of what both parents wanted and felt pressure from both parents.

3. Dr R was taken to his observations of a stiffness and formality between the child and his father and not with the mother and was asked whether the child could be intimidated by his father. He said that he saw the reaction (of the child to the father) more as a cultural difference. The child reported that he liked doing things with his father, going to movies and whatever. He said that there was not the close affection between the child and his father that was observed between the child and the mother. He wondered about cultural and sex differences. He noted that a close bond does not necessarily mean open affection and said that he did not try to interpret their affect too far.

4. When he asked the child about his parents, Dr R believed that the child did not want to express a strong view. The child knew his parents were in conflict. He was asked whether when he tried to engage the child in communication, the child was non responsive. Dr R was unsure about that proposition. He said that he thought the child was sad about not seeing his mother as much as he had previously and that was on his mind but he was still not expressing a preference for one parent over the other. There was a sense of longing for his mother but Dr R did not take that to mean a preference for her over the father. Dr R thought that there are cultural issues about the reactions.

5. Dr R did not think that one party alone was responsible for involving the child in the proceedings. He said that his concerns about both parents on that issue had lead to his observations about the possibility of the child needing to be placed in foster care.

6. Dr R noted that the child stood up to his father during the interview and had to cope with the father being angry with him. The mother’s counsel asked Dr R if what happened was what Dr WT had observed – that the child was concerned with his father’s reaction to the idea of him wanting to spend more time with his mother. Dr R thought that Dr WT was partially correct. He thought that the child was under a degree of pressure (from the father) but was nevertheless able to express in the presence of his father, views that he knew his father would not like. Thus the child was able to suggest a 7/7 arrangement and coped with his father being angry with him. In Dr R’s opinion, that was a sign of the child’s resilience. Dr R thought that the child is also under enormous pressure from his mother.

7. Dr R agreed that the father could be said to have a controlling nature. Rather than a dominating personality, he thought the father has forceful views and has exercised influence over the police and others. Dr R did not resile from that opinion when told of the father’s evidence that on 60% of school mornings he was unable to cause the child to eat breakfast.

8. Dr R was asked about his recommendations for sole parental responsibility to the father in light of the mother’s allegations of verbal and physical abuse. Dr R thought both parents were equally responsible for the adverse events between them and the child, could not decide about the physical allegations but that they were both responsible for verbal abuse. He was asked about the allegations of physical abuse of the child that were said to have been made by the child. Dr R observed that the allegations have come from inappropriate questioning by the mother and that could have lead to untruthful answers from a child. He thought the broader picture is relevant. It would be different if there was credible evidence of that abuse. Even what were said to be spontaneous comments from the child are of no assistance because his views are so contaminated as to be unreliable.

9. Dr R agreed that if one parent sees themselves as the winner, can control the child, exclude the child from the other parent and dictate to the other parent then that would be a bad outcome for the child.

10. Dr R agreed that in Ms B and Ms C the father has aligned himself with people adverse to the mother or that they had aligned themselves with him. He is concerned that they represent a formidable team against the mother and that is a major problem. He thought that gave rise to two issues – the question of the amount of influence and contact that Ms B and Ms C should have with the child being a different issue to that of where the child should predominantly live. He agreed that there is potential for them to undermine the relationship between the mother and the child. If the Court feels that they are likely to undermine the relationship with the mother then Dr R thought the balance should sway towards restricting or eliminating their relationships with the child.

11. Dr R spoke about his initial recommendations and said that his change of mind came about as he realised the extent of the conflict between the parties. He decided it was such as to preclude a shared arrangement. Upon coming to that conclusion he struggled to assess which proposal was more likely to allow the relationships with both parents to prosper. He noted that the mother had problems of stability, ups and down in her life and her background. Compared to those of the father he thought the mother’s relationships had been more colourful than those of the father. The major relationship he formed in Australia was with the mother. He invested more than she did in that relationship. In that way they were at odds. He presumed, possibly because of cultural factors, that they were in a monogamous relationship - a different attitude to that of the mother.

12. He agreed that the mother’s relationship with Mr D caused the father to become jealous and that was one of the main factors at the root of difficulties that arose in August, September and October of 2008. He thought that the mother responded to his reaction by cutting off time with the child and in turn the father then sought to secure the child.

13. As to his opinion that the father was more invested in the relationship with the mother that she was, Dr R was taken to the evidence that the father was opposed to the child and did not seek to have a relationship with the child and forbade the mother to reveal her pregnancy or the fact of the child to others, until the child was four and a half. He said it was his impression, once the child was a fact, the father did pursue a relationship with the child.

14. He agreed that the mother was the child’s primary attachment figure in the early years. He agreed that the mother raising the child without assistance from the father, maintaining paid employment, and raising her elder son alone - shows her to be a person of some strength. However, he expressed a concern about how the mother copes under significant adversity; how she tries to resolve issues; her behaviour at the school; and the nature of her relationships, for example with Ms C, which raise issues of her judgment. He does have concerns about her judgment.

15. Dr R was asked about his opinion of the influence of Ms C and did not really answer the question.

16. Dr R said he was concerned to hear that the child was partially absent from school in 2010 on 96 occasions and in 2011 on 32 occasions while in the father’s care. He said he would be concerned if the father does not place the child’s education as a high priority.

17. Dr R would not venture an opinion as to whether one of the parents is dominant over the other. The mother feels overwhelmed by the father at times and recruits help from others which provides her strength. He thought dominance was a subjective measure. He conceded that reliance on others is a normal reaction.

18. Dr R was asked about a 7/7 arrangement. He said that he had initially underestimated the level of conflict between the parties. He said that a level of co-operation between parents is essential for a successful shared care arrangement. He said that if the Court found that the father is controlling, dominating and undermines the mother then the alternative would be for the child to live mostly with the mother. That would require the mother being able to promote the child’s relationship with the father notwithstanding all of the problems she has had. He thought that the both parents had been responsible for bad behaviour.

19. Dr R was asked to agree that men are more often violent to women than the other way around. I take it that he was being asked if it is more likely than not that the mother’s allegations were true. However, in his opinion, questions of physically strength and the physical consequences aside, violence in high conflict cases is initiated equally by men and women. He was asked about women underreporting violence in such cases and responded that in this instance the mother had not avoided the involvement of the police in the recent conflicts. He said that often the dynamic of underreporting is intended by the victim to protect the perpetrator and that is not said to be relevant here.

20. Presumably in aid of an argument, despite every other argument made on the mother’s behalf, that the parents were getting along better in recent times, Dr R was asked whether his opinions would change if the father had recently allowed the mother more time with the child than the orders require. He thought that was a positive change but would not agree to change his recommendations.

SUBMISSIONS

1. The case outline documents provided on behalf of the parents and the child contained no submissions.

2. Counsel for the ICL addressed the Court first. The ICL supports the father’s proposals.

3. The father’s counsel submitted that the child should predominantly live with the father, that he should have sole parental responsibility and that the child should spend time with the mother.

4. The mother’s counsel submitted that the child should live with the mother, go to school near the mother and that the mother should have sole parental responsibility for him.

the legislation

1. Parenting proceedings are determined on the basis of s 60CA of the Family Law Act. It provides:

   In deciding whether to make a particular parenting order in relation to a child, a court must regard the best interests of the child as the paramount consideration.

2. The task of identifying appropriate parenting orders starts with parental responsibility.

3. Section 61DA creates a presumption in favour of equal shared parental responsibility. The presumption may not apply and if it does apply, it can be rebutted. Depending on whether an order will be made for equal shared parental responsibility or not, s 65DAA requires that the court consider orders for equal time or substantial and significant time.

4. Findings are made by reference to what is in the child’s best interests. The Act specifies in s 60CC the matters that are relevant to the determination of what is in a child’s best interests.

5. Section 60CC(1) requires the Court to consider the “primary considerations” and “additional considerations” articulated in ss 60CC(2) and 60CC(3) respectively.

(3)(h) if the child is an Aboriginal child or a Torres Strait Islander child:

(i) the child's right to enjoy his or her Aboriginal or Torres Strait Islander culture (including the right to enjoy that culture with other people who share that culture); and
(ii) the likely impact any proposed parenting order under this Part will have on that right;

1. This does not apply.

(3)(i) the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child's parents;

1. I have addressed this elsewhere in these reasons. The child has been loved and fed and clothed. However, there are aspects of the conduct of the parents that demonstrate a poor attitude to or a misunderstanding of the responsibilities of parenthood.

(3)(j) any family violence involving the child or a member of the child's family;

1. I refer to the earlier comments about family violence. Notwithstanding the opinion of Dr R the notes of Ms K suggest to me that it is likely that the child has been struck by the father, albeit perhaps in the course of what the father might have seen as appropriate discipline. Minds differ about the propriety, efficacy and acceptability of striking a child. However, in circumstances where parents do not agree or in any event where the Court is asked to exercise discretion in respect of parenting arrangements, the orders will require that the child not be physically disciplined.

2. As to her allegations of violence by the father against her, Dr R was specifically taken to the possibility that the mother did not report and therefore was unable to corroborate many of her allegations because of the father’s violence. Dr R would not agree with that proposition. He noted that the mother had shown no reluctance to involve the police and other authorities in her disputes with the father.

(3)(k) any family violence order that applies to the child or a member of the child's family, if:

(i) the order is a final order; or
(ii) the making of the order was contested by a person;

1. There is no current Domestic Violence Order.

(3)(l) whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to the child;

1. The parties enjoy a very poor relationship, have virtually no capacity for direct communication or negotiation and at times, each has failed to comply with the letter or spirit of an order or undertaking. In those circumstances one could not be sanguine about my orders putting an end to litigation about the child. Perhaps it was for that reason that Dr R flagged at an early stage the possibility that the child should go into Care and not live with either parent.

(3)(m) any other fact or circumstance that the court thinks is relevant.

1. Nothing comes to attention here.

Parental responsibility

1. Parental responsibility is defined by s 61B of the Act to mean “all the duties, powers, responsibilities and authority which, by law, parents have in relation to children”.

2. If no order is made in respect of parental responsibility then the position as to the parents of a child is as follows:

   SECT 61C

   Each parent has parental responsibility (subject to court orders)
   (1) Each of the parents of a child who is not 18 has parental responsibility for the child.
   Note 1: This section states the legal position that prevails in relation to parental responsibility to the extent to which it is not displaced by a parenting order made by the court. See subsection (3) of this section and subsection 61D(2) for the effect of a parenting order.
   Note 2: This section does not establish a presumption to be applied by the court when making a parenting order. See section 61DA for the presumption that the court does apply when making a parenting order.
   Note 3: Under section 63C, the parents of a child may make a parenting plan that deals with the allocation of parental responsibility for the child.
   (2) Subsection (1) has effect despite any changes in the nature of the relationships of the child's parents. It is not affected, for example, by the parents becoming separated or by either or both of them marrying or re-marrying.
   (3) Subsection (1) has effect subject to any order of a court for the time being in force (whether or not made under this Act and whether made before or after the commencement of this section).
   Note: Section 111CS may affect the attribution of parental responsibility for a child.

3. An order for shared parental responsibility has the following effect:

   SECT 65DAC

   Effect of parenting order that provides for shared parental responsibility
   (1) This section applies if, under a parenting order:
   (a) 2 or more persons are to share parental responsibility for a child; and
   (b) the exercise of that parental responsibility involves making a decision about a major long-term issue in relation to the child.
   (2) The order is taken to require the decision to be made jointly by those persons.
   Note: Subject to any court orders, decisions about issues that are not major long-term issues are made by the person with whom the child is spending time without a need to consult the other person (see section 65DAE).
   (3) The order is taken to require each of those persons:
   (a) to consult the other person in relation to the decision to be made about that issue; and
   (b) to make a genuine effort to come to a joint decision about that issue.
   (4) To avoid doubt, this section does not require any other person to establish, before acting on a decision about the child communicated by one of those persons, that the decision has been made jointly.

4. Presumably that must also apply to equal shared parental responsibility.

Discussion

1. Section 61DA provides:

   FAMILY LAW ACT 1975 - SECT 61DA

   Presumption of equal shared parental responsibility when making parenting orders
   (1) 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.
   Note: The presumption provided for in this subsection is a presumption that relates solely to the allocation of parental responsibility for a child as defined in section 61B. It does not provide for a presumption about the amount of time the child spends with each of the parents (this issue is dealt with in section 65DAA).
   (2) The presumption does not apply if there are reasonable grounds to believe that a parent of the child (or a person who lives with a parent of the child) has engaged in:
   (a) abuse of the child or another child who, at the time, was a member of the parent's family (or that other person's family); or
   (b) family violence.
   (3) When the court is making an interim order, the presumption applies unless the court considers that it would not be appropriate in the circumstances for the presumption to be applied when making that order.
   (4) The presumption may be rebutted by evidence that satisfies the court that it would not be in the best interests of the child for the child's parents to have equal shared parental responsibility for the child.

2. Here neither of the parties seeks an order for equal shared parental responsibility. In the circumstances of this case, that is understandable.

3. In any event, there has been family violence (the child being struck) and therefore the presumption does not apply.

Conclusion

1. The presumption that the parents having equal shared parental responsibility would be in the child’s best interests, does not apply.

2. Although not directly addressed there has been reference in the evidence and during the trial to various issues going to parental responsibility. For example the type of schooling that the parents seek for the child, physical discipline of the child and the issue of circumcision is raised in the notes of Ms K. In that there has been no mention of the latter issue in the course of the trial I will simply preserve the opportunity for the mother to be heard on the question if it comes up. I will order that in the event that the father intends to have the child circumcised that he give the mother at least 6 weeks prior written notice so that she may consider the issue and either intervene with the father or apply to a court. Whatever might be said about the practice at birth, it not an insignificant procedure for an 8 year old boy. I will restrain both parties from physically disciplining the child. By physical discipline, I mean hitting or otherwise striking the child. Although the evidence is not unimpeachable, particularly that from the estranged elements of the mother’s family, there is a risk that the mother has used illegal drugs. Although the matter was not specifically taken up in oral submissions I will order that the parties be restrained from consuming or using illegal drugs during or within 12 hours prior to any period when the child is in their care. There can be no complaint about that. They are not permitted to do so in any event.

3. Otherwise the father will have sole parental responsibility.

Living Arrangements

1. Section 65DAA provides:

Court to consider child spending equal time or substantial and significant time with each parent in certain circumstances

Equal time
(1) Subject to subsection (6), if a parenting order provides (or is to provide) that a child's parents are to have equal shared parental responsibility for the child, the court must:

(a) consider whether the child spending equal time with each of the parents would be in the best interests of the child; and
(b) consider whether the child spending equal time with each of the parents is reasonably practicable; and
(c) if it is, consider making an order to provide (or including a provision in the order) for the child to spend equal time with each of the parents.

Note 1: The effect of section 60CA is that in deciding whether to go on to make a parenting order for the child to spend equal time with each of the parents, the court will regard the best interests of the child as the paramount consideration.
Note 2: See subsection (5) for the factors the court takes into account in determining what is reasonably practicable.

Substantial and significant time

(2) Subject to subsection (6), if:

(a) a parenting order provides (or is to provide) that a child's parents are to have equal shared parental responsibility for the child; and
(b) the court does not make an order (or include a provision in the order) for the child to spend equal time with each of the parents; and
the court must:
(c) consider whether the child spending substantial and significant time with each of the parents would be in the best interests of the child; and
(d) consider whether the child spending substantial and significant time with each of the parents is reasonably practicable; and
(e) if it is, consider making an order to provide (or including a provision in the order) for the child to spend substantial and significant time with each of the parents.

Note 1: The effect of section 60CA is that in deciding whether to go on to make a parenting order for the child to spend substantial time with each of the parents, the court will regard the best interests of the child as the paramount consideration.
Note 2: See subsection (5) for the factors the court takes into account in determining what is reasonably practicable.

(3) For the purposes of subsection (2), a child will be taken to spend substantial and significant time with a parent only if:

(a) the time the child spends with the parent includes both:

(i) days that fall on weekends and holidays; and
(ii) days that do not fall on weekends or holidays; and

(b) the time the child spends with the parent allows the parent to be involved in:

(i) the child's daily routine; and
(ii) occasions and events that are of particular significance to the child; and

(c) the time the child spends with the parent allows the child to be involved in occasions and events that are of special significance to the parent.

(4) Subsection (3) does not limit the other matters to which a court can have regard in determining whether the time a child spends with a parent would be substantial and significant.

Reasonable practicality

(5) In determining for the purposes of subsections (1) and (2) whether it is reasonably practicable for a child to spend equal time, or substantial and significant time, with each of the child's parents, the court must have regard to:

(a) how far apart the parents live from each other; and
(b) the parents' current and future capacity to implement an arrangement for the child spending equal time, or substantial and significant time, with each of the parents; and
(c) the parents' current and future capacity to communicate with each other and resolve difficulties that might arise in implementing an arrangement of that kind; and
(d) the impact that an arrangement of that kind would have on the child; and
(e) such other matters as the court considers relevant.

Note 1: Behaviour of a parent that is relevant for paragraph (c) may also be taken into account in determining what parenting order the court should make in the best interests of the child. Subsection 60CC(3) provides for considerations that are taken into account in determining what is in the best interests of the child. These include:

(a) the willingness and ability of each of the child's parents to facilitate, and encourage, a close and continuing relationship between the child and the other parent (paragraph 60CC(3)(c));
(b) the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child's parents (paragraph 60CC(3)(i)).

Note 2: Paragraph (c) reference to future capacity--the court has power under section 13C to make orders for parties to attend family counselling or family dispute resolution or participate in courses, programs or services.

Consent orders
(6) If:

(a) the court is considering whether to make a parenting order with the consent of all the parties to the proceedings; and
(b) the order provides (or is to provide) that a child's parents are to have equal shared parental responsibility for the child;

the court may, but is not required to, consider the matters referred to in paragraphs (1)(a) to (c) or (if applicable) the matters referred to in paragraphs (2)(c) to (e).

(7) To avoid doubt, subsection (6) does not affect the application of section 60CA in relation to a parenting order.
Note: Section 60CA requires the best interests of the child to be the paramount consideration in a decision whether to make a particular parenting order.

1. There will not be an order for equal shared parental responsibility. Therefore I must decide what living arrangements would be in the child’s best interests.

2. As to what is in the child’s best interests, I refer to the findings made in respect of the s 60CC matters. In particular I refer to the findings as to the primary considerations and (b), (c), (d), (e), (f), (g), (h), (i), (l) & (m).

3. Although both parents have completed parenting programs, their relationship is such that they cannot effectively communicate with each other. Those around them, including in this case, Mr D, Ms C and the elements of the maternal family that are estranged from each other, have not improved the parties communication and have overall, added to the conflict. The parents do not currently have and are unlikely to have in the future any capacity to implement a shared care arrangement. There remains a significant level of mistrust between the parents.

4. As to other matters the court considers relevant, these are civil proceedings and neither of the parents, nor the child’s representative seek an order for equal time. Given the difficulties of enforcing the positive obligations of parenting, the fact that such an order is not sought by anyone could make it impracticable.

5. Both proposals include time for each parent that falls on weekend days and holidays and time that does not. In my view those proposals will allow each parent to be involved in the child’s daily routine and occasions and events that are of particular significance to him. He can be involved in occasions and events that are of special significance to his parents.

Other issues

Ms C & Ms B

1. Although it was a feature of the interlocutory proceedings, the mother did not seek an injunction until the last day of the trial in relation to the child being brought into contact with Ms C or Ms B.

2. Ms C is the child’s godmother and has been a significant part of the child’s life. Her involvement has been with the acquiescence, if not at the initiative of, the child’s parents – for the first 6 years of the child’s life, through the mother and since then, with the approval and support of the father. The mother asked her to be the child’s godmother. The mother relied on her for financial support, physical care of the child, including minding the child overnight. The allegations of physical abuse made by the mother against Ms C are not born out. Nor can I find that there is an unacceptable risk to the child if he comes into contact with Ms C. As Ms C, albeit unresponsively, referred during her cross-examination – if she sexually abused the child more than 40 times over four years leading up to 2008, why did the mother permit that to happen and continue to rely on Ms C to care for the boy?

3. Ms C has had a greater role in the child’s life than the average godmother. The child told Ms K that he thought Ms C wanted to be his mother. Ms C has had strong alliances with the mother and her sisters over the years and was a friend of their mother. She has also fallen out with individual sisters and the mother at various times. The mother and her sisters have not enjoyed unqualified mental health and the relationships between them have been dysfunctional and conflictive.

4. Dr R thought that the involvement of Ms C in the lives of the members of the mother’s family and in the child’s life, has been inappropriate. He noted that the mother forms dependent relationships and mentioned those with her older sisters, with Ms C and with Mr D. Dr R referred to the mother’s involvement with people such as Ms C (and Mr D) and her inability to choose healthy people to assist her in her life. In his cross-examination Dr R agreed that in Ms B and Ms C, the father has aligned himself with people adverse to the mother or that they had aligned themselves with him. He is concerned that they represent a formidable team against the mother and that is a major problem. He thought that gave rise to two issues – the question of the amount of influence and contact that Ms B and Ms C should have with the child being a different issue to that of where the child should predominantly live. He agreed that there is potential for them to undermine the relationship between the mother and the child. If the Court feels that they are likely to undermine the relationship with the mother then Dr R thought the balance should sway towards restricting or eliminating their relationships with the child. From his first report it appears that the criticisms of Ms C relate to an over involvement in the lives of the mother’s family and in the child’s life. The criticisms come from the mother, Ms H and Ms J. Ms H criticises Ms C for the allegations she has made against Mr D. Ms H tells us that she doesn’t like Mr D either but does not agree (with Ms C) that he is a paedophile. At various times and for long periods at least Ms J and the mother, if not Ms H, have been friendly with Ms C and have supported her time with the boy.

5. Neither Ms C nor the father have made an application for orders for her to spend time with the child or communicate with him. The father does seek that the current interim restrictions be lifted, thereby permitting unsupervised time between the child and Ms C. Ms C was asked about this in cross-examination and said that she did not realise that she could apply for parenting orders. She said that in order to continue to play a part in the child’s life, if necessary, she would seek a mediated outcome through the mother’s solicitor and if that did not succeed she would obtain her own legal advice. Given that the serious abuse allegations could not be made out, the mother’s case became based on concerns about Ms C being an agent of conflict and not promoting the mother’s relationship with the child. Firstly, it should be noted that there is absolutely no indication that Ms C (or the father, for that matter) has succeeded in interfering with the child’s relationship with his mother. The evidence suggests that they remain strongly attached to each other. Ms C was asked about promoting the mother to the boy and albeit that she did not have a sophisticated plan, she demonstrated that she had thought about counselling for them.

1. True it is that Ms C has become embroiled in the conflict between the father and the mother and between part of the maternal family against another part. She and Ms B were asked about family meetings. It was put to at least one of them that they called the meetings. One meeting was brought to attention and it transpired that the meeting had not been called by Ms C or Ms B but in fact by the mother’s former solicitor. There is no doubt that Ms C and Ms B have had many conversations during which adverse comment has been made about the mother. However, every aspect of Ms C’s evidence and indeed, the unchallenged history of the mother’s life since the child was born, suggests that her focus has been on the child. A concerned focus on the child’s welfare could in recent years have necessarily involved a criticism of the mother. Dr R says that the trigger for excluding Ms C from contact with the child is a finding that it is likely that she would undermine the child’s relationship with his mother. I am not able to make that finding. Her level of involvement with the child may not be typical of other godmother’s but this is not your typical family. There is no evidence on the basis of which I should restrain the father from bringing the child into contact with her.  If the parents can be trusted to care for the child unsupervised, then they can be trusted to make judgments about the company he keeps when he is in their care.

2. Ms B is the mother’s sister. She has been diagnosed with Bipolar Disorder and Depression and has attempted suicide on about 5 occasions. She lost her brother and her son to suicide. She is currently estranged from her sisters, Ms H and the mother, but says that she is reconciled with her other sister, Ms J. Ms B says that she fell out with the mother in about June 2008 after they both attended the funeral of Ms C’s mother. She heard the mother swear at the child – “fucking get away from there” when the child was near the coffin. At the wake Ms B minded the child at the mother’s request so that the mother could meet with Mr D. For a period of about 2 weeks in 2008 Ms B collected the child from school and minded him for the mother as the mother said she had jury duty. On occasions Ms B bathed the child. In about August or October 2008 Ms B minded the child at the mother’s request. She noted that the mother was smoking a marijuana cigarette.

3. For a period after January 2009 Ms B collected the child from school and minded him while the father attended a TAFE course.

4. It is hard to understand the circumstances of the breakdown of the relationship between the mother and her sister Ms B. It is Ms B’s evidence that in March 2009, Ms J called and asked her to arrange for the mother to see the child for her birthday. Ms B deposed that she had previously been harassed and verbally abused by the mother and was reluctant to facilitate the arrangements unless the mother apologised. Ms J told her that the mother had been angry and it would not happen again. Ms B then spoke to the mother on the telephone and the mother said: “You slut, you’re dead, you mole. You should help me because you know what it’s like to lose a child.” Ms B says that she responded: “Don’t go there [mother’s name]” and hung up. She says that she subsequently took the child to McDonald’s to see his mother on her birthday. The reference to losing a child is strange because it is Ms B’s evidence that the tragic death of her son, by suicide, was not until May 2009. Ms B says that the mother shouted at Ms C at her son’s funeral: “What are you doing here? It’s not your funeral, you shouldn’t be here.”

5. There is little mention of Ms B in the mother’s affidavit.

6. The mother’s family is dysfunctional, has experienced the tragedy of suicide and a number of the members have had poor mental health. From time to time there have been rifts and alliances between the mother and her sisters.  Neither Ms B nor the father have made an application for orders for Ms B to spend time with the child or communicate with him. Nevertheless there is no evidence on the basis of which I should restrain the father from bringing the child into contact with her.  Again, if the parents can be trusted to care for the child unsupervised, then they can be trusted to make judgments about the company he keeps.

Mr D

1. The father seeks to restrain the mother from bringing the child into contact with Mr D. The situation with Mr D is somewhat different to that with Ms C and Ms B. Mr D readily conceded that his involvement with the school signs and the mother’s letter to the school was inappropriate. He sought to mislead the police when they attempted to execute a recovery order. Despite the mother being restrained from permitting it, he came into contact with the child after the late 2008 orders. Dr R noted the mother’s dependant personality and that she relied on Mr D. He noted that there was evidence to suggest that Mr D was involved in conflict with a neighbour (Mr E) and with his former partner Ms Z. Dr R noted charges in relation to Indian Hemp, stealing and driving with a high blood alcohol level. Dr R did not come to a concluded view about Mr D but said that his forensic history raises some issues of concern as to his potential influence on the mother.

2. As with Ms C and Ms B, Mr D does not seek orders whereby he could spend time with or communicate with the child. Nor does the mother. The mother says that she sees Mr D about twice a week. I cannot prevent Mr D being an inappropriate influence on the mother. To the extent that the mother is dependant on him, care is needed before the mother is destabilised by excluding her support mechanisms. In the circumstances the most appropriate course is to require that the mother not bring the child into contact with Mr D unless she is present at all times.

conclusion

1. I intend to adopt the thrust of Dr R’s recommendations to the effect that the child live predominantly with the father. Those recommendations accord with the proposals of the father and those made on behalf of the ICL. Although he can be rigid in his attitudes, the father offers greater stability to the child at this time. In making those orders much of the evidence and the arguments made in the mother’s case are rejected as unlikely and unreasonable. Albeit on the last day of the hearing the parents were able to agree about some principles in respect of schooling and it is heartening to know that they share the aspiration that the child will be educated in a particular environment. I have not restrained the parties in relation to bringing the child in to contact with certain individuals. Save for the orders about Mr D, those matters are left to the best judgment of each of the parents from time to time. The question of physical discipline has been raised and for obvious reasons I will restrain the parents in that regard.

2. The mother seeks that the child’s name be retained on the watch list. The father would like to take the child to the United States to see his brother and first cousins at some stage but cannot afford that now. He can foresee no need for travel until the child is in his mid to late teens. He too is worried that the mother might take the child overseas. The father has no objection to the order sought by the mother. In those circumstances I will make that order but provide for the parents to agree in writing to the contrary. In order to avoid embarrassment or inconvenience for the child in later years I will provide that the watch list entry remain for only 5 years.

3. These are loving parents and one can only hope that they will be able to support the child’s need for a meaningful relationship with both parties.

4. I will allow the parties to restore the matter before me within 28 days of the date of delivery of judgment, or such further time as they might agree, in relation to any agreement about a change to the wording of the orders or an argument that the wording does not reflect these reasons.

I certify that the preceding two hundred and seventy one (271) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Loughnan dated 3 November 2011.

Associate:     

3 November 2011