Conlan and Tomlinson
[2017] FamCA 895
•31 October 2017
FAMILY COURT OF AUSTRALIA
| CONLAN & TOMLINSON | [2017] FamCA 895 |
| FAMILY LAW – CHILDREN – Final parenting orders – bests interests – with whom the only child of the relationship lives – where the child currently lives with the mother – where both parties seek that the child lives with them – order made for the child to live with the mother and spend time with the father – parental responsibility – whether the presumption of equal shared parental responsibility applies – where the presumption of equal shared parental responsibility does apply – order made for equal shared parental responsibility – order to discharge watch list order – order permitting the child to travel overseas with either parent. |
FAMILY LAW – COSTS – reserved for written submissions.
| Family Law Act 1975 (Cth) ss 60B, 60B(2)(c), 61B, 61C, 61DA, 61DA(3), 60CA, 60CC, 64B, 65DAA, 65DAC, 117 Evidence Act 1995 (Cth) s 140 |
| Conlan & Tomlinson [2014] FCCA 3118 MRR v GR (2010) 240 CLR 461 |
| APPLICANT: | Mr Conlan |
| RESPONDENT: | Ms Tomlinson |
| INDEPENDENT CHILDREN’S LAWYER: | Legal Aid NSW |
| FILE NUMBER: | AYC | 59 | of | 2013 |
| DATE DELIVERED: | 31 October 2017 |
| PLACE DELIVERED: | Melbourne |
| PLACE HEARD: | Melbourne |
| JUDGMENT OF: | Thornton J |
| HEARING DATE: | 23, 24, 25 & 27 January and 5 & 8 May 2017 |
REPRESENTATION
| COUNSEL FOR THE APPLICANT: | Mr John Longworth |
| SOLICITOR FOR THE APPLICANT: | Robb & Associates Solicitors Pty Ltd |
| THE RESPONDENT: | In person |
| COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: | Ms Amanda Glaister |
| SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: | Legal Aid NSW |
Orders
IT IS ORDERED THAT
All previous parenting orders be discharged, including Order 2 of the Orders made by Registrar Lethbridge on 5 December 2016 being a Watch List order.
The parents have equal shared parental responsibility for the child X born … 2010 (“the child”).
The child live with the mother.
The child spend time with the father as agreed in writing between the parties, and failing agreement, as follows:
(a)During the school term:
(i)In week one, from after school Thursday (or 4.00pm Thursday if a non-school day) until the commencement of school the following Monday (or the commencement of school Tuesday if the Monday is a non-school day);
(ii)In week two, from after school Wednesday (or 4.00pm if a non-school day) until the commencement of school Thursday (or 9.00am Thursday if a non-school day); and
(iii)For the purposes of this Order, ‘week one’ shall be the first week in any school term.
Subject to Order (8)(c) and (8)(d) herein, during the school term holidays the child spend time with the mother and father as agreed in writing between the parties, and failing agreement as follows:
(a)In odd numbered years with the father for the first half and the mother for the second half;
(b)In even numbered years with the mother for the first half and the father for the second half;
(c)For the purposes of this Order:
(i)The ‘first half’ shall commence after school on the last day of the school term and conclude at 4pm on the middle day of the holiday period; and
(ii)The ‘second half’ shall commence at 4pm on the middle day of the holiday period and conclude at the commencement of the first day of the following school term
During the long summer holidays the child spend time with the mother and father as agreed in writing between the parties, and failing agreement as follows:
(a)Commencing 2017 and each odd numbered year thereafter with the father for the first half and the mother for the second half;
(i)For the purposes of this Order:
A. The ‘first half’ shall commence after school on the last day of the school term and conclude at 4pm on the middle day of the holiday period; and
B. The ‘second half’ shall commence at 4pm on the middle day of the holiday period and conclude at the commencement of the first day of the following school term.
(b)In 2017 only, with the mother from 3:00pm Christmas Eve to 3:00pm Christmas Day;
(c)Subject to Orders (7) and (8) herein, commencing 2018 and each even numbered year thereafter with the mother for the first half and the father for the second half
(i)For the purposes of this Order:
A. The ‘first half’ shall commence after school on the last day of the school term and conclude at 4pm on the middle day of the holiday period; and
B. The ‘second half’ shall commence at 4pm on the middle day of the holiday period and conclude at the commencement of the first day of the following school term.
(d)AND THAT the child’s time with the father pursuant to Order (4) resume on the first week of term one.
The mother be permitted to elect to travel with the child for the long summer holiday period in 2018 and in each alternate year thereafter conditional upon the mother:
(a)Providing to the father at least one month notice prior to the term three school holidays of her intention to travel;
(b)Providing to the father at least one month prior to travel, unless otherwise agreed, copies of return airline tickets or proof of purchase of same for the child;
(c)Providing to the father at least one month prior to travel, unless otherwise agreed, an itinerary of intended destinations;
(d)Providing to the father details of arrangements for telephone and or Skype communication to enable the child to telephone/Skype the father at least weekly during the trip;
(e)Being restricted to travelling to countries which are signatory to The Hague Convention on the Civil Aspects of International Child Abduction.
In the event that the mother intends to travel with the child pursuant to Order (7) herein, the spend time be agreed between the parties and failing agreement as follows:
(a)The child spend time with the mother from after school on the last day of term four until 4pm the second last Sunday of the long summer holidays;
(b)The child spend time with the father from 4pm the second last Sunday of the long summer holidays until 12pm on the Sunday before the commencement of Term One;
(c)The child spend time with the father for the entire term three school holiday period in the preceding year;
(d)The time the child would otherwise spend with the mother in the term three school holiday in the preceding year be suspended;
(e)AND THAT the child’s time with the father pursuant to Order (4) resume on the first week of term one.
For the summer holiday period commencing December 2017, the mother be permitted to travel overseas with the child as agreed in writing between the parties and failing agreement for the second half of the summer holiday period provided that the mother:
(a) notify the father at least two weeks’ prior of her intention to travel;
(b)provide the father with copies of return airline tickets or proof of purchase of same for the child, an itinerary of intended destinations including the address and contact details of any booked accommodation;
(c)provide the father with details of arrangements for telephone and or Skype communication to enable the child to telephone/Skype the father at least weekly during the trip.
Subject to Order (7) herein, each parent be permitted to travel overseas with the child during any period of holiday time that the child would otherwise be spending with that parent pursuant to these Orders, provided:
(a) the travelling parent providing to the non-travelling parent:
(i)at least one school term’s notice of their intention to travel;
(ii)at least one month prior to travel, unless otherwise agreed:
A.copies of return airline tickets or proof of purchase of same for the child; and
B.an itinerary of intended destinations including an address and contact details of any booked accommodation;
(b)details of arrangements for telephone and or Skype communication to enable the child to telephone/Skype the non-travelling parent at least weekly during the trip;
(c)the travel being restricted to countries which are signatory to The Hague Convention on the Civil Aspects of International Child Abduction.
The child spend time with the respective parents on special days as follows:
(a)with the mother on the Mother’s Day weekend, from after school Friday (or 4.00pm if a non-school day) until the commencement of school Monday (or 9.00am if a non-school day) and any time that the child would otherwise be spending with the father pursuant to these Orders on the Mother’s Day weekend be suspended;
(b)with the father on the Father’s Day weekend, from after school Friday (or 4.00pm if a non-school day) until the commencement of school Monday (or 9.00am if a non-school day) and any time that the child would otherwise be spending with the mother pursuant to these Orders on the Father’s Day weekend be suspended;
(c)with the parent with whom the child would not otherwise be spending time on the child’s birthday pursuant to these Orders, as follows:
(i)if a school day, from after school on the child’s birthday until 7.00pm; and
(ii)if a non-school day, from 10.00am until 6.00pm on the child’s birthday.
(d)that when the child is with one parent during Christmas day, the other parent be at liberty to initiate a telephone or skype call to the child on Christmas Day between 10.00am and 10:30am local time in the country the child is spending Christmas Day and that the parent with whom the child is spending time with facilitate that call.
For the purposes of changeover, unless otherwise agreed in writing, changeovers shall occur as follows:
(a) On school days, at the child’s school; and
(b) At all other times, outside the J Family Care D Town.
Each parent be at liberty to communicate with the child by telephone or Skype each Sunday between 6.30pm and 7.00pm, and to facilitate such communication:
(a)the parent who does not have the child in their care is to contact the other parent via text message by 6.00pm on Sunday and elect which method of communication they seek to adopt; and
(b)the parent who has the child in their care, is to ensure that the child is available to participate in any such communication without distraction.
Within 14 days from the date of these orders the mother deliver to the father’s solicitor any passport or passports for the child which she has in her possession.
The father shall hold the child’s passport or passports and he shall provide the mother with the child’s passport or passports in a timely manner to enable her overseas travel with the child.
The mother is to return the child’s passport to the father within 7 days of the conclusion of any overseas travel.
IT IS ORDERED BY CONSENT THAT
The mother and the father be and are hereby restrained from denigrating the other parent or their family in the hearing and/or presence of the child.
The parents advise each other of any change of telephone number, email or residential address within 24 hours of such change occurring.
Each parent notify the other of any medical emergency or medical treatment for the child whilst she is in their care by telephone or text message as soon as practicable.
The parents shall authorise any treating medical practitioner, hospital or medical practice that the child attends from time to time to provide to the other parent any information regarding the child.
The parents each authorise the child’s school to provide to the other parent copies of all school reports, examples of school work, school newsletters, notification of all school activities and parent/teacher nights and inform each parent of any remedial or correctional treatment required by the child as soon as practicable.
The parents are each at liberty to attend school events that parents are invited by the school to attend including but not limited to parent teacher interviews, school concerts and class based activities.
IT IS FURTHER ORDERED THAT
The mother is to consult a psychologist about the “origin of her anxiety”, “the depth and extent of her fears”, and “why these are so intense in relation to the child” in accordance with the recommendations of the family consultant Mr A at paragraph 58 vii of his report dated 5 August 2016;
The mother is required and authorised to provide her psychologist with a copy of the family reports of Mr B dated 5 November 2013 and 13 November 2015 and Mr A dated 5 August 2016 together with a copy of these Reasons for Judgment.
The mother is to provide the father as soon as possible with written advice of the name of the psychologist she consults and provide the father with information as to the schedule of future appointments.
The Independent Children’s Lawyer is discharged.
Failing agreement the question of costs is reserved pending written submissions and to be determined in chambers in the absence of an application for a hearing on costs.
The applicant father and the Independent Children’s Lawyer file and serve any written submissions on costs within 14 days of the date of this order;
The respondent mother file and serve any written submissions on costs within a further 14 days from the date of service upon her of the written submissions;
Any written submission be limited to 10 pages.
All extant applications be otherwise dismissed.
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.
IT IS DIRECTED THAT
All documents produced to the Court pursuant to subpoena and exhibits relied upon by the parties be returned by the subpoena clerk of the Family Court of Australia, Melbourne Registry, to the person or organisation who produced same after the expiration of thirty (30) days from the date of these orders, or otherwise upon the conclusion of any appeal.
Note: The form of the order is subject to the entry of the order in the Court’s records.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Conlan & Tomlinson has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).
| FAMILY COURT OF AUSTRALIA AT MELBOURNE |
FILE NUMBER: AYC 59 of 2013
| Mr Conlan |
Applicant
And
| Ms Tomlinson |
Respondent
REASONS FOR JUDGMENT
Introduction
The parents of six year-old X (“the child”) bring competing applications under Part VII of the Family Law Act 1975 (Cth) (“the Act”) for parenting orders about what living arrangements are in her best interests. She is the only child of a relationship of just under two years and has been living with the mother and spending time with the father since the parties separated on a final basis in August 2012. The father commenced proceedings in the Federal Circuit Court in February 2013 when the mother stopped the child from spending time with him.
By the time of the trial the child was spending substantial and significant time with the father, including half of term holidays pursuant to interim parenting orders made by consent in the Federal Circuit Court on 16 December 2015. Interim parenting orders had initially been made by consent in the Federal Circuit Court on 20 March 2013 which also provided for the child to spend time with the father. There were also further interim orders made, for example in June 2014.
Both parents seek to have the primary care of the child and for the child to spend significant and substantial time with the other parent. The Independent Children’s Lawyer supports a transfer of residency from the mother to the father.
The father with the support of the Independent Children’s Lawyer seeks sole parental responsibility for the child and the mother seeks an order for equal shared parental responsibility for the child.
Background
I am satisfied on the balance of probabilities of the following factual background.
Both parents are aged 47.
The mother was born in the United Kingdom where her extended family reside. She lived and worked in Australia between 2002 and 2004 and for six months in 2009. She returned to Australia in January 2010 and has lived here ever since. She met the father in Australia when she was working and the parties began living together at C Town where the father worked in September 2010. The mother is a qualified professional and deposed to completing further training in an associated field in December 2016. The mother was sponsored by the father and obtained temporary residency during the relationship in May 2011.
There have been extensive proceedings in the Federal Circuit Court since February 2013 when the father made his initial application.
The mother made an application for an intervention order against the father by summons on 21 October 2013 (Exhibit H). The mother conceded that this was about nine days before she was interviewed by a family consultant Mr B and that she subsequently withdrew that application two days after the report was made available.
Numerous interim parenting orders were made in the Federal Circuit Court where an Independent Children’s Lawyer was appointed. Pursuant to interim orders made on 28 November 2013, following the mother living in the D Town area, for the purposes of changeover the parties were ordered to use D Town Children’s Contact Service (“Contact Service”).
Although all the previous hearings were interim hearings the background of the previous hearings is important because the parties frequently referred to them during the trial and the mother stated that she accepted the judgments made.
In December 2014 in the Federal Circuit Court the mother filed a Notice of Child Abuse, Family Violence or Risk of Family Violence and made an application for the suspension of the time that the child was spending with the father. The mother made allegations that the child “may have been sexually assaulted” by the father. The allegations were denied by the father.
In relation to these allegations, on 28 November 2014 the mother telephoned the police and Exhibit F is a police note of that conversation. The note recorded:
[The mother] stated she did not wish to hand her daughter over because two Mondays ago (17-NOV-2014) the child was playing with her dolls and disclosed that her Daddy touched her on the ‘gina’[sic].
The note also recorded a telephone call to the mother the same day and that the mother explained:
[the child] was playing with her dollies two Mondays ago and said something like ‘Daddy puts his hand up and in my gina’ [sic]
…
Again today she said something similar to ‘Don’t put your fingers up there. We don’t put our fingers up there.’
The mother telephoned the police again on the 1 December 2014. Exhibit F also includes a police note of that conversation. The note recorded that a telephone call was received from the mother “stating that the child had disclosed that ‘something happened at Dad’s over the weekend.’” The note also recorded that the mother “[s]tated that the child said she was sore between the ‘gina [sic] and the bottom’ and that Dad did something in the shower”. The note recorded that an interview was conducted with the child and Ms E, a worker from the child’s child care centre F Centre. The note recorded “the child did not disclose any sexual abuse” (emphasis in original).
The initial basis of the mother’s allegation was set out by Judge Harman at paragraph 7 of the Reasons For Judgment of 11 December 2014. The mother in the Federal Circuit Court deposed to the following in her affidavit filed 8 December 2014:
…I am greatly concerned that [the child] may have been sexually assaulted. The reason I have formed this view is that on 30th November at 5.05pm [the child] said to me: “I saw Dad naked in the shower – and it hurts”. She then paused for a moment and then said “I don’t know”. At 6.30pm that same night she said to me: “Daddy was in the shower and I was yesterday – Dad put his hand in between my gina and bottom”. I take the word “gina” to be her preference [sic] to her vagina. [The child] then lifted her dress and pulled her knickers down to show me.
The mother’s application to suspend the time the child was spending with the father was dismissed by Judge Harman on 11 December 2014 in the Albury Federal Circuit Court when Reasons for Judgment were delivered. The Reasons for Judgment must be read as a whole but at paragraph 34 Judge Harman found:
On balance I am not satisfied, as indicated, that the evidence could establish to the appropriate standard of proof that there is an unacceptable risk. That is not a concluded finding. These are interim proceedings dealt with on the papers in a busy duty list.
The evidence that is available establishes nothing more, as noted above, than that [the child] has seen the father naked whilst she has been in the shower with him and that he has, whilst in the shower with her, touched her in a particular place. That does not, by and of itself, suggest anything sinister or anything which I could be satisfied, in light of the above balancing exercise, would warrant the termination of [the child’s] relationship or any other order to interfere with it at this time…[1]
[1] Conlan & Tomlinson [2014] FCCA 3118.
In the Reasons for Judgment, Judge Harman found that prior to making this alleged statement the child had already been referred to Ms L, an occupational therapist, for “behaviour concerns, nightmares, bedwetting and anxiety related to the separation of the parents”.[2]
[2] Ibid at 9-10.
On 31 December 2014 a response was received to the Notice of Child Abuse, Family Violence or Risk of Family Violence filed by the mother which advised that no further action would be taken by the New South Wales Department of Human Services, Child Protection. (“the Department”)
The child attended four-year-old kindergarten during 2015 at the F Centre early learning Centre and began school in 2016.
On 28 April 2015, the child’s day care centre F Centre recorded a conversation with the child and Ms E, Director and Early Childhood Educator at the centre.[3] This document records that the child said amongst other things:
· “Daddy is going to keep me for a long visit”
· “He is just going to keep me forever”
· “Daddy has his penis on me”
· “He wagered [sic] it in front of my on my Gina, he wagered [sic] his penis”… “I said, Stop I don’t like it”… “He said no and I said again Stop I don’t like it”
[3] Affidavit of the father filed 21 June 2016, Annexure SC30.
These matters were reported to the Department on the afternoon of 28 April 2015 as documented on page 115 of Annexure SC30 of the father’s affidavit filed 21 June 2016.
The mother did not make the child available to spend time with the father over the Easter weekend in April 2015 and for the whole of April 2015. The mother was warned by the Independent Children’s Lawyer to abide by the orders on 23 April 2015.[4]
[4] Affidavit of the father filed 6 July 2016, par 18.
The father moved to live in G Town in May 2015 where he purchased a house.[5] His residence is located about 25 minutes from the school where the child currently attends. In June 2015 he changed work centres so that he could be closer to where the child lived.
[5] Affidavit of the father filed 21 June 2016, par .
The child spent time with the father over the weekend of 1 to 3 May 2015, being the first time the child spent with him since 22 March 2015.
On 6 May 2015 the child was interviewed at the childcare centre by a caseworker and police and the interview recorded in typed notes (Exhibit I). The interview refers to the child telling the childcare worker that her father had hurt her and she tried to run away. It became clear during that interview that the child was aware of the Court proceedings.
The notes record that on 6 May 2015 after the child had been interviewed and the mother informed that there would not be any “criminal action proceeding” and that there had been no substantiation of allegations of sexual assault, the mother told police over the phone (Exhibit I) that the father had manipulated circumstances so that she was unable to take the child home to the United Kingdom for visits. The record of that conversation between the police and the mother indicates that the mother reported that she had initially requested to travel to the United Kingdom with the child for eight to ten weeks to attend Christmas, a family wedding and to be there for the child’s birthday. She stated that the father would only allow her to go for four weeks which meant she couldn’t do all the planned events and it would not be worthwhile. She reported that the father demanded lots of make-up time so she decided not to go.
In the same conversation recorded by the police in Exhibit I, the mother made a point of reporting to the police that the father had asked her during the relationship if she was interested in pornography but later repeated the comment saying “child pornography”. When asked to clarify whether she had said “pornography” or “child pornography”, the mother said “get a pen and paper and write it down; he said: do you like pornography? I answered no. He then said ‘do you like child pornography’ and I said ‘no it’s disgusting’”. When asked if she had ever observed or been aware of the father possessing child pornography the mother said “No”.
The father has not been charged with any offences with respect to the complaints about what the child said, made by the mother or the Director and Early Childhood Educator, Ms E.
The child spent time with the father over the weekend from 15 to 17 May 2015. There was a dispute between the parents about the approach to the treatment of a rash observed on the child.
On 28 October 2015, the solicitors for the mother advised the father that the maternal grandmother had died that morning and that the mother wished to fly immediately to England with the child.[6]
[6] Ibid at par 135, Annexure SC32.
On 30 October 2015, the father attended his solicitor’s office to sign a passport application for the child and the passport application was collected that day.
On the weekend of 30 October to 1 November 2015 the child spent time with the father and he talked to her about her maternal grandmother’s death and consoled her.[7]
[7] Ibid at par 137.
On 8 and 9 November 2015 the father telephoned the maternal grandmother in the United Kingdom and spoke with her confirming that she had in fact not died.
The parties were interviewed and the child observed by family consultant Mr B for the preparation of two family reports when the proceedings were in the Federal Circuit Court. Those reports are dated 5 November 2013 and the updated report 13 November 2015. Previously the parties had participated in a child dispute conference which gave rise to a brief memorandum prepared by family consultant Ms H dated 19 May 2013. The two previous family reports and the memorandum were Exhibit ICL 4 in the trial.
In the family report of Mr B dated 13 November 2015 at paragraphs 34 and 35 Mr B recommended:
…that [the child] lives with her mother and spends time with her father on alternate weekends from Friday after school until Monday morning before school. Once [the child] is settled at school and his employment allows him the flexibility, he should have [the child] overnight on alternate Wednesday nights with the same changeover arrangements at the school as for alternate weekends
[The child] should spend school holidays with her father according to the proposal outlined by her mother in paragraph 23 of this report as well as share the Special Days with each parent. [The mother] should be allowed to take the child to England once a year according to the timetable she proposed in that paragraph.
Mr B understood the mother’s proposals for the school holidays to be that the father have two of the three weeks of the Easter holidays, two of the three weeks for the mid-year holidays and the whole two weeks of the September holidays. Further that during the Christmas holidays she proposed that the father have the child from the end of school in December until Christmas Eve, that she have the child overnight Christmas Eve and the child spend time with the father at Christmas until 5pm Boxing Day. She also proposed to take the child to England every year from the day after Boxing Day until the commencement of school the following year.[8]
[8] Family report prepared by Mr B dated 13 November 2015, par 23.
On 16 December 2015, after the matter was listed for trial in the Federal Circuit Court the proceedings were transferred to this Court and interim consent orders made for the parents to have equal shared parental responsibility in relation to the child, for the child to live with the mother and spend substantial and significant time with the father. These orders provided for changeover to occur at school on certain days and others at the Contact Service.
The father acknowledges that historically there have been difficulties with the child leaving the mother to spend time with him. It is his view as expressed to family consultant Mr A that the anxiety of the child is caused by the mother’s own anxiety.
The mother interprets the child’s anxiety as a concern held by the child about spending time with the father.
Currently the parties live in the D Town area and the child attends a private school in close proximity to the mother’s home. The maternal grandparents are funding the child’s education.
The father works a ten day fortnight generally from 8:30am until 5:00pm and does some weekend work. He proposed to change to part-time work to be available to care for the child outside of school hours until he could locate suitable before or after school care arrangements.
The mother was seeking employment at the beginning of the trial, but in closing submissions stated that she was working from home for the last two weeks and that she was in a position to deliver the child and collect the child from school.
The applications
The father’s application
At the beginning of the trial, the father sought equal shared parental responsibility for the child and that the child live with him and spend substantial and significant time with the mother.
At the conclusion of the trial the father changed his proposal to seek sole parental responsibility of the child and sought the following orders:
(i) That all previous parenting orders be discharged.
(ii) That the father have sole parental responsibility for [the child] and the father notify the mother of any proposed decision relating to the long term care and welfare of the child, including but not limited to:
(i)Proposed decisions about which school the child shall attend
(ii)Proposed decisions about elective surgery, treatment of chronic conditions, orthodontic treatment and other long term medical issues affecting the child and ensure that such notification is given to the mother in writing not less than twenty-eight (28) days before a final decision is made, except in the case of an emergency
(iii)Take into consideration any views expressed by the mother in respect of such proposed decisions
(iv)Inform the mother in writing of a decision about the child’s long term welfare once such a decision is made
(iii) That the child live with the father.
(iv) That the child spend time with the mother at all times as may be agreed, but failing agreement, in accordance with Orders 5 to 9 below.
(v) That the child spend time with the mother during school term:
(i)Each alternate weekend from after school or 3pm Thursday to after school or 3pm the following Tuesday; and
(ii)On the Mother’s Day weekend, from after school or 3.00pm Friday to before school, or if not a school day, 9am Monday.
(vi) During school term holidays:
(i)The child spend time with the mother from after school or 3.00pm on the last day of school term to 4.00pm on the middle Saturday; and
(ii)That the child’s alternate weekend time with the mother during school term, resume on the first Thursday of the new school term.
(vii) Commencing in the 2017 Christmas school holidays and each odd numbered year thereafter:
(i)The child spend time with the mother for the last two weeks of the school holiday period to commence at 4.00pm on a Friday and conclude at 4pm on the last Friday of the school holiday period.
(ii)In 2017 only, the child spend time with the mother from 3pm Christmas eve to 3.00pm Christmas day.
(iii)The child’s alternate weekend time with the mother resume on the first weekend occurring after Term 1 commences.
(viii) Commencing in the 2018 Christmas school holidays and each even numbered year thereafter:
(i)The child spend time with the mother from 4.00pm on the first Sunday of the Christmas school holiday period to 4.00pm on the second last Friday of the Christmas school holiday period;
(ii)The child’s alternate weekend time with the mother resume on the first weekend occurring after term 1 commences.
(ix) On the child’s birthday, the child spend time with the mother:
(i)If a school day, from after school until 5.30pm; and
(ii)If a non-school day, from 4.00pm to 9.00am (if not a school day) or the commencement of school the following day.
(x) That the mother’s school term time suspend:
(i)On the Father’s Day weekend from 3.00pm or after school Friday to 9.00am (if not a school day) or before school Monday.
(ii)On [the child’s] birthday, if a non-school day, from 4.00pm to 9.00am (if not a school day) or the commencement of school the following day.
(xi) That unless otherwise agreed:
(i)Whenever possible changeover occur at the child’s school; and
(ii)If unavailable by the mother collecting and returning the child to the father’s residence.
(xii) That each parent be at liberty to initiate a telephone or Skype call to the child between 6.30pm to 7.00pm each Sunday:
(i)With the parent initiating the call to text the other parent by 6.00pm electing which method of communication they will adopt; and
(ii)The parent who has the child in their care, will ensure that the child is available to participate in the call without distraction
(xiii) That each parent do all things necessary to facilitate a request by the child to communicate with the other parent at all reasonable times by Skype, telephone or other age appropriate electronic means.
(xiv) That within 7 days from the date of these Orders, each parent do all things necessary to enrol the child at the G Town Primary School to begin the school term that commences after the next holiday period.
(xv) That the parties advise the other of any change of telephone number, email or residential address within 24 hours of such change occurring.
(xvi) That the parents each authorise any day care or school that the child may attend to provide to the other parent copies of all school reports, examples of school work, school newsletters, notification of all school activities and parent/teacher nights and inform each parent of any remedial or correctional treatment required by the child as soon as is practicable.
(xvii)That each party notify the other of any medical emergency required for the child whist she is in their care by telephone or text message as soon as practicable.
(xviii) That the parents shall authorise any treating medical practitioner, hospital or medical practice that the child attends from time to time to provide to the other parent any information regarding the child.
(xix) That the mother and father shall not speak in a rude, nasty or unpleasant manner about the other parent, or their family, in the presence or hearing of the child.
(xx) That within 14 days from the date of these orders the mother deliver to the father’s solicitor the child’s Australian and British passports and the mother is restrained and injuncted from applying for a replacement passport.
(xxi) That after 12 months from the date of these Orders has expired, each of the parents may travel overseas with the child during any period of time the child is in their care provided the parent proposing to travel overseas with the child complies with the following:
(i)Provide the other parent at least 30 days’ notice in writing of the overseas travel plans;
(ii)Provide to the other parent a copy of the travel itinerary and contact details for the child whilst overseas;
(iii)Not take the child to a country which is not a signatory to the Hague (Child Abduction) Convention;
(iv)Not take the child for consultation with a medical specialist whilst she is out of the country, except in the case of an emergency;
(v)On the return of the child to Australia after any overseas travel her Passport must be returned to the father for safe-keeping and released by him to the mother as may be requested from time to time in accordance with this Order
The father also sought that there be an airport watch list order made in relation to the child for a period of 12 months.
The mother’s application
The mother filed an Amended Response on 22 March 2016 but in her Case Outline filed 23 January 2017 she proposed the following orders:
1. That all previous parenting orders be discharged;
2. That the parties have equal shared parental responsibility for the child;
3. That the child lives between both parents homes;
4. That the child spends time with her father at all times as agreed, but failing agreement in accordance with the following:
5. That the child spend time with the father during school term:
Week One (occurring the first weekend of the school term)
5.1From after school on Thursday to before school on Monday with the father taking the child to school
5.2If the Monday is a holiday the father will return the child to the mother at 9.00am. Handover being outside J Family Care, D Town.
Week Two
5.3From after school or after-school activity on a Wednesday and return the child to school on a Friday;
5.4If the Friday is a holiday then the father will return the child to her mother at 9.00am. Handover being outside J Family Care, D Town
6 During school holidays
6.1For Term one and two the father will have the child for the first half of the holiday returning the child to her mother on the middle Saturday at 4.00pm. If the middle of the holiday is not a Saturday then on the middle Wednesday at 4.00pm. Handover will occur outside J Family Care in D Town.
6.2For Term three the father will have the child from 4 PM on the last day of the school term to the last Sunday of the holiday returning the child to her mother at 4.00 pm. Handover will occur outside [J] Family Care in [D Town].
6.3For Term four Holiday from the last day of school at 4pm to 20 December 2017 and every odd numbered year thereafter
6.4In even numbered years from 2018 from 4.00pm on last day of school to 4.00pm on 26 December. Handover being outside J Family Care, D Town
7. The child remain at school at [K School, P Town]. Neither parent can remove the child from school without the other parent’s permission.
8. The mother’s family will be responsible for all fees and costs associated with the child attending [K School].
9. If the child wishes to take part in any school activity, after school activity, excursion, school camp she be allowed to do so without any objection from either parent. The cost of which will be met by the mother’s family.
10. If the child’s Birthday falls on a school day then she will spend time with the father from after school to 7.00pm. Handover will be outside [J] Family Care, [D Town]. If her Birthday falls on a day she will normally be with her father the above does not apply.
10.1.If a non-school day from 10.00am to 6.00pm. Handover will be outside [J] Family Care, [D Town].
11. On Mother’s day weekend the child spend the weekend with the mother. If the weekend falls on the father’s day weekend his time will be suspended.
12. On father’s day weekend the child will spend time with the father from 4.00pm on Friday to before school on Monday. If the weekend falls on the mother’s weekend then the mother’s time is suspended. Neither parent will seek makeup time for these weekends.
13. Each parent be able to telephone or skype call [the child] every night of the week at 6:30pm:
13.1.With the parent initiating the call to text the other parent by 6.00pm; and
13.2.The parent who has the child in their care, will ensure the child is available to participate in the call.
14. That the parties advise the other of any change of telephone number, email or residential address within 24 hours of such occurring.
15. That the parents each authorise the child’s school to provide to the other parent copies of all school reports, school newsletters, notification of all school activities and parent/teacher nights and inform each parent of any remedial or correctional treatment required by the child as soon as is practical.
16. That each party notify the other of any medical emergency, specialist appointment or significant medical treatment that is required for the child whist she is in their care by telephone or text message.
17. That the parents shall authorise any treating medical practitioner, hospital or medical practice that the child attends from time to time to provide the other parent any information regarding the child.
18. That after 1 December 2017, each of the parents may travel overseas with the child during any period of time the child in in their care provided the parent proposing to travel overseas with the child complies with the following:-
18.1.Provide the other parent 60 days’ notice in writing of overseas travel plans;
18.2.Provide to the other parent a copy of travel itinerary and contact details for the child whist overseas;
18.3.Not take the child to a country listed on the Australian Government Smart Traveller Website as posing a travel or safety risk;
18.4.Not take the child to a country which is not a signatory to the Hague (Child Abduction) Convention; and
18.5.On the return of the child to Australia after any overseas travel her Australian Passport will be returned to her father for safe-keeping and released by him to the mother as may be requested from time to time in accordance with this order.
19. Whilst the child is overseas with either parent Skype or telephone calls are restricted to twice weekly on a Monday and Wednesday.
20. Either parent can attend any of the child’s activities, school functions, concerts without restriction to support her.
21. Neither parent or their family members or third party are allowed to make degrading comments in front of or in hearing distance of the child regarding either parent.
22. Both parents and the child’s name be removed from the Watch List. To enable the mother to take the child to Great Britain in December 2017.
At the conclusion of the trial the mother sought in the alternative, that if there was a change in residency that the child spend time with her each Wednesday and Thursday evening from after school on Wednesday until Friday morning, and each alternate weekend from 8.00am on Saturday until 6.00pm on Sunday. The mother proposed that she collect the child from the father’s home each alternate Saturday morning and deliver the child to his home on the Sunday evening. She did not agree with the proposals of the Independent Children’s Lawyer and the father regarding the child’s birthday because she considered the travel time to be excessive, being half an hour each way between the parents.
The mother also proposed that if there was a change of residency, the term school holidays continue to be shared equally by the parents.
The mother opposed any change of school for the child, particularly in circumstances where the Court ordered a change of residency for the child.
The mother also proposed that an order be made for her to undergo mandatory psychological counselling with which she indicated she was prepared to comply. During final submissions, and without producing any evidence the mother also asserted that she was currently receiving counselling. The mother proposed that she provide reports in relation to counselling.
In the alternative, the mother accepted the spend time arrangements for travel proposed by the Independent Children’s Lawyer but did not accept the proposal of the Independent Children’s Lawyer that the child spend the whole of the term school holidays with the father following any overseas travel by the child with the mother for the long summer vacation.
The Independent Children’s Lawyer’s position
The Independent Children’s Lawyer did not take any position during the trial preferring to submit a proposal after the evidence of the family consultant, Mr A.
During final submissions, the Independent Children’s Lawyer provided a proposed minute of orders which sought the following:
1. All previous parenting orders be discharged
2. The child live with the father
3. The father shall consult with the mother with respect to all major decisions with respect to the child and take her views into account when making decisions concerning the child
4. The father have sole parental responsibility for the child
5. The mother spend time with the child as follows (following the child being resident in the father’s care for 14 days):-
a.During school term periods
i.In week one from after school Thursday until the commencement of school Monday
ii.In week two from after school Wednesday until the commencement of school Thursday
b.During school holiday periods
i.For one half of the school term holidays as agreed and in default of agreement in first/school half
ii.For one half of the long summer holidays as agreed and in default of agreement in the first/second half in 2017-18 and in each alternate year thereafter and in the first/second half in 2018-2019 and in each alternate year thereafter
iii.Save that in each alternate year (odd numbered years) commencing in the long summer vacation 2017 period the mother be permitted to travel overseas with the child during school holiday periods. The Mother’s permission to travel is condition upon her:
a.Providing to the Father at least one school terms notice of her intention to travel
b.Providing to the Father at least one month prior to travel, unless otherwise agreed, copies of return airline tickets or proof of purchase of same for the child
c.Providing to the Father at least one month prior to travel, unless otherwise agreed, an itinerary of intended destinations
d.Providing to the Father details of arrangements for telephone and or Skype communication to enable the child to telephone/Skype the Father at least weekly during the trip
e.Travelling to a country with is a signatory to the Hague convention
iv.In the event that the mother intends to travel with the child at her election her holiday time will be as follows:-
a.If she elects to travel in the long summer holidays she spend time with the child, subject to the above conditions, for all of the long summer holidays save that the child be returned to the Father’s care no later than 4 week days prior to the commencement of school and the Father shall spend all of the preceding term holidays with the child and the Mother’s one half holiday period for that term holiday would be suspended during this time
b.If she elects to travel with the child during school term holidays, she have time with the child, subject to the above conditions for the whole of the nominated term holiday period and the child shall spend time with the Father for the whole of the term holidays following the trip
c.On Special days
i.For the weekend including Mother’s Day and the mother’s time be suspended if the child would otherwise be in her care on the weekend including Father’s Day and the child shall spend that weekend in the Father’s care
ii.On the child’s birthday:
a.If a day is a non-school day from 4:00pm on the birthday to 9:00am or the commencement of school the following day
b.If the day is a school day from after school to 6:30pm
c.In the event the child would otherwise be in the Mother’s care on her birthday the child shall spend 2 hours with her Father if the day is a school day as agreed or from 3:30pm to 5:30pm and four hours in his care if it is a non-school day as agreed or from 3:00pm to 7:00pm or as agreed
d.By Telephone or Skype between 6:30pm and 7:00pm on two occasions per week on days to be agreed and in default of agreement on Wednesday and Sunday and the mother shall ensure the child contacts the Father by skype/telephone at least two occasions per week when the child is in her care on days to be agreed and in default of agreement on the same days she exercises telephone time with the child
e.As further or otherwise agreed between the Mother and the Father
6. Changeover shall occur at the child’s school during school periods otherwise changeover take place at a mutually agreed point and failing agreement at the McDonalds store closest to the child’s school/outside J Family Care D Town.
7. The father shall ensure that he advises the mother and keeps the mother advised of:
a. The name and contact details of any medical practitioner treating the child, including counsellors and the mother shall be at liberty to contact the practitioner for information concerning any treatment provided to the child. The father shall authorise any treating medical practitioner to provide information to the mother concerning treatment for the child upon her application to the doctor or practitioner and such consultation be at the mother’s expense if any;
b. The name and contact details of any school attended by the child. The mother shall be at liberty to attend school events which parents are invited by the school to attend including but not limited to parent teacher interviews, school concerts and class based activities. She shall where practicable advise the father of the events she wishes to attend. The mother shall be entitled to receive information from the child’s school normally sent to parents and for this purpose the mother shall obtain information from the school directly and she shall be entitled to receive school photographs newsletters and other information at her expense if any.
8. The mother and the father keep each other advised of any significant illness or injury to the child or of any medical emergency pertaining to the child and the father shall advise and keep the mother advised of any medical appointments for the child and the mother shall advise the father of any medical treatment to the child when the child is in the mother’s care.
9. The mother and the father keep each other advised of their respective residential addresses, their telephone numbers and any other means of electronic communication used by them.
10. The father shall hold the child’s passport and he shall provide the mother with the child’s passport in a timely manner to enable her overseas travel with the child.
11. The mother and father be and are hereby restrained from denigrating the other parent or their family in the hearing and or presence of the child.
12. In the event the father wishes to travel overseas with the child he shall provide to the mother the same notice and information as is required in order 5(b)(iii) herein.
13. The order placing the child on the watchlist be discharged and the court advise the Federal Police of the discharge of the order
14. The order appointing the Independent Children’s Lawyer be discharged.
Evidence
The documents relied upon by each party are listed in Annexure A to these reasons for judgment. A number of exhibits were tendered by the father and the Independent Children’s Lawyer. The parents and the family consultant, Mr A, were cross-examined. The expertise of the family consultant was not challenged.
It is not possible for me to comprehensively refer in these reasons to every aspect of the evidence, documentary and oral, that came before me during these proceedings. The parties referred to many episodes of conflict since separation from 2012 until the present. The fact that a particular piece of evidence is not referred to does not mean that I have not considered it. I have taken the totality of the evidence into account.
Standard of Proof
The relevant standard of proof is the balance of probabilities. Without limiting the matters the Court may take into account in applying that standard of proof, the Court must take into account:
(a) the nature of the cause of action or defence; and
(b) the nature of the subject matter of the proceeding; and
(c) the gravity of the matters alleged.[9]
[9] Evidence Act 1995 (Cth) s 140.
Evidence of the father
It is the father’s case that the child is at risk of emotional abuse in the primary care of the mother because she exposes the child to unnecessary stress and worry and that the mother makes up information about the child’s health and behaviour to support her ambition to limit his role in the life of the child.
The father deposed to numerous historical incidents involving the child where he complained about the behaviour and attitude of the mother which gave rise to conflict between the parties. The father conceded that during the relationship the parties often argued in raised voices, but denied that he kicked doors or raised his hand to the mother.
After separation, the father deposed to spending time with the child when the mother was working night shifts and for a single weekend in early September 2012. He deposed to the parties agreeing to a parenting plan on 12 November 2012 which provided for the child to spend time with him each alternate weekend from 10:30am Saturday until 4pm Sunday, and on the Monday in the intervening week from 10:30am until 3:30pm.
The father deposed to the mother failing to leave the child with the paternal grandmother on 26 November 2012 when the mother attended his home at C Town to deliver the child to him. He deposed to telephoning the mother and suggesting that he meet her to collect the child but that she refused, and when he arrived at her home she picked up the child and rushed into the house, slamming the front door behind her. He denied kicking the door, but deposed that when the mother didn’t answer his knock at the door that he knocked again much louder but she did not open the door and he left.
He deposed to two other occasions in 2012 when there were difficulties with the mother arriving late to deliver the child or early to collect the child. He deposed to the mother refusing to allow him to take the child to parties except on one occasion. He deposed to the parenting plan working well when it was followed.
The father deposed to a disagreement with the mother about the child spending time with him on 21 January 2013, when the mother telephoned and said that the child would not be coming because she had a medical appointment and that since the last visit the child had “nasty blisters and it must be something happening at your place”.[10] He deposed to the mother giving him the name of the medical practitioner but not the address, and becoming exasperated with the mother’s unhelpful response and yelling at her on the phone saying “just tell me the place and time of the f---g [sic] appointment”.[11] He deposed that the mother said that the child won’t be coming to visit him again until she could sort out her condition. He deposed that he later received a text message from the mother requiring any further communications to be made through her solicitor and stating that it is not in the best interests of the child or her safety for her to be in his care until it had been proved otherwise.
[10] Affidavit of the father filed 21 June 2016, par 48.
[11] Ibid.
The father deposed to the spend time arrangements being reinstated after March 2013 by agreement with the mother. He deposed to making a number of concessions to satisfy the mother, including completing a course specific to the treatment of anaphylactic reaction in children. He deposed to the mother reporting after 20 March 2013 in the communication book that she was experiencing a number of difficulties with the child’s behaviour which had not been occurring previously.
The father deposed to a number of difficulties in May 2013. He deposed to an occasion where during changeover the mother said to the child “Daddy is such an arsehole” (emphasis in original). He also deposed to disagreements with the mother regarding the management of the child’s rashes, the food diary and the mother’s attitude at changeover. This included the mother rushing the child away and throwing a hair clip, which he had bought the child and which was in her hair, back into the house before leaving with the child. He deposed to the mother continuing to arrive early to collect the child and to the mother denigrating him in the presence of the child and acting aggressively so that he installed a CCTV camera to cover the area at his house where the changeovers occurred.[12]
[12] Ibid at par 70.
The father deposed to becoming increasingly concerned about the welfare of the child in the full-time care of the mother when the child was placed on a mental health plan before she turned three, and by March 2014 the mother had claimed that the child was attempting to cut herself with scissors “as a way to get out of” seeing him.[13] The father deposed that by May 2014, he had become so concerned that he changed his application to seek that the child live with him.[14] He deposed that by the end of 2014 the mother had twice reported to the police a concern that he was sexually abusing the child, the child was interviewed and nothing further came of those reports.
[13] Ibid at par 14.
[14] Ibid at par 14-15.
The father deposed to a series of events unfolding which disturbed him after the parties had attended the interviews for the family report and these included the mother reporting to her solicitors and others that her mother, the maternal grandmother, had died when she had not. [15]
[15] Ibid at Annexure 34.
The father deposed to the mother’s reaction in November 2015 after he discovered that the maternal grandmother had in fact not died and that the mother had been untruthful. The father had telephoned the maternal grandmother in the United Kingdom and spoken to her on 8 and 9 November 2015. The father deposed to telephoning the mother’s usual number to have a conversation with the child but found that it had been disconnected.
The father deposed that on 11 November 2015 the child’s kindergarten teacher called him seeking a copy of the current Court orders because the mother had told her that the father now had full custody of the child and that he would be picking her up that afternoon. He deposed that the kindergarten teacher also told him that the mother had told the child this morning that she is going to “live with daddy”. The father deposed that he informed the kindergarten teacher that the maternal grandmother had not passed away and that he had just discovered this by speaking with her and that this may have been what caused the mother to behave like this that day. He deposed that the kindergarten teacher was aware that the mother had recently said that the maternal grandmother had passed away.[16]
[16] Ibid at par 142.
The father relied upon notes from the child’s kindergarten that recorded this incident and stated that the child had said:
…My dad is picking me up today, and I am not going to live with my mum anymore and I won’t be able to see her again until I’m bigger and daddy won’t let me come to [the kindergarten] anymore and I will have to go the [sic] [G Town] Primary School.[17]
[17] Ibid at Annexure 34.
The child’s medical condition
The father deposed to many occasions where the mother would complain about needing to treat the child with ice packs and medication for her discomfort, and severe rashes after the child spent time with him. He deposed to the mother withdrawing the child from spending time with him because of complaints about his abusive telephone calls when the mother proposed to obtain a medical certificate, and the mother telling him that the child was frightened and hid in the cupboard. The father denied verbally abusing the mother or raising his voice in such a manner that it could be heard by the child during telephone calls.
The father deposed to examples in May 2013 when the mother did not facilitate his time with the child by producing medical certificates from Dr M indicating that the child was too unwell to travel. He deposed to making an appointment with the doctor and expressing his concern about the certificates and that no more medical certificates of that kind were issued.
The father deposed that he learned through subpoenaed material that on 8 May 2013 the mother had consulted Dr M, reporting that he had slapped her across the face at changeover on 4 May 2013 in a manner hard enough for her to have injured her cheek. The father deposed to nothing of the kind occurring and that this accusation does not appear in any of the material filed in the proceedings nor was it alleged as part of the mother’s application for an intervention order.
The father deposed to disputes between the parties about the child’s medical condition and treatment which have persisted from 2012 until 2016. He essentially complained that the mother would not facilitate him attending appointments with the child’s specialists.
The father deposed that in December 2011, the child had a reaction to peanut butter and was referred by the General Practitioner to a D Town paediatrician, Dr N who saw the child in January 2012.
The father deposed that the mother was very conscientious about supplying an epi-pen for him and having them replaced when needed. He deposed that whilst the child was in his care he had never had a reason to use the epi-pen. He deposed that the child sometimes developed spots of dry skin or itchy patches for which he used different lotions, that he did not see the child have a serious allergic reaction when in his care and that he was careful about her foods.
The father deposed to the mother notifying him about the need for a food diary and that the child was treated at hospital for an allergic reaction in December 2012. The father deposed to being concerned when he obtained the child’s medical notes from O Town Medical Centre in December 2012 because the notes recorded that the mother had administered an epi-pen to the child in May and September 2012 but there was no record of the child having follow-up treatment at hospital which was recommended in Dr N’s Anaphylactic plan for the child after an epi-pen had been applied.
The father complained about the mother failing to inform him about appointments for the child with medical specialists which caused him to attend Dr N on 29 April 2013 without the mother to discuss the child’s condition. The father relied on Exhibit C which was a letter from Dr N which indicated that he met with the father. The father maintained that the mother was critical of Dr N after he had consulted him and that the mother confirmed that the child had an appointment with another paediatrician, Dr Q on 2 October 2013. He complained that the appointment was changed at short notice and he was unable to attend.
The father deposed to attending with the mother on 11 May 2016 when the child had further allergy testing with Dr S, but complained that the mother had not replied to his enquiries about the nut challenges or egg yolk challenges which had been suggested by the doctor.
The father deposed to meeting with Ms L at T Psychology on two occasions and to being confused about what her role was in assisting the child or what the time with her had achieved. He deposed to receiving two reports from Ms L dated 7 July and 27 October 2014.
The father relied upon Exhibit J which were notes from Ms L in relation to her sessions with the child. The notes recorded a session on 18 August 2014 which was the child’s second session. The notes recorded “Toby the new toy also a replacement for baby (Toby 1) that died or went missing & daddy could not find…”
Elsa doll and alleged cutting incident
The father deposed at paragraph 91 and 101 of his trial affidavit that the paternal grandmother had given the child an Elsa doll for Christmas and when the child spent time with him during a weekend in early March 2014 the child had been reluctant to take the doll home with her because she stated “mummy won’t like it”. He deposed that the child ultimately decided to keep the doll with her when he left the child at the Contact Service for changeover. He deposed at paragraph 92 of his affidavit filed 21 June 2016 that he received an email from the mother stating that the child had put the hairband which he gave her in the bin upon arriving home and that the child had removed the doll’s clothes, “drawn over the doll in a black pen and cut its hair in anger all with a 20 minute timeframe” and informing the father that this type of behaviour was not good and this is the reason why it was important for the child to have therapy. He deposed that the mother wrote “I know that you think that none of this happens but it does and it is so not normal”.
These events occurred on the weekend of 8 and 9 March, 2014. The father referred in his affidavit filed 21 June 2016 to Annexure SC10, which was an email received on 18 March 2014. In the email, the mother states:
“[Mr Conlan],
[The child] [sic] after the last visit to you the child displayed very disturbing behaviour. She not only damaged the doll you sent back with her… She also got her play scissors and tried to cut herself as she thought if she hurt herself she won’t have come [sic] and see you again this weekend coming…”
The father in his email in reply, also contained in Annexure SC10, asked the mother to return the child’s doll and hairband on their next visit, to which the mother replied:
There is no hair band she threw it in the bin, doll [sic] she has damaged beyond repair but am happy to return it in bits.
[Mr Conlan] she is hurting herself, I bribe her to come for weekend [sic] with you. Don’t ignore this [Mr Conlan]. I have three professionals helping me with her behaviour and the issues she has with her relationship with you.
Exhibit J refers to the child cutting herself in the “Mental Health Plan Assessment Report” for T Psychology & Counselling Services dated 31 March 2014. Under the title “Presenting Problem” is the following:
[The Mother] reported the child as not coping with contact with her father & having concerning behaviours prior to & after access to dad…including cutting herself.
Later in the report under the title “Family Dynamics” the following is stated:
Currently [the father] sees [the child] alternate weekend, starting with a day visit, but last November this increased to overnight stay on Saturday. [The child’s] behaviour has become increasingly disturbed since…she has destroyed methodically a doll he/[the paternal grandmother] gave her ‘because daddy gave it to her’. She has also made herself sick & cut herself with scissors ‘so she doesn’t have to go to daddy’s’ according to [the mother].
The father deposed that on 30 May 2014 after he had collected the child to spend time with him that the maternal grandmother had purchased a new Elsa doll to replace the one which the mother said the child had destroyed. He deposed that the child was delighted, but then became a little sad and said to him that he would have to look after the doll because “mummy doesn’t like her”.[18]
[18] Ibid at par 101(c).
The Elsa doll is also mentioned in the observation notes of the Contact Service annexed at Annexure SC18 to the affidavit of the father filed 21 June 2016. The worker notes that during changeover with the father, the father, the worker and the child spoke about “a doll which was dressed up in dancing clothes” and that the worker mentioned to the child that she would love to see the doll when the child returned to the Contact Service. The child said that she couldn’t because Mummy wouldn’t want her to have the doll. The worker records that the father told the child that they would show the worker the doll and then he would take it home with him.
The father deposed to changeover becoming more difficult after he had put proposals through his lawyers to the mother’s solicitors in August 2014 which included permission for the mother to travel to the United Kingdom for Christmas, her brother’s wedding and the child’s birthday. He deposed that he did not receive a reply from the mother’s solicitors but was advised by the mother on 1 September 2014 that she no longer intended to travel to the United Kingdom and from that time onwards the changeovers became increasingly difficult.
The child’s time with the father on the weekend of 28 – 30 November 2014/allegations of sexual abuse of the child
The father deposed to emailing the mother on 25 November 2014 to inform her about his plans to take the child to a wedding during the weekend of 28 to 30 November 2014 when the child was scheduled to spend time with him. The father deposed to the child wanting the mother when he collected her from the Contact Service and to the child pointing to the mother who was sitting in her car out the front. He deposed that after driving off with the child, the mother followed him down the highway changing lanes as he did and driving up behind him at the train station where he turned to take a photo of her on his phone and she drove out. The father deposed that at no time did he see a child or any other person in the car with the mother. He deposed that the Contact Service devised a safety plan dated 30 November 2014 as a result of the mother’s conduct on this occasion.[19]
[19] Ibid at Annexure SC22.
The father deposed to staying at a lodge during this trip where there was no bath and that the child was resistant to having a shower. He deposed that he:
…hopped in the shower first then my mum handed the child into me. I washed her quickly and then passed her back to Mum to dry and dress. This was the first and only time I have showered with the child. I did not know that after the child and I left the Contact Service that [the mother] had made a report to the police alleging that I was sexually abusing the child. If I had known what [the mother] was saying about me on the Friday before, I could have made a different choice. I did not write in the communication [sic] about the shower as I didn’t think it was important.
He continued that he has “never been sexual towards the child, in the child’s presence or exposed the child to any form of sexualised behaviour.”[20] He deposed that the first that he became aware of the mother’s allegations that he was sexually abusing the child was when he was served with her Application in a Case filed on 8 December 2014 seeking that his time with the child be suspended.
[20] Ibid at par 120.
At paragraph 132 of his affidavit filed 21 June 2016, the father deposed that he was informed by telephone by the Department of Family and Community Services on 8 May 2015 that there had been a further report of sexual allegations against him and that they had interviewed the child on 6 May 2015. He deposed that he was informed that the mother had accused him of some other matters and he deposed that he has never watched nor had any interest in child pornography.
Cross-examination of the father
The mother argued that the background to the relationship was relevant to her anxiety. The mother cross examined the father in relation to her pregnancy with the child and when he informed his family of the pregnancy. In cross-examination the father was asked why he refused to tell his family. The father acknowledged that the pregnancy came as a “shock” to both of them and it did take some time and courage for him to communicate this to family and friends.
In response to a number of questions by the mother about the level of support he provided to her while she was pregnant with the child, the father stated that he provided financial support through accommodation and some emotional support, conceding that it was limited. However he maintained that it was to the best of his ability. He later conceded that in the first few months of the child’s life he “certainly could have done better” in providing emotional support to the mother.
The mother cross-examined the father about the birth of the child and he conceded that he was not present, but stated that it was a joint decision. When cross-examined about caring for the child in the early years of her life, the father responded that he helped generally, changing nappies and preparing food.
The father conceded in cross-examination that in June 2012 he told the mother he no longer wanted to be with her. The father accepted that in July 2012 the mother informed him that she was pregnant with their second child. The father said that his response was a mixture of “surprise and astonishment” as they had previously had a conversation about contraception. The father said he did not recall a conversation where he said that the mother could keep the new baby and he would keep the child. The father was prepared to concede that he struggled to provide emotional support at this time.
The father was prepared to concede later in cross-examination that he contributed to the mother’s anxiety at that time.
The mother cross-examined the father about the child’s health issues in particular her anaphylaxis. The mother asked questions of the father as to whether he attended all of the child’s appointments with Dr S, and in response the father stated that he attended all the appointments of which he was aware. The father conceded that he didn’t attend all the testing of the anaphylaxis as he thought the child would be more comfortable without him attending.
In relation to the child’s anaphylaxis, the father denied that he had not taken her anaphylaxis seriously. The mother questioned the father about an occasion in December 2012 when the child returned from his care with a rash, blisters and sores and suggested to him that despite photos he has not acknowledged this. The father in response stated he acknowledged the photos, but that the rashes were not present while the child was in his care.
The father was asked questions about the child’s appointments with Ms L. The father in response said he tried many times to see Ms L but was told the sessions were between Ms L and the child so he could not attend.
A number of questions were put to the father in relation to the child having difficulty separating from him at school and when he picked her up. He conceded that there had been times when this occurred and there had been a few instances when the child cried when he picked her up at the school and Contact Service.
The mother questioned the father about his emotional and practical help with the child following the report that she was “self-harming”. The father said he had always been there for the child. He conceded that he did not provide the mother with any emotional or physical help or offer suggestions because historically any offers were declined.
In cross-examination, the father ultimately conceded that he was partly to blame for the child’s anxiety problems as her father, although he believed that there should be no blame accepted by one person.
The mother cross-examined the father about his proposal to change the primary care of the child. The father conceded that until it was reported that the child was “self-harming” he was happy for the mother to remain as the child’s primary carer. The father conceded that at times it would be difficult if the primary carer was changed, but that he did not envisage that he would need a psychologist to help him with the transition as he was comfortable in the way he communicates with the child. The father later said it was difficult to answer whether a change of residence would traumatise the child later in life without knowing the future.
In response to questions about whether the relationship between the child and the mother would suffer as a result of a change in residency, the father stated he envisaged it would be better as the child would not have to deal with the current conflict. The father was prepared to concede that the child currently had a good home environment where her needs were met, but he professed that he was confused about whether the mother placed the child’s psychological welfare before her own.
Responding to why he proposed that the child change schools, the father essentially said that the travel time between home and school for the child should be minimised. However he conceded that on either proposal there would be 30 minutes of travel time each way between school and the other parent’s house.
Further in relation to his proposal for enrolment of the child at G Town Primary School, he stated that he believed the school would offer the same support as the child’s current school and he believed she would thrive in a small country school where the children receive a good level of attention.
In response to questions about parenting the child jointly, the father responded that he hoped the parties could parent together and it would be more effective if there were orders made in line with his proposals. However this was at a stage in the trial when the father was also proposing equal shared parental responsibility and before he changed his proposals to seek sole parental responsibility.
The mother questioned the father about the toy rabbit incident referred to by the family consultant, Mr A. In the family report at paragraph 18 Mr A reported that:
…a more recent and prominent issue is a toy rabbit that [the child] has been using as a transitional object to facilitate her transition between homes. [The father] told me that he is fully aware of the psychological importance of this toy to [the child], and so, always makes a point of packing it in the bag. Even recently he was contacted by [the mother] accusing him of not having packed the rabbit, and despite his assurance that he had and that [the child] had seen him pack the rabbit, that still [the mother] maintained that there was no rabbit in the bag, and communicated as much to [the child], causing their daughter distress. It was clearly the deep suspicion of [the father] that the rabbit was there but had been removed by [the mother].
The family consultant also noted at paragraph 28 the mother’s concerns about the father’s lack of acknowledgement of the importance to the child of the toy rabbit and that the father had chosen not to pack it, even though he claimed he did.
In response to questions about the toy rabbit, the father denied that he removed it from the weekend bag and he had no explanation as to why it was not in the bag.
In cross-examination by the Independent Children’s Lawyer, the father was prepared to concede that the child is being adversely affected by the parental conflict and was prepared to accept some responsibility.
The father conceded that he had probably sworn at the mother in the presence of the child during the relationship on “a couple of occasions” and that he had lost his temper with the mother in November 2013, and had yelled at her through a door on another occasion after separation. He conceded that as reported by family consultant Mr B in his report, the mother “pushes his buttons” and that makes him angry.
Evidence of the mother
The mother raised issues of family violence which she asserted were relevant to the period of the relationship of the parties but ultimately conceded that there was no unacceptable risk of any kind for the child in the care of the father and that this was not part of her case. In her affidavit material the mother also conceded that as a result of investigations by the police, she accepted that the child was not at risk in the care of the father.
Confirming her acceptance that the child was not at risk in the care of the father when the mother was legally represented she consented to interim orders made in the Federal Circuit Court on 16 December 2015 for the child to spend time with the father, which included half the school holidays for 2016.
The mother deposed to being subjected to constant verbal abuse from the father during the relationship which included “degrading and derogatory comments” about her appearance and swearing at her on “almost a daily basis”.[21] She deposed that when she lived with him, the household was very tense due to his moods and constant verbally abusive language. She deposed to him kicking doors in anger and raising his hand to her but stopping short of hitting her.
[21] Affidavit of the mother filed 16 November 2016, par 9.
The mother deposed to the child having severe allergic reactions to certain foods at an early age, particularly eggs and peanuts. She deposed to her General Practitioner referring the child to a paediatrician, Dr N who provided the parents with an action plan after formal skin prick testing had taken place in January 2012.[22]
[22] Ibid at Annexure JT1.
The mother deposed to the father telling her that he was leaving her in June 2012 and to advising him that she was pregnant with a second child on 29 June 2012, when the father said “if you choose to continue with the pregnancy then I will take the child and you can keep this child”.[23] She deposed to being devastated and to terminating the pregnancy and moving into her own rental accommodation in O Town in August 2012. She deposed to the child spending time with the father regularly, but that this was not easy to arrange because of poor communication between them.
[23] Ibid at par 19.
She deposed to an incident in September 2012 when the father followed her when the child was in the car for a 20 minute drive and shouted at her in public “You’re full of shit and always have been full of shit”[24], and to being intimidated by him driving past the house and sitting outside the house so that she became reluctant to leave the house for fear of her safety and the possibility of him confronting her.
[24] Ibid at par 21.
She deposed to a private mediation where a parenting plan was agreed on 12 November 2012 which provided for the child to live with her and spend time with the father on alternate weekends and alternate Mondays.
The mother deposed to an incident on 26 November 2012 when she took the child to C Town to see the father in accordance with the parenting plan and the paternal grandmother approached her and told her that he was not there. She deposed to the father having taken friends sightseeing around C Town. She deposed to telling the paternal grandmother that she would not leave the child with her and to tell the father to call her when he returned because she was going home as “he couldn’t be bothered” to be there for the child. She deposed:
…[The father] called me several times on my drive down [C Town]. I answered the phone once and he was very abusive. I continued to drive home. He arrived at my home just as I was getting [the child] out of the car. I walked inside with [the child] and locked the door. He proceeded to bang on and kick the door and shout at me. The door was damaged. [The child] screamed and was very frightened. He then stopped briefly. I looked out of the window and saw he had opened my car door and was causing damage to the inside of my car. I opened the door briefly and asked him “What are you doing?” He did something else and then slammed the car door shut. I went back inside and locked the door. I called the police whilst he was kicking the door. He went to his car and it appeared he was on his telephone for a period of time before driving off. The police arrived just as he had driven away.[25]
[25] Ibid at par 23.
The father is untested as primary carer of the child and has frankly expressed his own reservations about the change of residency to the family consultant. In cross-examination he was of the belief that a change of residency would improve the child’s relationship with the mother because the child would not have to deal with the current conflict. At best this is a simplistic and optimistic assessment.
I am not satisfied on all the evidence that a traumatic change of residency for the child is in her best interests where the reality is that there is no likelihood of the friction between the parents abating after four years of litigation. A less traumatic path forward for the child is for the mother to accept responsibility for her anxiety and engage in psychological counselling as she proposed at the conclusion of the trial. The relationship between the father and the child can be consolidated under the 9/5 spend time arrangement recommended by Mr A for the non-resident parent. He emphasised that it is about quality of time and not quantity.
Section 60CC(3)(e): the practical difficulty and expense of a child spending time with and communicating with a parent and whether that difficulty or expense will substantially affect the child's right to maintain personal relations and direct contact with both parents on a regular basis
The practical difficulty and expense of the child spending time with and communicating with either parent is not an issue in this case.
Section 60CC(3)(f): the capacity of: (i) each of the child's parents; and (ii) any other person (including any grandparent or other relative of the child); to provide for the needs of the child, including emotional and intellectual needs
The capacity of the mother to provide for the emotional needs of the child is a significant factor in this case having regard to the conduct of the mother over the course of the litigation. In November 2015 the mother lied to her own solicitors and the father which caused the child to believe for an extended period of time that her maternal grandmother had died when in fact this was not the case. The mother also caused the child to believe at about the same time on 11 November 2015 when she left the child at F Centre that the child would be living with the father and the child communicated this to the staff. Although there was email communication the same day between the parties’ solicitors about the care of the child, the mother maintained her instructions to her solicitors that the maternal grandmother had died. The mother has also caused the child to believe that the father is responsible for preventing her from travelling to see her cousins in the United Kingdom and the child expressed this concern to the father as recently as January 2017.[85]
[85] Father’s Affidavit filed 6 January 2017, par 23.
There was no issue raised about the capacity of either parent to provide for the needs of the child generally. Both parents conceded that the child should spend substantial and significant time with the other parent. The future impact on the child of the mother’s anxiety, attitude and conduct in terms of undermining the relationship with the father remains an ongoing concern, but on the evidence of Mr A should be addressed with professional support. I accept that opinion and consider that it is the least traumatic option for the child given her anxiety.
Section 60CC(3)(g): the maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the child and of either of the child's parents, and any other characteristics of the child that the court thinks are relevant
The family consultant described the child as an “extremely anxious child”. His evidence was that the child’s predominant experience has been one of anxiety and that she presents as a child with many fears, mainly to do with the safety and welfare of her mother. This is a characteristic which is of particular concern in circumstances where the family consultant has described the impact of the mother’s anxiety upon the child. The family consultant reported that the child’s anxiety “may be a consequence of how her mother feels, her psychological vulnerabilities and may relate to [the mother’s] own trauma experiences”.[86]
[86] Family Report prepared by Mr A dated 5 August 2016, par 52.
He also reported that the child has not been protected from parental conflict and in this regard “both parents have contributed to psychological harm”. He described that:
The longitudinal social science findings are unequivocally clear on this one point; children whose parents separate and who maintain high levels of conflict have children who are at significantly higher risks of having difficulties with anxiety, depression and later alcohol and substance abuse, and maintaining intimate relations.[87]
[87] Ibid at par 58i.
I am not satisfied that a transfer of residency of the child would reduce the conflict between the parties. I am satisfied that such a step would be more likely than not to lead to further conflict which is not in the best interests of the child.
Section 60CC(3)(i): the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child's parents
I accept the evidence of Mr A that individually both parents are good parents.
The father has been frustrated by the mother’s behaviour and her anxiety but he has generally focussed on the best interests of the child and is a responsible parent.
The mother’s conduct demonstrates a lack of insight into how her own behaviour has caused anxiety in the child. Although she voices support for the child’s relationship with the father, her actions indicate that her anxiety continues. The mother despite her anxiety, has reluctantly facilitated the child spending time with the father in the context of the focus of Court proceedings. Notwithstanding recommendations made in several family reports the mother has maintained generally in her evidence that she does not require any psychological counselling and she did not take any steps towards obtaining psychological counselling until such time as it became clear that she had lied to her solicitors about the death of the maternal grandmother. She took that step very late and submitted at the conclusion of the trial that she is prepared to undergo psychological counselling.
Section 60CC(3)(j): any family violence involving the child or a member of the child's family
I am satisfied on all the evidence that there has been considerable parental conflict which has impacted on the child. This is the reason why the mother initially took the child to be counselled by Ms L soon after the parties separated. I find that both parents are responsible for this state of affairs and that the relationship between the parents is unlikely to change regardless of the residency of the child.
I make no finding of family violence involving the child other than verbal disagreements between the parents in the presence of the child and I find that both parents have been responsible for denigrating each other in the presence of the child. I find that the father has not physically assaulted the mother but both parties have engaged in verbal abuse.
Section 60CC(3)(k): if a family violence order applies, or has applied, to the child or a member of the child's family--any relevant inferences that can be drawn from the order, taking into account the following: (i) the nature of the order; (ii) the circumstances in which the order was made; (iii) any evidence admitted in proceedings for the order; (iv) any findings made by the court in, or in proceedings for, the order; (v) any other relevant matter
As outlined previously the mother withdrew her application for an intervention order. With the exception of verbal abuse towards each other neither parent submitted ultimately despite their differences, that the child was at risk of family violence in the care of the other parent.
Section 60CC(3)(l): whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to the child
Because of the lengthy history of disagreements between the parents, the evidence of Mr A and the litigation I cannot be confident that any particular parenting order that I might make would be least likely to lead to the institution of further proceedings in relation to the child.
Equal shared parental responsibility
Parental responsibility is defined under s 61B of Part VII of the Act in relation to a child, to mean “all the duties, powers, responsibilities and authority which, by law, parents have in relation to children”.
Under s 65DAC of the Act the effect of a parenting order that provides for shared parental responsibility is that decisions about major long-term issues in relation to the child must be made jointly and such an order would require these parents to consult each other about the decision to be made regarding those issues and make a genuine effort to come to a joint decision.
Under s 61DA(1) of the Act, when making a parenting order, the Court must apply a presumption that it is in the best interests of the child for the child's parents to have equal shared parental responsibility for the child. This presumption may be rebutted, under s 61DA(4) of the Act, if there is “evidence that satisfies the court that it would not be in the best interests of the child for the child's parents to have equal shared parental responsibility for the child”.
There was originally no dispute that the presumption of equal shared parental responsibility applied in this case. Under the interim orders the parents had equal shared parental responsibility for the child. However at the conclusion of the trial both the Independent Children’s Lawyer and counsel for the father submitted that the presumption was rebutted on the basis that it was not in the best interests of the child.
The pessimistic evidence of the family consultant was that the conflict between the parents is unlikely to change regardless of whether any parenting orders are made for a change of residency for the child. I accept his evidence having regard to the history of this matter and the lack of insight displayed by the mother concerning her own conduct and the impact on the child. The father has also harboured unfounded suspicions that the reasons why the mother was concerned about the child’s anaphylactic reactions was to find a reason for reducing the time that he spent with the child or to find fault with his parenting. This suspicion was a feature of the father’s case which was not proved on all the evidence. However it must be noted that the mother’s difficulty communicating information to the father about the child’s appointments has contributed to his suspicion.
On the evidence of Mr A the mother’s anxiety is genuine and she views the father through this prism of anxiety. I am also satisfied on all the evidence that there are reasonable grounds, based on the evidence of the doctors who assessed the child, for the mother’s concern about the child’s medical history and reaction to certain foods.
Despite the history of suspicion between the parents I am not satisfied that there is evidence to rebut the presumption of equal shared parental responsibility pursuant to s 61DA(3) of the Act. Allocating sole parental responsibility to either parent in my view would increase the parental conflict which would not be in the best interests of the child or in accordance with the principles under s 60B(2)(c) of the Act that parents jointly share duties and responsibilities concerning the care, welfare and development of their children.
There is evidence in this case that ultimately the parties attended a medical assessment of the child together and have utilised a communication book and implemented the spend time arrangements after some initial difficulties. Both parents have completed parenting programs and should benefit from the cessation of litigation.
Equal time and substantial and significant time
Under s 65DAA(1) of the Act if a parenting order provides that a child’s parents are to have equal shared parental responsibility, the Court must:
(i)consider whether the child spending equal time with each of the parents would be in the best interests of the child; and
(ii)consider whether the child spending equal time with each of the parents is reasonably practicable; and
(iii)if it is, consider making an order to provide (or including a provision in the order) for the child to spend equal time with each of the parents.
Section 65DAA(2) of the Act provides:
(2)Subject to subsection (6), if:
(a)a parenting order provides (or is to provide) that a child's parents are to have equal shared parental responsibility for the child; and
(b)the court does not make an order (or include a provision in the order) for the child to spend equal time with each of the parents;
the court must:
(c)consider whether the child spending substantial and significant time with each of the parents would be in the best interests of the child; and
(d)consider whether the child spending substantial and significant time with each of the parents is reasonably practicable; and
(e)if it is, consider making an order to provide (or including a provision in the order) for the child to spend substantial and significant time with each of the parents.
Under s 65DAA(3) of the Act a child will be taken to spend substantial and significant time with a parent only if:
(a)the time the child spends with the parenting includes both:
(i)days that fall on weekends and holidays; and
(ii)days that do not fall on weekends or holidays;
(b)the time the child spends with the parent allows the parent to be involved in:
(i)the child’s daily routine; and
(ii)occasions and events that are of particular significance to the child; and
(c)the time the child spends with the parent allows the child to be involved in occasions and events that are of special significance to the parent.
Section 65DAA(5) of the Act sets out the mandatory factors to which the Court must have regard in determining whether it is reasonably practicable for a child to spend equal time, or substantial and significant time with each of the parents. These factors include how far apart the parents live from each other, the parent’s current and future capacity to implement an arrangement for such time, the parent’s current and future capacity to communicate with each other to resolve difficulties in implementing such an arrangement and the impact that such an arrangement would have on the child. The Court must have regard to other matters as the Court considers relevant. It is the impact on the child which is the real focus here.
Sections 65DAA(1) and (2)(a) and (b) of the Act are concerned with the reality of the circumstances of the parents and child, not whether it is desirable that there be equal time or substantial and significant time spent by the child with each parent.
In MRR v GR (2010) 240 CLR 461, at 466[13] the High Court said:
Section 65DAA(1) is expressed in imperative terms. It obliges the Court to consider both the question whether it is in the best interests of the child to spend equal time with each of the parents (par (a)) and the question whether it is reasonably practicable that the child spend equal time with each of them (para (b)). It is only where both questions are answered in the affirmative that consideration may be given, under para (c), to the making of an order. The words with which para (c ) commences (if it is) refer back to the two preceding questions and make plain that the making of an order can only be considered if the findings mentioned are made. A determination as a question of fact that it is reasonably practicable that equal time be spent with each parent is a statutory condition which must be fulfilled before the Court has power to make a parenting order of that kind. It is a matter upon which power is conditioned much as it is where a jurisdictional fact must be proved to exist. If such a finding cannot be made, sub-ss (2)(a) and (b) require that the prospect of the child spending substantial and significant time with each parent then be considered. That sub-section follows the same structure as sub-s (1) and requires the same questions concerning the child’s best interests and reasonable practicability to be answered in the context of the child spending substantial and significant time with each parent.
(Footnotes omitted)
Because the focus of the trial was on a change of residency for the child the mother’s proposals for the child to live between the parents in a shared care arrangement as outlined previously in her application was not particularly addressed by the father or the Independent Children’s Lawyer except to oppose her application.
However I accept the evidence of the family consultant Mr A who did not support such a proposal. In re-examination by the Independent Children’s Lawyer Mr A stated that given the age of the child a 5/9 arrangement was recommended regardless of with whom the child lived.
I am satisfied that the proposals of the Independent Children’s Lawyer for the child to spend time with either parent satisfy the requirements of the legislation for substantial and significant time.
Conclusion
As remarked upon by the family consultant this case is poised at a complex juncture. I am mindful that the mother has been facilitating the child’s time with the father under the scrutiny of the appointment of an Independent Children’s Lawyer and lengthy pre-trial events and litigation. Nevertheless I am satisfied that on all the evidence the child is spending substantial and significant time with the father and continues to have a meaningful relationship with the father. The child has always lived in the primary care of the mother.
Despite the mother failing to facilitate the child spending time with the father historically when she held suspicions that the child had been sexually abused by the father and continuing difficulties communicating cooperatively, the child has been spending time with the father including spending Christmas 2015 and part of the January 2016 summer holidays with the father. The child also spent half of the term school holidays with the father in 2016.
After the child commenced school in 2016 and in April 2016 the father has experienced occasions when the child was anxious and reluctant to be picked up from school and the Contact Service for the school holidays and the child has asked for the mother. The mother took steps to encourage the child in the spend time arrangements by adopting a new strategy of ensuring that the child’s favourite soft toy bunny was available for the spend time periods. Whilst the mother’s anxiety is no doubt influencing the child, it cannot be predicted on the evidence of Mr A that the child’s anxiety is likely to be alleviated by a transfer of residency for the child, a change in primary carer and a change of school proposed by the father and the Independent Children’s Lawyer.
Mr A’s evidence about the child’s anxiety was compelling and his opinion was that a less traumatic way forward for the child would be for her to continue to reside with the mother. Regardless of any change of residency, the mother’s anxiety will continue to impact on the child and is likely to be greater should the child’s primary care be transferred to the father. The impact on the child of the mother’s anxiety should the child be removed from the primary care of the mother is in my view a weighty consideration.
The anxiety of the mother which has been the source of much of the conflict between the parents is unlikely to be alleviated by a transfer of the residence of the child. The family consultant did not recommend this as being in the best interests of the child unless the Court were satisfied that this is the only way that the child can have a relationship with both parents. As Mr A said a change of living arrangements might seem to present as a simple, even practical solution but this would “entail enormous disruption to the child’s life”.
The father is untested as the primary carer and was uncertain about a change of residency in discussions with Mr A to whom he looked for guidance. Judge Harman noted that the child was referred to Ms L for counselling on or about 14 April 2014 when the child was aged about 3 years for behaviour concerns, nightmares, bedwetting and anxiety related to the separation of her parents. This was before the mother raised any allegations of sexual assault and the father was informed by the mother in the communication book of the appointments for the parents.
I have carefully considered the submissions of counsel for the Independent Children’s Lawyer and counsel for the father but reject their submissions that a change of residency would be in the best interests of the child. I reject those submissions on the basis of the evidence of Mr A and the evidence that the child is spending substantial and significant time with the father. The child’s relationship with the father is less complicated than with the mother and the father in interview with Mr A acknowledged the importance of the child’s relationship with the mother. There is no doubt on all the evidence that the child continues to have a strong foundation for her good relationship with the father. The mother acknowledges the importance of the child’ relationship with the father but on the evidence of Mr A the mother’s genuine anxiety is impacting adversely on the child and the mother requires psychological support.
The mother’s evidence was that she consulted a psychologist Mr DD at the D Town Psychology Centre in October 2015 because she was suffering from stress over the proceedings, her exams, full time work and the illness of the paternal grandmother. There is no report from that psychologist other than his notes in Exhibit M and the mother proposed to undertake counselling at the conclusion of the trial.
On the evidence of the family consultant I am satisfied that the mother’s last-minute proposal to accept psychological counselling is necessary and in the best interests of the child and will also provide some comfort to the father that the mother will receive professional advice about her attitude. This also presents a path forward which is likely to be the least disruptive for the child, as alluded to by the family consultant.
I accept the evidence of Mr A that it is appropriate for any treating psychologist to have copies of the family report prepared by him and that providing the reports of Mr B would also be beneficial. Any psychologist consulted by the mother should also receive a copy of these Reasons for Judgment. The mother should address the matters raised by Mr A in his report dated 5 August 2016 at paragraph 58 vii with her psychologist and inform the father of the name of her psychologist and the schedule of appointments made.
The orders
The parents and the Independent Children’s Lawyer each proposed draft orders. I am satisfied that it is in the best interests of the child to make orders for the child to live with the mother and spend time with the father, as proposed by the Independent Children’s Lawyer in the alternative, each alternate weekend from after school or 4pm on Thursday until the commencement of school or 9am on Monday unless Monday is a public holiday when the child should be returned to school at the commencement of school on Tuesday. The child will continue to spend time with the father in the alternate week each Wednesday from 4pm or after school until the commencement of school on Thursday or 9am. This of course is the default order for the child to spend time with the father unless the parties agree otherwise in writing.
I have adopted the spend time proposals of the Independent Children’s Lawyer concerning term holidays which would see the child spending time with the father for half of all term school holidays.
I have adopted the Independent Children’s Lawyer’s proposal for the child to spend time with the mother on the Mother’s Day weekend and with the father on the Father’s Day weekend.
The proposals of the father and the Independent Children’s Lawyer for time on the child’s birthday were predicated on the basis that the child was living with the father; therefore I have adopted the proposals of the mother in relation to the child’s birthday.
I have adopted the proposal of the Independent Children’s Lawyer that the Watch List order be discharged and that the father retain the child’s passport or passports. The father must provide the mother with the child’s passport or passports in a timely manner to enable her to travel overseas with the child. Both parents also proposed that the father retain the child’s passport or passports when the child is not travelling with the mother.
I am not satisfied that there is evidence which supports the necessity of the Watch List order continuing for a period of 12 months as proposed by the father. The father was not opposed to the mother travelling overseas with the child in the long summer holidays commencing in December 2018 or to the child spending most of those holidays with the mother. This of course was on the basis that the child would be living with him. However I accept the proposal of the Independent Children’s Lawyer that it is appropriate for the mother to travel to the United Kingdom with the child earlier and in the long summer holidays which commence in December 2017. However the mother opposed the proposal that the child spend the whole of the following term holidays with the father in the event that the child spent the long summer vacation with her overseas. The mother also intends to consult a psychologist and this should occur as soon as possible.
I am not bound by the parties’ proposals. Taking into account the objections of the father and on the basis of all the evidence in the trial, I consider that it is in the best interests of the child that she share the long summer holidays commencing in December 2017 equally between the parents and that unless there is a written agreement that the child should spend the first half of the long summer holidays with the father commencing December 2017 and the second half with the mother. I have adopted the father’s proposal for the child to spend time with the mother on Christmas Day 2017.
For subsequent long summer holidays commencing December 2018 I have determined that the child should share the long summer holidays equally with the parents spending time with the father in the first half in odd years and with the mother in even years.
However commencing December 2018 the mother is permitted to elect to travel overseas with the child to visit the maternal family for the long summer holiday period and each alternative year thereafter. If she elects to travel overseas, failing agreement, the child will spend time with the mother from the last day of term four until the second last Sunday for the long summer holiday period. The child will then spend time with the father from the second last Sunday for the long summer holiday period until the last Sunday of the long summer holiday period. This will provide the mother with a four week period in which she can travel with the child provided that she meets certain conditions. Further the father returning the child to the mother on the Sunday before school starts, will allow the mother to prepare the child for the first day of term one. If the mother elects to travel with the child during this time the child will spend the entire term three holidays with the father and the child’s time with the mother in the term three holidays will be otherwise suspended. The orders also provide for both parents to travel with the child overseas during any school holiday period where the child is in their care provided that the conditions proposed by the Independent Children’s Lawyer are met.
The parties and the Independent Children’s Lawyer were in agreement that the changeover should occur wherever possible at the child’s school. Regarding changeover at other times the father proposed that the mother collect and return the child to the father’s residence. This is not in the best interests of the child having regard to the history of difficulty during changeovers. The Independent Children’s Lawyer proposed that at other times changeover take place failing a mutually agreed point at the McDonald’s restaurant closest to the child’s school or outside J Family Care D Town. The mother proposed that changeover occur at other times outside the J Family Care D Town. There was no evidence from the parties about the utility of using a McDonald’s restaurant as a changeover point but this is something which could be agreed between the parents. The orders I propose to make provide for other changeovers to occur outside the J Family Care D Town which proposal was supported by the mother and Independent Children’s Lawyer.
I have adopted the father’s proposals about the telephone or Skype communication with the child. Failing agreement each parent is at liberty to initiate a telephone or Skype call to the child between 6:30 pm to 7 pm each Sunday with the parent initiating the call to text the other parent by 6 pm electing which method of communication they will adopt and the parent who has the child in their care will ensure that the child is available to participate in the call without distraction.
I have made the non-denigration and other orders proposed by consent of the parties and the Independent Children’s Lawyer as I am satisfied that they are in the best interests of the child.
Costs
The mother was legally represented at times for pre-trial hearings but ultimately became self- represented in the trial.
When this matter was first listed for trial on 20 September 2016 the mother was self-represented and unwell. She was ultimately successful in her contested adjournment application.
Counsel for the father made an application for costs against the mother for his appearance on the first day when the trial was listed on 20 September 2016 and other pre-trial hearings together with the costs for a part heard hearing date of 28 March 2017 when the mother was recovering from surgery and could not attend. These amounted to costs and disbursements in excess of approximately $10,000.
Counsel for the Independent Children’s Lawyer also made an application for costs in the sum of $2,614.53 for the appearance of a solicitor advocate, an instructing solicitor and the cost of two air fares being one from G Town and one from Sydney on 20 September 2016 when the trial was adjourned.
In light of the Reasons for Judgment and the fact that the mother was unrepresented in the trial I propose to reserve the question of the costs and, failing agreement, invite further submissions in writing from the parties and the Independent Children’s Lawyer on the question of costs to provide an opportunity for the relevant factors under s 117 of the Act to be addressed.
I certify that the preceding four hundred and fourteen (414) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Thornton delivered on 31 October 2017.
Associate:
Date: 31 October 2017
Annexure A
Documents relied upon by the applicant father:
Third Amended Initiating Application filed 1 March 2016
Affidavit of the father filed 21 June 2016
Affidavit of the father filed 6 July 2016
Affidavit of the father filed 6 January 2017
Chapter 15 Report by Mr A dated 5 August 2016
Family Report prepared by Mr B dated 5 November 2013
Family Report prepared by Mr B dated 13 November 2015
Family Consultant Memorandum dated 19 March 2013
Documents relied upon by the respondent mother:
Affidavit of the mother filed 16 November 2016
Chapter 15 Report by Mr A dated 5 August 2016
Documents relied upon by the Independent Children’s Lawyer:
Child Dispute Conference Memorandum prepared by Ms H dated 19 March 2013, Section 11F
Family Report prepared by Mr B dated 5 November 2013
Family Report prepared by Mr B dated 13 November 2015
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