Claringbold & James
[2007] FamCA 1032
•3 September 2007
FAMILY COURT OF AUSTRALIA
| Claringbold & James | [2007] FamCA 1032 |
| FAMILY LAW - CHILDREN - With whom a child lives – long standing status quo reversed and 9 year old child ordered to live with her father upon court being satisfied that mother would not permit or encourage a meaningful relationship between the child and her father and has less than an adequate capacity to protect the child from exposure to family violence in current environment. |
| Family Law Act 1975 (Cth) Family Law Amendment (Shared Parental Responsibility) Act 2006 (Cth) |
D & D [2005] FamCA 356
R & R: Children's Wishes (2000) FLC 93-000
H & W (1995) FLC 92-598
| APPLICANT: | Ms Claringbold |
| RESPONDENT: | Mr James |
| INDEPENDENT CHILDREN’S LAWYER: | Donald S Lampe |
| FILE NUMBER: | DGF | 572 | of | 2001 |
| DATE DELIVERED: | 3 September 2007 |
| PLACE DELIVERED: | Melbourne |
| JUDGMENT OF: | Bennett J |
| HEARING DATE: | 16, 17, 18, 19, 20, 23, 24, 25, 26, 27 & 30 July 2007 |
REPRESENTATION
| THE APPLICANT: | In Person |
| COUNSEL FOR THE RESPONDENT: | Mr Fronistas |
| SOLICITOR FOR THE RESPONDENT: | Kyrou Lawyers |
| INDEPENDENT CHILDREN’S LAWYER COUNSEL: | Mr R Curtain |
| INDEPENDENT CHILDREN’S LAWYER SOLICITOR: | Donald S Lampe |
Orders
That all previous parenting orders be and are hereby discharged.
That [A] born […] December 1998 live with the father as from 10am on Sunday 12 August 2007 when he collect the child from the mother’s residence together with any personal belongings that the mother, in her discretion, agrees that [A] can take with her.
That the father have sole parental responsibility for the child.
That [A] spend time with her mother and communicate with her mother as follows:-
(a) For so long as the mother resides in Melbourne:
(i)Each alternate weekend during school terms from 6pm Friday to 6pm Sunday commencing on 17 August 2007 and then on the first weekend after the start of each school term;
(ii)Subject to subparagraph 4(c) hereof, from 6pm on the first Tuesday of the school term holiday to 6pm on the second Wednesday of the school term holiday;
(iii)in 2007/08 and each alternate year thereafter , for one half of the long summer vacation (excluding (4(a)(iv) below) as agreed and, failing agreement, from 6pm on the third Tuesday of that vacation to 6pm on the last Saturday before the start of the school year and, in 2008/09 and each alternate year thereafter, from 6pm on the first Saturday of the long summer school vacation to 6pm on the third Tuesday of that vacation;
(iv)From 3pm Christmas Eve to 3pm Christmas day in 2008 and each alternate year thereafter and from 3pm Christmas day to 6pm Boxing day in 2007 and each alternate year thereafter;
(v)By telephone each Wednesday at 6pm and each Sunday (when [A] is not otherwise spending time with the mother) at 6pm when the father is responsible for having the child place a call to the mother telephone service as nominated by the mother in writing and in circumstances where she can speak privately and without distraction and for approximately 15 minutes;
(vi)On Mother’s Day (should it not fall on 4(a)(i) above) from 10am until 7pm and should Father’s Day fall on 4(a)(i) above [A] shall be returned to the father at 10am on Father’s Day; and
(vii)As otherwise agreed in writing between the father and the mother;
(b)If the mother relocates to the [rural New South Wales town] area and notifies the father in writing of her address and telephone contact numbers:-
(i)For 11 days in each of the school term holiday, commencing on the first Saturday or Sunday or Monday at a time of day which ensures that [A] can meet any flight arranged pursuant to this Order (or if the mother collects her, then from 10am on the first Saturday);
(ii)For one half of the long summer vacation as agreed and failing agreement from the third Tuesday of the vacation the last Saturday before the start of the school year in 2007/08 and each alternate year thereafter and from 6pm on the first Saturday of the vacation to 6pm on the third Tuesday of the vacation in 2008/09 and each alternate year thereafter;
(iii)By telephone as in 4(a)(v) above;
(iv)Whenever the mother visits Melbourne during school terms, for periods of 28 days or less, then upon 30 days written notice to the father, the mother be entitled to spend time with [A] each weekend from 10am Saturday to 6pm Sunday;
(v)By cards, letters, e-mail and presents from time to time, addressed to [A] at the father’s residential address; and
(vi)As otherwise agreed in writing between the mother and father.
(a)On the first occasion in which Easter falls within the first school term holidays, and on each such alternate Easter thereafter, the mother’s entitlement to spend time with [A] be curtailed to the extent necessary for [A] to remain in the care of the father from the evening of Maundy Thursday to the morning after Easter Monday;
(b)Upon the father providing the mother with not less than 30 days written notice that he will be in or around [the rural New South Wales town] during the first half of a long summer school vacation period when [A] is spending time with the mother in [the rural New South Wales town], the time to be spent be suspended and [A] be made available for collection by the father from McDonald’s Family Restaurant in […] at 6pm on Christmas Day and / or [A’s] birthday and the father return [A] to the mother at the same McDonald’s at 12 noon the following day.
That for the purpose of changeover of care:
(a)For 4(a) above, the changeover point be McDonald’s Family Restaurant at [W];
(b)In 4(b) above, the father do all things necessary to deliver [A] at the start to the relevant airport in more than sufficient time for her to meet the flight arranged in accordance with this Order and the mother do all things necessary to return [A] to the appropriate airport in more than sufficient time for her to meet the return flight arranged in accordance with this Order at the conclusion of her time with her;
(c)Where [A] travels by plane, the parent collecting her at the conclusion of the journey notify the other parent immediately by telephone when [A] has arrived safely
That pursuant to section 65L of the Family Law Act 1975, the Manager of Child Dispute Services for the Family Court of Australia at Melbourne, at the request of either party to the proceeding, nominate a family consultant and if at practicable that family consultant be Ms [B], to supervise compliance by the parties with the parenting order made this day (“the Order”) and to render to either party such assistance as is reasonably requested by him/her in relation to compliance with, and the carrying out of, the Order, such supervisory counselling to be a period of 2 years. This period of supervision be reportable, however no report be prepared unless a further application in relation to the child is filed whilst this order remains in force, the court orders that a report be prepared or the family consultant of his / her own volition thinks a report should be prepared.
That the costs of the airfares for 4(b) above be shared between the mother and father and the father be solely responsible for the purchase and booking of the flights for the third term/September and the first term/March school term holidays in each year and the mother being solely responsible for the purchase and booking of flights for the Christmas long summer school vacation and second term/July school holidays in each year, such flights to be secured, paid for and advised to the other parent in writing not less than 3 months prior to the first date for travel.
That the father and his servants and agents do all things necessary:
(a)To ensure [A’s] bedroom contains a framed photograph being approximately 10 x 15cm of the mother (which shall be updated every 6 months upon the mother forwarding a new photograph);
(b)To provide [A] with a current calendar of each year, from the commencement of each year, clearly marked with the days [A] will spend with the mother; and
(c)To encourage [A] to communicate with her mother through letters, cards and email from time to time and to reply to any such communication sent to her by the mother.
That the father forthwith authorise and direct the proper officer of all schools or educational programs attended, or to be attended, by [A]:-
(a)to provide the mother with copies of school reports, newsletters and photographs (at the expense of the mother if any);
(b)to co-operate with requests of the mother to communicate with school staff about [A] from time to time as if the mother’s entitlement to be informed and consulted about [A’s] progress is equivalent to that of the father;
(c)to record the mother’s details clearly on [A’s] personal file so that there can be no doubt that the mother is [A’s] mother and Mrs [James] is [A’s] step mother.
That the mother and father keep the other advised of their residential address and telephone numbers and forthwith keep the other advised of any changes thereto.
a) That the mother and father forthwith inform the other of any injury or illness suffered by [A] and authorise the other to communicate with any treating professional whose name, address and contact details must be provided as soon as practicable after the injury or onset of the illness;
(b)That the mother and father forthwith inform the other any incident or accident which occurs in the presence of [A] which involves unlawful violence or requires the attendance of the police or fire brigade or other emergency service including the name and contact details of the attending officers.
That the mother and the father their servants and agents be and are hereby restrained from denigrating the other or their partners within the presence of or the hearing of [A].
That pursuant to section 65LA of the Family Law Act 1975, the mother shall within 7 working days from the date of this order make contact with Lifeworks Counselling & Education Services, 94 Gheringhap Street, Geelong, ( 03 5222 8957, the parenting program provider as nominated by the court and attend before the provider for an initial assessment of suitability for a post-separation parenting program. If assessed by the provider as being suitable to attend a program or part of a program and the provider nominates a particular program for mother, the mother shall attend that program or that part of the program and upon completion of such program provide a certificate of completion to the independent children’s lawyer who will send a copy of same who shall send a copy to the other parent and the supervising family consultant.
That pursuant to section 65LA of the Family Law Act 1975, the father shall within 7 working days from the date of this order make contact with Lifeworks Counselling & Education Services, Level 5, 227 Collins Street, Melbourne,
(03 9654 7360, the parenting program provider as nominated by the court and attend before the provider for an initial assessment of suitability for a post-separation parenting program. If assessed by the provider as being suitable to attend a program or part of a program and the provider nominates a particular program for father, the father shall attend that program or that part of the program and upon completion of such program provide a certificate of completion to the independent children’s lawyer who will send a copy of same who shall send a copy to the other parent and the supervising family consultant.
That the father do all acts and things necessary to ensure that [A] attends the Gatehouse Centre at the Royal Children’s Hospital for the purpose of assessment and comply with all reasonable directions in respect of the assessment and then follow all reasonable recommendations arising from the assessment including, if so advised, for [A] to undertake a course of therapy and IT IS REQUESTED that the supervising family consultant provide a referral for such assessment to take place and the supervising family consultant is, hereby, authorised to discuss the progress of the assessment or associated treatment with the providers of the service.
That the father shall provide the proper officer at the Gatehouse Centre with a copy of this Order and my reasons for judgment when making the arrangements pursuant to the preceding paragraph of this Order and provide to the mother and the supervising family consultant a copy of the assessment, promptly upon receipt.
That the unless within 28 days the father has received a firm commitment in writing from the proper officer of [A’s] school that the school will arrange for a psychological and educational assessment of [A] to be conducted and completed by the end of third term, the father forthwith do all acts and things necessary to have [A] undergo such an assessment at a service provider nominated by the supervising family consultant and, in the absence of such nomination, from the relevant department of one of the following institutions:-
(a)Royal Children’s Hospital (being the section formally known as the Learning Disabilities Department);
(b)Catholic University;
(c)RMIT;
(d)La Trobe University –
and keep the supervising family consultant advised of progress in this regard and, when received, provide a copy of the report of the assessment to the supervising family consultant, the mother and the proper officer of the school attended by [A].
That as soon as practicable the father do all acts and things necessary to ensure that [Mrs James] undertakes a refresher course in the Spalding method of teaching literacy as those techniques apply to parents assisting their own children at home, such refresher course to be undertaken after 1 September 2007, at a service provider approved of by the supervising family consultant including, but not limited to, […]
That the independent children’s lawyer provide a copy of this Order to the following persons:-
(a)The proper officer of [X] Primary School;
(b)The proper officer of [Y] Primary School together with a request that a time mutually convenient to the mother and the school be appointed for the mother and [A] to attend and tour the school on 7, 8, 9 or 10 August 2007;
(c)Dr [M] together with a copy of my reasons for judgment;
(d)The proper officer of the Department of Human Services.
That the independent children’s lawyer and Ms [B] meet with [A] and explain to [A] in words that can be understood by her the nature and effect of these Order and any other matters which Ms [B], in her absolute discretion, considers may assist [A] to accept this determination as positive for her mother as well as positive for her father and herself.
That as soon as practicable the independent children’s lawyer contact the proper officer of [X] Primary School and / or Ms [R] ([A’s] teacher) and advise them that the week commencing 6 August 2007 will be [A’s] last week at that school.
That each party cooperate with the other, by executing documents and providing consent and information, to facilitate any application by the other for a passport to issue for [A].
That the party seeking a passport for [A] be responsible for the cost of applying for the passport and, forthwith upon the passport being issued, send a photocopy of the page on which the photograph of [A] appears to the other party and lodge the original passport to the Registry Manager of this Registry of the Court AND IT IS DIRECTED that the Registry Manager hold such passport safely pending further order of the Court.
That in the event that the parties cannot agree on appropriate arrangements for [A] to travel overseas, as proposed by one of them, each party be at liberty to contact my Associate […] to arrange to have this matter listed for a preliminary telephone mention before me.
That the Order appointing the independent children’s lawyer be discharged upon compliance with paragraphs 19 and 20 of this Order.
That when [A] is spending time with the mother during school term holidays or the long summer school vacation the mother cause [A] to telephone the father in the same terms and conditions as apply under paragraph 4(a)(v) of this Order.
That any application for costs be made in writing and communicated to my Associate within 14 days.
That in the event that one of the parties files an application for parenting orders within the next 3 years, that application be listed before me, by arrangement with my Associate, […], if I am reasonably available.
That pursuant to section 65DA(2) and 62B 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 annexure hereto relating to parenting orders – obligations, consequences and who can help, the particulars of which are included in this Order.
IT IS NOTED INCONNECTION WITH THESE ORDERS that the judgment of the Honourable Justice Bennett delivered this day will for all publication and reporting purposes be referred to as CLARINGBOLD & JAMES.
| FAMILY COURT OF AUSTRALIA AT MELBOURNE |
FILE NUMBER: DGF 572 of 2001
| Ms Claringbold |
Applicant
And
| Mr James |
Respondent
REASONS FOR JUDGMENT
Orders have been made
This matter proceeded before me for two weeks from 16 to 30 July 2007. On
2 August 2007I pronounced the final orders set out at the beginning of these reasons and said that I would deliver my reasons for judgment in due course. These are those reasons.
Introduction
These proceedings concern A born in December 1998; how parental responsibility for her ought to be divided between her parents; with whom A should live most of the time and what time A should spend with the parent with whom she does not primarily reside. At the time of the hearing A had resided with the mother for the seven years since separation. The proceedings involved a determination of matters raised in a Notice of Child Abuse filed by the father on 19 February 2007 in which he alleges, inter alia, that A has been exposed to domestic violence and been threatened and assaulted whilst in the care of the mother. The mother has also filed Notices of Risk about the father’s care of A. Since 2001, she has alleged that the father deals with A in a sexually inappropriate and abusive manner. There have been 16 notifications to state child protection authorities. Most notifications have related to alleged sexual abuse of A by the father. The mother says that she made about six of those notifications, the balance have been made by professionals to whom the mother has taken A between 2001 and 2005, the last six years. There are a few notifications relating to alleged harm to A arising from the mother seeking professional interventions in relation to the sexual abuse she says has occurred. Then, there is the last notification, arising out of the father’s Notice of Risk of Abuse filed on 19 February 2007, in which it is alleged that A has been subjected and exposed to domestic violence within the mother’s household.
In March, 2004 the parties had a final defended hearing before the late Honourable Justice Joske. The mother’s allegations of sexual abuse were at the forefront of those proceedings which were ultimately resolved, by consent, when the mother agreed to the father spending time with A unsupervised.
The mother’s last notice was an Amended Notice of Risk of Child Abuse filed 5 May 2006 in which she alleged that the father had sexually assaulted A between February and October 2005 and administered sleeping tablets to her and rubbed her back, in bed, between September and October 2005. The mother stands by her previous allegations against the father (including those she made before Joske J) but says that A is no longer at risk because she is of a sufficient age and has skills and experience to protect herself. I do not accept that it is appropriate to expect A, who is eight years old, to protect herself from sexual or any other form of abuse. However, since March of this year the mother has made it clear that she considers the sexual abuse issue to have been resolved and she seeks no determination of it. There is no evidence before me which leads me to be concerned that A is, or has been, at risk of sexual abuse at the hands of the father but, that said, the case has not been presented in such a way as would require or enable me to determine that issue.
I accept that the mother’s beliefs that the father has sexually abused A and has assaulted and intimidated the mother, both before and after separation, are genuine and long held. However, as she does not pursue any determination of those allegations, her complaints in this regard are merely of historical significance.
These proceedings
These proceedings were initiated by the mother filing an application in the Federal Magistrates Court on 2 November 2005. She sought a suspension of A’s time with the father. The mother is self represented now but has employed a solicitor, Christine Thomas, for much of the proceedings.
The father opposed the mother’s application by filing a response on
29 November 2005in which he sought that A live with him.
Mr Fronistas, of Counsel, appears for the father and has done so on a long standing basis.
Pursuant to an order made by Riethmuller FM on 6 December 2005, Donald Lampe, solicitor was appointed as the independent children’s lawyer for A within the meaning of Division 10 of Part VII of the Act. As such, his role is to form an independent view, based on available evidence, of what is in A’s best interests and then act in these proceedings in what he believes to be the best interests of A.[1] He is not a legal representative retained by A and he is not bound by any instructions from A.[2] The role of the independent children’s lawyer is to deal impartially with the parties, ensure that any views expressed by A are fully put before the court, to analyse documentary, expert evidence and reports and to distil from that evidence significant matters for the purpose of properly drawing them to the court’s attention. The independent children's lawyer is also under a specific duty to take steps to minimise for the child the trauma associated with proceedings[3] and to facilitate an agreed resolution of matters at issue in the proceedings to the extent that it is in the best interests of the child to do so.[4]
[1] s 68LA(2) Family Law Act 1975 (Cth).
[2] s 68LA(4) Family Law Act 1975 (Cth).
[3] s 68LA(5)(d) Family Law Act 1975 (Cth).
[4] s 68LA(5)(e) Family Law Act 1975 (Cth).
Mr Curtain of Counsel appears on behalf of the independent children’s’ lawyer.
This matter was accepted into the Magellan list of cases on 13 February 2006. This is a highly resourced list for cases involving allegations of physical and sexual assault of children. The Department of Human Services, Victoria (“DHS”) has prepared two reports. The first is dated 27 June 2006[5]. The second report is not dated but commences with a notification having been received on 26 February 2007 and was said by the author, Ms J, to have been completed on 16 April 2007[6]. There is also an intake record dating from 11 May 2007[7] which relates to the 16th notification received by DHS in relation to A and which provides some detail of the previous
15 notifications.
[5] Exhibit “ICL1”.
[6] Exhibit “ICL2”.
[7] Exhibit “ICL3”
This matter was listed for trial, and reached, in February of this year. It was then adjourned because the father, who had previously not agreed to be psychiatrically assessed, decided that he would submit to such an assessment. It is not normally appropriate to adjourn a matter once it has been reached for final hearing, particularly in the Magellan List where cases are carefully managed and fast tracked for final hearing. In the present case, however, the stops and starts have enabled the expert psychiatrist, Dr M, to assess both parents (including the mother twice) and for the expert family consultant,
Ms B, to assess the family on three occasions over the last
18 months. Each expert has put the extra opportunities for assessment to very good use and, ultimately, much to A’s benefit.
Care arrangements at the time of the hearing
I recorded that care arrangements for A at the time of the hearing were as follows:-
a)
The parents have equal shared parental responsibility for [A] pursuant to paragraph 2 of orders made by Joske J, by consent, on
31 March 2004;
b)[A] lives with the mother pursuant to paragraph 1 of orders made by Joske J, by consent, on 31 March 2004;
c)The father is entitled to spend time with [A] from 6pm on Friday from outside the mother’s residence to 6pm on Sunday at [F] Railway Station, pursuant to Order One made by me on 26 February 2007;
d)
The father is entitled to communicate by telephone with [A] each Tuesday and Thursday from 6:30pm to 7pm with the mother to initiate the telephone call to the father’s landline telephone number pursuant to paragraph 5 of the orders made by consent by Riethmuller FM on
6 December 2005;
e)Pursuant to paragraph 4 of the orders sought and made by consent by Riethmuller FM on 6 December 2005, each parent is, in effect, restrained until further order from subjecting [A] to any form of counselling without the prior written consent of the other parties.
Orders sought
At the conclusion of the hearing each party sought orders at variation with their formal applications.
The independent children’s lawyer seeks the following orders:-
1)That all prior parenting order be discharged.
2)That [A] live with the father and he have sole parental responsibility for the child.
3)That [A] spend time with her mother and communicate with her mother as follows:-
a) Prior to relocating to the [rural New South Wales town] area:
i)Each alternate weekend during school terms from 10am Saturday to 7pm Sunday commencing;
ii)For one half of all school term holidays as agreed and failing agreement, the first half;
iii)For one half of the long summer vacation (excluding (iv below) as agreed and failing agreement the second half in 2007/08 and the first half in 2008/09 and alternating thereafter;
iv)From 3pm Christmas Eve to 3pm Christmas Day in 2008 and each alternate year thereafter and from 3pm Christmas Day to 6pm Boxing Day in 2007 and each alternate year thereafter;
v)By telephone each Wednesday at 6pm and each Sunday at 10am when the father is responsible for having the child place a call to the mother’s mobile telephone service and in circumstances where she can speak privately and without distraction and for approximately 15 minutes;
vi)On mother’s day (should it not fall on (i) above) from 10am until 7pm and should father’s day fall on (i) above [A] shall be returned to the father at 10am; and
vii)As otherwise agreed in writing between the father and the mother;
b) After the mother relocates to the [rural New South Wales town] area:
i)For 10 days in each of the school term holiday periods, commencing on the first Saturday or Sunday as soon as [A] is placed on a flight to NSW (or if the mother collects her, then from 10am on the first Saturday);
ii)For one half of the long summer vacation being the second half in 2007 and the first half in 2008 (including Christmas eve, Christmas day and Boxing day) and alternating thereafter;
iii)By telephone as in (a)(v) above;
iv)Whenever the mother visits the Melbourne area for periods of 28 days or less, then upon 30 days written notice to the father, it shall be each weekend from 10am Saturday to 7pm Sunday being periods other than any school term or long summer vacations (when (i) and (ii) are to apply);
v)By cards, letters, e-mail and presents from time to time, but no more than one per fortnight; and
vi)As otherwise agreed in writing between the mother and father.
4)That for the purpose of changeover of care:
a) For 3(a) above, the changeover point be McDonald’s Family Restaurant at [W];
b) In 3 (b) above, the father do all things necessary to deliver [A] at the start to the relevant airport in more than sufficient time for her fly to by plane to be with her mother and the mother do all things necessary to return [A] to the appropriate airport in more than sufficient time for her to return to her father by plane at the conclusion of her time with her.
5)That the costs of the airfares for 4(b) above be shared between the mother and father and the father be solely responsible for the purchase and booking of the flights for the third term/September and the first term/March school term holidays in each year and the mother being solely responsible for the purchase and booking of flights for the Christmas long summer school vacation and second term/July school holidays in each year, such flights to be secured, paid for and advised to the other party in writing not less than 3 months prior to the first date for travel.
6)That the father and his servants and agents do all things necessary:
a) To ensure [A’s] bedroom contains a framed photograph being approximately 10 x 15cm of the mother (which shall be updated every 6 months upon the mother forwarding the same);
b) To provide [A] with a current calendar of each year, from the commencement of each year, clearly marked with the days [A] will spend with the mother; and
c) To encourage [A] to communicate with her mother through letters, cards and email from time to time and to reply to any forwarded to her by the mother.
7)That the father shall forthwith authorise and direct all schools or educational programs attended or to be attended by [A]:-
(a) to provide the mother with copies of school reports, newsletters and photographs (at her expense if any);
(b) for the mother to communicate with school staff about [A] from time to time as if the mother’s entitlement to be informed and consulted about [A’s] progress is equivalent to that of the father;
(c) to record the mother’s details clearly on [A’s] personal file.
8)That the mother and father shall keep the other advised of their residential address and telephone numbers and forthwith any changes thereto.
9)That the mother and father shall forthwith inform the other of any injury or illness suffered by their daughter and authorise the other to communicate with any treating professional whose name, address and contact details must be provided as soon as practicable.
10)That the mother and the father their servants and agents be and are hereby restrained from denigrating the other or their partners within the presence of or the hearing of [A].
11)That the mother and father attend a parenting orders program as nominated by the independent children’s lawyer and forward a certificate of completion to the independent children’s lawyer on the conclusion of same who shall send a copy to the other parent and the supervising family consultant.
12)That the father ensure that [A] attends the Gatehouse Centre at the Royal Children’s Hospital for the purpose of assessment and comply with all reasonable directions in respect of the assessment and follow all recommendations arising from the assessment including if advised for [A] to undertake a course of therapy and advise the supervising family consultant and irrevocably authorise her to make her upon enquiries as to the progress of the assessment and treatment.
13)That the father shall provide the proper officer at the Gatehouse Centre with a copy of this Order when making the arrangements in paragraph 12.
14)That unless within 28 days the father has received a guarantee from the proper officer of [A’s] school that the school will arrange for a psychological and educational assessment of [A] by the end of third term, the father forthwith do all acts and things necessary to have [A] undergo such an assessment at a service provider nominated by the supervising family consultant and, in the absence of such nomination, from the relevant department of one of the following institutions:-
(a) Royal Children’s Hospital (being the section formally known as the Learning Disabilities Department);
(b) Catholic University;
(c) RMIT;
(d) La Trobe University –
and keep the supervising family consultant advised of his progress in this regard and provide a copy of the report of the assessment to the supervising family consultant, the mother and the proper officer of the school attended by [A].
15)That as soon as practicable after 1 August 2007, the father do all acts and things necessary to ensure that [Mrs James] undertakes a refresher course in the Spalding method of teaching literacy as it applies to parents using those techniques with their own children at home, such refresher course to be undertaken at a service provider approved of by the supervising family consultant including, but not limited to, […]
16)That the independent children’s lawyer and Ms [B] at a mutually convenient time, meet with [A] to explain to her the nature and effect of these orders.
17)That the compliance with these orders be supervised by
Ms [B] or such other consultant nominated by the Director of Child Dispute Services pursuant to section 65L of the Family Law Act 1975 for a period of 2 years.18)That the Order appointing the independent children’s lawyer be discharged upon compliance with paragraph 14 above.
19)That pursuant to section 65DA(2) and 62B 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 annexure hereto relating to parenting orders – obligations, consequences and who can help, the particulars of which are included in this Order.
The applicant mother seeks that the court make the following orders:-
(1)That all parenting Orders be discharged.
(2)That [A] live with the mother.
(3)That the parent with whom [A] is to live have sole parental responsibility for major long term issues in relation to [A].
(4)That [A] spend time with her father:-
(i)Alternate weekends from 6pm Friday to 6pm Sunday thereafter during school terms;
(ii)For one week in each school term holiday being the first week from 10am Saturday to 10am the following Saturday;
(iii)For 2 weeks in each of the summer holidays in one year from 6pm on the last day of the school year and in the alternate year from 6pm on the 10th January;
(iv)On Christmas each year overnight, alternating between 6pm Christmas Eve to 12pm Christmas Day and 12pm Christmas Day to 6pm Boxing Day.
(v)On Father’s Day 10am to 6pm each year.
(vi)By telephone to [A’s] mobile phone on a liberal and regular basis at the father’s expense.
(5)That the changeover point for time spent be McDonald’s Family Restaurant at [W] (which is the mutually agreed halfway point).
(6)The father be at liberty to obtain copies of all education and medical and other records relating to the child at his own expense at any time;
(7)That the parties keep each other advised of any change in phone numbers or addresses and not reside outside Victoria with the child without the consent of the other.
(8)That the father permit and encourage the child to telephone the mother whenever she wishes during her time with her father.
(9)That the parties provide to the other party full details of any holidays that they intend to take with [A], including proposed destination.
(10)That in the event that Mother’s Day falls on a weekend during which the child is otherwise scheduled to spend time with the father, then the child shall be returned by 10am on Mother’s Day.
In the event that I order that A live primarily with the father, the mother plans to move to a rural town in New South Wales in about 6 to 8 weeks time, her finances permitting. The mother says that she will stay, at least initially, with her brother and sister in law, D and N and their two children, J who is 11 years old and C who is 18 years old. She proposes that A spend time with her, in rural New South Wales, for the majority of school holidays including 12 days in each school term holiday and for one half of the long summer school vacation. Both Christmas Day and A’s birthday fall in the first half of the long summer school vacation and the mother has no objection to A remaining in the care of the father for the first half of that holiday this year. She proposes that she communicate by telephone with A each Sunday at 10am. The father is to be responsible for the cost of the telephone call which can be placed to her brother’s land line home telephone service. The mother proposes that she and the father share equally the cost of air travel for A 4 times a year between Melbourne and Coffs Harbour airport. This is purely a fall back position for the mother, her primary application is that A continue to reside in her care.
If I order that A live with the father the mother seeks that, until she relocates to the rural New South Wales town, A spend time with her each alternate weekend from 6pm on Friday to 6pm on Sunday.
The respondent father applies for the following orders:-
(1)That all previous parenting Order be discharged.
(2)The [A] live with the father.
(3)That the father have the sole parental responsibility for major long term issues concerning [A].
(4)That the mother spend time with the child in accordance with the proposals of the independent children’s lawyer.
(5)Should the father’s birthday or Father’s Day fall on a day when the child spends time with the mother and the child is in Melbourne, that time be suspended and the mother shall be entitled to make-up time as agreed between the parties.
(6)That when the child spends time with the mother, the father have telephone contact with the child on Wednesdays and Sundays at 6pm on a telephone number provided by the father.
(7)That the child not be subject to further counselling arranged by the mother or the father unless agreed in writing by the parties or ordered by the Court.
(8)Each party promptly advise the other of any medical or dental treatment undertaken in relation to the child during their respective periods of care and make available to the other any reports relating to such treatment.
(9)That the mother be and is hereby restrained from bringing the child into contact with Mr [S] and Mr [H] or either of them.
(10)That until further order the mother be and is hereby restrained from allowing the child to be exposed to and / or come into contact with violent / aggressive persons.
(11)That the mother inform the father in writing of the name, address, date of birth, occupation and criminal record of any person who shall be present when the child spends time with the mother, and in particular any such person who sleeps at the mothers residence.
(12)That until further order, the mother to advise the father immediately when any violence has occurred in the presence of the child and to give details of the circumstances and details of the persons present, and details of any police, ambulance or fire officers which have attended as a result of such incident.
(13)That until further order the mother shall refrain from denigrating the father or [Mrs James] in the presence of the child.
(14)That a passport issue for [A] and the father be entitled to take [A] to New Zealand for a holiday.
(15)That until further order the mother shall not allow the child to remain in the presence of any family member, friend or acquaintance of theirs should they be denigrating the father or [Mrs James].
(16)The applicant mother shall not without leave of a court having jurisdiction under the Family Law Act 1975 institute proceedings under the Family Law Act in relation to any Order under the Family Law Act affecting the [child].
(17)That the applicant mother pay the respondent fathers costs of and incidental to these proceedings on an indemnity basis.
(18)Such further or other Orders as this Honourable Court deems appropriate.”
In the event that I order that A continue to live with the mother, the father seeks orders enabling him to spend time with A from 6pm Friday to 6pm on Sunday on two out of every three weekends during the school term and for half the school holidays and vacations. The father seeks that A be collected from and dropped off at McDonalds Family restaurant in W. He seeks alternate Easters and the first half of the long summer school vacation in 2007 and in each alternate year thereafter. He proposes that the parent who is to have A for the second half of the long summer vacation be able to spend time with A from 2pm on Christmas Day until 10am on Boxing Day and from 2pm on her birthday (… December) until 10am, the following day.
Come what may, the mother does not oppose A being with the father for the first half of the long summer school vacation this year. She opposes the father spending time with A, in Melbourne, on Christmas Day or her birthday in the year in which A is with him for the second half of the long summer school vacation, not on principle, but because she wants to be able to spend all of her holiday time with A in the rural New South Wales town. She contends that returning A to Melbourne on the 25 and … December is not practicable. I accept that it is not practicable. The mother agrees that the father can spend each alternate Easter which falls within A’s school holidays with the father and this be effected by either commencing or concluding those holidays so that A is with the father from Good Friday to Easter Monday on each second occasions when Easter falls in the holiday. The mother seeks no adjustment in relation to Easters which fall in school terms and the father did not specify relief in that respect either.
If the father and Mrs James were to be in the rural New South Wales town over the Christmas period when A is in the care of the mother, they seek time with her on Christmas Day (25 December) and her birthday (… December). Upon giving the mother not less than 30 days notice in writing of that request, they should see A from 7pm to on her birthday or Christmas Day until 12 noon the following day. I do not understand the mother to have any objection to this.
The father seeks that a passport issue for A and that he and Mrs James be able to take A for a holiday in New Zealand where Mrs James has some family. The mother initially opposed the father doing so but then raised the possibility of wanting to take A herself on a holiday to the United States where the mother has an uncle and using some of her inheritance from her father to do so. The mother has no objection to a passport issuing preliminary to any such travel and advised me that she will consent to same and execute any necessary documents. The independent children’s lawyer has no objection to the father’s application.
Since the parties started this second round of proceedings the Family Law Act 1975 (Cth) (“the Act”) has been significantly amended by the Family Law Amendment (Shared Parental Responsibility) Act 2006 (Cth) (“the amendments”), the provisions of which came into operation on 1 July 2006. Certain procedural elements of the amending legislation do not apply to this case as it was commenced before 1 July 2006. The new law is complex so
I will set out the relevant provisions in this judgment.
Findings of fact
In assessing the evidence, I apply the balance of probabilities as the standard of proof. In the unreported decision of Justice Carmody in D & D [2005] FamCA 356 delivered in Brisbane on 11 May 2005, his Honour analysed comprehensively the ‘standard of proof’ applicable in family law proceedings and made the following observations:
[140] The relevant test is found in s 140 of the Evidence Act, 1995 (Cth). Sub-section (1) requires the facts in issue to be proved by the party with the persuasive onus on the balance of probabilities. Sub-section (2) introduces notions of weight and variability into the forensic process.
[…]
[145] Lord Nicholls discussed the relevant standard of proof to be applied in non-criminal proceedings in his judgment in Re: H & Ors[8] in the context of a wardship application. His Lordship relevantly stated:
"Despite their special features, family proceedings remain essentially a form of civil proceedings. Family proceedings often raise various serious issues, but so do other forms of civil proceedings.
The balance of probability standard means that a court is satisfied an event occurred if the court considers that, on the evidence, the occurrence of the event is more likely than not. When assessing the probabilities the court will have in mind as a factor, to whatever extent is appropriate in the particular case, that the more serious the allegation the less likely it is that the event occurred and, hence, the stronger should be the evidence before the court concludes that the allegation is established on the balance of probability. Fraud is usually less likely than negligence. Deliberate physical injury is usually less likely than accidental physical injury … Built into the preponderance of probability standard is a generous degree of flexibility in respect of the seriousness of the allegation.
Although the result is much the same, this does not mean that where a serious allegation is in issue the standard of proof required is higher. It means only that the inherent probability or improbability of an event is itself a matter to be taken into account when weighing the probabilities and deciding whether, on balance, the event occurred. The more improbable the event, the stronger must be the evidence that it did occur before, on the balance of probability, its occurrence will be established".
[146] What this means in a practical sense is the more serious the allegation, the more cogent the evidence required to overcome the unlikelihood of what is alleged and thus to prove it. [9]
[147] Thus, civil proof is not a simple matter of belief and persuasion but of "reasonable satisfaction" following a real search for the truth and evaluating the evidence adduced with regard to the matters mentioned in s 140(2) and other relevant variable factors, including those referred to by Dixon J in Briginshaw[10] and in the light of the parties' respective power or capacity to produce or contradict it. [11]
[148] The balance of probability standard takes account of the instinctive judicial feeling that even in civil proceedings a court should be surer before finding serious allegations proved than when deciding less serious or trivial matters. However, the law looks for probability not certainty. There are degrees of probability but, when the law talks about "the balance of probabilities", it envisages a degree of probability to the point that a court can be satisfied that the alleged fact in issue is more likely than not.
[149] Where, as here, proof of a fact in issue hinges on rational inferences based on circumstantial, as distinct from, direct evidence, the conclusion contended for must be rational and reasonably open. There has to be something more than mere conjecture or suspicion. A proposition is proved on the balance of probabilities in a circumstantial case when the combined weight or preponderance of the totality of the available evidence favours it as the most likely explanation. The more information consistent with one of a number of competing hypotheses, the more probable that explanation becomes.”
[8] (1996) 1 All ER 1, 16.
[9] Re Dellow's Will Trusts, Lloyd's Bank Ltd v Institute of Cancer Research (1964) 1 All ER 771 at 773 per Ungoed-Thomas J.
[10] See generally, A Ligertwood, Australian Evidence (2004, 4th ed) 82-83.
[11] Blatch v Archer (1774) 1 Cawp 63, 65; 98 ER 969, 970. See also Vetter v Lake Macquarie City Council (2001-2002) CLR 439, 454[36]; Burke v LFOT Pty Ltd (2002) 187 ALR 612, 647[134].
I, with respect, adopt the above statement of the onus and standard of proof considerations as correct and apply those principles to the present case.
Evidence
At the trial the applicant mother relied upon the following evidence:-
·Her affidavit of evidence in chief sworn on 12 February 2007;
·The affidavit of E, domestic violence worker, sworn 12 February 2007. E’s notes of her attendances upon or in relation to the mother, from 11 October 2006 to 19 July 2007 were tendered as Exhibit ICL5;
·
Evidence of her neighbour Ms L in respect of whom
I granted leave for the mother to lead oral evidence having first provided each party at the court with handwritten proof of evidence to be given by that witness. That was done and marked Exhibit W1.
·Evidence of her psychologist, Ms T. On the 7th day of the hearing I permitted the mother to re-open her case to adduce evidence from, and be cross examined about, her attendances upon the psychologist. The mother had not sought to adduce that evidence previously. She said that she considered this treatment was not relevant to these proceedings. I directed that the mother provide each party and the court with a handwritten proof of evidence to be given by her psychologist. That was complied with in the form of a “To Whom it May Concern” letter dated 23 July 2007 from the psychologist[12]. The evidence of the psychologist was given on the 10th day of the hearing and, by consent of all parties, in the presence of Dr M and family consultant, Ms B.
[12] Exhibit “W6”
The mother and her witnesses were cross examined.
The respondent father relied upon the following evidence:-
·His affidavit of evidence in chief filed 18 February 2007;
·Affidavit of Mrs James (his wife) sworn 18 February 2007;
·The affidavit of Ms W (the sister of the father’s wife) affirmed 18 February 2007;
·The further affidavit by him sworn 23 May 2007;
·The further affidavit of Mrs James sworn 23 May 2007;
·The oral evidence of Senior Constable G of Victoria Police at C;
·The oral evidence of Senior Constable K of Victoria Police at C.
The father and his witnesses were cross examined.
The independent children’s’ lawyer collated the evidence of Dr M, psychiatrist who has prepared three reports in this matter all of which are annexed to his affidavit sworn 6 July 2007. In addition, there are three family reports by the family consultant, Ms B. They are dated 18 August 2006, 18 January 2007 and 11 July 2007. All were received into evidence by me on 16 July 2007. Dr M and Ms B are witnesses of the court and each was cross examined concurrently, with consent of all parties. They were also present in Court to hear some evidence from A’s teacher, Ms R, and the mother’s psychologist, Ms T.
With leave, the independent children’s lawyer adduced oral evidence from the following persons:-
·Ms WL of DHS;
·Ms J of DHS;
·Ms R, school teacher at X Primary School, who is A’s current class teacher;
·Senior Constable EA of Victoria Police SOCOU Unit at Geelong;
·Senior Constable FS of Victoria Police at Geelong;
·Running sheet of, and notes by the independent children’s lawyer of his conversation with, Leading Senior Constable AR of Victoria Police at Geelong which are Exhibit “ICL11”. These were admitted into evidence by consent.
All witnesses relied upon by the independent children’s lawyer were cross examined with the exception of Leading Senior Constable AR whose evidence was accepted.
In addition each party relied on a number of exhibits.
Credit & impression of witnesses
The nature of the enquiry in a parenting case does not necessitate that findings be made as to credit of parties or witnesses. However, this is an unusual case in which it is necessary and proper for me to make credit findings. Counsel for the independent children’s lawyer highlighted deficiencies in the mother’s evidence in a number of material respects. I am satisfied that each parent gave evidence, in affidavit or orally, which was untruthful in certain respects. The mother far more so than the father. Each also gave evidence which, whilst ostensibly misleading, was based on a lack of insight rather than deception or an intention to mislead. That evidence is relevant on the question of parental capacity rather than credit.
The mother
The mother is 51 years of age, born in December 1955. She is not employed outside the home and was last in paid employment about four years ago when she supervised handicapped children for a bus service. She resides at … in a Geelong suburb and has done so for the last four and a half years. That is accommodation she rents from the Ministry of Housing. The only occupants of the house are A and herself.
The mother’s presentation as a witness was not hampered by deficiencies often associated with self represented litigants. She was organised. She had a very good memory for bringing things to court when requested. She had an astute appreciation of proceedings before the court to the point that, on the occasion of me granting her leave to re-open her case to be cross examined about recent psychological treatment, she reminded the court that she ought to be re-sworn prior to answering questions. It was a moment of humour during the trial but nonetheless illustrative of the apparent ease with which the mother conducted her proceedings. She appeared to be composed. She was dignified in court and did not appear nervous although at times she was understandably emotional and close to tears. She appeared to think clearly.
I am satisfied, however, that a significant amount of her evidence was given falsely. That is, not carelessly or as a result of lack of insight, but in order to mislead the court in the determination of this case. I will proceed to give some examples.
In December 2006 the father sought orders, inter alia, to restrain the mother from permitting her then partner, Mr S, from coming into contact with A. In support of that application, the father swore an affidavit on
29 November 2006in which he alleged, inter alia:-
[22]. The applicant disclosed at the Pre Trial Conference that the police have attended her premises looking for guns. I believe that the police attended the applicant’s premises in the last 2 weeks as a result of domestic violence occurring between the applicant and Mr S. This happened in the presence of A.
[23]. On or about 2nd September 2006 I received a phone call on my mobile. It was a male voice. The male spoke in a threatening and aggressive manner and said “I’m gonna kill ya, shoot ya, ya bastard”.
I believe that it was Mr S, as the male person made comments about the case which can only have come from the application. I reported this to the S Police Station. I am informed that they are still conducting investigations.
[24]. I have concerns about the safety of A when Mr S is present and I seek the restraining orders as outlined above.[13]
[13] Affidavit of the father sworn 29 November 2006
The mother responded as follows:-
[23]. As to paragraph 22, I say that the police attended my home on the
3rd of September 2006 at about 11:50pm, asking about [A’s] welfare. This was the day after I had stopped contact due to a large, red, circular mark around [A’s] neck which was there when she returned from spending time with her father. I showed the police that she was fine and the police left. I was also notified by a neighbour that the police had been at my home earlier that same day, apparently looking for a gun in my shed. I believe that the Respondent had told the police that [A] was in danger because there was a gun on my property. I have not allowed a gun in my house since the Respondent put one to my face while we were living [interstate] many years ago. I gave that gun to the Respondent’s uncle, [Mr Z], and have not had a gun in my possession or on my property since then. I deny that there is any domestic violence between [Mr S] and I. Our relationship is mutually supportive and stable.[24]. As to paragraph 23, I admit that [Mr S] called and spoke to the Respondent on the 2nd of September 2006, which call was made on my behalf and in my presence. The Respondent had sent [A] back with the aforementioned mark around her neck and the call was made to cancel contact or the following day, due to the injury. I did not hear [Mr S] make any threatening comments to the Respondent during that call. The police contacted me seeking [Mr S’s] phone number on the 16th November 2006, as the Respondent had made allegations about phone calls being made by [Mr S] to him. I am unaware of the state of the investigation.
[25]. As to paragraph 24, I say there is no reason why [Mr S] ought be excluded from [A’s] (or my) life.[14]
[14] Affidavit of the mother sworn 13 December 2006
In fact, there had been a serious incident of family violence in the mother’s home on 11 November 2006 which was just one week after Mr S had taken up full time residence as the mother’s de facto partner. A was in her bedroom and, I am satisfied, upon hearing a beer bottle being thrown and breaking against the lounge room wall, she escaped out of her bedroom window, climbed two full size fences into a neighbour’s property, walked along the boundary of that block and then climbed two more full size fences to get into the back yard of Unit 2 which is occupied by Ms L. A asked Mrs L to call the police which she did.
The mother has given a number of versions to various people (including the Court) as to what occurred on the evening of 11 November 2006. Invariably, the mother was selective in providing details of how serious the incident had been. I am satisfied that the following account given by the mother is accurate. The account is the mother’s statement to police made on 11 November 2006[15]. She said:-
[15] Exhibit “H8”
On Saturday the 11th November, 2006, I was at my home with my boyfriend, [Mr S] and my seven year old daughter, [A].
At approximately 5.20pm I returned home from picking up my daughter from my ex partner’s child contact visit.
Soon after I started preparing some dinner for my daughter. [Mr S] presented my daughter with a new set of clothes. I placed the new clothes in a hot bucket of water and then into the wash to clean the clothes before my daughter wore them. [Mr S] took offence to the fact that I was washing the clothes and began ranting and raving as if I had rejected the fact that he brought the clothes.
I showered my daughter and then [Mr S] sta[r]ted (sic) yelling and screaming at her because she had left some water on the floor in the bathroom. [Mr S] then allowed my daughter to watch a movie until about 8pm and then she went to bed.
Once my daughter was in bed he basically went ballistic. I don’t know what he was so upset about. He started saying that he was going to get some dynamite from work and stick it up everybodys (sic) backside and blow them up. I don’t know why he was saying that I was thinking to myself whether this was rational behaviour.
[Mr S] then went and had a shower and then came back to the lounge. He stated that he had a packet of cigarettes on the floor next to a bottle of beer and that the beer has somehow fallen over and soaked the cigarettes. He was blaming this on me. He then tried to throw a bottle at me which missed and smashed on the wall. He then grabbed me by the neck and started hitting me in the face with his fist. I think he hit me about three times.
[Mr S] stated that he was going to kill me and my daughter and that we were both sluts and cunts and that he would kill the neighbours if they got involved.
I just started to cry and told him to leave me alone. I told him I would go and buy him a packet of cigarettes if he was so worried about them.
By this time the Police arrived at the front time (sic). The police told me that my daughter was at the neighbours house and that they had called the police to come.
I am satisfied that the mother’s response, on oath, in her affidavit of
13 December 2006was dishonest. Subsequently, she has given evidence that she deliberately did not tell the truth because she believed (at the time) that Mr S’s outburst and violence was a one-off incident that she “had taken care of”. Moreover, she believed that the father has no right to meddle in her domestic life, resents him doing so and was not prepared to concede that he had been correct or to provide him with any basis upon which to disrupt her
de facto relationship with Mr S. None of those explanations excuse the mother having lied to the Court. Furthermore, it was not the last serious incident which she or A would have with Mr S.
I note that, when the mother formulated her response to the father’s allegations about a family violence incident in mid-November, 2006, she tried to deflect attention back onto the father and his allegedly violent or careless actions. The mother did this persistently throughout the hearing.
It is also telling against the mother that, in making her statement within an hour or so of the event, she stated of Mr S’s motivations: “I don’t know what he was so upset about.” Whereas, when the mother saw Dr M, psychiatrist, for a second assessment in June 2007, she was able to attribute blame to the father for Mr S’s violent behaviour, as follows:-
She also expressed the view that [Mr S’s] attack on her occurred because he “snapped” from the pressure he felt from Mr [James]. She also reported that Mr [James] had bribed friends of hers to report that there were problems occurring in her household.”[16]
[16] Dr M’s report dated 27 June 2007 of his second assessment of the mother, page 4.
My observation of the mother as a witness was that she regularly re-fashioned events to suit herself. I observed her to give incorrect evidence with such ease that I wonder whether she actually realised or was conscious that what she was deposing to was false. Another striking characteristic of the mother’s evidence was to expressly or impliedly attribute blame to the father for pretty much everything.
I accept the expert evidence of Dr M that the mother deals with past events and her day to day life within a construct of her being a victim of domestic violence at the hands of the father. Most answers which were uncomfortable for the mother incorporated a reference to the husband having abused and intimidated her. In this context, the parties separated about 6 years ago. The mother alleges that the father was violent to her during their 20 years of living together, the father denies this, except for one occasion. The mother alleges that since they have lived separately, there have been isolated instances of physical violence which are also denied by the father. The mother asserts that the father continues to be violent to her by intimidating her at changeovers, either personally or through his wife Mrs James or through A, by meddling into her domestic arrangements and verbal abuse. The mother also asserts that the father is the perpetrator of domestically violent behaviour in that she has been isolated from her family of origin (in the rural New South Wales town) and not been able to live with them because of her responsibility to remain in Melbourne so that A could see the father. This is notwithstanding that the mother has never made an application to the court to relocate A to the rural New South Wales town and she has consistently consented to orders for A to spend regular weekend time with the father which are inconsistent with the mother residing in the rural New South Wales town.
The mother also asserts that the father has been financially abusive by failing or neglecting to pay adequate child support consistent with his ability to pay rather than his assessed liability for child support (which has, more often than not, been the statutory minimum).
I am satisfied that the mother’s mindset limits her insight and leads her to construe all events in a manner unfavourable to the father. In the context of these proceedings, it has also resulted in her giving evidence which was untruthful.
Apropos as to how the mother’s inaccurate descriptions of family violence within her home have impacted on A, the mother purports to have the situation under control. Dr M reported that the mother said that she had accessed assistance from a domestic violence support worker and a domestic violence counsellor. He stated:-
[Ms Claringbold] reported that she was feeling less depressed and requiring lower doses of antidepressant medication. She said she had seen a domestic violence counsellor who was helpful. When I asked about the nature of the counsellor’s helpfulness, she referred to the counsellor as helping her with her legal issues for example with photocopying. She had also received some counselling from a psychologist which she said was helpful. She said that it helped her to see that all men were the same, ie that they have hidden perspectives and controlling behaviour. She said she had learnt not to “take crap from anyone”.
It will be apparent from my discussion below of the evidence of the support worker and the counsellor, that the mother has been less than frank about informing them of relevant matters with the effect that she has prevented them from assisting her much at all.
I accept the final submission of the independent children’s lawyer that at various times the mother has consciously given evidence designed to mislead the Court. I am satisfied that the mother was an unreliable witness in relation to family violence of her recent companion, Mr S, and chaotic aspects of her home life. I set out below further adverse findings in relation to the wife’s credit.
The father
The father is 46 years, born in May 1961. He is a self employed tradesman who works from home …. He estimates that in the last financial year his gross income was $26,000 after expenses but before tax. In the financial year ending 30 June 2005 he was a PAYG employee tradesman and his income was approximately $48,000. His evidence was that he resigned from that position after being promoted into a position to which he considered he could not do justice because of the pressures associated with these proceedings and the regime of spending time with A commencing on Friday afternoons.
The father has repartnered. On … October 2002 the father married Mrs James.
Dr M, psychiatrist, made the following assessment of the father’s presentation and functioning:-
He was particularly concerned about the allegations of sexual abuse and was tearful and somewhat distressed when talking about this. Overall there was no detectable abnormality of mood and there was no evidence of disturbance of thought or perception. There was some difficulty in manipulating numbers and in subtracting numbers serially. He was unable to present the meaning of proverbs but was appropriate with similarities. It was difficult to know to what extent his difficulties reflected his life experience and education rather than some difficulty with cognitive processes. Mr [James’s] capacity for insight and reflection appeared affected by his need to have certainty and be sure what was correct. This was seen to limit his capacity to think about input from others.
And later:-
He does present some characteristics which may have presented difficulties to Ms [Claringbold]. These include his apparent tendency to stick to his point of view, a tendency towards abruptness of challenged and a tendency to be guarded when challenged.
Dr M’s description of the father as being abrupt and guarded is consistent with my observations of him as a witness, particularly in the early stages.
I accept the submission of counsel for the independent children’s lawyer that under cross examination, initially, the father was an evasive witness who was not responsive. The father frequently responded to questions with a question. To be fair, he probably thought his questions addressed the issue but I found it illustrative of an attitude and behaviour that would be difficult to cope with. His shallow manner of delivery could easily be interpreted as dismissive. At one point he raised his hand and waved away my direction that he not discuss his evidence in cross examination with his wife. My assessment was that he did not mean to be offensive. It is just his manner. However, his manner is abrupt and presents fertile ground for misinterpretation, particularly by the mother who is prone to find fault in all matters pertaining to the father. As the father relaxed in the witness box, his evidence became more detailed, his manner became easier and I observed him then to be trying to assist with giving answers.
Under cross examination by the mother, he admitted that the following passage from a statement which he gave police on 2 September 2006[17], in which he alleged that Mr S had threatened to kill him, was false:-
“… [the mother and I] do not speak at all. […] I don’t see her at all and haven’t spoken a word (sic) [the mother] in the past 3 years.”
[17] Annexure “BJ-7A” to the affidavit of the father sworn 18 February 2007
I do, however, accept the father’s allegations against Mr S having telephoned him on 2 September 2006, to be based on the genuine and reasonable belief of the father.
I find that the father gave incorrect evidence when, under cross examination by the mother, he denied having sought to have Mr S’s income taken into account in relation to the mother’s application to the Child Support Agency for a change (increase) in child support. His letter to the Child Support Agency[18] states:-
I also note from the general conversation of my daughter, [A] … that [the mother] has a partner who lives with them and who is employed as a […] in Melbourne. [The mother] has not disclosed what support she receives from her de facto partner.
[18] Exhibit “W8”
In cross examination by the mother the father admitted to having made a false statement to police 21 years ago. No further details were adduced in evidence.
Like the mother, there were many instances when the father gave evidence which was displayed a marked lack of insight and was indicative of limited parental capacity rather than an intention to mislead the court.
Having regard to all of the evidence, I accept the submission of the independent children’s lawyer that the father was a far more reliable witness than the mother.
E (surname withheld)
E was the mother’s witness. She is a domestic violence outreach worker from B Outreach Service and was permitted to give evidence without disclosing her surname. She has been a domestic violence support worker for about 25 years. She has been involved with the mother and seen her regularly since 11 October 2006. E said that the mother stated that she had been referred to her by a friend, K. The mother said that Mr S had sourced the Outreach Service from the telephone directory. I accept that E’s version is correct. I am satisfied that the mother wanted to credit Mr S with putting her in touch with the service to make him appear sensitive to family violence issues.
E is part of a referral service, her organisation does not offer therapeutic counselling. Her involvement with the mother is directed to practical support, talking about the mother’s experiences, giving advice and making referrals to appropriate agencies. The mother sought assistance specifically to get practical and emotional support for these proceedings and shortly prior to the trial notice listing of these proceedings. However, E’s evidence was directed to the constructive steps taken by the mother following the assault on her on
11 November 2006by her then partner, Mr S. In her affidavit, E deposed as follows:-
[7]. That I have had 13 sessions with the mother as at the date of swearing this affidavit. The mother presents as motivated to have an ongoing relationship with this service. I am able to refer the mother for further domestic violence counselling if appropriate.
[8] I have spoken with the mother at length about the history and nature of her relationship with the Respondent father in this matter. She has described that relationship as an abusive one where she was subjected to verbal and physical violence over many years. I have also spoken with the mother about her recent relationships with [Mr S] and the impact of domestic violence on her daughter [A].
[9]. It is my opinion, that the mother acted swiftly to remove herself from her relationship with [Mr S] immediately after an episode of violence. I am aware that she made an application for an Intervention Order against Mr [S] and subsequently obtained that Order at the Geelong Magistrates Court on the 9th of January 2007. She has expressed to me an intention to remain separated from Mr [S].
[10]. I expect to have an ongoing professional relationship with the mother for as long as she remains motivated to tackle the impact that domestic violence has had on her life, which motivation she currently and consistently displays.
Under cross examination is was clear that the mother had not been forthcoming with E in relation to the extent of the assault on her on 11 November 2006 or the events which followed. E accompanied the mother to Court for these proceedings on 22 November 2006. The mother and E were together for hours, including return car travel between Geelong and Melbourne. However, the mother did not mention to E on that occasion anything of the assault by Mr S and his verbal abuse of A only 11 days earlier. She gave E no indication that A had escaped from their unit to raise help or that the police had charged Mr S over the assault. The mother did not inform E that in the previous week she had obtained an intervention order against Mr S which entitled him to return to live at the home in accordance with her wishes.
The mother did not tell E about the assault by Mr S until 16 December 2007, when E rang to check on the mother after having not heard from her for some time. I am satisfied that the incident then described by the mother was a sanitised version designed to minimise the violent behaviour of Mr S and downplay the mother’s imprudent conduct in letting him back into the home. Then, the mother’s version omitted any reference to the beer bottle being thrown at her, the abusive language directed at her and A, the threats to kill her and A, or any neighbour who may have become involved. Significantly, the mother still did not mention that she had agreed and facilitated Mr S returning to live with A and her until 15 December 2006.
On 16 January 2006, the mother gave E the impression that Mr S had dropped by casually including on New Years Eve. Whilst E had some knowledge of Mr S having set fire to the mother’s underwear and a copy of the intervention order, she was under the misapprehension that the fire was part of the assault on 11 November 2006 rather than a later incident. The mother did not refer to the fire brigade being called or, as she admitted in her own evidence, that she had invited Mr S for dinner on 31 December 2006 with the intention of letting him stay overnight with her and A.
The mother did not seek assistance from E and she did not tell her of going to Court at Geelong to get an “in house intervention order” against Mr S on 14 November 2006. She referred only to the further, more restrictive order made on 9 January 2007 leading E to be under the misapprehension that the mother had obtained the original order in those terms on 11 November 2006.
E’s assessment was that the mother would have realised that, had she advised E that she was still seeing, let alone living with, Mr S after the violence on 11 November 2006, E would have cautioned the mother; “I would have said he had to go”, she said.
E admitted that the mother had misled her by omission. She stated that she was surprised to learn that the mother had not been candid because her appreciation of the mother was that she was open and frank. E speculated that the mother might have been feeling too vulnerable on the day of the conference at Court, 22 November, to discuss yet another relationship involving domestic violence. On reflection, however, her preferred view was that the mother had probably been too embarrassed to tell her how bad the assault had been and that A had had to go for help.
I accept that E is a person of some insight and experience in dealing with victims of domestic violence. However, I cannot accept E’s explanation for the mother’s behaviour. E’s preferred view goes beyond a forgiving and generous attitude to the mother and into the realm of evidence which inclines me to the view that E was making excuses for the mother and adopting the role of protector or advocate. Ultimately, E’s motivation is not an issue for me. It is sufficient that I am satisfied that, in E, the mother had access to practical support, guidance and advice about family violence and she purposefully concealed facts from E and failed to avail herself, and through her, A, of that support.
E has remained involved with the mother throughout February to late July this year. E’s file notes indicate the support has been practical assistance with this case such as copying, swearing affidavits, discussing the mother’s impressions of Dr M’s report and what the independent children’s lawyer would recommend as a final disposition. E gave evidence that the mother has never mentioned her subsequent companion, Mr H.
The mother has been prepared to accept E’s practical support in the family law proceedings against the father and, more likely than not, the mother laid the foundations for E to be a witness in support of her contention that she had been a victim of domestic violence at the hands of Mr James. I am satisfied that during November and December, 2006, the mother was more interested in maintaining a relationship with Mr S than she was in taking proper precautions against domestic violence. That is why she did not access the assistance readily offered and available to her from E or E’s co-worker.
I am satisfied that the mother was intentionally not frank with E in order to avoid scrutiny of her decision to go on living with Mr S and in order to avoid being given recommendations which she did not want to hear and would not have followed.
E’s evidence did not assist the wife’s case.
Ms T, psychologist
As a consequence of the assault by Mr S and through a referral from … Victims Referral Service, the mother was eligible for five sessions of counselling which she has taken with a psychologist, Ms T (“the psychologist”).
I permitted the mother to re-open her case for the purpose of stating why she was seeing the psychologist and to adduce evidence from the psychologist. The mother articulated her understanding of the purpose of the counselling as follows[19]:-
[19] The text is from Exhibit “W7”
[Ms T] is helping me to realise the violence is not my fault, I am not asking to be abused because the male can not handle the stress of a situation.
She is helping with therapies to help handle constant harassment, degrading attitudes and remarks directed at me from Mr & Mrs [James] either in person or through [A]. To get as many supports in place that I can. Isolation is a factor that helps keep the abuser going and keep you vulnerable to abuse.
That when you have no family around you for support that there are many community based services that are available to assist and talk to.
That I am not to blame for the abuse, I am not asking to be abused, that it is not my fault, that the abuser is responsible for their behaviour, that I have not asked for it.
That the abuser needs to take control of their temper and not resort to violence to get what they want. That it is just as easy to walk away from a situation as it is to react with threats and violence.
She is helping me get my self esteem back and rid the feeling of guilt that
I have some how asked for the abuse.
Which will in turn help me to function on a better level as a person and to return to functioning on being [A’s] mother not letting other issues override that.
Last year had been an extremely hard year with dad dying with cancer and not being able to be a support to the rest of my family at this time. Then
I had medical reasons for which has been rectified.
It is very hard dealing with issues on your own all the time especially when your from a close family who have always been supportive.
I had greatly missed the phone contact with dad during the year as he’d been no longer able to talk for very long.
I am hoping with all [Ms T’s] help I will be able to recognise when I am most vulnerable.
The imperative to protect A from harm is clear. The benefit of making A feel secure in the mother’s care is self evident. It is not in A’s interests to have her police her own safety and I certainly do not want to encourage, nor cause, the father and Mrs James to feel that they have to question A about the mother’s behaviour or household. Finally, I consider the workability of A spending time with the mother. Taking all matters into account, I am satisfied that A’s welfare is sufficiently safeguarded if the mother is prevented from allowing A to be in the company of Mr H and/or Mr S and I will order accordingly.
The father seeks that until further order the mother be restrained from allowing A to be exposed to and / or come into contact with violent / aggressive persons. I accept that the father (or more particularly his counsel) is well motivated in seeking this order but it would be neither reasonable nor enforceable so I will not make an order in those terms.
The father seeks that the mother inform the father in writing of the name, address, date of birth, occupation and criminal record of any person who shall be present when A spends time with the mother and, in particular, any such person who sleeps at the mothers residence. The father’s application is far too widely drawn. Most likely it reflects the father’s mistrust of the mother and the mutual frustration of the father and Mrs James at having to check, through A or otherwise, what is going on in the mother’s household as well as, of course, the father’s desire to keep A safe. I am satisfied that during the course of this hearing the mother has obtained some insight into the importance of prioritising A’s needs over her own in relation to the company she keeps when A is in her care. That said, the mother’s proposal is to relocate to a rural New South Wales town and live temporarily with her brother and his family. She will have limited control over who enters the home.
It is in A’s best interests to be able to speak freely to one parent about her experiences in the household of the other parent. I am not satisfied that either parent yet has the skills to permit this to occur. I am satisfied that the protective concerns raised by the father are met by the mother being required to provide to the father in writing the name of any person who resides, on a full time or part time or temporary basis, in her household whilst A is in her care. I wish to avoid the situation where, in the future, A may construe this requirement as indicating that her mother’s household is qualitatively inferior to the father’s household. So, I will make it a condition of this order that it be mutual. Ultimately, A’s best interests require that her parents notify each other of who is living with A, it should not be for A to have to do so herself. It will be a reciprocal order.
The father seeks that, until further order, the mother to advise him immediately when any violence has occurred in the presence of A and to give details of the circumstances and details of the persons present, and details of any police, ambulance or fire officers which have attended as a result of such incident. I will require that each parent advise the other of significant events inclusive of accidents and safety incidents which occur whilst A in their care. It will be a mutual requirement for the reasons which I have given in the preceding paragraph. I am satisfied that A will obtain a sense of security and safety if she knows that her parents exchange information about significant events or significant persons rather than her being responsible for keeping information about one parent’s household from the other parent.
Whether it would be preferable to make an order that will be least likely to lead to the institution of further proceedings in relation to the children[70]
[70] s 60CC(3)(l) Family Law Act (Cth)
Parenting proceedings are never final in the sense that children and their parents’ circumstances change and arrangements may need to alter as a consequence of those changes.
Ideally courts should make parenting orders that minimise the prospects of future litigation. Litigation is costly in emotional and financial terms and usually impacts negatively on the capacity of the parties to parent children to the best of their ability. That is because parents and children are readily distracted by litigation.
In the present case, the father seeks an order pursuant to s 118 (1)(c) of the Act, that the mother be restrained from instituting further proceedings without leave of the court. Section 118 (1)(c) provides as follows:-
(1) The court may, at any stage of proceedings under this Act, if it is satisfied that the proceedings are frivolous or vexatious:
(c) if the court considers appropriate, on the application of a party to the proceedings--order that the person who instituted the proceedings shall not, without leave of a court having jurisdiction under this Act, institute proceedings under this Act of the kind or kinds specified in the order.
The independent children’s lawyer did not support the father’s application.
I take the mother to be resist the application.
Counsel for the father submits that the mother did not accept the final orders made in March 2004 as a determination of the issues between the parties and made, or facilitated, a further notification to DHS alleging sexual abuse by the father of A within a month of the final orders being made. Furthermore, he points to the fact that some of the risks notified in the mother’s amended notice of risk of child abuse filed in May 2007, predated the final orders made by Joske J on 31 March 2004. Finally, he submits that the current proceedings were initiated by the mother for the immediate purpose of suspending the father’s entitlement to spend time with A. Those submissions are correct.
I am mindful, however, that the orders which I will make today completely reverse the parenting arrangements which have been in place for all of A’s life to date. This is a whole new scenario for her and her parents.
I am satisfied that it is premature to restrict the mother from coming back to court without leave. To do so is a drastic measure which courts are traditionally, and for good reason, reluctant to invoke.
In the present case, the father will be subject to orders for his participation in a parenting program and various orders as to psychological and education testing of A. In these circumstances, it is not in A’s best interests for the mother to be hindered from seeking to enforce those requirements. More so because I will also discharge the order requesting the appointment of the independent children’s lawyer. Finally, notwithstanding that Ms B will (hopefully) be installed as a supervising family consultant, she has no role in the institution of proceedings.
As a general rule, parent or interested person should be entitled to have their day in court and must deal with the consequences of his or her application. Absent a significant change in circumstances or the father failing to comply with those various requirements I have mentioned, I do not encourage or envisage either parent returning to court to seek a substantive change to these orders in the foreseeable future. If an application is subsequently made and determined to be without merit, then there may well be a strong case for an order under s 118(1)(c) as well as orders for costs. However, I do not consider that we are at that stage yet.
All parties agree that it would be appropriate for me to direct that any proceedings taken in the next 12 months be listed before me, at least on a preliminary basis, if I am reasonably available. It is apparent that these proceedings have been financially ruinous for the parents. Hopefully, listing the matter before me will reduce future expense as well. I will make that direction.
Apropos of the mother’s legal fees and litigation funding generally, neither parent is in receipt of assistance from Victoria Legal Aid. The mother says that her previous solicitor, Samantha Ward, was paid with $40,000 from the mother’s brother for the 2004 proceedings and that her entitlement to her father’s estate has been adjusted downwards to reflect the benefit which she, thereby, received. The mother’s father died in August 2006 and she is one of three beneficiaries of his estate. The mother’s evidence is that she was invoiced for a further $12,000.00 for the 2004 proceedings, which she could not pay, and in respect of which her former solicitor made her bankrupt. Some payment has been made to her bankruptcy trustee on her account from her father’s estate but, having regard to the costs of the bankruptcy and its administration, there is still $8,000.00 or so owing which will be met from the balance of her entitlement to her father’s estate. Bankruptcy has been a very expensive exercise for the mother. Her father’s estate will not be finalised until his house and land in rural New South Wales has been sold. It has been passed in at auction and is listed for private sale.
Subsequently, the mother retained another solicitor, Christine Thomas, to act for her. She owes Christine Thomas $10,000 in relation to these proceedings which she also proposes to pay out of her inheritance.
The husband is funding the proceedings privately. I was advised that he has assets which render him ineligible for legal assistance. I have not gone into his equity position in any detail. His counsel’s fees are running at $2,200 per day of trial and, it is evident from asides in his evidence, that his counsel has had conduct of the matter for years. The case was conducted by counsel for the father in such a way as to waste a significant amount of time. For instance, he was repetitive. He did not cross examine in a controlled manner. He merely made a statement and waited to see what response he might get. Thankfully, mostly the mother obliged with a response. Nonetheless, the wife’s own evidence took 4 full days of trial and much of that was cross examination by Mr Fronistas which, I am satisfied, could have been much shorter.
Any other fact or circumstance the Court thinks relevant[71]
[71] s 60CC(3)(m) Family Law Act (Cth)
The father seeks orders which will enable him and Mrs James to take A to New Zealand to visit relatives of Mrs James. I have some evidence of the financial circumstances of the father’s household. I take judicial notice of the fact that Melbourne newspapers and the windows of travel agencies, promote return airfares to New Zealand at less cost than travel to many popular tourist destinations within Australia. I am satisfied that it is feasible for the father, Mrs James and A to travel to New Zealand.
The mother opposed the father’s entitlement to travel with A because “[A] has no family in New Zealand”. That is an irrelevant consideration. The mother then said that she wants to be able to take A to the United States of America to visit her uncle and may use some money from her father’s estate to do so. I do not know how alluring a visit to her great uncle may be for A but it is entirely reasonable that, absent safety warnings issued to Australian citizens, the mother may wish to travel to some off shore resort with A in the foreseeable future.
I do not assess either parent as a flight risk. I am confident that A will be well cared for if she travels overseas and will be returned home. I am not at all confident, however, that one parent will keep the other informed or advised of their plans and whereabouts.
Ideally, the anticipation and excitement of an overseas trip should be something that A can share with the parent who will not accompany her, likewise a postcard to that parent whilst she is away and a gift or souvenir for them upon her return. I cannot achieve the situation which I think is ideal, but consideration of A’s best interests require me to protect her from the result which I, realistically, fear. That is, that her parents will allow their mistrust and antagonism towards each other to generate conflict and arguments about an overseas holiday which will diminish A’s anticipation and enjoyment of an overseas holiday.
I will order that either party can, if he or she wants, make application for a passport to issue for A and that, upon issuance, that passport be delivered to and then be held by the Registry Manager of this Registry of the Court until further order. It will then be necessary for the parent seeking to take A away for a holiday to advise the other parent of their plans well in advance. Orders which I will make in relation to the early purchase of airfares for A to spend time with the mother in the rural New South Wales town during school term holidays and the long summer vacation, will require that overseas holidays be discussed and notified even more than three months before the school term vacation during which it will be taken. It would be useless and a waste of money to fly A to rural New South Wales in the first term school holidays next year if the mother is going to take her to Fiji (DFAT warnings permitting) via, say, Sydney. I am satisfied that neither household has money to waste.
It will be necessary for the party proposing to travel to obtain the court’s approval to the release of the passport. It is unlikely that approval would be forthcoming if the applying parent has not informed the other parent adequately. That said, I do not intend that the parties be put to significant expense or trouble in bringing the matter back to court by application, response and affidavits. I will order that each party can apply to re- list the matter before me for the next three years by writing to my Associate at this Registry and enclosing a copy of the orders I make today and, if possible, a copy of this paragraph of my reasons. At that point, I will determine what documentation is appropriate to re-engage my jurisdiction in this matter, if the hearing can be by telephone link up and whether A’s interests require the appointment of an independent children’s lawyer. There will be times when I am on leave or unavailable to sit. The applicant for travel should not leave it to the last minute to bring the matter back to court. The earlier the better.
Parental responsibility
Parental responsibility in relation to children means all the duties, powers, responsibilities and authority which, by law, parents have in relation to children.[72] In making parenting orders in relation to children, I am (subject to a few exceptions) required to adopt as a starting point that it is in the best interests of the children that the parents have equal shared parental responsibility.[73] Equal shared parental responsibility relates to decision making about ‘major long term issues’, which is defined in s 4 of the Act as follows:-
… issues about the care, welfare and development of the child of a long‑term nature and includes (but is not limited to) issues of that nature about:
a) the child’s education (both current and future); and
b) the child’s religious and cultural upbringing; and
c) the child’s health; and
d) the child’s name; and
e) changes to the child’s living arrangements that make it significantly more difficult for the children to spend time with a parent.
[72] s 61B Family Law Act 1975 (Cth).
[73] s 61DA(1) Family Law Act 1975 (Cth).
This presumption does not provide a starting point about the amount of time or communication that a child is to have with parents.
Where two or more persons share parental responsibility, equally or in relation to any major long-term issue under a parenting order, they are required to make the decision jointly.[74] The concept of joint responsibility carries with it the requirements to ‘consult the other parent in relation to the decision to be made about that issue’[75] and to ‘make a genuine effort to come to a joint decision about that issue’.[76] These provisions mean that consultation and some discussion between the parties is required regarding major long-term decisions, for which parental responsibility shared.
[74] s 65DAC(2) Family Law Act 1975 (Cth).
[75] s 65DAC(3)(a) Family Law Act 1975 (Cth).
[76] s 65DAC(3)(b) Family Law Act 1975 (Cth).
The presumption that it is in the best interests of the children that the parents have equal shared parental responsibility does not apply or is rebutted in the following circumstances:-
a)If the court reasonably believes that a parent of a child, or a person who lives with a parent of a child, has engaged in family violence[77] or abuse of the child or another child who is a member of the parent’s family;[78]
b)If, at an interim hearing, the court considers it is inappropriate for the presumption to apply[79] or;
c)Where evidence is adduced, upon which the court is satisfied 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.[80]
[77] s 61DA(2)(b) Family Law Act 1975 (Cth).
[78] s 61DA(2)(a) Family Law Act 1975 (Cth).
[79] s 61DA(3) Family Law Act 1975 (Cth).
[80] s 61DA(4) Family Law Act 1975 (Cth).
Dr M has assessed the parents as lacking the capacity to deal with each other. He said:-
As Ms [B] has pointed out, and what is clear in my opinion, is that there is a highly conflictual situation between both parents. In such a situation it is possible that it is difficult for either parent to consider any positive aspects of the others parenting towards [A]. Both parents appear to have what they feel to be clear views of each other, a situation which might inhibit the development of some mutual understanding of [A’s] needs. There appears to be a lack of trust between them and the sense of each being a threat to the other. As Ms [B] has noted, this situation works to the detriment of [A].
In particular, the mother is unable to operate outside a structure wherein she is a victim of domestic violence and A is a victim of sexual abuse perpetrated by the father. The father’s limitations, are more to do with his demeanour of which Dr M made the following comments:-
Mr [James] characteristics as mentioned in (sic) [do] not in my opinion connote a psychiatric disorder. They may however have contributed, together with Ms [Claringbolds] characteristics to their interactional difficulties. I note that they were apart for periods of time in the earlier part of the relationship. This may have shielded hem (sic) [them] against the need to manage difficulties in adapting to the differences in each other.
I accept the assessments of Dr M and Ms B in this regard. It is not possible for the mother and father to share parental responsibility for A.
I am very encouraged by the fact that, at least by the conclusion of the evidence, both parents volunteered that the parent with whom A is to live most of the time should have sole responsibility for major long term decisions in relation to A. I construe that as each of them putting A’s welfare first and acknowledging that one of them must forgo making a contribution in that respect if A’s life is to be managed for her benefit.
Whilst the father will, as a result of the orders I make, have sole parental responsibility, that is a decision I make with the agreement of the parties and because the parents cannot deal with each other. There is no evidence that the mother cannot interact with professionals or service providers such as A’s doctors or her schools. In that respect, I am satisfied that it is not only appropriate but in A’s best interests that the mother have access to, and be treated by, A’s school teachers and school principal in an equivalent way to the father. Once the mother relocates to the rural New South Wales town, her involvement with the school will necessarily be remote. However, until that time I propose to facilitate to the greatest degree possible A having a sense that the mother endorses her new school and has looked over it with A. I am comfortably satisfied that is in A’s best interests. I am also satisfied that it will not diminish the standing of the father or Mrs James at the school or in A’s perception.
Consideration of equal time or substantial and significant time with both parents
By virtue of having previously determined that it is not in A’s best interests for the parties to have equal shared parental responsibility, it is not necessary for me to consider whether I should make an order providing for A to spend equal or substantial and significant time with each of the parents. Neither party seeks it and it is not for me to impose it upon them in the circumstances of this case.
Conclusion
I am comfortably satisfied that the orders which I have pronounced are in A’s best interests.
Costs
The father’s and the independent children’s lawyer each seek costs against the mother. It is only fair that all parties have an opportunity to see these reasons before they cast their applications. Everyone can have 14 days to notify my Associate of cost orders sought.
I certify that the preceding three hundred and forty six (346) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Bennett
Associate:
Date: 3 September 2007
Key Legal Topics
Areas of Law
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Family Law
Legal Concepts
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Costs
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Jurisdiction
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Procedural Fairness
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Remedies
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