Cooper and Miller

[2016] FamCA 257

FAMILY COURT OF AUSTRALIA

COOPER & MILLER [2016] FamCA 257

FAMILY LAW – CHILDREN – final orders – where the mother seeks orders for equal shared parental responsibility for the child but for the child’s time with the father to be supervised until 2019 and conditional upon the father completing a number of courses and assessments – where the father seeks orders for sole parental responsibility and for the child’s time with the mother to be liberal – where there are allegations of sexual and physical abuse perpetrated by the father – where there are allegations of psychological abuse perpetrated by the mother – where both parties seek a finding of unacceptable risk – where consideration is given to the weight attributed to the evidence of the family consultant – where the Court finds that the mother’s allegations are without foundation and the father does not present any risk to the child – where the Court finds that the mother poses a risk of psychological and emotional harm to the child by her ongoing hostility towards the father – where orders are made in relation to parental responsibility and for the child to live with the father but spend substantial and significant time with the mother.

Family Law Act 1975 (Cth) s 60B, 60CA, 60CC, 61DA, 65DAA, 69ZN, 69ZQ, 69ZR, 69ZT

Andrew & Delaine [2009] FamCAFC 182
Beckham & Desprez [2015] FamCAFC 247
Blanding & Blanding [2016] FamCAFC 21
Mazorski & Albright (2007) 37 Fam LR 518
M v M (1988) 166 CLR 69
MRR v GR (2010) 240 CLR 461

APPLICANT: Ms Cooper

RESPONDENT: Mr Miller

INDEPENDENT CHILDREN’S LAWYER: Legal Services Commission of SA

FILE NUMBER: ADC 4728 of 2012

DATE DELIVERED: 22 April 2016

PLACE DELIVERED: Adelaide

PLACE HEARD: Adelaide

JUDGMENT OF: Berman J

HEARING DATE: 29 & 30 June 2015, 1 & 2 July 2015, 5 August 2015, 21, 22, 23, 24 December 2015 and 28 January 2016

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Anderson

SOLICITOR FOR THE APPLICANT: Southern Community Justice Centre

COUNSEL FOR THE RESPONDENT: Mr Lindsay

SOLICITOR FOR THE RESPONDENT: Black & Wood Divorce & Family Lawyers

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: Mrs Tinning

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Legal Services Commission of SA

Orders

1. That the parties have shared parental responsibility for the child B born … 2009 (“the child”).

2. That the father have sole parental responsibility in respect of matters relating to education and health issues affecting the child.

3. That in respect of education and health issues affecting the child, the father will advise the mother in writing (electronically or otherwise) and provide his views about any major issues affecting the child’s education and health; and shall consult with the mother about such issues in a genuine effort to come to a joint decision, but if no agreement is reached between the parties THEN the father shall make the final decision and advise the mother in writing (electronically or otherwise) of that decision.

4. That the child shall live with the father.

5. That the child shall spend time with the mother as follows:

   (a)during school terms, each alternate weekend from the conclusion of school Thursday (or 4pm if a non-school day) until the commencement of school Tuesday (or 9am if a non-school day) PROVIDED that this order shall be suspended during periods of school holidays but shall recommence in its operation on the first weekend of each new school term;

   (b)during each of the April, July and September/October school holidays from the conclusion of school on the last day of term until 5pm on the middle Saturday of the said holidays;

   (c)       during the Christmas school holidays:

   (i)in 2016/2017 for the first half thereof commencing from the conclusion of school on the last day of term until 5 pm on the mid-point of the holidays and for the same period in each alternate year thereafter;

   (ii)in 2017/2018 for the second half thereof commencing at 5pm on mid-point of the holidays and concluding at 5 pm on the last Sunday of the holidays and for the same period in each alternate year thereafter;

   PROVIDED THAT paragraph 5 c (i) of the within order be suspended from 9 am on 26 December until 9 am on 28 December in 2016 and each alternate year thereafter;

   (d)from 9 am on Christmas Eve until 9 am on Boxing Day in 2017 and each alternate year thereafter;

   (e)on the child’s birthday being …, in each year if the child is not in the care of the mother:

   (i)if the birthday falls on a school day THEN from the conclusion of school until 6pm;

   (ii)if the birthday on a weekend THEN from 9 am until 1 pm; PROVIDED THAT in the event that the child’s birthday shall fall on a day when she is in the care of the mother THEN the mother’s time shall be suspended and the child shall return to the father’s care as follows:

   A.if a school day, from the conclusion of school until 6 pm on the said child’s birthday;

   B.if a non-school day, from 9 am until 1 pm on the said child’s birthday;

   (f)On Mother’s Day in each year from 4pm on the Saturday immediately preceding Mother’s Day until 6 pm on Mother’s Day PROVIDED that in the event that Father’s Day shall fall on a day that the child is in the care of the mother THEN the time that the child spends with the mother shall be suspended and the child shall return to the father’s care from 4 pm on Saturday before Father’s Day until 6 pm on Father’s Day.

6. That in the event that the said child is to be with the father on the birthday of J born … 2000 (“J”) THEN the father’s time shall be suspended and the child shall return to the mother’s care from the conclusion of school (or 9 am if a non-school day) on 11 September until the commencement of school (or 9 am if a non-school day) on 12 September.

7. Whilst the said child is in the care of each party she shall have telephone communication with the other party at reasonable times and in the event that the said child does not spend time with either party for a period of seven (7) days each party shall facilitate such telephone communication on not less than one (1) occasion during that seven (7) day period at times to be agreed between the parties but in default of agreement at 7 pm on the Tuesday of that seven (7) day period.

8. That all handovers which do not take place at the child’s school shall take place at such locations as may be agreed between the parties, but in default of agreement at the McDonald’s Restaurant, K Town.

9. That each party do advise the other as soon as is practicable of any serious accident or illness suffered by the child including the name of any treating health professional and the details of any diagnosis, prognosis and treatment.

10. That the mother be at liberty to obtain direct from the child’s treating health professionals information as to the child’s medical condition including any diagnosis, prognosis and proposed treatment.

11. That the father will do all things necessary to authorise the child’s school to provide copies of reports, photographs (at the expense of the mother), newsletters, any other information in relation to the said child’s progress as they may require from time to time and is consistent with the reasonable obligations of the said school to provide same.

12. That each party be able to attend all school functions, school and extra- curricular performances and special occasions in which parental involvement is usually encouraged including sports, parent-teacher interviews and presentations.

13. That the mother is restrained and an injunction granted restraining her from:

    (a)reporting any allegation of abuse by the father in respect of the said child to any person or organisation SAVE AND EXCEPT:

    (i)South Australian Police;

    (ii)Child Protection Services;

    (iii)Families SA;

    (b)personally videotaping or otherwise recording any alleged disclosure of abuse by the child or allowing any third party to do so SAVE AND EXCEPT for any authorised employee or officer of SAPOL, Child Protection Services or Families SA if undertaken in the course of an investigation;

    (c)discussing these proceedings or any issues or allegations raised in these proceedings with or in the presence of the said child or from allowing any other person to do so including J;

    (d)discussing these proceedings or any issues or allegations raised in these proceedings with any other person or entity including but not limited to the said child’s school, staff or any care provider to the said child, extra-curricular co-ordinators or teacher;

    (e)allowing or permitting the said child to attend upon any psychologist, counsellor or any other mental health practitioner or social worker without first obtaining the father’s written consent.

14. That each party be and are hereby restrained by injunction from removing the child from the Commonwealth of Australia without the prior written consent of the other party or further order of the Court, or from obtaining or causing the issue of a passport for the said child without first obtaining the written consent of the other party.

15. That the order appointing the Independent Children’s Lawyer be discharged.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Cooper & Miller has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

FAMILY COURT OF AUSTRALIA AT ADELAIDE

FILE NUMBER: ADC 4728  of 2012

Ms Cooper

Applicant

And

Mr Miller

Respondent

REASONS FOR JUDGMENT

INTRODUCTION 

1. The parties are in dispute over the parenting arrangements that should apply to the time that B born in 2009 (“the child”) spends with each of the parties.

2. Ms Cooper (“the mother”) seeks orders in the substantive proceedings as set out in her Fifth Amended Initiating Application filed 3 September 2015.

3. Mr Miller (“the father”) seeks orders as set out in his Further Amended Response filed 1 June 2015.

4. The history of the final orders sought by the mother is a relevant consideration in the circumstances of this case.  The proceedings were commenced by Initiating Application filed 11 December 2012.  The mother sought an order for sole parental responsibility for the child and that the father’s time be supervised as may be agreed between the parties or as ordered.  The orders remained unchanged in the amended applications filed 6 June 2013 and 27 March 2014.

5. In the Third and Fourth Amended Initiating Application filed 9 April 2015 and 1 May 2015 respectively, the mother’s position had changed significantly. She sought orders that the parties have equal shared parental responsibility and the child to spend significant and substantial time with the father.

6. The orders promoted by the mother at trial reverted to her having sole parental responsibility and the father having his time supervised but subject to the successful completion of an anger management course and a psychiatric assessment. A graduated regime would see the child spending limited but unsupervised time with the father as and from the beginning of 2019.

7. Not dissimilar to the mother, in his earlier Amended Response filed 23 July 2014 the father sought orders that the parties have equal shared parental responsibility, that the child live with the mother but he would have significant and substantial time.

8. For a period the parties were not significantly apart, but there appeared to be a significant disconnect between the orders and the evidence that each of the parties sought to rely upon from time to time.

9. In the Further Amended Response filed 1 June 2015, the father sought that he have sole parental responsibility for the child and that the child spend “liberal time with the mother” as may be ordered.

10. As is apparent from the various iterations of the applications and subsequent responses, the proceedings have had an extensive history in this Court.  The proceedings culminated in the matter being listed for trial on 29 June 2015.

11. The mother was a self-represented litigant.  The father has always maintained legal representation.  An Independent Children’s Lawyer (“ICL”) was appointed and counsel was briefed.

12. On 2 July 2015 the proceedings were adjourned part-heard to 5 August 2015 for mention and following the conclusion of the mother’s case, the part-heard trial was adjourned to 21 December 2015 as a three day matter.

INTERIM PROCEEDINGS

1. The parties were not able to agree on the arrangements for the child to spend time with the father during the period of the adjournment and that aspect was considered on 31 August 2015.

2. The mother was represented on the adjourned date and whilst it was initially hopeful that she had secured legal representation for the balance of the proceedings, ultimately that did not eventuate and further consideration of the interim arrangements was adjourned to 3 September 2015.

3. Orders were made that required the parties to file affidavit material in support of the interim orders and for the mother to provide either a document or a Fifth Amended Initiating Application setting out the orders that she sought by way of final relief.  That hearing was the catalyst for the mother’s further revised application.

4. On 3 September 2015 the following orders were made:-

   (1)Paragraph 2 of orders made 7 February 2014 be discharged.

   (2)The said child [B] … 2009 shall spend with the father as follows:

   a.during the school term as follows:

   i.each alternate weekend from 3.30pm (or the conclusion of school) on Friday until 6.30pm on the following Sunday commencing 4 September 2015, with such time to recommence on the first Friday of each school term;

   ii.each alternate Monday from 3.30pm (or the conclusion of school) until 6.30pm commencing 14 September 2015 with such time to recommence on the Monday prior to alternate weekend time with the father,

   b.during the short term school holidays from 3.30pm being the conclusion of school on last day of school until 4pm 8 days later NOTING time during school term as outlined in paragraph 2 a. hereof is suspended during the September/October school holidays.

   c.for the said child’s birthday from 3.30pm (or conclusion of school) if a school day on … 2015 until 7.30pm on the same day.

(3)All handovers for the purposes of contact to occur at the commencement or conclusion of school if a school day and at McDonald’s Restaurant at [K Town] at all other times.

(4)…

1. Whilst the mother had concluded her case, it was anticipated that she would continue her effort to secure legal representation.  Whilst there had been many fruitless attempts, nonetheless, it was reasonable that she be given an opportunity to obtain representation particularly given that the benefit of counsel would be to undertake the cross-examination of the father and his witnesses.  The mother conceded that the exercise might be beyond her capability.

2. It was anticipated that upon the resumption of trial, the father would lead his evidence and if the mother was successful, her counsel would undertake the cross examination of the father and his witnesses and to conduct the case on her behalf to its conclusion.

3. The parties each filed an Application in a Case on 30 October 2015. Whilst both filed on the same day, the application of the father was filed first in time and is document 68 on the Court record. He sought extensive orders including a recovery order pursuant to s 67U of the Family Law Act1975 (Cth) (“the Act”) and upon recovery, a suspension of the orders made on 3 September 2015 with the effect that the child would live with him pending the final disposal of the proceedings.

4. The father’s affidavit alleged that on 26 October 2015 he received a text message from the mother advising him that the child would not be available “for contact today as I have had to collect her from school today”.  It was conceded that the child should have been spending time with him and in his care.

5. Despite his enquiries, the father was not able to ascertain what future arrangements would be put in place if any to spend time with the child, nor was it explained to him the basis upon which the child had been apparently removed from the school.

6. As part of the substantive proceedings, Ms I, psychologist (“the family consultant”) was tasked to prepare an update report in preparation for the resumption of trial.  On 30 October 2015 the father attended upon the family consultant as part of the preparatory assessment. The family consultant advised him that J born in 2000 (“the older child”) a child of the mother’s previous relationship had made allegations that during the time that the parties were together, she had been raped repeatedly by the father.  The information had been relayed to the family consultant by the mother and it was also revealed that there may be an investigation by either South Australia Police or Queensland Police.

7. The father submitted that he had not been contacted by any police or other authority.

8. The father alleged that he was not aware of the current living arrangements for the child, but that at the interaction observed by the family consultant, the child revealed that for some period of time she had been living in the home of the maternal grandmother.

9. Following a further request by the father to resume his time with the child, the mother filed an application seeking the following orders:-

   (1)That all contact between the respondent and [the child] be suspended pending the outcome of pending Police Investigations pertaining to rapes/sexual assault of [the older child] allegedly perpetrated by the respondent.

   (2)If deemed preferable by the Court that monitored supervised contact between the respondent and [the child] occur in a professional Court approved Contact Centre until the Police Investigation is completed.

   (3)That [the child] be granted leave from the Court to attend a Forensic Interview with Child Protection Services if requested by Families SA or Police.

   (4)That the respondent not be permitted to discuss the subject of the Police Investigation or Forensic Interview involving him, with any persons (excluding his legal representation) and including members of his family in Queensland and [the child].

10. Her application was supported by a detailed affidavit.

11. The mother conceded that she was in breach of the order noting that the child had not spent time with the father since 18 October 2015.  Her explanation was that she had a reasonable excuse based upon her belief that the father posed a risk to the child.  She did however acknowledge that some effort should be made to maintain a relationship between the child and her father and this could be achieved by orders that required the father’s time to be the subject of strict supervision.

12. Further consideration was adjourned to 23 November 2015.  At that appearance the mother was represented by a solicitor from a community legal centre.  There was confirmation that the mother was now in receipt of a grant of legal aid and that counsel would be briefed to represent the mother upon the resumption of the now part-heard trial.

13. The Court was advised that it was a requirement of counsel that transcript of the proceedings to date be first obtained and read.  Clearly, transcript was likely to significantly assist counsel coming into the matter at the conclusion of the mother’s case and to assist in the preparation of counsel necessary to meet the father’s case and the evidence to be led by the ICL from the family consultant.

14. Whilst the father opposed the mother’s application for an adjournment of the trial due to commence on 23 November 2015, the Court was satisfied that it would be assisted by the mother being represented not only by a solicitor but at the trial by experienced counsel.

15. Orders were made vacating the trial from the week commencing 23 November 2015 listing the trial re-commencing on 21 December 2015.  The earlier anticipated trial date of 23 November 2015 was set in circumstances where the mother was not allowing the child to spend time with the father based upon the allegations of the older child that she had been the subject of repeated sexual assault by the father.

1. The mother strongly opposed a resumption of time between the father and the child other than under strict supervision.  The mother’s position clearly stated was that she would not comply with the current orders and she conceded that a recovery order would be necessary to ensure compliance.  I found that the mother was unlikely to facilitate the child coming into the care of the father and whilst a resumption of time on an unsupervised basis was sought by the father and supported by the ICL, a shorter period than promoted by the father was warranted.

2. The Court had the advantage of the recent report of the family consultant dated 17 November 2015 being her second report.

3. On 25 November 2015 orders were made that the child spend time with the father for an extended period from 26 November 2015 to 10 December 2015 and thereafter to remain in the care of the mother.  A recovery order was put in place should the circumstances arise that the child did not come into the father’s care as ordered.

4. The trial resumed on 21 December 2015 and following three days of hearing was adjourned part-heard to 28 January 2016.  Following final submissions judgment was reserved.

5. Pending further order, the parties agreed that the child would spend significant and substantial time with the father comprising each alternate week from the conclusion of school on Thursday to the commencement of school on Monday and in the intervening week for a period of three hours on Monday.

6. The orders of 25 November 2015 did not require the necessity for a recovery order to issue and it was not any longer suggested by the mother that she intends to do other than comply with the interim orders.

DOCUMENTS RELIED UPON

The Mother

1. The mother relies upon the following documents:-

   (1)The Fifth Amended Initiating Application filed 3 September 2015

   (2)Mother’s Trial Affidavit filed 1 May 2015

   (3)Mother’s Trial Affidavit in response filed 17 June 2015

   (4)Further Affidavit of mother (filed with leave) 30 October 2015

2. The mother relied upon her affidavit that had been filed 30 October 2015 in support of her interim application.  Whilst a matter of contention in the proceedings, the mother considered that the matters detailed in the affidavit were new and material to the proceedings.  She sought to adduce evidence of the matters raised as part of her case.

3. Specifically, the mother alleges that her older child had made disclosures to a CAMHS worker that she had been the subject of sexual abuse by the father.  It was alleged that she had been repeatedly raped by him, that the father would tie the child down and massage her inappropriately and that he would require her to remove her clothes, that he would take off his pants and he would rub himself against her.

4. These allegations should be seen as additional to the detailed allegations of the mother of the older child being physically abused by the father, assaulting her, detaining her and making threats to kill her and thereby causing psychological harm.

5. Notwithstanding that the mother’s case had closed and without opposition from the father or the ICL, I gave leave for the mother to reopen her case and to introduce and rely upon the matters set out in the further affidavit.

The Father

1. The father relies upon the following documents:-

   (1)Further Amended Response filed 1 June 2015

   (2)Father’s Trial Affidavit filed 1 June 2015

2. In addition, the Court was assisted by a Case Outline document filed 29 June 2015.

The Independent Children’s Lawyer

1. The Independent Children’s Lawyer (“ICL") relies upon the family reports prepared by Ms I dated 29 August 2014 and 17 November 2015.  Both reports are annexed to affidavits prepared on behalf of the ICL.

PROPOSALS OF THE PARTIES

1. In his final submissions, counsel for the mother relied upon a Minute of Order which set out proposals that were in sharp contrast to the orders set out in the Fifth Amended Initiating Application.  The tenor of the proposed orders were similar to the orders as contained in the Fourth Amended Initiating Application namely, that the parties would have equal shared parental responsibility for the child, the child would live with the mother and spend significant and substantial time with the father.

2. Upon further enquiry, counsel advised that notwithstanding the Minute of Order, the primary position of the mother was still as reflected in the application, but the Minute of Order should be seen as an alternative position.

3. Counsel for the mother also relied upon a Case Outline tendered at the commencement of the resumption of the proceedings.  That document confirmed the mother’s position which was that any time that the child was to spend with the father should be supervised until 2019 and conditional upon the father completing a parenting course, an anger management course and receiving a favourable psychiatric assessment.

4. The Case Outline contains a detailed chronology of allegations made by the mother and disclosures allegedly attributed to the children which if taken together support the contention that the father represents an unacceptable risk to the child and would therefore support the cautious approach promoted by the mother.  Counsel confirmed that the extensive affidavit material relied upon by the mother could be conveniently distilled to those references in Part II of the Case Outline. If after careful consideration the Court did not find that the allegations and disclosures were sufficient to support a finding of unacceptable risk or indeed a risk at all, then the Court should find favour with the more amenable approach as set out in the Minute of Order.

5. Counsel specifically submitted that whilst the alternative proposal of the mother was clearly inconsistent with her trenchant and unyielding stance namely, that the father has committed acts of sexual and physical abuse on the older child and poses an unacceptable risk to the child, it should not been see as in any way diminishing the evidentiary weight to be given to the allegations and disclosures.

6. The father presented no alternative orders, but it was generally accepted that if unsuccessful on his primary application, there would be no inconsistency rising from orders that would have the child spending significant and substantial time with him.

7. It is his case that the mother presents an unacceptable risk to the child of psychological harm.  The environment in the mother’s home is made more complex by the involvement of the older child, now aged 15 years.

8. The father argues that even if the Court was satisfied, that the mother could temper her behaviour and accept that he does not pose a risk to the child, nor has he ever done so, the same could not be said to apply to the attitude of the older child.  It appears that she is significantly alienated from the father, considers that he has physically and sexually abused her and if left unchecked, is likely to repeat his behaviour in respect of the subject child.

UNACCEPTABLE RISK

1. The father further submits that the older child is steadfast in her disapproval of him and will continue to undermine his relationship with the child.  The older child will never reconcile her differences with the father, and therefore places her half-sibling at substantial risk.

2. In M v M (1988) 166 CLR 69 the Full Court was required to consider the manner in which an allegation of sexual abuse should be treated. Their Honours considered that treating an allegation of sexual abuse as the paramount issue was an error.

3. In Vasser & Taylor-Black (2007) FLC 93-329 the Full Court considered that the High Court decision in M v M (supra) had become the “touch-stone” of  the principles to be applied in cases of asserted unacceptable risk of any kind.  Their Honours quoted, with approval, the following passages from M v M (supra), found at pages 77,080 – 82:-

   In proceedings under Pt VII of the Act in relation to a child, the court is enjoined to “regard the welfare of the child as the paramount consideration” (s 60D). The paramountcy of this consideration in proceedings for custody or access is preserved by s 64(1). The consequence is that the ultimate and paramount issue to be decided in proceedings for custody of, or access to, a child is whether the making of the order sought is in the interests of the welfare of the child. The fact that the proceedings involve an allegation that the child has been sexually abused by the parent who seeks custody or access does not alter the paramount and ultimate issue which is the court has determined, though the court’s findings on the disputed allegation of sexual abuse will naturally have an important, perhaps a decisive, impact on the resolution of that issue.

   But it is a mistake to think that the Family Court is under the same duty to resolve in a definitive way the disputed allegation of sexual abuse as a court exercising criminal jurisdiction would be if it were trying the party for a criminal offense.  Proceedings for custody and access are not disputes inter partes in the ordinary sense of that expression; Reynolds v Reynolds (1973) 47 ALJR 499; 1 ALR 318; McKee v McKee [1951] AC 352 at 364-365. In proceedings of that kind the court is not enforcing a parental right of custody or right to access. The court is concerned to make such an order for custody or access which will in the opinion of the court best promote and protect the interests of the child. In deciding what order it should make the court will give very great weight to the importance of maintaining parental ties, not so much because parents have a right to custody or access, but because it is prima face in a child’s interests to maintain the filial relationship with both parents; cf J v Lieschke (1987) 162 CLR 447 at 450, 458, 462, 463; 69 ALR 647.

   Viewed in this setting, the resolution of an allegation of sexual abuse against a parent is subservient and ancillary to the court’s determination of what is in the best interests of the child.  The Family Court’s consideration of the paramount issue which it is enjoined to decide cannot be diverted by the supposed need to arrive at a definitive conclusion on the allegation of sexual abuse.  The Family Court’s wide-ranging discretion to decide what is in the child’s best interests cannot be qualified by requiring the court to try the case as if it were no more than a contest between the parents to be decided solely by reference to the acceptance or rejection of the allegation of sexual abuse on the balance of probabilities.

   In considering an allegation of sexual abuse, the court should not make a positive finding that the allegation is true unless the court is so satisfied according to the civil standard of proof, with due regard to the factors mentioned in Briginshaw v Briginshaw (1938) 60 CLR 336 at 362. There Dixon J said:-

   The seriousness of an allegation made, the inherent unlikelihood of an occurrence of a given description, or the gravity of the consequences flowing from a particular finding are considerations which must affect the answer to the question whether the issue has been proved to the reasonable satisfaction of the tribunal.  In such matters ‘reasonable satisfaction’ should not be produced by inexact proofs, indefinite testimony, or indirect inferences.

4. Further, at 77,081 the Court said:-

   In resolving the wider issue the court must determine whether on the evidence there is a risk of sexual abuse occurring if custody or access be granted and assessing the magnitude of that risk.  After all, in deciding what is in the best interests of a child, the Family Court is frequently called upon to assess and evaluate the likelihood or possibility of events or occurrences which, if they come about, will have a detrimental impact on the child’s welare.  The existence and magnitude of the risk of sexual abuse, as with other risks of harm to the welfare of the child, is a fundamental matter to be taken into account in deciding issues of custody and access.  In access cases, the magnitude of risk may be less if the order in contemplation is supervised access.  Even in such a case, however, there may be a risk of disturbance to a child who is compulsorily brought into contact with a parent who has sexually abused her or whom the child believes to have sexually abused her.  But that is not the issue in this case.

5. Accordingly, by reference to the matters raised in Part II of the Case Outline tendered on behalf of the mother, she seeks a finding that the father presents an unacceptable risk of physical, sexual and/or psychological abuse of the child.  As indicated, the matters set out in Part II encapsulate the mother’s concerns.

6. For his part, the father seeks a finding of unacceptable risk of psychological abuse in the mother’s home broadly based on the following:-

   ·That the mother is not able to support the child’s relationship with the father.

   ·That notwithstanding the paucity of evidence upon which the mother seeks to rely for a finding of unacceptable risk, she has no ability to accept that she is in error.

   ·That the child is under close scrutiny when she returns from spending time with the father.

   ·That the mother seeks to corroborate her allegations by presenting the child for assessment, observation or interview with unwitting health professionals and police.

   ·That the older sibling is demonstrable in her lack of support for the child having a relationship with her father.

7. If the mother is successful in promoting her case that the father poses a risk to the child, then the impact on the child will be relatively minimal given that she does not seek to terminate the relationship but rather, to impose necessary safeguards and conditions.

8. If the Court finds that there is no relevant risk then the alternative proposal of the mother would do no more than continue the current orders which provide for significant time between the child and the father.

9. The orders that the father seeks are likely to have a more profound impact upon the child.  Consideration will need to be given to assess the impact on the child of disrupting and altering the current settled position of the child in her mother’s home bringing to account the relationship with the older child.

CHRONOLOGY

8/9/1959Date of birth of father

25/2/1968Date of birth of mother

11/9/2000Date of birth of the older child

2005/2006The parties first meet

15/3/2008Date of marriage

January 2009            The parties commence living at the L School in Brisbane and the father commences home schooling of the older child

July 2009Parties move to South Australia

1/12/2009Date of birth of child

January 2010            Family returns to Queensland and father obtains employment

May 2011The parties separate and the mother and children move to M Town, Queensland

September2011      Mother advises father of the allegations that the older child has made against him

October 2011           Mother and children relocate from Queensland to the Region N in South Australia.  Father contends that the mother did not advise him or give warning of her intention to relocate

September 2012      The father travels to South Australia to spend time with the child but the mother refuses to facilitate time

November 2012       The older child commences therapeutic counselling from Dr F, psychologist

December 2012       The father spends supervised time with the child

11/12/2012The mother commences proceedings in the Federal Circuit Court of Australia (“FCCA”) at Adelaide alleging that the father is the perpetrator of serious physical abuse of the older child

12/3/2013Orders made that the child live with the mother and have regular telephone communication with the father

6/9/2013Order made for the appointment of an ICL and orders made restraining the mother from removing the child from the Commonwealth of Australia and her residence from South Australia

September 2013      The father secures orders that he both have Skype communication with the child and that she spends time with him on an unsupervised basis

December 2013       The father relocates to South Australia and mother advises him that she has moved with the children from Adelaide back to the Region N.  Father secures local accommodation.

9/4/2014Mother takes the child to a medical practitioner for a genital examination specifically to test for the presence of venereal disease

June 2014The child commences therapeutic counselling with Dr F

July 2014Mother pledges that the child is at risk of being sexually abused by the father by reference to certain statements made by the child in the context of “bunnies mating”

29/6/2015                 First day of trial

BACKGROUND

1. The parties met in Queensland towards the end of 2005.  The mother contends that the parties first met in early 2006.  Nothing turns on the difference.

2. It appears that both parties were actively engaged in Religious Fellowship.  They were attracted to each other by their common pursuit of a family life with a partner sharing similar interests.

3. In 2007 the mother and the older child travelled to Country O for a period of six months engaging in a missionary outreach program.  The parties became engaged in late 2007 and were married in 2008.  Each of the parties had been previously married.  For the mother this was her second marriage.  For the father his third.

4. By the mother’s own admission, she was vigilant in respect of the older child given her belief that her former husband had “emotionally, verbally and physically harmed” her and it was probable that the older child had been sexually assaulted.

5. The mother attributes the breakdown of her earlier relationship based upon an assessment of a counsellor that her ex-husband suffered from mental illness and was in denial.

6. The mother alleges that the father had a poor relationship with the children from his first marriage.  She attributes certain statements from those children as a basis and support for her contention that at the time of marriage the father had misinformed her of the basis of his marital breakdown, that he was troubled by mental illness and had a propensity towards violence.

7. Following marriage, the parties lived in P Town for six months until early 2009.  The mother attended L School in Brisbane.  Initially the older child was home-schooled, but then later the parties agreed that she should be enrolled in formal school education and she became a student in a local school.

8. The parties moved into accommodation in the L School and the father recommenced home-schooling the older child.

9. The father asserts that the child had learning difficulties which were evident from her poor reading and phonics.  He says that the child was oppositional in terms of her school work, that tantrums were common and she would defy any attempt by him for her to undertake and complete her study tasks.  He describes her behaviour as at times resembling total hysteria.

10. It is clear that the relationship between the older child and the father broke down entirely during this period.

11. The mother alleges that during the home-schooling the father was abusive to the child including threatening her life.  She alleges that the older child has also indicated “lots of bad stuff happened at L School”.

12. The father rejects the mother’s assertion that the older child’s behaviour was in direct response to his inappropriate conduct.  He counters the allegation by referring to the mother’s correspondence forwarded to him where she details “[the older child’s] uncontrollable behaviour” in 2007.

13. The child was born in 2009.  The parties had taken up residence in a property owned by the mother’s sister in Q Town, South Australia.

14. The father made application to enter the L School in Brisbane and the family moved back to Queensland.  The father considers that the parties were in agreement about returning to Queensland, whereas the mother’s position is that she did so reluctantly.

15. The mother is highly critical of the father.  She alleges that his decision to return to Queensland caused the mother to “split open my [her] stitches” during the return flight.

1. Moreover, the mother considers that the stress of living with the father caused her to develop potentially cancerous lumps on one of her breasts.  Whilst there is no medical evidence for such a contention, she further alleges that the father’s previous two wives both developed cancer during the periods of their separate marriage to the father.  The mother clearly considers that the stress of living with the father caused a consistent adverse effect on the physical health of all those who have associated with him.

2. Whilst the mother blames the father for their financial predicament in Queensland, it appears to be uncontroversial that the parties struggled financially.  They had only modest income, had utilised their savings and generally were required to be financially vigilant and frugal in their expenditure.

3. The father considered that the mother was unhappy in Queensland and that she wanted to return to South Australia.  For her part, she says that it was a joint decision with the hope that the father would be able to find permanent employment.

4. Prior to the family’s return to South Australia the mother alleges that the father’s behaviour became worrying.  She says that he complained of having a “woozy head” which prevented him from driving to work.  She alleges that he displayed behaviour consistent with having a “split personality”, suffered from memory loss and appeared at times to be either depressed or manic.  He was unpredictable in terms of his behaviour.  The father denies that his conduct was in any way remarkable.

5. In July 2010, the father took up a position in R Town.  He accepted the offer and the family returned to Queensland.  He says that whilst there were difficulties in his relationship with the older child, there were also areas of improvement.  There were times when the mother left the child in his care and supervision whilst she spent time with her family in South Australia.

6. The parties separated in April 2011 and the mother and the children left the family home in May.

7. Between May and October 2011, the father spent time with the child for a few hours each week on the condition that contact was supervised by the mother.

8. The father was informed by the mother that the older child had made serious allegations involving the father.  The father admitted that there had been an incident in 2009 whilst the parties were residing in Brisbane when he threw water in her face in an attempt to calm her down during an hysterical episode.

9. Whilst there is some dispute, I find that the mother and the children returned to South Australia without any warning or advice to the father. 

10. The father attempted to arrange time with the child, but generally was unsuccessful in negotiating an outcome with the mother. 

11. The mother commenced proceedings on 11 December 2012.  The father alleges that he did not know of the address or whereabouts of the mother and the children other than they were residing on the Region N.

12. Various orders were made for the father to spend time with the child from early 2013 to January 2014.  The father relocated from Queensland to South Australia in December 2013.

13. Following the consideration of the Family Assessment Report undertaken by the family consultant in July 2014 the child spent time with the father each alternate weekend for some hours during the intervening week and time during the school holidays gradually increasing to block periods of seven days.  Subject to variation from time to time, the child has spent time with the father on an unsupervised basis.

Conduct of the proceedings

1. The proceedings were conducted pursuant to the provisions of s 69ZN of the Family Law Act 1975 (Cth) (“the Act”) and in determining and giving effect to the principles as set out therein I advised the parties of the general duties and powers as set out in s 69ZQ and the ability I have to make determinations, findings and an order at any stage of the proceedings if it will assist in the better management of the trial pursuant to s 69ZR.

2. I also considered it important that the provisions of s 69ZT should not be dispensed with and accordingly, the parts of the Evidence Act 1995 (Cth) (“the Evidence Act”) as set out in s 69ZT were not the subject of application.

3. Indeed, following an explanation to the mother of the important application of s 69ZN and 69ZT to parenting proceedings, counsel for the father indicated that but for the evidence of Ms S, there was no submission in opposition to the continued application of s 69ZT to the evidence.

4. Ms S is a former partner of the father.  The mother did not propose to call evidence from Ms S but rather, sought to rely upon an affidavit of Ms S annexed to her trial affidavit.  This document was filed generally in the proceedings on 29 June 2014.  It contains scandalous allegations alleging sexual impropriety between the father and the children of his previous marriage and irrelevant detail in respect of the personal relationship between the father and his former wife during their marriage.

5. The matters raised in the affidavit would in the ordinary course be inadmissible. Additionally, in the absence of any intention to call Ms S, the application made on behalf of the father that the provisions of s 69ZT should not apply in relation to the affidavit of Ms S had considerable merit.

6. I advised the parties that in the absence of Ms S being called, I would place no weight on her affidavit.

7. Accordingly, in making the determination as to the application of the provisions of s 69ZT, I considered the following matters:-

   (i)The importance of the evidence in the proceedings; and

   (ii)The nature of the subject matter of the proceedings; and

   (iii)The probative value of the evidence; and

   (iv)The power of the court, if any, to adjourn the hearing to make another order or to give directions in relation to the evidence.

8. There were no circumstances in this case which would fall into the category of “exceptional”.

9. Furthermore, the provisions of s 69ZT(2) provide:-

   The court may give such weight (if any) as it thinks fit to evidence admitted as a consequence of a provision of the Evidence Act 1995 not applying because of subsection (1).

The Mother

1. The mother’s evidence in chief is contained in her trial affidavit filed 1 May 2015 consisting of 118 pages of narrative and a substantial number of annexures.  In addition, the mother filed an affidavit in response on 17 June 2015 which comprises a further 100 pages.

2. The affidavit material is unwieldy and difficult to digest as a direct consequence of the sheer volume of material.

3. I made it clear to the parties that I would not have unsolicited regard to annexures to the trial affidavits.  I do not consider that it is appropriate for the Court to be burdened by the obligation to digest both the affidavit evidence but also without assistance and submission, to be required to trawl through annexure material without the parties having a clear understanding of what is properly before the Court and being considered in my determination.

4. The mother’s evidence was not supplemented by further examination in chief. She was cross examined by counsel for the father and the ICL. 

5. Her evidence is that as time passed she became concerned as to the presentation of the older child and it is her position that the child does not feel safe in the presence of the father.  The older child currently is engaged in long-term therapeutic counselling allegedly to “overcome her fears about the respondent”.

6. The mother became convinced that the child had developmental delays.  It appears that she considers there is some connection between the child’s perceived lack of development and the mental health and/or behavioural issues presented by the father.  In 2011 the child attended upon a paediatrician, an occupational therapist and other health professionals.  The mother reports that the occupational therapist had reported that the child may be suffering from autism and developmental delays evidenced in particular by her emotional stability.

7. Following separation and in respect of a visit on 20 June 2011, the mother reported that the therapist had given the child the all clear stating:-

   It is like whatever presence was in that home [referring to the respondent’s home] was keeping her emotionally bound like a baby.

8. It is the mother’s evidence that within days of the separation the developmental delays pertaining to the child disappeared and she accelerated exponentially.

9. Similarly, the mother reports that the older child’s school teacher noticed the improvement and it is her report that:-

   It is like a great weight has been lifted from her shoulders and she has come out from under a greater oppression or suppression this term.

10. In an attempt to present a before and after comparison this evidence is without corroboration and whilst admitted is given little or no weight.

11. Following separation the mother enrolled the older child in a program called “T Program” run by a community organisation in Queensland.  It was during the older child’s involvement in that program that she allegedly began to reveal she had been “physically and emotionally abused by the [father] on many occasions”.  The further allegation that she had been subjected to sexual assault by the father arose during the period of the adjournment.

12. The older child is alleged to have revealed to the mother that the father had threatened her life on several occasions including using a pair of scissors and a knife as potential weapons, had chased her around the house, had pushed her back against a bench causing an injury to her back and, had locked her in a room and thrown water over her.  The mother alleges that she arrived home soon after the alleged threat to kill was made and whilst the older child reported to the mother what the father had said, she did not realise that the older child had meant it literally.  It was only later when the older child had commenced the T Program that she took the disclosure seriously.

13. The mother was challenged as to how references in the affidavits that suggest the direct speech of the child are to be considered.  The mother was referred to paragraph 172 of her second affidavit where the child is reported to have said “I’m sexy and I know it” and “My Daddy tells me I’m sexy all the time” and “Her Daddy says she’s sexy”.  Additionally, the child is reported to have said “My Dad says that to me that I have buttocks and breasts like a schoolgirl”.

14. The mother admitted that these passages were not the direct speech of the child but rather that of the older child.

15. The underlying issue is the father’s assertion that the older child will do all that she can to disrupt the relationship between the child and the father.  It is the father’s position that the allegations made by the older child in respect of his conduct towards her (save and except the incidence involving water being thrown on the older child’s face), and the reporting of speech purportedly attributed to the child, has no basis in fact and is a concoction.

16. The mother revealed that the older child had become suicidal when she had learned that the father was intending to take up residence in Adelaide and that she is distressed each time that the child visits the father.  She also conceded that when the child returns from her time with the father, she is questioned by the older child.

17. The mother admitted that the older child had asked the child if the father had ever kissed her and it was put to the mother that much of the discussion between the older child and the child occurred in the mother’s presence and possibly at the dinner table.  The mother denied that the conversation was frequent and proffers the explanation that their house is small and the only place that the children would be together would be in the communal area of the home and usually therefore in her presence and within earshot.

18. The mother conceded that there are occasions when the children would spend time alone and such is the older child’s dislike of the father that she has expressed the view that she would like to kill him.  Apparently she has become so angry at the reports of the activities engaged in between the father and the child that the older child punched a wall.  The mother conceded that the older child was in a heightened state of anxiety and at that stage in the evidence whilst not alleging that the child had been the subject of sexual abuse by the father, she was nonetheless either physically abused or at risk of same.

19. The clear thrust of the cross examination was to suggest that the older child used every opportunity to interrogate the child about the interaction with the father.

20. It is also significant that the mother developed an unyielding practice of recording anything that was said by either of the children that might have a link or connection with the father and his interaction with either of the children, either historically in respect of the older child and more temporally based in respect of the child.

21. Whilst the mother denied that her notetaking took place in the presence of the children, I am satisfied that the practice developed to a level of compulsion that is likely to have been apparent to both children.  It is my finding that whilst there may have been some attempt by the mother to distance the child from her views of the father, the mother and the older child were in clear concert in their opposition to him.

22. On 13 September 2011, the mother forwarded an email to Ms E of the T Program allegedly encapsulating a disclosure that the older child had made to her.  The information was initially recorded in the mother’s diary of the same day and given that it is pivotal to the presentation of the older child, I incorporate the email in its totality:-

    Hi [Ms E]

    Last night, (7.50-8pm) when putting [the older child] into bed, she said she wanted to tell me something.  (As you are aware, she started the “[T Program]” yesterday and unusually was reluctant to speak about it at all afterwards.  I am still unsure what their topic was).  However, now I am very concerned.

    Initially she shared some bad things she had done to [the father] in her anger toward him.

    She also shared how she had got a sharp knife after a lengthy incident where had kept her locked in her room and was baring the door (when I was at a Lecture in [L School]) and when standing there with it, [the father] told her he would kill her first.  (I knew he threw a glass of water in her face one time in his anger because she was tyring to get out the door to come to me or one of my Lecturer’s for help, but I am not sure if this was part of the same incidence or not.

    She shared how on another occasion he had threatened her with a pair of scissors and told her she was not to tell anybody about it.

    She shared about how she told him she wanted to put duct tape over his mouth to shut him up and then when she went forward he took the duct tape and put it over her mouth.

    Also about another occasion when he pushed her into the edge of a bench and it really hurt her back.

    (I have witnessed red marks on both her spine and on her collar bone on another occasion, after getting out of the bath because I heard an altercation going on.  It was at that time I moved out!)

    These things (excluding what I just put) are all new information to me as of last night.

    My husband is unstable, we have witnessed it firsthand.  Furthermore I honestly do not believe that he realizes, when he is doing these things.  Much has gone on in our marriage and a mental health issue has been revealed as an exceptionally strong possibility, however, to date he has not had an assessment, even though he has been encouraged to do so.  The marriage counsellor felt there may be no point as he may not be honest in completing it anyway!

    Anyway, I just wanted to bring you up to date with the ensuing, results from today’s “[T Program]” session and [the older child’s] subsequent discussion with me. 

    [The Mother]

23. Following the alleged disclosure to the mother, she then made a notification to the Department of Child Safety in Queensland.  The alleged allegations of the older child and the subsequent notification to the relevant authority was included in an email sent by the mother to her pastor on 20 September 2011.  It is not clear why she considered it necessary that the pastor be advised of the allegations made by the older child, but the mother also considered it appropriate to inform her marriage counsellor of the allegations.  It was a feature of the mother’s evidence that allegations and disclosures would be referred to individuals, counsellors, health professionals or relevant authorities, with the consequence that each subsequent referral provides further corroboration in a cascading effect.  The consequence has been self-serving in nature and no consideration was given as whether the original assertion was true.  In effect, the mother pulls herself up by her own bootstraps rather than interrogating the veracity of the perceived allegation or disclosure.

24. At page 50 line 25 of the transcript the following appears:-

    Lindsay:And it may be the case that she spoke with Ms E after your suggesting that she should on 11 October.  That may be the time after which she made the disclosure to Ms E; you’re not sure?

    Mother:No.  I suggested to her that she could speak to [Ms E] about bad stuff that he had done, that was her comment, if – you know, because she was there to help kids like her.

    Lindsay:And for all you know it was after that that she made her disclosures to [Ms E].

    Mother:Yes, it could have been before, it could have been after; I don’t know.

    Lindsay:Thank you.  In any event, you’re in the car off to South Australia within six days of that – of her disclosures to you, aren’t you, on 11 October; six or seven days.

    Mother:Yes, she made further disclosures after that as well.

    Lindsay:See, what I’m going to suggest to you, [the mother], is this, that the overwhelming majority of these very serious allegations relating to [the father’s] conduct towards [the older child], their providence – the disclosures are made in the weeks leading up to you deciding to leave Queensland without notice to [the father] to come to South Australia.  Do you follow what I’m putting to you?

    Mother:I didn’t make a decision to leave.  I left on advice of authorities.

    Lindsay:Yes, I’m not actually asking you about that, and I suggest you understand that.  I’m asking you about the timeframe within which these very serious matters about [the older child] that resound in your family to this very day.

    Mother:Unfortunately they do.

    Lindsay:Yes.  Well, what I’m suggesting to you is if we want to know when you first found out about them, we go to this period immediately leading up – in the weeks leading up – to your departure without notice to [the father], don’t we.

    Mother:At that point in time I had not been advised to leave yet, and so [the father] had not been advised that I was leaving.

    Lindsay:How is that an answer to my question, madam?  I’m simply asking you to acknowledge the juxta position of the two events.  That’s what I am asking you, and I think you perfectly well understand that.  I am suggesting to you that the overwhelming majority of these serious [older child] allegations were first disclosed to you in the weeks leading up to your departure from Queensland?

    Mother:Yes.  It’s the only reason we left.

    Lindsay:Can I suggest to you that it was your excuse to leave?

    Mother:It was not my excuse to leave.  It was the reality and the fact for leaving.  There was no excuse in it. 

    Lindsay:Because going to coincidences in time, and juxtaposing events, as these disclosures are happening, and as you are encouraging [the older child] to speak to [Ms E], you’re also off speaking the Department of Children’s Services, aren’t you, about these same matters?

    Mother:I encouraged [the older child] on one occasion to Speak to [Ms E].  That’s what she is there for.  She was her counsellor.  [Ms E] advised me I had reporting obligations when [the child] made disclosures to me which I passed on to her.  And so, yes, I did speak with the Department of Child Safety.

1. I bring to account the provisions of s 65DAA(3) in my consideration of the appropriate orders to be made.

2. I am obliged to consider circumstances where I make an order for equal shared parental responsibility whether the proposals of each of the parties are reasonably practical for the purposes of s 65DAA(2)(c). The Act provides assistance in the determination of “reasonable practicality”. In terms of the provisions of s 65DAA(5) namely, that the Court must have regard to:

   (a)how far apart the parents live from each other; and

   (b)the parents’ current and future capacity to implement an arrangement for the child spending equal time, or spending substantial and significant time, with each of the parents; and

   (c)the parents’ current and future capacity to communicate with each other and resolve difficulties that may arise in implementing an arrangement of that kind; and

   (d)the impact that an arrangement of that kind would have on the child; and

   (e)such other matters as the court considers relevant.

3. Accordingly and having regard to the statutory obligations that are required in a parenting case, I propose to adopt the following approach:-

   (1)Give considerations to the proposals put forward by each of the parties as they were identified and presented to the Court;

   (2)Have regard to the objects expressed in s 60B(1) and underlying principles in s 60B(2);

   (3)Have regard to the provisions of s 60CC in order to determine in each case what is in the child’s best interests;

   (4)Have regard to the primary considerations under s 60CC(2) namely, the benefits of the child having a meaningful relationship with both of the child’s parents and the need to protect the child or children from physical or psychological harm;

   (5)Have regard to the additional considerations under s 60CC(3);

   (6)The evidence adduced by each of the parties in respect of the particular considerations pursuant to s 60CC(2) and (3) are to be considered and if more weight is to be given to one or more of the matters then this must be the subject of delineation and comment.

4. Section 61DA requires a Court to consider whether to apply the presumption of equal shared parental responsibility by having regard to matters as set out in s 61DA if relevant which would rebut the presumption if a person or persons living with a child has engaged in:

   (a)abuse of the child or another child who, at the time, was a member of the parent’s family (or the other persons family); or

   (b)family violence.

5. If the presumption is rebutted the Court can proceed to make parenting orders having regard to the provisions of the Act but based on findings pursuant to s 60CC. If the presumption applies (and in any event the parties seek an order of equal shared parental responsibility) and it is not rebutted, then s 65DAA requires a Court to consider whether there should be an order for equal time. If not, then substantial and significant time. The test is whether the orders would be in the best interests of the child and reasonably practicable. As was said in MRR v GR (2010) 240 CLR 461 the consideration of whether equal time is feasible “requires a practical assessment”.

6. Section 60CC is to be utilised in order to determine the question about best interests and whether the issue of an order for equal time and/or substantial and significant time would be reasonably practicable is to be determined by reference to the provisions of s 65DAA(5).

7. Finally, I have regard to the remarks of Finn J in Blanding & Blanding [2016] FamCAFC 21 where her Honour considered that following the Full Court decision in Beckham & Desprez [2015] FamCAFC 247 there is no requirement to consider s 65DAA(1A) and s 65DAA (1B) in any particular order.

8. Moreover, in terms of the application of appropriate principles to parenting cases and the application of what has often been described as the “legislative pathway”, the remarks of Finn J at paragraph 27 are apposite:-

   Notwithstanding the imperative language used in decisions such as Goode & Goode (2006) FLC 93-286, it does seem to me that, as a matter of pure practicality and in the interests of the efficient disposition of parenting cases, a court need only concern itself with the actual proposals which each party puts before it and which, it can be assumed are “reasonably practicable” from that party’s point of view. In so saying, I do not overlook the fact that in U v U (2002) 211 CLR 238 the High Court made clear that subject to procedural fairness considerations, a court in a parenting case is not bound by the parties’ proposals.

9. The import of her Honour’s remarks is to focus judicial attention upon the practical reality of each of the parties’ proposals and the consideration of the primary and additional considerations as are appropriately applicable. 

PARENTING CONSIDERATIONS

Relationship of the child to each of the parties

1. Fortunately each of the parties has had a significant engagement with the child over a long period.  Whilst the child has been in the primary care of the mother and that the relationship between the child and the father was in hiatus following the mother’s move to South Australia, the father’s actions in transferring to the child’s locality has ensured continuity.

2. There is no reason to reject or cast doubt over the clear observations of the family consultant as to the strength and depth of the relationship that the child has with both of her parents and with the older child.

3. Neither party would seriously argue that there should be no relationship between the child and each parent.  The father is highly supportive of the child’s relationship with her mother, whereas she does not promote the child’s relationship with her father.  Even in respect of the mother’s alternate proposal, it must be predicated on an implicit acceptance that it is in the best interests of this child to maintain a relationship.

4. Accordingly, whilst fundamentally different, neither party seeks orders that would disrupt their relationship with the child but rather, to alter the terms and conditions upon which it hopefully would flourish.  It is however the father’s case that the mother is not capable of supporting the child’s relationship with him and that her alternative proposal is made by a focus on trial strategy rather than a fulsome acceptance of the opinion of the family consultant that the father daughter relationship is vital to the child’s best interests.  The parental relationship between the parties is virtually non-existent.  The parties are highly mistrustful of the other and the father is suspicious of any action or conduct by the mother lest it manifest itself in further allegations that he poses a risk to the child.  I am uncertain how the resolution of the proceedings will affect the ability of the mother to consider her daughter’s needs and there is the genuine risk that further litigation will result.

5. In Mazorski & Albright (2007) 37 Fam LR 518 Brown J commented on the definition of “meaningful” and said:-

   [26]What these definitions convey is that “meaningful”, when used in the context of “meaningful relationship”, is synonymous with “significant” which, in turn, is generally used as a synonym for “important” or “of consequence”… when considering the primary considerations and the application of the object and principles of the Act, a meaningful relationship or a meaningful involvement is one which is important, significant and valuable to the child. It is a qualitative adjective, not a strictly quantitive one. Quantitive concepts may be addressed as part of the process of considering the consequences of the application of the presumption of equally shared parental responsibility and the requirement for the time with the children to be, where possible in their best interests, substantial and significant.

6. I have found that the father is able to focus on the needs of the child and if it is in the best interests of the child for there to be a relationship with the mother, the father would foster and promote that outcome.  It is not my finding that the mother holds the father in the same regard and esteem.  It is unlikely that the environment in the mother’s home will be conducive to promoting the child’s relationship with the father.  Moreover, it is more likely than not on the evidence that the mother’s opinion of the father and the resulting campaign of ongoing accusation and denigration will continue unabated.  The mother either has no ability to control the older child’s negative attitude towards the father and its expression in the presence of the child, or is engaged in the active encouragement of the older child’s vitriol.

Family violence and risk

1. I have found that the father poses no risk to the child in his care.  I have however found that the mother poses a risk of psychological and emotional harm to the child by her ongoing hostility towards the father.  The issue that arises is whether that risk has reached a level that is unacceptable and should result in the child spending little or no time with the mother, or whether the Court can have some confidence that the mother is able to compartmentalise her intense dislike for the father.  The family consultant considers that a change in the primary care will reduce the opportunity for the mother and the older child to envelop the child in their negative and damaging atmosphere and the primary care by the father will provide a buffer and a barrier to that risk.  In summary, the risk whilst significant can be managed by a change in the primary care, but still enabling the child to spend significant and substantial time in the mother’s home.

2. The position adopted by the family consultant is strongly supported by the ICL.

The child’s wishes

1. Notwithstanding the child’s age, she appears to have shown remarkable resilience in presenting to the family consultant a different picture to that as presented by the mother.  The child is aware of the hostility and the mother’s dislike of the father.  She has even expressed a level of exasperation at the distressing conduct and attitude of her sister.  She has no hesitation in setting out with clarity that she enjoys her time in both her father’s home and her mother’s home other than having to deal with the older child’s conduct.

2. There was no inconsistency with the views as expressed by the child and the observations made by the family consultant during observed periods of interaction.

3. Of course the child was not asked about with whom her primary care should be entrusted, but the family consultant was satisfied that sufficient weight could be placed upon her views to rebut any suggestion or assertion by the mother that the father’s home was unhappy and that the child was at risk.

Proposals of the parties

1. The parties live in the same geographical location.  Each of the parties would intend that the child continue at her current school and there is no suggestion that either of them have any firm plans to move from their current residence.  Accordingly, each of the proposals of the parties are able to be given effect and there is no obvious or practical difficulty that arises.

2. The mother however proposes that the parties have equal shared parental responsibility.  The father considers that the relationship between the parties is such that communication is difficult and is likely to be a source of further disputation.  For her part, the mother has shown a propensity to engage the child in health professionals and unless restrained is likely to subject the child to interview and assessment in order to seek corroboration for her allegation that the child is at risk of physical and sexual assault from the father.

3. The family consultant is concerned that major issues that are likely to affect the child, certainly in terms of health and education, need to have a child-focussed agenda and be occasioned by actual need rather than part of an otiose strategy favoured by the mother.

4. There is therefore a lack of ability to reach consensus on any significant issue affecting the child, with little or no willingness on the part of the mother to communicate with the father without accusation or allegation.

Capacity of the parties to parent

1. Each of the parties are able to provide appropriately for the child in the ordinary course of events.  Whilst the finances of the parties is modest, nonetheless the physical needs of the child are not in issue.  The mother however is significantly compromised in her ability to support the child’s relationship with her father and to cease her adverse conduct.  Subject to that provision, each of the parties is able to provide a safe and protective environment for the child.  The mother however is not able to protect the child from the very real potential for emotional distress and harm arising from her own conduct and the unchecked behaviour of the older child.

Parental Responsibility

1. In the ordinary case, it can be presumed that it is in the best interests of a child for the parents to have equal shared parental responsibility. That presumption can be rebutted either because there is violence and that the child is at risk, or following a consideration of the primary and additional considerations in s 60CC. It is considered not in the best interests of a child for the responsibility to be shared.

2. Much has already been said as to the state of the relationship between the parties.  I do not consider that the mother is likely to reconcile her differences with the father, although I suspect that there is more evident goodwill emanating from him than from her.

3. There is no evidence to support the proposition that the parties are able to consult or communicate in respect of major issues affecting the child to any good outcome.

4. Accordingly, I do not consider that there should be an order for equal shared parental responsibility.

Overseas travel

1. There is some uncertainty as to whether the mother pursues orders that the father do all things necessary to facilitate the issue of a passport for the child and that the mother be permitted to remove the child from the Commonwealth of Australia to undertake overseas travel and engage in missionary work for a cumulative period of eight weeks in any calendar year.

2. The father is opposed to the order.  The mother promotes the order, but in circumstances where her application contemplates limited time for the child to spend with the father at least until 2017/2018.

3. There are no particulars provided by the mother of where she would wish to take the child, nor does her proposed order specify the destinations, the circumstances in which the child would find herself and whether there are any risk or safety factors that need to be considered.  Moreover, it is not understood that the likely destinations would be countries who are signatories to the Hague Convention.

4. The father does not seek the same accommodation.

5. Whilst there is no evidence that would suggest the mother would not return the child to the jurisdiction if an order was made in terms as she seeks, equally there is no evidence as to the benefits that would inure to the child and no detail as to the terms and conditions of travel and the circumstances that would exist at the ultimate destination.

6. I must also bring to account that the mother moved from Queensland to South Australia for the express purpose of putting distance between the child and the father and that it was done with deception, malice and pre-planning.

7. I do not consider that the mother’s case has established that the proposed order with its inherent defects and lack of information would be in the interests of this child.

CONCLUSION

1. I note that the orders sought by the ICL strongly support the father’s position.  It draws strength from the evidence of the family consultant and her recommendations that there should be an immediate change in the primary care such that the child transitions from the home of the mother to the father.  The orders also support the father having sole parental responsibility for the child, but diverge from the orders the father seeks in that he concedes that the child should spend “liberal time with the mother for such duration and with such frequency” as the Court considers is consistent with the child’s best interests, as opposed to the specific order that the child should spend time with the mother during school term from Thursday to Monday each alternate weekend and half school holidays.

2. The family consultant considers that the child will inevitably be distressed at the change in her primary care, but the father’s compassion, goodwill and patience will ultimately limit the extent of the distress and will avoid the potentially greater damage to the child of her growing up with the false understanding that he physically and sexually abusing her. This would be a significant breach of trust of a most important and fundamental relationship namely that of a child and parent.

3. I consider that the adverse findings I have made in respect of the mother and the older child both in terms of their personal presentation and that which exists in the mother’s household together with the compelling evidence of the family consultant, requires an outcome of a change in the primary care to the father with the mother retaining significant and substantial time upon such terms and conditions as generally are promoted by the ICL and supplemented by the ancillary orders sought by each of the parties.

4. I make orders as appear at the commencement of these reasons.

I certify that the preceding three hundred and ninety three (393) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Berman delivered on 22 April 2016.

Associate: 

Date:  22 April 2016