Clinton and Cloake
[2014] FCCA 2021
•17 September 2014
FEDERAL CIRCUIT COURT OF AUSTRALIA
| CLINTON & CLOAKE | [2014] FCCA 2021 |
| Catchwords: FAMILY LAW – Parenting – consideration of whether further change in residence is in child’s interest. |
| Legislation: Family Law Act 1975, s.60CC |
| Applicant: | MR CLINTON |
| Respondent: | MS CLOAKE |
| File Number: | PAC 874 of 2010 |
| Judgment of: | Judge Dunkley |
| Hearing dates: | 11, 12, 13 November 2013 26, 28 March 2014 and 5 May 2014 |
| Date of Last Submission: | 5 May 2014 |
| Delivered at: | Parramatta |
| Delivered on: | 17 September 2014 |
REPRESENTATION
| Counsel for the Applicant: | Mr Levy |
| Solicitors for the Applicant: | Dignan & Hanrahan Solicitors & Attorneys |
| Counsel for the Respondent: | Ms McIntosh |
| Solicitors for the Respondent: | Peter Cornock |
| Counsel for the Independent Children's Lawyer: | Mr Fermanis |
| Solicitors for the Independent Children's Lawyer: | Gonzalez & Co |
ORDERS
All prior parenting orders relating to the child of the relationship X born (omitted) 2007 (hereinafter “X”) are hereby discharged.
The parties shall have equal shared parental responsibility for X.
X shall live with the father.
X shall spend time with the mother as follows:
(a)On the third and sixth weekend of each school term from 6pm Friday (Sydney time) to 2.30pm Sunday (Brisbane time) in Brisbane;
(b)By telephone at 7pm (Sydney time) on each Tuesday and Thursday of school term;
(c)For one half of school holiday time at the end of terms 1 and 3 by agreement between the parties, and failing agreement for the first half in even numbered years and the second half in odd numbered years;
(d)For the whole of the term 2 school holidays in every year;
(e)From the day after the last day of term 4 until 10am (Sydney time) Boxing Day in each year ending in an odd number;
(f)From 10am (Sydney time) on 3 January until 10am (Sydney time) on 24 January in each year;
(g)On the Mother’s Day weekend each year from 6pm Friday (Sydney time) until 2.30pm Sunday (Brisbane time) in lieu of the third weekend provided for in order 4(a) hereof; and
(h)On such further or other occasions as the parties may agree.
During the school holiday time with the mother, the father shall communicate with X by telephone each Tuesday and Thursday at 7pm (Brisbane time).
For the purposes of the mother’s time with X pursuant to these orders the child shall fly by domestic airline between Sydney, Brisbane and return unaccompanied, on a flight scheduled so as to depart as near as possible in time to the said times of commencement and conclusion of the mother’s time and with the father to pay and arrange for the flight from Brisbane to Sydney and the mother to pay and arrange for the flight from Sydney to Brisbane.
The mother and father be and are hereby restrained from discussing these proceedings with X or allowing X to remain in the presence of any other person who is doing so.
Each party keep the other informed as to their residential addresses, mobile telephone numbers and email addresses and are to advise the other party within 24 hours of any change occurring, including the details of any such change.
Each party is hereby restrained from denigrating the other party in the presence or hearing of X or allowing X to remain in the presence or hearing of any other person who is doing so.
The father shall authorise and keep authorised any school that X attends from time to time to supply to the mother (at her request and expense) school reports, school photos, school newsletters and any other information that the school may from time to time supply to parents.
Pursuant to S.65DA(2) and S.62B, the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders and details of who can assist parties adjust to and comply with an order are set out in the Fact Sheet attached hereto and these particulars are included in these orders.
Remove all outstanding Applications and Responses from the list of cases awaiting finalisation.
THE COURT NOTES THAT:
(A)X currently attends (omitted) College and the mother has no objection to X’s continued attendance at that school.
IT IS NOTED that publication of this judgment under the pseudonym Clinton & Cloake is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT PARRAMATTA |
PAC 874 of 2010
| MR CLINTON |
Applicant
And
| MS CLOAKE |
Respondent
REASONS FOR JUDGMENT
The father holds a firm belief that the mother has abused their child, X.
The father says that he holds that belief as a result of behaviours exhibited by X and because of things that X has said to him.
The mother denies that she has abused X and is appalled by the suggestion.
Having heard the evidence, I am satisfied that the mother has not abused X.
I am also satisfied that there is no unacceptable risk that the mother would abuse X.
I am also satisfied X is not at risk or subject to an unacceptable risk if he lives with his father.
The reasons for these findings will be discussed later in this Judgment.
This case is then about whether X should live with his father in (omitted) Sydney and spend time with his mother in Queensland or live with his mother in Queensland and spend time with his father.
It is the father’s case that he will not be moving to Queensland. It is the mother’s case that whatever the outcome, she will not be returning to Sydney from Queensland nor will she come to Sydney to spend time with X if it is determined that X should live with his father.
Orders sought
On the second morning of the Final Hearing, a Minute of Order sought by the father was handed to the Court and the parties’ legal representatives, the father’s Counsel having orally advised the Court and the parties’ legal representatives on the afternoon of the first day of the hearing of the orders sought by the father.
The Minute of Orders submitted on behalf of the father is as follows:
1. That all prior parenting orders relating to the child of the marriage X born (omitted) (“the child”) be and hereby are discharged.
2. That the parties have equal shared parental responsibility for the child.
3. That the child live with the father.
4. That the child spend time with the mother as follows:
a. On the third and ninth weekends of each school term from immediately after school Friday until 5 p.m. Sunday, in Sydney;
b. On the sixth weekend of each school term from 6.00 p.m. Friday (Sydney time) until 2.30 p.m. Sunday (Brisbane time), in Brisbane;
c. By telephone at 7 p.m. (Sydney time) on each Tuesday and Thursday of school term;
d. For one half of the child’s actual school holidays at the end of terms 1 and 3, by agreement between the parties, and failing agreement for the first half in even numbered years and the second half in odd numbered years.
e. For the whole of the child’s actual school holidays at the end of term 2 in each and every year.
f. From the day after the last day of term 4 until 10 a.m. (Sydney time) Boxing Day in each odd numbered year;
g. From 10 a.m. (Sydney time) on 3rd January until 10 a.m. (Sydney time) on the day before the commencement of term 1 at the child’s school in each and every year;
h. In the event that the child’s Easter holidays fall outside the holidays at the end of term 1, from 6 p.m. (Sydney time) on Easter Thursday until 2.30 p.m. (Brisbane time) on Easter Monday.
i. On Mother’s Day weekend each year from 6 p.m. Friday (Sydney time) until 2.30 p.m. Sunday (Brisbane time).
j. On such further or other occasions as the parties may agree.
5. The mother’s time with the child pursuant to these orders is suspended on Father’s Day weekend, for the whole weekend, each and every year.
6. During the child’s school holiday time with the mother, the father shall spend telephone time with the child each Tuesday and Thursday at 7 p.m. (Brisbane time).
7. For the purposes of the mother’s time with the child pursuant to Order 4 a. hereof the mother shall collect the child from the child’s school at the conclusion of school on the Friday and return the child to the father at his residence on the Sunday.
8. For the purposes of the mother’s time pursuant to orders 4 b., 4 d., 4 e., 4 f., 3 g., 4 h., and 4 i. hereof the child shall fly by domestic airline between Sydney, Brisbane and return, unaccompanied, on a flight scheduled so as to depart as near as possible in time to the said times of commencement and conclusion of the mother’s time and with the father to pay and arrange for the flights from Brisbane to Sydney and the mother to pay and arrange for the flight from Sydney to Brisbane.
9. That the mother’s time pursuant to order 4 c. shall take place by the mother telephoning the father’s mobile telephone at the appointed time.
10. That the mother be and hereby is restrained from discussing these proceedings with the child or allowing the child to remain in the presence of any other person who is doing so.
11. That each party keep the other informed as to their residential addresses, mobile telephone numbers and e-mail addresses and advise the other party within 24 hours of any change occurring including the details of any such change.
12. That each party be and hereby is restrained from denigrating the other party in the presence or hearing of the child or allowing the child to remain in the presence or hearing of any other person who is so doing.
13. The father shall authorise and keep authorised any school that the child may from time to time attend to supply to the mother (at her expense) school reports, school photos, school newsletters and any other information that the school may from time to time supply to parents.
14. The court notes that the child currently attends (omitted) College and that the mother has no objection to the child’s continued attendance at that school.
On the first morning of the hearing, a Minute of Orders sought by the mother was submitted to the Court and the parties’ legal representatives. That Minute of Order is as follows:
1. That all previous orders are discharged.
2. That the parties shall have equal shared parental responsibility for their son, X, born (omitted) 2007.
3. That in the exercise of the parental responsibility at Order 2, the parties shall:
3.1 notify each other of any proposed decision relating to the long term care and welfare of the child and the reasons for the proposed decision;
3.2 endeavour to come to an agreement and if unable to, then the parties are to attend upon a suitably qualified mediator as soon as practicable.
4. The parties shall:
4.1 provide each other with the names and contact details of the child’s treating doctors the child attends when the child is in their care;
4.2 notify the other parent by email or SMS of any medical treatment the child has received as soon as practicable after the child has received such treatment whilst in their care;
4.3 ensure the other party is provided with a copy of any report by any medical specialist, dentist, optometrist, psychologist, psychiatrist, counsellor or therapist (specialist medical consultant) in relation to the child, within three (3) days of the party’s receipt of the report.
5. That both the Father and Mother shall be entitled to:
5.1 attend upon any treating doctor or specialist medical consultant relating to the child; and
5.2 discuss the child’s condition and/or treatment with such treating doctor or specialist medical consultant,
5.3 however such attendance(s) shall be at the discretion of the treating doctor or specialist medical consultant.
6. That the parties shall ensure that the other parent is notified by mobile text message as soon as practicable if, while the child is in his or her care:
6.1 the child is admitted to hospital; or
6.2 the child is involved in a medical emergency.
7. That the child shall live with the mother.
8. That the child spend time with the father as follows:
8.1 Each third weekend from Friday at 6.00pm Sydney time until the following Sunday at 6.00pm.
8.2 For one half of the Queensland school holiday periods for terms 1, 2 and 3 as agreed upon and in the absence of agreement during the first half in even numbered years and the second half in odd numbered years; and
8.3 For two weeks of the Christmas school holidays as agreed between the parties but failing agreement two weeks from the first day of the school holidays in even numbered years and the last two weeks of the school holidays concluding at 6.00pm on the Sunday before school commences in odd numbered years.
8.4 Other times as agreed between the parties.
9. For the purpose of arranging transport for the child to spend time with the father, the father shall book and pay for flights for the child to travel to Sydney and the mother shall book and pay for flights for the child to be returned to Brisbane.
10. For the purposes of facilitating changeover:
10.1 the mother is to do all things and take all steps to ensure the child boards the flight to travel to Sydney as organised by the paying party for the purpose of the child spending time with the father as provided by these orders at paragraph 8 or as otherwise agreed; and
10.2 the father is to do all things and take all steps to ensure the child boards the flight to Queensland as organised by the paying party for the purpose of returning the child to live with the mother at the conclusion of the time he has spent with the child or otherwise as agreed.
11. That the mother and father shall communicate with each other by email or SMS to advise of flight times and arrangements including arrival and departure locations and times where known as soon as practicable.
12. That in the event the father travels to Queensland and upon giving the mother fourteen (14) days’ written notice, the mother is to make the child available to spend time with the father for no more than three (3) days in any one month period and:
12.1 In the event that the father requests time pursuant to this order and that time is during a school week, the father must ensure the child’s attendance at school.
13. The parties shall do all acts and things to facilitate reasonable telephone communication between the child and the other parent when the child is in their care including providing access to internet facilities such as email and Skype and a telephone however telephone calls are not to be made earlier than 5.00pm and not later than 6.30pm (being the time in the receiving parent’s state).
14. That each party shall keep the other advised of their current residential address and contact telephone number and advise the other party of any changes to these details within seven (7) days of such change occurring.
15. That the mother shall do all acts and things to ensure the father may communicate directly with the child’s school and that the father is provided with all documentation in relation to school photographs, copies of all school reports and any other such significant document and each party may attend upon any school event relating to the child, to which parents are ordinarily invited and any of the child’s extracurricular activities.
16. That neither party shall denigrate the other party in front of or within hearing of the child and shall do all acts and things to not permit any third party to do so.
Notation:
a) The child travels by air as an unaccompanied minor.
b) The child will spend Christmas 2011 and 2012 with the Father and the child will spend Christmas 2013 with the Mother.
Documents
Mr Clinton (hereinafter “the father”) was the only witness in his case.
He relied on his Affidavit sworn 27 September 2013.
Ms Cloake (formally “Clinton”) (hereinafter “the mother”) was the only witness in her case.
She relied on Affidavits she swore on:
·4 May 2011;
·7 February 2011;
·22 August 2011;
·14 February 2012;
·15 March 2012;
·29 May 2012; and
·30 September 2013.
A significant number of documents were tendered and became Exhibits including two Family Reports.
Issues
What parenting orders are in X’s best interests and reasonably practicable?
Is there an unacceptable risk of X being subject to abuse if he lives with his mother or his father?
Chronology
(omitted) 1958 The father is born.
(omitted) 1967 The mother is born.
2004/ 2005The parties encounter each other on a dating chat line.
2007The father, mother and her two children, A and B, began living together in (omitted), NSW, in the father’s home.
(omitted) 2007 The parties’ child, X, is born.
(omitted) 2007 The parties marry.
13 December 2009 The parties separate on a final basis.
14 December 2009 The mother, her child B, and X move to Queensland.
10 May 2010 Interim parenting orders made which provide:
THE COURT ORDERS PENDING FURTHER ORDER THAT:
1. By 30 June 2010, the Mother shall ensure that X, born (omitted) 2007, resides within the Sydney metropolitan area for periods provided for in Order 4.
2. The parties shall have equal shared parental responsibility for X, born (omitted) 2007.
3. Provided the Mother complies with Order 1, the Child shall live with the Mother.
4. The Child shall spend time with the Father:
a. Until 30 November 2010:
i.Each Saturday between 10:00am and 2:00pm; and
ii.Each Sunday between 10:00am and 2:00pm.
b. From 30 November 2010:
i.Each Saturday from 10:00am to 4:00pm.
ii.Each Sunday from 10:00am to 4:00pm.
iii.On Christmas Day form 2:00pm to 6:00pm.
iv.At such other times as the parties agree.
5. Changeovers to facilitate Order 4 shall occur at the Centacare (omitted) supervised contact changeover facility and until that is available, within the foyer of the (omitted) Police Station.
6. The Father shall meet all the costs imposed by Centrecare to facilitate the supervised changeovers.
7. The parties shall do all things sign all documents so as to enable Centrecare to assess them for intake into the supervised changeover program.
8. That pursuant to section 65DA(2) of the Family Law Act 1975, the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders is set out in Attachment A and these particulars are included in these orders.
THE COURT FURTHER ORDERS THAT:
9. The case is listed for further directions at 10:30am on 6 July 2010.
10. Pursuant to Section 68L of the Family Law Act an Independent Children’s Lawyer is appointed for X born (omitted) 2007 and I request the Legal Aid Commission of NSW to provide such representation.
11. The parties provide to the Legal Aid Commission of NSW (Parramatta Office) forthwith all documents thus far filed in these proceedings by the party together with all existing orders and copies of any relevant reports.
24 August 2011 Part way through Final Hearing parties seek consent orders and those orders are made as follows:
1. That Orders made 6 July 2010 continue to have effect until 18 December 2011.
2. That the mother shall do all things necessary to cause the child, X, born (omitted) 2007 to return to live in the (omitted), (omitted) or (omitted) Council region by 18 December 2011.
3. That upon compliance with Order 2 and no later than 18 December 2011, the following Orders shall have effect.
4. The parties shall have equal shared parental responsibility for the child, X, born (omitted) 2007.
5. That the child shall live with the mother.
6. That the child shall spend time with the father as follows:-
(a) each alternate weekend from conclusion of school, Friday until 6.00 pm, Sunday,
(b) for one half of the Terms 1, 2 and 3 NSW school vacation periods as agreed or, in the absence of agreement, during the first half in even numbered years and the second half in odd numbered years.
(c) during Christmas 2011 and each alternate year from 2 pm, Christmas Day for a period of seven days.
(d) during Christmas 2012 and each alternate year thereafter for the period commencing at 9 am, seven (7) days preceding Christmas Day and concluding at 2 pm Christmas Day.
(e) in the event Easter falls outside the NSW school vacation period, then the child shall live with the father from conclusion of school Easter Thursday until 6 pm Easter Monday and with the mother for the same period on the next such occasion and alternating thereafter.
(f) otherwise as agreed.
6A. That the father’s time pursuant to order 6(a)is suspended on Mother’s day weekend and he shall spend time with the child on the same basis on the following weekend in lieu thereof.
7. That the child shall also spend time with the father from the 7th October until 14th October 2011, such time to occur on the same basis as provided for in Orders made 6 July 210.
8. That the father’s time pursuant to Order 6(a) shall continue during the NSW Christmas (Term 4) vacation period subject to:
(a) the mother being able to suspend such time for one weekend during such period.
(b) such suspension shall not occur during the time of the father pursuant to orders 6(c) and (d).
(c) the mother shall provide not less than 1 month’s notice, in writing, of such nominated weekend.
9. That the parties shall do all acts and things necessary to cause the child to be enrolled at and attend (omitted) School, (omitted) or (omitted) College during his primary education and thereafter (omitted) College during his high school education.
10. Noted that the father shall attend to payment of school fees for X [sic] relating to his attendance at (omitted) School and (omitted) College and shall not seek a reduction of his assessed child support liability as a result of such payment.
10A. That in the event the parties are unable to enrol the child in either (omitted) School or (omitted) College due to unavailability of places, then the child shall attend a school within the (omitted) Council region as agreed by the parties.
11.That for the purposes of the child living with/spending time with the parties, the applicant father is to collect the child from his school or otherwise from McDonald's (omitted) at the commencement of the time and the applicant father is to return the child to McDonald's (omitted) at the conclusion of this time unless otherwise agreed.
12. That each party is hereby restrained from changing the residential address of the child to a location outside of the (omitted), (omitted) or (omitted) Council regions in New South Wales.
13. That each party is hereby entitled to communicate with the child by telephone on a reasonable basis whilst in the care of the other party.
14. That the parties are to keep each other advised of their residential address and contact telephone numbers.
15. That each party be and is hereby restrained from denigrating the other or permitting any other person to denigrate the other in the presence of or in the hearing of the child.
16. That each party shall do all acts and things and sign all authorities necessary to authorise all schools at which the child attends to provide to the other party copies of reports, school photographs, newsletters and the like at their request.
17. That each party be permitted to liaise directly with all schools at which the child attends to discuss the child’s progress and any other matter relating to the child’s education.
18. That each party is to notify the other as soon as practicable in the event that the child suffers any illness or injury requiring attendance at or admission to a hospital or requiring specialist medical treatment.
16 September 2011 The mother does not deliver X to spend time with the father.
1 October 2011 The mother decides that contrary to the parenting orders, she will not return to live in Sydney with X.
25 November 2011 The mother does not deliver X to spend time with the father.
15 February 2012 Interim parenting orders made by consent by Federal Magistrate Henderson (as she then was) as follows:
1.The orders of 24 August, 2011 be varied to the extent that:
2. Pending the mother returning to live in the (omitted), (omitted) or (omitted) Council region the child X [sic] born (omitted), 2007 live with the father on and from 26 February 2011.
NOTATION: It is the intention of the parties that:
3. Upon the child living with the father the mother spend time with the child as follows:
3.1 each third weekend from Friday 5pm Sydney time until the following Sunday 2.30 Brisbane time commencing 16 March 2012;
3.2 for one half of the NSW school vacation periods for terms 1, 2 and 3 as agreed upon in and in the absence of agreement during the first half in even numbered years and the second half in odd numbered years; and
3.4 otherwise by agreement.
4. Notation. Upon the mother giving not less than 48 hours’ notice, the father shall arrange for the child to spend time with the mother in Sydney including overnight time if the mother is staying overnight.
5. Each party shall ensure that the child is available to speak to the other parent once each day between 5 and 6pm Sydney time.
6. The father shall arrange to have a “Skype” connection on his computer and shall ensure that the child communicates with the mother through “Skype” once each week.
7. For the purposes of facilitating order 2 herein, the father shall collect the child from the mother at Brisbane Airport on 26.2.2012 at 2.30pm Brisbane time.
8. For the purposes of facilitating order 3.1 herein the mother shall collect the child from the father at Sydney Airport 5pm Sydney time, and the father shall collect the child from the mother at Brisbane airport 2.30pm Brisbane time on Sunday.
9. For the purposes of facilitating order 3.2 herein the mother shall collect the child from the father at the commencement of time at the Sydney Airport and the father shall collect the child from the mother at the end of the time, at Brisbane Airport.
10. Each party shall be responsible for their own travel expenses and those of the child when the child is travelling with them.
11. Notation. It is the intention of the parties that the child shall travel by air, unaccompanied when the child if permitted age to do so.
12. Orders numbered 5, 6, 6A, 7, 8, 11, 13 of the orders dated 24 August 2011, be suspended.
13. Upon the mother returning to live within the (omitted), (omitted) or (omitted) Council region Orders 4 to 18 of the 24.8.11 inclusive shall take effect.
26 February 2012 The father collects X from the mother at Brisbane Airport, and X begins living with him in (omitted).
February 2012 The father enrols X at (omitted) College.
4 May 2013The father consults a psychologist, Ms J, regarding what he says is X’s sexualised behaviours. The first consultation occurs whilst X is in the waiting room. The father hands to the psychologist a document which became Exhibit C during the hearing.
20 August 2013 X’s last face to face session occurs with the psychologist, Ms J.
Agreed facts
The parties separated on 13 December 2009.
From the date of separation until 10 May 2010 the mother did not make the child X available to spend time with the father.
Thereafter with one or two exceptions, the child X lived with the mother in Queensland and spent time with the father pursuant to the orders of 10 May 2010 until September 2011.
From September 2011 until 26 February 2012, the mother does not allow X to spend time with the father.
On 26 February 2012, the father collects X, pursuant to the orders of then Federal Magistrate Henderson, and X lives with him.
Thereafter, X lives with the father in (omitted) and spends time with the mother, in Queensland.
In December 2012, whist spending time with X at the home of the paternal grandparents in (omitted), NSW, just prior to Christmas, the father, using his mobile telephone, videos for approximately 12 minutes an interaction between him and X. That video is downloaded to a zip drive. The contents of that zip drive become Exhibit F.
Since returning to live with the father in February 2012, X has been enrolled at and attends (omitted) College. X’s school reports for 2012, his Kindergarten year, and the first semester of 2013, his Year 1 year, became Exhibit B.
Evidence
The father
The father is self-employed running a (business omitted) at (omitted). He also has a travelling job (omitted).
He commences work in (business omitted) at about 7.15am. He stops working in the (business omitted) sometime in the afternoon and then engages in (omitted).
X is enrolled at (omitted) College. He attends a before-school program at that College and an after-school program at that College.
X arises at 6.30am and is in bed asleep by 8.30pm.
About Easter 2013, the father became convinced that X was, in his view, being sexually abused by the mother.
Throughout his oral evidence on 11 and 12 November 2013, the father confirmed he continued to believe that X had been sexually abused by the mother.
The father said that the purpose of videoing X on his mobile phone just prior to Christmas 2012 when they were visiting the paternal grandparents was to obtain evidence to show X was not frightened of him in light of the allegation that the mother had made to the Family Report writer of the father being violent. The allegations of family violence made by the mother to the Family Report writer can be found at paragraphs 19, 21, 23, and 24, of that report (Exhibit “E”).
Apart from what he considered to be inappropriate kissing of him by X, the father was not concerned by X’s actions at that time.
In paragraph 167 of his Affidavit the father says:
X has always been a child who is affectionate and likes physical contact.
Thereafter, in paragraphs 168 to 177 of the father’s Affidavit, he sets out the sexualised behaviours of X that he became concerned about. Those behaviours can be summarised as being X inappropriately touching the father on his genitals, on the area of his chest and, on an occasion when he pulled his father’s pants down and licked his backside. The father was concerned that X, in answer to some direct question, said that his mother permitted X to inappropriately touch her. It became apparent from the mother’s cross examination that X had touched her on the breast without her approval and in a way that shocked her. The father did not know this at the time he became concerned by X’s behaviours.
The father was also so concerned that X reported to him that having travelled by plane to visit on one occasion X said “I was sitting next to a ten year old girl on the plane and I kissed her on the lips and tongue twice”.
The father purposefully took X to a psychologist, Ms J (whose file and reports are contained in Exhibit J), for the explicit purpose of having that psychologist obtain evidence from X to prove the father’s belief that X was being sexually abused by the mother.
The father was careful to shield X from knowledge of the purpose of the consultations with the psychologist until the session on 20 August 2013 when the psychologist required the father to be present during the session and reveal to X the purpose of the sessions. The father then talked about X’s actions within X’s hearing. The father did not talk within X’s hearing about the father’s belief of the mother being abusive.
In paragraph 187 of his Affidavit, the father describes the revealing of the reason as follows:
I then remained present whilst she commenced the session with X. She immediately said to me words to the effect,
“Now tell X why he is here.”
I then said to X,
“You know how you touch me here?” [pointing to my groin]
“That’s why we’re here.”
On hearing that, the father says X immediately became anxious and crawled under a coffee table.
At the conclusion of that session, the father said that X would not return for further sessions with Ms J.
The father agreed that X had settled into school. The father agreed that X had made friends at school. The father agreed that X had not acted out inappropriately to any other child or adult.
The father agreed that X had not spoken of or acted out sexualised behaviour to any other child or adult. The father agreed that no other adult, including his teacher or his carer at (omitted)[1], had observed any inappropriate sexual action by X directed to any child or person nor been aware that X had spoken in a sexualised fashion to any child or person.
[1] (omitted) is ‘out of school hours care’.
The father agreed that X is his only child and that he came late to parenthood.
The father acknowledges that his father is critical of him not being firm enough in his discipline of X. The father acknowledges that X does not listen to him when he tells him to stop his sexualised behaviour.
The father could not conceive that X may have heard things in the school playground or from children at (omitted). The father could not acknowledge his reactions to X acting inappropriately may have reinforced X’s behaviour.
When asked to consider all of the above, the father remained convinced that the mother had sexually abused X.
The father specifically and purposively rebutted all the allegations made against him by the mother in paragraph 199 of his Affidavit.
The father was asked a number of questions about not helping X with his homework. He said that he made arrangements upon that becoming an issue with X’s carers at (omitted) for them to supervise his homework tasks. The father said that he read X’s readers and library books with him. The father said that X’s teachers did not raise the homework issue with him outside of their comments in the school report. He said that the school had a diary system in which the teachers often wrote comments and he replied, but there were no comments written by the teachers about X’s inattention to school homework.
The father denied that he made it difficult for the mother to have telephone communication with X. He said that there were two occasions when he had to end her telephone communication with X. On one occasion they were sitting in a car outside a shopping centre waiting to go in and on another occasion they were at a movie theatre about to go into a movie.
The father denied intervening into X’s telephone communications with the mother except if he heard, whilst they were travelling in the car and speaker telephone communication was occurring, X tell an untruth to the mother for example, about not having attended school that day. On those occasions he would interject and correct X.
The father said that in addition to consulting Ms J he had also consulted the school counsellor at (omitted) College, Mr P, and a paediatrician, Dr F, about the sexualised behaviours he observed from X.
Exhibit “I” is a letter from Dr F to X's General Practitioner, Dr S, which says:
Thanks for asking me to see X. X as you know lives with his father but does also have contact with his mother. X’s father Mr Clinton has some appropriate concerns about X’s sexualised behaviour.
Physically, X is well, weighing 25.5kg with a height of 120cm and I could find no major problems on physical examination.
He I think should be reviewed by a psychologist although he is only young and I have explained to Mr Clinton that a psychologist may not get much information from him, I think that a stable environment is the most appropriate management for X and I will also be in contact with the school about him to see how he is going.
The mother
The mother, in her evidence in chief, was not critical of the father taking X to Dr F nor Ms J having regard to the behaviours the father had experienced.
The mother said that she was concerned about what she understood to be Ms J’s treatment or counselling of X.
In her evidence in chief, the mother said that she fears that the father will yell at X or tell X things about her which are not true. She is also fearful that the father “won’t uphold X’s relationship with me”.
During the course of her cross examination by Counsel for the father, the mother conceded the following propositions:-
a)That X and his father have a close and loving relationship;
b)That the father has facilitated X spending more time with the mother than the orders provided for;
c)That the father values X’s relationship with the mother;
d)That there was not much more that the father could have done to foster the relationship between X and the mother;
e)That to spend weekend time with her in Queensland X has to leave school early on a Friday afternoon;
f)That the father has facilitated X spending time with the mother’s daughter A, X’s older half sibling who lives in Sydney;
g)That the mother has not paid any child support for X since he started living with the father consequent upon the orders made by Federal Magistrate Henderson as she then was.
In answering questions put to her by Counsel for the father the mother was unable to say why she had lied in oral evidence given on day three of the hearing on 13 November 2013 about X never having touched her breasts inappropriately. She simply said that she had forgotten about it or that she was tired the time that she gave the evidence. Her response was entirely unconvincing.
In answering evidence put to her by Counsel for the Independent Children’s Lawyer the mother said that she no longer had concerns about X spending block periods of time with the father. She also said that she no longer had concerns about there being guns in the father’s home nor him accessing pornography.
Family Consultant – Ms A
During her cross examination she described X as not an easy child to interview.
She thought that a possible explanation for X crawling under the table when interviewed by his psychologist was that he might have been trying to escape from overwhelming emotional feelings.
Ms A was asked “What are the consequences of asking question about sexual abuse of a child that has not occurred?” She answered “some consequences of harm are that the child becomes anxious, confused or insecure”.
She thought that because of his personality and temperament, a child like X might likely internalise those feelings.
Ms A was asked about the benefit of a child X’s age spending mid-term periods with his mother in Queensland. She was of the opinion that a visit every third weekend would now be enough to sustain a relationship with his mother for a child of X’s age with even less mid-term time being possible by the time he was nine or ten.
She thought that over time there would be a growing resistance in X to spend mid-term time interstate, as he might resent that those times interfered in his leisure time.
She described B as thoughtful with X and agreed that their relationship would be a positive in helping X resettle if he went to live with his mother in Queensland.
Ms A said that she did not observe X being fearful or uncomfortable in his relationship with his father.
Ms A thought that it was probable that if X ceased living with his father and began to live with his mother again that he would likely grieve the loss of his father and this might lead to some anxiety depression and loss of school performance.
Ms A was of the opinion that these outcomes if they occurred could be profound and long-lasting. It was this that underpinned her recommendation of not changing X’s residence unless there was a finding of unacceptable risk.
Determination
There is no cogent evidence that establishes on the balance of probabilities that there is an unacceptable risk to X of being influenced to have a negative view of his mother if he remains living with his father.
Although the father has an unshakable belief that the mother has sexually abused X, there is not the slightest evidence that she has, or would in the future.
The father has held these views for a long time. He has sought professional assistance through a psychologist and a paediatrician to see if there was any cogent evidence that would support his beliefs. None has been found. Apart from the psychologist’s direct intervention with X, I am satisfied that the father has not exposed X to his views. Given the length of time that the father has held his views, there is in my mind no reasonable likelihood that he will in the future expose X to his views notwithstanding that he will remain vigilant and would seek opportunity if it arose to obtain evidence in support of his view. Nevertheless I remain satisfied that he would do so sensitively, as he has to date. The father was as shocked as X at Ms J requiring he disclose to X the purpose of their visits. The father resisted saying something like “because your mother did…”
As such, there is no unacceptable risk to X of him being alienated in his relationship with his mother by the father. Nor is there an unacceptable risk of the father causing X to believe that he has been sexually abused by his mother.
There is no unacceptable risk of X suffering from sexual abuse if he were to live with or spend time with his mother.
This case is to be determined on what is in X’s best interests. This is the paramount consideration. It is not a case of protecting a child from being exposed to an unacceptable risk of abuse. This is so, because of the above findings.
Ideally, X would either live in New South Wales and have his parents live close to him, or X would live in Queensland and have his parents live close to him, thereby enabling a near equal time arrangement, if not an equal time arrangement. Neither of these outcomes is possible because the father will always remain living and working in New South Wales and the mother will always remain living and working in Queensland.
As a consequence it will be necessary for X to live with one parent and spend significant and substantial time so far as that is reasonably practicable with the other parent so as to enable X to maintain a meaningful relationship with both parents. Because of the distance between the parents’ homes and the travel time involved, the times that X spends with the parent with whom he does not live must also be reasonably practicable as well as in X’s best interest and enable him to maintain a meaningful relationship. The time cannot be as frequent as if the parents live closely because of the travel time from (omitted) Sydney to the airport and then by air to Queensland and then by road to the mother’s home.
Limiting the time that X misses at school so as to facilitate interstate travel and limiting the frequency of the mid-term periods will both be in X’s best interests and more reasonably practicable so as to minimise disruption to his education and provide opportunity for other important interactions with school friends and sporting and cultural groups in the place where he lives. Too frequent interstate travel may, over time, cause growing resistance and reluctance in X.
I accept Ms A expert opinion that two mid-term visits on the third weekend and sixth weekend will enable X to maintain a meaningful relationship with the parent that he does not live with. It will minimise the disruption to his school education and also give him opportunity to be engaged on weekends with his school friends and/or his sporting and cultural groups at the place where he lives.
I am satisfied having regard to Ms A’s evidence that given X’s age and the close relationship that he has with each of his parents he will be able to sustain a longer period of separation from the parent with whom he does not live and still maintain the importance of that parent/child relationship.
There is not a lot of evidence as to X’s views. In any event, X’s age causes me to place not too much weight on those views.
X has a close and important relationship with each of his mother and his father.
X’s relationship with B is characterised by thoughtfulness and tenderness on B’s behalf and it is a relationship that X enjoys.
X also has a relationship with A and given their greater age difference, this relationship is not likely to be as important to X as is his relationship with B.
The mother has, on two occasions for reasons of her own choosing, not promoted nor facilitated X spending time that he should have spent with his father. The father has been diligent in ensuring that X has spent time with the mother and has arranged for more time than that which has been ordered.
The periods of time that the father has interfered with X’s telephone communication with his mother have been limited and based on practical considerations rather than whim.
The mother has for a considerable period now not provided any financial support for X even though she has been able to make savings.
If X were to cease to live with his father and return to live with his mother I accept Ms A’s view that there is a possibility that he would grieve the relationship, become distressed and that such emotional response is likely to be profound and long lasting.
X has now adapted to living away from his mother and yet been able to maintain a relationship with her and with B. Given X’s demonstrated adaptability, he could also return to live with his mother and B but at the risk of suffering the emotional disturbance Ms A refers to in her Report. A repeated change of residence is likely to be unsettling for X.
The travel time by car and by air between (omitted) Sydney and Brisbane is long and arduous and not without expense. I accept Ms A’s opinion that over time, travel is likely to cause X to become resistant to undertaking it. The mother finds the costs of travelling to Sydney on her own to spend time with X to be prohibitive.
Each of the mother and the father are equally able to provide for X’s emotional and intellectual development. I have no concerns as to either party’s capacity as a parent. B also provides some nurturing to X but that is less important than that provided by his parents.
X is a young boy who seems to be developing within all the normal parameters. His school reports provide confirmation of this, as does the letter from his paediatrician.
The mother has made a conscious decision to prefer the needs of B to those of X following the making of the consent orders in 2010. In so doing, she has thought about B’s needs and X’s needs and prioritised B’s over X’s. She still prioritises B’s needs over X’s notwithstanding B has now completed his secondary education and could largely be independent of her.
There is no evidence that causes me to make findings about family violence. The mother’s evidence was unpersuasive. The father’s evidence was more believable.
In balancing the above, I am more than comfortably satisfied that having X live with his father and spend two periods of time during school terms and half of three school holidays and all of one school holiday with his mother will be in X’s best interest as it will eliminate the risk of disruption by change. It will enable X to maintain a meaningful relationship with his mother and retain the benefits of living with his father which he has enjoyed for a long period of time.
A change in X’s living arrangements is more likely to be disruptive for him and more likely to have more negative psychological consequences for him in the short to medium term.
A sharing of X’s transportation costs between the father and the mother makes those costs more affordable for each. Reduction in the mid-term periods to two per term reduces the onerous nature of the travel and increases the likelihood that it will remain affordable for the parties.
X has experienced travel as an unaccompanied minor by air.
X has a settled home environment with his father. The father has made appropriate before and after school care arrangements for X. X has a settled and long term school enrolment at (omitted) College, a school at which B for some time attended. The mother is not critical of X’s enrolment at that school.
The parties are able to communicate about X. His school enrolment is settled. Both seek an equal shared parental responsibility order. They have parented under such an order for a long time now.
For these reasons I am also satisfied that the orders are reasonably practicable, in addition to being in X’s best interest.
I certify that the preceding one hundred and one (101) paragraphs are a true copy of the reasons for judgment of Judge Dunkley
Associate:
Date: 17 September 2014
Key Legal Topics
Areas of Law
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Family Law
Legal Concepts
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Injunction
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