Correia and Davila (No 2)
[2019] FamCA 780
•29 October 2019
FAMILY COURT OF AUSTRALIA
| CORREIA & DAVILA (NO. 2) | [2019] FamCA 780 |
| FAMILY LAW – CHILDREN – Child related proceedings – Best interests of the child – Where the mother seeks orders that the child remain living with her and the child spend significant and substantial time with the father – Where the father seeks orders that the child live with him and spend time with the mother – Where the Independent Children’s Lawyer supports the substantive orders as sought by the mother – Where there has been instances of family violence between the mother and her new husband – Where the father alleges that there is an unacceptable risk to the child of psychological harm in being exposed to family violence between the mother and the mother’s new husband while the child is in the mother’s care – Where the Court finds that the mother and the mother’s new husband have taken steps to control anger and avoid family violence in the future – Where the Court finds that it is in the best interests of the child to live with the mother and spend substantial and significant time with the father – Orders made. |
| Family Law Act 1975 (Cth) ss. 4AB, 43(1)(c), 43(1)(ca), 60B(1), 60CA, 60CC, 61DA, 65DAA, 65DAC(2), 65DAC(3). |
| Adamson & Adamson (2014) 51 Fam LR 626 at 642 The Hon. Richard Chisholm, “Unacceptable risk – a comparison of the Family Law and Care jurisdictions,” (Paper presented at the Children’s Court Conference, Parramatta, 1 September 2010) |
| APPLICANT: | MS CORREIA |
| RESPONDENT: | MR DAVILA |
| INDEPENDENT CHILDREN’S LAWYER: | BRIAN SAMUEL & ASSOCIATES |
| FILE NUMBER: | SYC | 4374 | of | 2014 |
| DATE DELIVERED: | 29 October 2019 |
| PLACE DELIVERED: | Sydney |
| PLACE HEARD: | Sydney |
| JUDGMENT OF: | McClelland DCJ |
| HEARING DATE: | 22, 23, 24 & 25 July 2019 |
REPRESENTATION
| COUNSEL FOR THE APPLICANT: | Mr Blackah |
| SOLICITOR FOR THE APPLICANT: | WMD Law |
| THE RESPONDENT APPEARING IN PERSON: | Mr Davila |
| COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: | Ms Reynolds |
| SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: | Brian Samuel & Associates |
Orders
All prior parenting Orders be discharged.
Ms Correia (“the mother”) shall have sole parental responsibility for X (“the child”) born … 2013.
The child shall live with the mother at all times except as otherwise provided for in these Orders.
The child shall live with Mr Davila (“the father”) as follows:
(a)From after school Friday to before school Monday with such time to commence on the weekend that the child would have been in the father’s care in accordance with the Orders of 12 October 2017 and continue in each alternate week thereafter;
(b)From after school Wednesday until before school Thursday with such time to commence on the Wednesday that the child would have been in the father’s care in accordance with the Orders of 12 October 2017 and continue in each alternate week thereafter;
(c)From 2.00 pm Christmas Day until 2.00 pm Boxing Day in 2019 and in each alternate year thereafter;
(d)From 9.00 am Christmas Eve until 2.00 pm Christmas Day in 2020 and in each alternate year thereafter;
(e)On the child’s birthday at times to be agreed between the parties and failing agreement, from 3.00 pm to 6.00 pm if the child’s birthday falls on a weekday and from 12.00 pm until 4.00 pm if the child’s birthday falls on a weekend;
(f)On the father’s birthday at times to be agreed between the parties and failing agreement, from 3.00 pm to 6.00 pm if the father’s birthday falls on a weekday and from 10.00 am until 5.00 pm if the father’s birthday falls on a weekend;
(g)On Father’s Day from 5.00 pm on the Saturday immediately before Father’s Day until before school on the Monday immediately following Father’s Day;
(h)For one half of the NSW school holiday periods at times to be agreed between the parties and failing agreement, for the first half in odd numbered years and the second half in even numbered years. For the purposes of this Order:
(i)The time provided for in Orders (4)(a) and (4)(b) are suspended during the school holiday period;
(ii)To determine when the time provided for in Order (4)(a) shall recommence, the parties shall continue with the alternate weekend rotation that would have taken place but for the school holiday period; and
(iii)The school holiday period shall commence from after school on the last day of the school term and the school holiday period shall conclude 5.00 pm on the day immediately before the first day of school. The halfway point of the school holiday shall be at 5.00 pm on the day that falls halfway through the total number of days in the school holiday period.
(i) At any other times as agreed between the parties.
That the father’s time with the child is suspended, so the child can spend time with the mother, on the following occasions:
(a)From 9.00am Christmas Eve until 2.00 pm Christmas Day in 2019 and in each alternate year thereafter;
(b)From 2.00 pm Christmas Day until 2.00 pm Boxing Day in 2020 and in each alternate year thereafter;
(c)From 5.00 pm on the Saturday immediately before the Mother’s Day until before school on the Monday immediately following Mother’s Day;
(d)In the event the child is in the father’s care on the child’s birthday then the mother shall spend time with the child from 12.00 pm until 4.00 pm if the child’s birthday falls on the weekend; and
(e)On the mother’s birthday from 3.00 pm to 6.00 pm if the mother’s birthday falls on a weekday and from 10.00 am until 5.00 pm if the mother’s birthday falls on a weekend.
For the purposes of these Orders:
(a)Subject to Order (20) below, each parent is at liberty to have a nominee, that is known to the child, facilitate the changeovers and transport, provided that they give not less than two (2) hours’ notice to the other parent of the details of the nominee;
(b)If the father’s time with the child falls on a day that the child attends school, the father or his nominee shall collect and/or return the child to and from his school at the commencement and conclusion of each period; and
(c)If the father’s time with the child falls on a day that is not a school day, including pupil free day or public holidays, then the father’s time with the child shall be extended to 6.00 pm on that day and the father or his nominee shall deliver and/or return the child to the mother or her nominee at the McDonalds in Suburb D.
That the mother and father shall both do all acts and things and sign all documents necessary to ensure that the child has a valid Australian passport. To facilitate this, the mother shall provide to the father a completed passport application form and the father shall sign and complete all information that is appropriate and return the form to the mother within two (2) days of receipt of the form. In the event the father refuses to complete and return the passport application within two (2) days of receiving it then the mother is permitted to apply for a passport for the child without the father’s consent.
That the mother and father are permitted to remove the child from the Commonwealth of Australia provided that:
(a)The travelling parent provide the other parent with 28 days’ notice of their intention to travel with the child;
(b)The travelling parent provide the other parent with a full itinerary of their proposed travel, including details of return flights/tickets, transfer(s), accommodation and contact details for the child not less than 21 days prior to departure;
(c)Within seven (7) days of receiving the information as provided for in Order (8)(b), the non-travelling parent shall provide the travelling parent with written notice of their consent for the child to travel. Such consent cannot be unreasonably withheld; and
(d)The travelling party shall be responsible for the payment of the child’s flights and accommodation during the time they are travelling with them.
The mother shall hold the child’s passport and make it available to the father upon his compliance with Order (8) and the father shall return the child’s passport to the mother within 48 hours of the child returning to the Commonwealth of Australia.
In the event the travelling party has complied with their obligations pursuant to Order (8) and the non-travelling parent does not provide their written consent pursuant to Order (8)(c), which leads to the travelling parent approaching the Family Court of Australia or the Federal Circuit Court of Australia with respect to the child leaving the Commonwealth of Australia and they obtain those Orders, the non-travelling parent shall pay the costs of the travelling parent on an indemnity basis including any counsel’s fees for approaching the Court for such Orders.
That all communications between the mother and father, except in the case of an emergency, shall take place via the ‘Our Family Wizard Co-Parenting App’ (“Family Wizard App”) and for the purposes of this Order the mother and father shall within seven (7) days from the date of these Orders both do all acts and things and sign all documents necessary to cause the Family Wizard App to be downloaded onto their respective mobile phones and for the Family Wizard App to be made available for their use at all times.
That the parties shall keep each other informed of their residential address and home and mobile contact phone numbers and provide the to the other party details of any changes, with at least one (1) months’ notice in advance of any proposed change of those contact details.
That the parties notify each other in the event of any illness or injury occurring to the child whilst in their care and provide full particulars of any medical practitioner, health service provider or institution attended by the child and provide any authority and direction necessary to enable the other party to obtain all necessary information concerning the child.
That both parties be permitted to liaise directly with the child’s school and sporting bodies to obtain any necessary information about the child’s progress and both parties are to forthwith authorise the school and sporting bodies in writing to facilitate this.
That both parties forthwith authorise the principal of any school attended by the child to provide the other parent with copies of the child’s school reports, newsletters, notices as they fall due and to inform the each parent of any school activity which parents are invited to attend.
The mother and father shall both do all acts and things and sign all documents necessary to ensure that both parents are noted as the enrolling parents and emergency contacts at the child’s school and extracurricular activities.
The father be and is hereby restrained from removing the child from his school, except as permitted in accordance with Order (4) of these Orders, without the mother’s knowledge and written consent.
Both parents are restrained from approaching the other parent’s place of residence unless that parent has been invited to attend by the other parent.
Both parents are restrained from passing information or messages through the child to the other parent.
The mother be and is hereby is restrained from nominating or permitting her husband, Mr B, to be present at changeover.
That the father be and is hereby restrained from discussing Mr B, any allegations raised in these proceedings, or these proceeding generally with the child or permitting or authorising any third party from doing so.
That the mother and the father be restrained from the following:
(a)Exposing the child to violence including physical or verbal threats or intimidation, whether such threats or intimidation or violence be directed at the child, the mother, the father or any other member of either party’s household;
(b)Physically disciplining the child;
(c)Denigrating the other parent, their respective partners, family or friends directly or in the presence or hearing of the child and both parents will use their best endeavours to ensure that no one else does so and shall remove the child from an environment where denigration is occurring;
(d)Discussing these proceedings or any issues arising out of these proceedings with the child or permitting any third party to do so.
(e)Making critical or derogatory remarks on social media, such as Facebook or Twitter in relation to the other parent or referring in any way to the proceedings.
(f)Being under the influence of alcohol in the presence of the child or whilst the child is in his or her care and using, ingesting or administering to himself or herself any illicit or non-prescribed drugs (other than over the counter medication); or
(g)Bringing the child into contact with any person under the influence of illicit drugs or alcohol in excess.
That within seven (7) days from the date of these Orders, the mother and father shall both do all acts and things and sign all documents to cause the child to be enrolled to complete the DD program with EE Group. For the purposes of this Order:
(a)Both parents shall ensure the child completes all intake programs;
(b)Both parents shall ensure the child attends all scheduled appointments and sessions when the child is in their respective care; and
(c)Both parents shall follow all recommendations, referrals and directions made by the Anchor program.
The mother and Mr B shall attend upon a marriage counsellor for not less than four (4) occasions every three (3) months, following the date of these Orders, and shall provide to the father evidence of their attendance at such counselling. THE COURT NOTES the undertaking given by Mr B to attend upon such counselling.
In the event that the parents have any future dispute in respect to parenting issues or orders relating to the child, they shall first make all reasonable endeavours to resolve such dispute either by way of negotiation or by attending mediation prior to initiating any Court proceedings.
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 Correia & Davila 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 SYDNEY |
FILE NUMBER: SYC 4374 of 2014
| Ms Correia |
Applicant
And
| Mr Davila |
Respondent
REASONS FOR JUDGMENT
Introduction
These proceedings concern an Application brought by Ms Correia (“the mother”) for final parenting orders concerning the parties’ child, X born in 2013 (“the child” or “X”).
The parties’ first commenced family law proceedings in July 2014. There has been extensive disputation between the parties including periods where each party has retained the child in their care to the exclusion of the other parent. There have been numerous interim hearings concerning parenting arrangements. The current arrangements are in accordance with Orders made on 12 October 2017 whereby the child lives with the mother and spends five (5) nights a fortnight with Mr Davila (“the father”). The orders specify that during those times the child spends with his mother, her current partner, Mr B, is not to be present.
The mother and the Independent Children’s Lawyer seek final orders that the child continue to live with the mother and the child spend time with the father each alternate weekend and one (1) night each alternate week. The mother and the Independent Children’s Lawyer also seek that a fresh recovery order lie at the Registry to ensure the father’s compliance with the orders.
Comparatively, the father contends that the child should now live with him and spend time with the mother on the condition that Mr B is not present due to the risk that the father contends Mr B poses to the child. In that respect, the father alleges there is a risk of psychological harm to the child in being exposed to family violence between the mother and Mr B while the child is in mother’s care.
Both parties and the Independent Children’s Lawyer originally sought an order for equal shared responsibility for the child. Over the course of the hearing that position changed. Such an order, the mother and Independent Children’s Lawyer now contend, is not possible due to the high level of parental conflict between the parties. Each party now seeks an order for sole parental responsibility in their favour.
Background
I will now set out the agreed facts relevant to this matter and, where the parties disagree on certain issues, their respective contentions. I will subsequently set out my findings in respect to contentious factual issues where it has been necessary for such a finding to be made in arriving at my conclusion as to the orders that I consider to be in the best interests of the child.
In 1975, the mother’s current partner Mr B was born. He is currently aged 44 years.
In 1979, the father’s current partner, Ms C, was born. She is currently aged 40 years
In 1979, the father was born. He is currently aged 40 years.
In 1985, the mother was born. She is currently aged 34 years.
In 1999, Mr B was convicted of drug related offences.
In 2006, Mr B was convicted of assault and malicious damage of property. He was also placed on an Apprehended Domestic Violence Order (“ADVO”) against his former wife.
In 2006, the father was diagnosed with bi-polar disorder. The father has asserted that this diagnosis was incorrect. It has not been necessary to determine this issue as neither the mother nor the Independent Children’s Lawyer contend that the father’s parenting capacity has been detrimentally impacted by any such condition.
In 2009, Mr B was convicted of assault and in 2013 he was placed on a further ADVO. His former partner was named as the protected person.
In December 2011, the parties commenced a relationship and in February 2012 they commenced living together.
In February 2013, the father was admitted into E Hospital after overdosing on Valium. The father contends that this was as a result of an error on his part rather than an attempt to self-harm. That account by the father is, however, inconsistent with a statement that he provided to police at the time of the incident. In that statement, he acknowledged that he had intended to take his own life. Nevertheless, for reasons set out above, it has similarly been unnecessary to determine this issue because neither the mother nor the Independent Children’s Lawyer contend that the child is at risk of harm in the father’s care as a result of the possibility of the father self-harming.
In 2013, the parties’ child, X, was born. He is currently aged six years.
On 25 May 2013, the mother asserts, the parties separated on a final basis. The father asserts the parties separated on a final basis in June 2013. The difference in their respective contentions is not relevant to this decision.
In August 2013, the child commenced day care at F Centre in Suburb G.
From separation until January 2014, the father spent time with the child at Ms Ms P Davila’s (“the paternal grandmother”) home.
In February 2014, the father allegedly removed the child from the day care facility without the mother’s consent. Following this incident, the child commenced attending H day care in Suburb J.
On 5 February 2014, the father alleges he was assaulted by Mr B at a changeover in the presence of the child. The police attended this incident but no charges were laid or prosecuted. Subsequently, the mother denied the father time with the child for approximately one (1) year until 8 February 2015.
In July 2014, the father created a public Facebook page called “I miss my X.”
On 16 July 2014, the mother filed an Initiating Application.
On 5 February 2015, interim parenting orders were made by consent by Judge Monahan, which provided for the father to spend time with the child at the K Contact Service at Suburb L each Sunday.
The parenting orders were varied on 26 March 2015 to increase the fathers’ time with the child and to provide for alternate weekend visits to be supervised by the paternal grandparents rather than K Contact Service.
In April 2015, the mother and Mr B both acknowledge an incident of family violence occurred during an argument between the mother and Mr B during which Mr B punched a door either placing a hole in that door or knocking the door of its hinge.
On 6 November 2015, the fathers’ time with the child was increased pursuant to new interim orders of Judge Monahan.
In 2015, the mother and Mr B married.
In 2016, Y, the child of the mother and Mr B, was born.
On 8 May and 24 May 2016, the mother and Mr B acknowledge instances of family violence occurred between the parties. These instances are set out in greater detail below.
In July 2016, the father and Ms C commenced a relationship.
On 10 October 2016, Judge Monahan made final orders by consent which provided for shared parental responsibility, the child to live with the mother and for the child to spend overnight time with the father, gradually increasing as the child becomes older.
In November 2016, the father commenced living with Ms C.
On 22 December 2016, a further incident of family violence occurred between the mother and Mr B which resulted in the mother contacting the police. Shortly after, on 27 December 2016, the mother applied for an ADVO against Mr B and separated from Mr B. The separation occurred in circumstances where, on 29 December 2016, the police attended the mother’s premises at the mother’s request. Upon attending, the police called for Mr B to leave the premises. Further details of these incidents are also provided below.
On 18 January 2017, the father sent an email to the mother seeking further information after he had been advised by the child that the police had attended the mother’s residence. The mother replied to the email advising that the child had seen representatives of the fire brigade rather than police officers attend her home. It is acknowledged that this information was incorrect.
On 21 January 2017, the mother received an email from the father which said, as set out in paragraph 116 of the mother’s Affidavit:
Today I attended Suburb M police who have confirmed that Mr B was arrested and charged for a domestic violence incident a fortnight ago, and that X is listed on the ADVO protection order scheduled for hearing on 25 January 2017. I have a right to know as a parent of X and "You have unfortunately left me and our son no choice but to have him reside with me and be in my care until this matter is settled and we both are convinced that X has a safe environment to return to. …
On 21 January 2017, the mother replied to that email from the father saying, as set out in paragraph 117 of the mother’s Affidavit:
Look I have had to make some major changes in my life of recent. You have all of the information so I won't bother giving you any further details. If you feel X is unsafe with me and want to be reassured then ok. To be honest the way family law works I don't have the finances to commence court proceedings. So I can't fight you to return X to me. I will await patiently and will require you to let me know how he's doing. But I know that he will be in good hands. Tell him his mummy loves him and hope to hear from you soon.
On 22 January 2017, the mother received a further email from the father which stated, as set out in paragraph 119 of the mother’s Affidavit:
X is great and really happy. He understands what's happening and knows he will be living with me. Are you sure you don't want to Skype him? If not I understand and will be as informative about his day to day activities as you require. X is living with me and Ms C. Ms C is a 37 year old professional that works full time and has developed such an amazing bond with X over the last 3 months. We both hope you and Y are safe and are here to help if you need.
The mother stated that, as result of the child not being returned to her care, she instructed her solicitors, on 24 January 2017, to correspond with the father’s solicitors. In that letter it was stated, as set out in paragraph 120 of the mother’s Affidavit:
…your client is on notice that should he failed to do all things necessary to return X into our client’s care by 6:30 PM this afternoon a Recovery Order will be applied for along with an order for costs on an indemnity basis. Our client expects to meet your client today at 6:30 PM at Suburb M station.
The solicitors for the father replied to that letter by way of email in which it was said, as set out in paragraph 121 of the mother’s Affidavit:
Under these circumstances my client will continue to care for X and make him available at any reasonable time for your client to see and spend time with him. Your client is also welcome to have telephone and skype calls with X regularly. X has been through a traumatic experience and is settled and relatively happy again. Should your client continue with the approach as outlined in your letter then my client agrees that the matter should be listed with the court. It should also be noted that Mr B has a violent history of intimidation and stalking. He now has a child with your client and his ongoing interest in your client is not going to end.
On 12 October 2017, Judge Henderson, as she then was, made the current interim parenting orders for the child to live with the mother and spend time with the father each alternative weekend from 3.00 pm on Friday until 9.00 am on Monday and from 3.00 pm each Wednesday until 9.00 am on Thursday. There is, at the same time, an injunction preventing the wife’s current partner, Mr B, from having contact with the child.
In 2018, the child commenced attending kindergarten at Suburb N Public School.
In 2018, Z, the child of the father and Ms C, was born.
In 2018, W, the child of the mother and Mr B, was born.
Applications
Orders sought by the mother
The mother sought that orders be made in accordance with the Minute of Order (marked ‘Exhibit D’ in the proceedings) and the supplementary orders (marked ‘Exhibit H’) in the proceedings), as follows:
Discharge of Orders
1.All previous parenting Orders are discharged.
Parental Responsibility
2.That the mother shall have sole parental responsibility for X born … 2013 (child)
Parenting arrangements
3.The child shall live with the mother at all times as otherwise provided for in these Orders.
4.The child live with the father as follows:
4.1From after school Friday to before school Monday with such time to commence on the weekend that the child would have been in the father’s care in accordance with the Orders 12 October 2017 and continue in each alternate week thereafter.
4.2From after school Wednesday until before school Thursday with such time to commence on the Wednesday that the child would have been in the father’s care in accordance with the Orders made on 12 October 2017 and continue in ach alternate week thereafter.
4.3From 2pm Christmas Day until 2pm Boxing Day in 2019 and in each alternate year thereafter.
4.4From 9.00am Christmas Eve until 2pm Christmas Day in 2020 and in each alternate year thereafter.
4.5On the child’s birthday at times to be agreed between the parties and failing agreement from 3pm to 6pm if the child’s birthday falls on a weekday and from 12.00pm until 4.00pm if the child’s birthday falls on a weekend.
4.6On the father’s birthday at times to be agreed between the parties and failing agreement from 3.00pm to 6.00pm if the father’s birthday falls on a weekday and from 10.00am until 5.00pm if the father’s birthday falls on a weekend.
4.7On Father’s Day from 5.00pm on the Saturday immediately before Father’s Day until before school on the Monday immediately following Father’s Day.
4.8For one half of the school holiday periods at times to be agreed between the parties and failing agreement for the first half in odd numbered years and the second half in even numbered years ending in zero. For the purposes of this Order:
4.8.1The time provided for in Orders 4.1 and 4.2 is suspended during the school holiday period
4.8.2To determine when the time provided for in Order 4.1 shall recommence the parties shall continue with the alternate weekend rotation that would have taken place but for the school holiday period
4.8.3The school holiday period shall commence from after school on the last day of school and the school holiday period shall conclude 5pm on the day immediately before the first day of school. The halfway point of the school holiday shall be at 5pm on the day that falls halfway through the total number of days in the school holiday period.
4.9At any other times as agreed between the parties.
Suspension of time
5.That the father’s time with the child is suspending so the child can spend time with the mother on the following occasions:
5.1From 9.00am Christmas Eve until 2pm Christmas Day in 2019 and in each alternate year thereafter;
5.2From 2pm Christmas Day until 2pm Boxing Day in 2020 and in each alternate year thereafter;
5.3From 5.00pm on the Saturday immediately before the Mother’s Day until before school on the Monday immediately following Mother’s Day;
5.4In the event the child is in the father’s care on the child’s birthday then the mother shall spend time with the child from 12.00pm until 4.00pm if the child’s birthday falls on the weekend;
5.5On the mother’s birthday from 3.00pm to 6.00pm if the mother’s birthday falls on a weekday and from 10.00am until 5.00pm if the mother’s birthday falls on a weekend.
6.In the event either parent cannot find a suitable alternate carer during their time with the child they are to contact the other parent who may assist with the care of the child during the time or provide alternate care arrangements that can be arranged.
7.In the event the mother or father would like the child to attend a party and/or a special occasion which is scheduled to take place during the time the child is in the care of the other parent then the person who received the invitation shall provide the other parent with the details of the party and/or special occasion so the other parent can decide if they are happy for the child to attend the party and/or a special occasion.
Changeovers
8.For the purposes of these Orders:
8.1If the father’s time with the child falls on a day that the child attends school the father or his nominee shall collect and/or return the child to and from his school at the commencement and conclusion of each period.
8.2If the father’s time with the child falls on a day that is not a school day, including pupil free day or public holidays, then the father’s time with the child shall be extended to 6pm on that day and the father or his nominee shall deliver and/or return the child to the mother or her nominee at McDonalds at Suburb D.
Travel
9.That the mother and father shall both do all acts and things and sign all documents necessary to ensure that the child has a valid Australian passport. To facilitate this the mother shall provide to the father a completed passport application form and the father shall sign and complete all information that is appropriate and return the form to the mother within 2 days of receipt of the same. In the event the father refuses to complete and return the passport application within 2 days of receiving it then the mother is permitted to apply for a passport for the child without the father’s consent.
10.That the mother and father are permitted to remove the child from the Commonwealth of Australia provided that:
10.1The travelling parent provide the other parent with 28 days’ notice of their intention travel with the child; and
10.2The travelling parent provide the other parent with a full itinerary of their proposed travel including details of return flights/tickets, transfer, accommodation and contact details for the child not less than 21 days prior to departure; and
10.3Within 3 days of receiving the information as provided for in Order 10.2 the non-travelling parent shall provide the travelling parent with written notice of their consent for the child to travel. Such consent cannot be unreasonably withheld; and
10.4The travelling party shall be responsible for the payment of the child’s flights and accommodation during the time they are travelling with them.
11.The mother shall hold the child’s passport and make it available to the father upon his compliance with Order 10 and the father shall return the child’s passport to the mother within 48 hours of the child returning to the Commonwealth of Australia.
12.In the event the travelling party has complied with their obligations pursuant to Order 10 and the non-travelling parent does not provide their written consent pursuant to Order 10.3 which leads to the travelling parent approaching the Family Court of Australia or the Federal Circuit Court of Australia with respect to the child leaving the Commonwealth of Australia and they obtain those Orders the non-travelling parent shall pay the costs of the travelling parent on an indemnity basis including any counsel’s fees for approaching the Court for such Orders.
Communication
13.
That both parties are to communicate via email in relation to issues concerning the child, unless it is an emergency.14.That the parties shall keep each other informed of their residential addresses and home and mobile contact phone numbers and provide the other party with at least one (1) months’ notice in advance of any proposed change of those contact details.
Notifications
15.That the parties notify each other in the event of any illness or injury occurring to the child whilst in their care and provide full particulars of any medical practitioner, health service provider or institution attended by the child and provide any authority and direction necessary to enable the other party to obtain all necessary information concerning the child.
16.That both parties be permitted to liaise directly with the child’s school and sporting bodies to obtain any necessary information about the child’s progress and the both parties are to forthwith authorise the school and sporting bodies in writing to facilitate this.
17.That both parties forthwith authorise the Principal of any school attended by the child to provide the other parent with copies of the child’s school reports, newsletters, notices as they fall due and inform the both parents of any school activities which parents are invited to attend.
18.The mother and father shall both do all acts and things and sign all documents necessary to ensure that both parents are noted as the enrolling parents and emergency contacts at the child’s school and extracurricular activities.
Restraints
19.The father is restrained from removing the child from his school without the mother’s knowledge and written consent.
20.Both parents are restrained from approaching the other parent’s place of residence unless that parent has been invited to attend by the other parent.
21.Both parents are restrained from denigrating the other parent, their respective partners, family or friends directly or in the presence or hearing of the child and both parents will use their best endeavours to ensure that no one else does so and shall remove the child from may environment where denigration is occurring.
22.Both parents are restrained from passing information or messages through the child to the other parent.
Recovery Order
23.To ensure the father’s compliance with these Orders a fresh recovery order is to lie in the Registry.
24.In the event the father fails to return the child to the mother in accordance with these Orders, or in accordance with an agreement reached between the parties, his time with the child shall be suspended until further determination and Order of this Court.
25.Leave be granted to the mother’s legal representatives to re-list the matter on 24 hours’ notice.
Mothers Supplementary orders
1. That all communications between the mother and father, except in the case of an emergency, shall take place via the “Our Family Wizard Co-Parenting App” (App) and for the purposes of this Order the mother and father shall within 7 days from the date of these Orders both do all acts and things and sign all documents necessary to cause the App to be downloaded onto their respective mobile phones and for the App to be made available for their use at all times.
2. That within 7 days from the date of these Orders the mother and father shall both do all acts and things and sign all documents to cause the child to be enrolled to complete the Anchor program with Uniting for the purposes of this Order:
2.1 Both parents shall ensure the child completes all intake programs;
2.2 Both parents shall ensure the child attends all scheduled appointments and sessions when the child is in their respective care; and
2.3 Both parents shall follow all recommendations, referrals and directions made by Anchor.
3. The mother and Mr B shall attend upon a marriage counsellor for not less than 4 occasions every three months following the date of these Orders and shall provide to the father evidence of their attendance at such counselling. The Court notes the undertaking given by Mr B to attend upon such counselling.
At the hearing, counsel for the mother indicated that the mother was not pressing for orders 6 and 7, as set out above.
The mother consented to the orders 6.1, 6.2, 6.4, 6.5, and 7 as sought by the Independent Children’s Lawyer.
Orders sought by the Independent Children’s Lawyer
The Independent Children’s Lawyer sought orders be made in accordance with the Minute of Order, as set out in their case outline document, as follows:
1.That all previous parenting orders in respect to the child X born … 2013 be discharged.
2.That the parties have equal shared parental responsibility in respect to child X born … 2013
3.That the child live with the mother.
4.That the father spend time with the child as follows:-
4.1During school terms as follows:
4.1.1Each alternate weekend from the conclusion of school on Friday until the commencement of school on Monday with the father to collect the child from school at the commencement of time and deliver the child to school at the conclusion of his time;
4.1.2Each week from the conclusion of school on Wednesday until the commencement of school on Thursday with the father to collect the child from school at the commencement of time and deliver the child to school at the conclusion of his time; and
4.1.3At such other times and dates and for such other periods as agreed by the parties in writing.
4.2During school holiday periods as follows:-
4.2.1For half of each NSW school holiday period as agreed to by the parties and in the absence of such agreement the first half in odd years and the second half in even years; and
4.2.2All changeovers to take place at a public venue as agreed to by the parties and in the absence of such agreement at Coles, Suburb U or at such other venue as agreed to by the parties in writing.
4.3On the following special occasions:
4.3.1In the event that father's Day falls on a weekend when the child would not spend time with the father pursuant to these orders the child is to spend from 9am to 5pm on Father's Day with the father.
4.3.2In the event that Mother's Day falls on a weekend when the child would otherwise spend time with the father pursuant to these orders the child's time with the father is to be suspended between 9.00am and 5.00pm on Mother's Day.
4.3.3On the child's birthday by agreement between the parties in writing.
4.3.4At Christmas by agreement between the parties in writing and in the absence of such agreement the parent with whom the child is not spending time with or living with pursuant to these orders shall spend time with the child at Christmas from 4pm on Christmas Day until 4pm on Boxing Day.
5.That all changeovers in respect to special occasions referred to in Order 4.3 shall be in accordance with Order 4.2.2 herein.
6.That the mother and the father be restrained from the following:
6.1 Exposing the child to violence including physical or verbal threats or intimidation, whether such threats or intimidation or violence be directed at the child, the Mother, the father or any other member of either party’s household;
6.2 Physically disciplining the child;
6.3 Denigrating the other or members of the other party’s family in the presence or hearing of the child and each party shall do all acts and things reasonably necessary to prevent any other person from doing so.
6.4 Discussing these proceedings or any issues arising out of these proceedings with the child or permitting any third party to do so.
6.5 Making critical or derogatory remarks on social media, such as Facebook or Twitter in relation to the other parent or referring in any way to the proceedings.
6.6 Being under the influence of alcohol in the presence of the child or whilst the child is in his or her care and;
6.7 Using, ingesting or administering to himself or herself any illicit or non-prescribed drugs ( other than over the counter medication); or
6.8 Bringing the child into contact with any person under the influence of illicit drugs or alcohol in excess.
7.That the father be, and is further hereby restrained from discussing Mr B, any allegations raised in these proceedings or these proceeding generally with X or permitting or authorising any third party from doing so.
8.That the mother and Mr B shall continue to attend family therapy/ counselling until such time that their therapist/counsellor deems such further therapy/counselling to be no longer required.
9.That the mother and the father keep each other advised in a timely manner in respect to all significant decisions in respect to X's life and in particular relating to his health and medical needs and his schooling and attendance at day care.
10.In the event that the child shall suffer any injury, be hospitalised or suffer any significant illness the parent in whose care the child is in at the time shall notify the other parent immediately except in the case of an emergency where they shall do so as soon as is reasonably possible.
11.That the parties keep each other advised as to their respective residential addresses and contact details.
12.In the event that the parents have any future dispute in respect to parenting issues or orders relating to X they shall first make all reasonable endeavours to resolve such dispute either by way of negotiation or by attending mediation prior to initiating any court proceedings.
13.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 the 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.
During the course of the hearing, the Independent Children’s Lawyer indicated support for orders to be made in accordance with those sought by the mother, in addition to orders 6, 7 and 8, as set out above.
Orders sought by the father
The father sought that orders be made in accordance with the Minute of Order attached to his case outline document as amended at the hearing, as follows:
Parental responsibility
1.That the father have sole parental responsibility for the child, X, born … 2013.
That the parents have equal shared parental responsibility for their child, X, born … 2013, and consult with one another about major decisions, including but not limited the child’s:1.1Residence1.2significant medical treatment1.3School and out of school activitiesLiving arrangements
2.That the child shall live with the father, stepmother (Ms C) and sister Z at all times except as otherwise provided for in these Orders.
3.That the child live with the mother as follows:
3.1From 26th July 2019
3.1.1Every Wednesday from end of school overnight, to start of school on the following day on Thursday
3.1.2Each alternate weekend from end of School Friday overnight, to the commencement of school on Monday
4.From the commencement of the 2020 school year, for one half of each school holiday period. For the purpose of this order:
4.1The child spend the first half of each school holiday period in the care of his mother commencing on last day of each term, and occur on school grounds at the mothers earliest convenience following the end of class
4.2the time provided for in Orders 3.1.1 and 3.1.2 is suspended during the school holiday period
4.3Handover of the child between parents to be discussed between the parties, and each parent to deliver the child to the residence of the parent receiving the child for that scheduled period of contact
New Primary school
5.That the child is enrolled into a new school by the father for the commencement of year 3 in 2020
5.1The school to be nominated by the father
5.2School fees to be covered by the father
Holidays and special days
6.That notwithstanding any order to the contrary, the child spend the following special occasions in the care of each parent:
6.1With the Father from 12pm Christmas Eve to 9am Christmas Day each year as of Christmas 2019
6.1.1The father or stepmother to hand over the child on Christmas Day each year to the mother at her residence
6.2On the child's birthday at times to be agreed between the parties and failing agreement the child to spend time with the mother on the child’s birthday from 6pm and overnight until next day
6.2.1Change over to occur at the residence of the parent receiving the child into their care, and child to be delivered to school following day if school is an option or returned to the father at his place of residence at a time agreed by the parties
6.3On Father's Day all day over night with the father from 8am until 5pm
6.3.1Change over to occur at the residence of the father, and child to be delivered to school following day if school is an option, or returned to the father at his place of residence at a time agreed by the parties
6.4On Mother’s Day all day over night with the mother from 8am until 5pm
6.4.1Change over to occur at the residence of the mother, and child to be delivered to school following day if school is an option, or returned to the father at his place of residence at a time agreed by the parties
Contact between the child and Mr B
6.5That the stepfather (Mr B) be subject of an injunction that prohibits him from being within direct contact with the child
6.6That the stepfather (Mr B) be subject of an injunction that prohibits him from residing in the family home whilst the child resides with the mother
Changeovers and transportation
7.That for the purpose of changeovers and transportation, unless otherwise agreed or provided for in these orders:
7.1Changeover wherever possible will occur at the residence of the parent receiving the child into their care
7.2That the Mother be, and hereby is, restrained from nominating or permitting her husband, Mr B to be present at changeover; and
7.3Subject to the above order, each parent is at liberty to have a nominee which is known to the child to facilitate the changeovers and transport, provided that they give not less than 2 hours’ notice to the other parent of the details of the nominee.
Telephone communication
8.That both parents be at liberty to communicate with the child by telephone at all reasonable times, with the parent with whom the child is living to encourage the child to answer the phone call. It is noted that the duration of the telephone call will depend on the child’s ability and willingness to participate in the conversation.
Communication
9.That both parties are to communicate via email or by phone in relation to issues concerning the child
9.1Any information about the child’s health, including any prescription or non-prescription medication that had been, or is to be, administered to the child;
9.2Any relevant information about the child’s education and progress; and
9.3Any other relevant matter.
10.That the parties shall keep each other informed of their residential addresses and home and mobile contact phone numbers and provide the other party with at least one (1) month’s notice in advance of any proposed change of those contact details. That both parents use their best endeavours to foster the child's relationship with the other parent.
Notifications
11.That the parties notify each other in the event of any illness or injury occurring to the child whilst in their care and provide full particulars of any medical practitioner, health service provider or institution attended by the child and provide any authority and direction necessary to enable to other party to obtain all necessary information concerning the child and this order can be regarded as authority for the relevant doctor or hospital to provide relevant information about the child to the other parent.
12.Each parent must advise the other of any medication the child is to take whilst a child is in the other’s care including the dosage.
13.That both parties be permitted to liaise directly with the child's school and sporting bodies to obtain any necessary information about the child's progress and both parties are to forthwith authorise the school and sporting bodies in writing to facilitate this.
14.That both parties forthwith authorise the Principal of any school attended by the child to provide the other parent with copies of the child's school reports, newsletters, notices as they fall due and inform the both parents of any school activities which parents are invited to attend.
15.The mother and father shall both do all act and things and sign all documents necessary to ensure that both parents are noted as the enrolling parents and emergency contacts at the child's school and extracurricular activities.
Restraints
16.The father is restrained from consuming alcohol during his time with the child.
17.That without admissions both parents be, and hereby are, restrained from taking any illegal substances prior to, or whilst the child is in their care and are to do all acts and things necessary to ensure that the child is removed from the presence of any other person who has consumed illegal substances.
18.Both parents are restrained from approaching the other parent's place of residence unless for the purpose of the exchange of the child
19.Both parents are restrained from denigrating the other parent, their respective partners, family or friends directly or in the presence or hearing of the child and both parents will use their best endeavours to ensure that no one else does so and shall remove the child from any environment where denigration is occurring.
20.That both parties be restrained from making any disclosure on any form of social media about these proceedings, their outcome or any issue raised in these proceedings.
21.Both parents are restrained from passing information or messages through the child to the other parent.
22.That both parties to ensure that the child has his own bed at their home.
23.That the parents refer only to the biological father of the child as ‘Dad’ or ‘Daddy’ and the biological mother of the child as ‘Mum’ or ‘Mummy’ and encourage the child to do so.
24.That the stepfather (Mr B) be restrained from coming into physical contact with the child
Overseas travel
25.That the child’s passport be kept with the Federal Circuit Court and only made available to the traveling parent when:
25.1The travelling parent provides to the other parent with a minimum of 42 days written notice of their intention to remove the child from the Commonwealth of Australia, such notice to include details of any flights, itinerary destination and the means by which the child can be contacted whilst he is overseas.
25.2The parent not travelling approves of the travel details in writing
25.3The travelling parent leaves a security bond no less than a sum of $20,000 to the parent not travelling with the child
25.4That such passport is to be released to the travelling parent no more than 14 days prior to the date of travel and to be returned no later than 14 days following return to the jurisdiction and thereafter provide the other parent with written confirmation evidencing the lodgement of the passport.
Evidence
The mother relied upon the following documents:
a)Notice disputing facts filed 7 December 2018;
b)Affidavit of Ms Correia filed 24 June 2019; and
c)Affidavit of Mr B filed 24 June 2019.
The father relied upon the following documents:
a)Notice to admit facts filed 13 November 2018
b)Affidavit of Mr Davila filed 26 June 2019;
c)Affidavit of Ms C filed 29 June 2019; and
d)Affidavit of Ms P Davila filed 30 June 2019.
The Independent Children’s Lawyer relied upon the following documents:
a)Family report of Ms Q dated 4 September 2015; and
b)Family report of Ms Q dated 23 April 2018.
The following exhibits were relied upon:
a)Annexures to the mothers Affidavit marked Ms Correia-1 (‘Exhibit A’);
b)Annexures to Affidavit of Mr B marked Mr B-1 (‘Exhibit B’);
c)Pages 44 and 45 of the documents produced on subpoena by U Group (‘Exhibit C’);
d)Minute of Order sought by the mother ( ‘Exhibit D’);
e)“I miss my X” Facebook material (‘Exhibit E’);
f)CD containing two (2) videos filmed by father of child (‘Exhibit F’);
g)Tabbed pages of documents produced on subpoena by NSW Police (‘Exhibit G’);
h)Supplementary orders sought by mother and undertaking of Mr B (‘Exhibit H’); and
i)Communications between the parties regarding the child’s passport (‘Exhibit I’).
The parties contentions
The father
The father contends that, after the parties brief relationship ended, they had an amicable separation and they “began communicating and co-parenting extremely well.” The father says that between June 2013 and December 2013 he saw X for overnight visits “multiple times per week.” He states that, in January 2014 the parties “began negotiating more concrete times and dates” for the child to be in his care.
The father contends that after the mother commenced her relationship with Mr B, the parties relationship deteriorated and electronic messages became short and “less friendly in general.”
The father contends that, “after no formal warning or incident report,” on 19 January 2014, the mother refused to permit the child to spend overnight time with the father unless it was supervised.
The father states that, on 5 February 2014, he and Mr B engaged in an unpleasant verbal exchange outside the mother’s home during which he contends Mr B threatened both himself and Mr R Davila (“the paternal grandfather”), who was also in the car with the child. Specifically, the father contends that Mr B said words to the effect of “you're fucking gone cunt” as he made gestures of slitting [the father’s] throat.” The father contends that at one stage Mr B began “kicking the back of [the father’s] car causing a dent.”
The father acknowledges the background to the incident was his action in collecting the child from day care in order to take the child to visit the paternal grandparents in Suburb U. The father contends, however, that he emailed the mother earlier in the day to advise her of his intended action.
It is not disputed that the mother withheld the child from seeing the father for a period of approximately 12 months after the incident. The actual dates were between 5 February 2014 and 8 February 2015. The father describes that the attempts he made to make contact with the child, during that period, were thwarted including by the mother calling the police on one occasion when the father attempted to contact the child at his day care and on another occasion when the father attempted to visit the child at the mother’s home.
In mid-2014, the father established a public Facebook page titled “I miss my X.” The father now acknowledges that some of the material posted on that website was inappropriate. I will subsequently further describe some of that material in these reasons.
The father contends that, on 10 October 2016, he consented to final parenting orders in circumstances where the mother had withheld details of family violence perpetrated upon her by Mr B. He contends that it is likely that the child and his half-sister Y would have witnessed the violence. The mother acknowledges that, at the time, she did not disclose to the father that she had been the subject of family violence involving Mr B. She acknowledges the possibility that the children witnessed acts of violence perpetrated by Mr B.
The father contends that he would not have agreed to the orders made by consent on 10 October 2016 if he had been aware of the occurrence of family violence between Mr B and the mother.
The father contends that, on 18 January 2017, he was advised by the child that Mr B had been arrested by police. It is not disputed that, in response to a complaint by the mother, Mr B was removed from the family home by police on 29 December 2016 and the mother was subsequently granted an ADVO against Mr B.
The father notes that, in response to his request for information concerning the events that occurred on or about 28 December 2016, the mother responded to his email of 18 January 2018 advising the father that the uniformed officers observed by the child were in fact firemen and not police officers.
The father states that, as result of doubts he had in respect to the veracity of the mother’s account, he made enquiries at Suburb M Police Station and was advised that the mother had taken out an ADVO for the protection of herself in response to events that occurred on 28 December 2016.
The father states that as result of concerns he had for the safety of the child in the mothers care or Mr B’s care he “decided to keep X in [his] care.”
The father subsequently enrolled the child in a new day care facility in Surry Hills. The father contends that he offered supervised visits to the mother but she declined his offer.
The father acknowledges the orders of the Court, as referred to in the background of this matter, including the order made by Judge Henderson, as she then was, on 12 October 2017 for Mr B not to have any contact with the child. However, the father believes the child continues to have contact with Mr B. In that respect, the father states at paragraph 60 of his Affidavit:
I have no evidence to support my statement, but I do however have a 6-year-old boy telling me that he does in fact have contact with Mr B. I don't know my son to be a liar, therefore to the best of my knowledge Ms Correia is ignoring the current court orders.
The father states that he is of that opinion because of the fact that the child has advised him that he plays with Mr B and is “pinched hard” by Mr B when the child is naughty. The father further contends that the advice he has received from the child is consistent with Mr B living with the mother in circumstances where the mother and Mr B have had their own child, Y, to whom I have earlier referred and, subsequent to the events of December 2016, have had a further child W born in 2018.
The father contends that his motivation in seeking orders for the child to live with him and spend time with the mother is as result of concerns he has for the child’s safety. In that respect the father contends at paragraph 64 through to 67 of his Affidavit, as follows:
64. That Mr B will continue to be violent when he faces adversity.
65. More exposure to physical and family violence by Mr B will cause irreversible Psychological damage to X, his siblings and his mother Ms Correia.
66. I'm also concerned that Ms Correia's on going resolve to conceal the truth from me will further push this matter overboard, and create further court appearances which waste the courts valuable time and resources.
67. I remain concerned that Ms Correia's inability to make solid and good decisions for herself will impact X's life beyond repair and place him in danger.
The mother
The mother contends that she was the subject of family violence, during the period that she was in a relationship with the father, in the form of being subject to insulting language. She states that this occurred on occasions when the father would come home after having consumed an excessive amount of alcohol. The mother also contends that the father experienced a period where he suffered from substance abuse disorder. The mother does not, however, contend that the child is at risk of physical harm in the care of the father. Her references to the father suffering periods of substance abuse were provided in the context of background to her decision to retain the child in her care, in the period from 5 February 2014 until 8 February 2015, during which time she failed to facilitate the child spending any time with the father.
Similarly, the mother contends that the father has a history of depression. The mother also contends that on one occasion she took the father to the E Hospital Emergency Department as result of the father taking an excessive number of Valium tablets. As noted, the father acknowledges taking an excessive number of Valium tablets but states that he did so in error and not as result of an attempt to self-harm. The father also acknowledges that he is currently taking anti-depressant medication and contends that it does not impact upon his parenting capacity. The mother agrees that the father’s parenting capacity is not impeded by a mental health condition and, again, the reference to the father experiencing, what she contends is a period of poor mental health, appears to be more related to the mothers decision to prevent the child spending time with the father in the period from 5 February 2014 until 8 February 2015.
The mother disputes the father’s assertion that the parties ability to participate in co-parenting arrangements deteriorated after the commencement of the mothers relationship with Mr B. Comparatively, she contends that the parties’ relationship deteriorated after she sent a text message to the father, on 19 January 2014, advising that she wanted to implement a formal parenting plan. The mother contends the relationship further deteriorated after the father started visiting the child at day care without consulting her.
The mother’s version of events that occurred on 5 February 2014 is at odds with that contended by the father. The mother asserts that she first became aware that the father intended on collecting the child when, on that day, she received a phone call from an employee of the child’s day care advising that the father attended to collect the child and, in circumstances where he was recorded as a guardian of the child, they were compelled to let the child go with the father.
The mother states that, in response to the father’s actions, she notified the police to undertake a welfare check on the child when, later that afternoon, the child had been taken to his paternal grandparents. The mother contends that the police reassured her saying “X is fine. Mr Davila will bring X home to you tonight.”
The mother contends that after the father delivered the child to the mother at approximately 6pm that night, she and Mr B left the house with X “to go to another day care centre close to make enquiries about enrolling [the child] at the new centre.” The mother contends that when driving away from the house they noticed a car following them which the husband acknowledged was his motor vehicle. The mother contends that she called the police as result of the father driving his car towards Mr B and placing his motor vehicle in a position that blocked the progress of their vehicle. The mother, like the father, acknowledges that the police attended the scene, at her request, however, no police action was taken as result of the different accounts provided to the police by the parties.
The mother contends that the father’s actions on 5 February 2014 motivated the mother to enrol the child at another day care centre in Suburb J.
The mother acknowledges withholding the child from the father in the period subsequent to 5 February 2014, however, contends that this was a result of the father not agreeing to a parenting plan which she asserts caused her to be fearful that the father “could take X and not return him.”
The mother further acknowledges that on 18 September 2014 orders were made by Judge Monahan which included the parties being assessed by an independent psychiatrist, the father complying with a program in respect to alcohol use and for the child to spend time with the father at K Contact Service at Suburb L on 4 October 2014 at 10.30am and four fortnightly visits to continue thereafter until the matter was next before the Court in December 2014.
The mother admits not taking the child to see the father at K Contact Service in Suburb L on 4 October 2014 in accordance with the orders made on 18 September 2014. She states that she did not do so because she felt that “the orders did not address [her concerns] in relation to [the husband’s] mental health problems and alcohol and substance addiction.” During the course of these proceedings, the mother acknowledged that she acted inappropriately in failing to comply with her obligations pursuant to the 18 September 2014 orders.
The mother further contends that her actions in withholding the child from the father during the course of 2014 and early 2015 was a result of the father sending unpleasant emails to her and her legal advisers and also posting inappropriate material on his public Facebook page, to which I have earlier referred. The mother acknowledges that the first time the father saw the child in the period subsequent to 5 February 2014 was after orders were made on 5 February 2015 for the child to spend time with the father every Sunday commencing 8 February 2015 at times nominated by K Contact Service Suburb L.
From 18 March 2016, the child commenced spending overnight time with the father. During the course of the proceedings, the mother agreed that her actions in withholding the child from the father in the period from 5 February 2014 until 8 February 2015 were inappropriate.
The mother acknowledges that she started living with Mr B in December 2014 and that she and Mr B were married in late 2015. She states that she and Mr B separated on 27 December 2016 but have since reconciled.
In her Affidavit, the mother sets out details of incidents involving acts of family violence perpetrated by Mr B on 8 May 2016, 24 May 2016, 13 October 2016, 28 December 2016 and 29 December 2016. These incidents will be described in greater detail below.
The mother acknowledges that, on either 28 or 29 December 2016, Mr B was removed from her house at the request of police but states that Mr B “did not get angry or react in any way.” The mother states that Mr B requested the police to permit him to “get some clothes for work.” The mother further contends that both X and Y were asleep at the time that the police attended her home.
The mother acknowledges that on 30 December 2016 an interim ADVO was made for her protection against Mr B.
The mother also acknowledges that she was not “honest” with the father in advising him, on 18 January 2017, that the police that X had seen were fireman. She explains her conduct in doing so was the result of her concern “about what Mr Davila would do” if she confirmed that the police did in fact attend her residence as result of the conduct of Mr B.
The mother’s Affidavit attaches, by way of annexure, copies of email, (marked ‘Exhibit A’ in the proceedings), communications that occurred in late January 2017, between herself and the father as well the parties’ respective legal advisers. Relevant extracts of those emails have been set out in the background section of this decision.
Most relevantly, it is acknowledged that in the period subsequent to 21 January 2017, the mother did not see the child until 10 March 2017 although she spoke to him every Monday, Wednesday and Friday.
The mother notes that on 8 March 2017 orders were made by Judge Henderson, as she then was, for the child to spend time with each parent on a shared care arrangement commencing 10 March 2017. The mother acknowledges that the child spent time with each parent in a shared care arrangement in accordance with those orders in the period from 10 March 2017 until 26 April 2017, however, in her Affidavit she refers to what she contends to be difficulties that occurred at changeover in respect to that period.
The mother states that, in March 2017, she agreed to an amendment to the ADVO that she had obtained for her protection against Mr B to enable him to see Y who, as noted, is the daughter of Mr B and the mother. The mother states that the father was advised of the variation to the ADVO.
The mother contends that, on 1 May 2017, she received an email from the father advising her that the father had become aware about contact between Mr B and the child and that, as a result, the child would remain in his care and in the care of his new partner, Ms C, “until we get further directions from the court.” The text of that email is set out in the background section of this decision.
The mothers Affidavit sets out the history of disputation between the parties in respect to the child spending time with the mother in the period from 1 May 2017 until October 2017. It is agreed, however, that in the period subsequent to October 2017, the child has been living with the mother and spending time with the father in accordance with the orders made on 12 October 2017.
Contrary to the assertion of the father, the mother states that Mr B has not spent time with her when the child is in her care and consequently, the child has not spent time with Mr B. The mother contends, however, as result of individual therapy that Mr B has received and also as result of joint family therapy that she has received with Mr B, that he has addressed issues of his past inappropriate conduct including his inability to control his temper. The mother contends that Mr B has now addressed the issues that gave rise to the acts of family violence referred to in her Affidavit.
Moreover, the mother contends that as result of therapy that she has received, she is now more resilient and would not tolerate Mr B engaging in that form of conduct. She states that if such conduct were to re-occur she would have no hesitation in terminating her relationship with Mr B.
Accordingly, the mother contends that the child is not at an unacceptable risk of either physical harm or psychological harm in her care including in circumstances where she and the child and the two children of her relationship with Mr B would reside in the same premises.
Credit
In Kuhl v Zurich Financial Services Australia Ltd (2011) 243 CLR 361, the High Court, at paragraph 62, said:
Witnesses are supposed to answer questions put by counsel responsively: they are supposed to give a full answer, but no more. It is one thing to say that a witness was not asked the right questions. It is another thing to say that a witness did not answer the questions that were asked. And it is an even more serious thing to say that a witness was “reluctant” to answer. The duty of a witness is to tell the truth, the whole truth, and nothing but the truth so far as the questions asked seek it. The duty of a witness to answer questions responsively involves not only a negative duty (not to volunteer material for which the question does not call), but also a positive duty (to proffer all material within the witness’s knowledge for which the question does call).
The father was evasive in providing answers to a number of straightforward questions. This is demonstrated, most relevantly, in relation to questions relating to his ability to provide greater financial support to the child. In that respect, at paragraphs 11 and 12 of his Affidavit, the father states that he and his new partner, Ms C, have their own business which is located in Suburb U. At paragraph 12 of his Affidavit, the father states that he and Ms C are “opening our second business in Suburb S NSW in August of this year and third business early next year in Suburb T NSW.”
The husband was asked a number of questions relating to that business by counsel for the mother who was cross examining the father in respect to circumstances where the father was $400 in arrears in his child support payment which was payable at the rate of $25 per week. The father initially stated that he had no comment in respect to questions as to who owned the business. When pressed by counsel for the mother, the husband stated “I don’t know who owns it. I’m sorry.” In subsequent questioning, however, it was established that the husband clearly knew that the business was owned by both himself and his mother.
The father also denied the proposition that, in May 2017, he had been seen driving past the mother’s home in a motor vehicle that was then owned by him. That denial was repeated in response to several questions. The father further stated that he did not, at that time, know where the mother lived. However, when the father’s attention was directed to police records which included a statement from him, the father acknowledged that he did in fact drive past the mother’s house, at the relevant time, and he did so to ensure that she had not moved interstate.
Mr Davila is a self-represented litigant. As such, I extend some leniency toward him in regards to the fact that he was at one and the same time both a witness and his own advocate in the proceedings. Nevertheless, on a number of occasions, the father provided answers to questions which were more in the nature of submissions than reasonable responses to the questions asked of him. In those circumstances, counsel for the mother, appropriately in my view, insisted on the father providing a direct response to questions asked of him. On one occasion, I specifically referred the father to the High Court authority of Kuhl v Zurich Financial Services Australia Ltd (supra) in the context of the responsibilities of a witness. However, the request to the husband to provide answers that were more responsive to the questions asked of him was, in large part, ignored by the father.
The mother, on the other hand, provided answers that were responsive to questions asked of her. She was also prepared to respond with answers which were contrary to her interests including in respect to the family violence perpetrated by Mr B.
Accordingly, while I recognise the caution of making findings in respect to credit in parenting proceedings (Adamson & Adamson (2014) 51 Fam LR 626 at 642), the manner in which the father conducted himself when giving evidence is such that wherever the father’s evidence conflicts with that of the mother, unless independently verified, I prefer the evidence of the mother.
The law – concepts and principles
The relevant statutory provisions applicable to proceedings in relation to children are set out in Part VII of the Family Law Act 1975 (Cth) (“the Act”). Section 60B(1) sets out the objects of Part VII, which are to ensure that the best interests of children are met by:
(a) ensuring that children have the benefit of both of their parents having a meaningful involvement in their lives, to the maximum extent consistent with the best interests of the child; and
(b) protecting children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence; and
(c) ensuring that children receive adequate and proper parenting to help them achieve their full potential; and
(d) ensuring that parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of their children.
More generally, the Act makes clear that, in exercising its jurisdiction, the Court has a responsibility to “protect the rights of children and to promote their welfare” (s 43(1)(c)), and to protect them from family violence (s 43(1)(ca)).
The presumption of equal shared parental responsibility
Section 61DA of the Act relevantly provides:
(1) When making a parenting order in relation to a child, the court must apply a presumption that it is in the best interests of the child for the child's parents to have equal shared parental responsibility for the child.
(2) The presumption does not apply if there are reasonable grounds to believe that a parent of the child (or a person who lives with a parent of the child) has engaged in:
(a) abuse of the child or another child who, at the time, was a member of the parent's family (or that other person's family); or
(b) family violence.
(3) When the court is making an interim order, the presumption applies unless the court considers that it would not be appropriate in the circumstances for the presumption to be applied when making that order.
(4) The presumption may be rebutted by evidence that satisfies the court that it would not be in the best interests of the child for the child's parents to have equal shared parental responsibility for the child.
In Dundas & Blake (2013) FLC 93-552 at 87,409, the Full Court held that s 61DA of the Act is mandatory in the sense that the presumption must be applied until the Court is satisfied that it would not be in the interests of the child for the presumption to apply. In that context, the Full Court said:
In our view, the mandatory requirement to apply the presumption, unless the evidence satisfies the court that it is not in the best interests of the child, makes it necessary for there to be explicit and cogent reasons why the presumption should be rebutted.
In VR & RR (2002) FLC 93-099 at 88,940, the Full Court said:
In our view it is clear from the legislative scheme that any intervention by the Court in the due performance of an aspect of parental responsibility, that seeks to interfere with or diminish the responsibility of either parent to care for the child in the manner the parent deems appropriate, should be made only where the Court is of the view that the welfare of the child will be clearly advanced by that order being made.
At the same time, it needs to be appreciated that ss 65DAC(2) and (3) of the Act provide that, in the event of an order being made for parents to have shared parental responsibility, then, in circumstances where that responsibility involves making a decision about a major long-term issue in relation to the child:
(2) The order is taken to require the decision to be made jointly by those persons. …
(3) The order is taken to require each of those persons:
(a) to consult the other person in relation to the decision to be made about that issue; and
(b) to make a genuine effort to come to a joint decision about that issue.
If an order for equal shared parental responsibility is made the pathway set out in s 65DAA of the Act applies to the task before the Court in make parenting orders that it considers to be in the best interests of the child. That is, the Court is required to apply a presumption that, in those circumstances, the children should spend equal or substantial and significant time with each of the parties.
Determining what is in the best interests of the child
Section 60CA of the Act provides that, in deciding whether to make a particular parenting order in relation to the children, the Court must regard the best interests of the children as the paramount consideration. This is also confirmed in s 65DAA of the Act.
Section 60CC of the Act sets out the list of matters that the Court must consider in determining what is in the children’s best interests. Whilst the Act requires the Court to consider all of the s 60CC factors, the central issue in these proceedings is balancing the primary considerations set out in s 60CC(2) against one another. Those primary considerations are:
(a) the benefit to the child of having a meaningful relationship with both of the child’s parents; and
(b) the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.
In balancing these considerations, s 60CC(2A) of the Act requires the Court to give greater weight to the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence: s 60CC(2)(b).
Meaningful relationship
Section 60CC(2)(a) requires me to consider the importance of the children having a meaningful relationship with each of the parties. On the other hand, I must consider the issue of the risk associated with the children possibly being subject to physical or psychological harm, neglect or abuse in the care of either of the parties.
In Sigley v Evor (2011) 44 Fam LR 439 at 132, the Full Court, quoting Brown J in Mazorski & Albright (2007) 37 Fam LR 518, confirmed that the concept of a meaningful relationship is one which is “important, significant and valuable to the child.”
In McCall & Clark (2009) FLC 93-405 at 83,476, the Full Court said:
No doubt in the majority of cases there will be a positive benefit to a child of having a significant relationship with both parents, but there will also be some cases where there will be no positive benefit to be derived by a child by a court attempting to craft orders to foster a relationship with one parent if this would not be in the child's best interests.
In Fitton & Kimble [2017] FCWA 106 at 36, Walters J said:
The Court is required to consider, as one of a large number of factors, the benefit to the child of having such a meaningful relationship.
In that decision, his Honour referred to several other authorities, including the Full Court decision in Jurchenko & Foster (2014) FLC 93-598 at 79,420, where the Court noted that:
… having a “meaningful relationship” with both parents is but one part of a set of arrangements that makes up a care arrangement. All parts of the arrangement must be considered before deciding what outcome is in the child’s best interests.
Similarly, in Cotton & Cotton (1983) FLC 91-330 at 78,252, Nygh J qualified the desirability of a child maintaining a meaningful relationship with both of their parents in the following terms:
… that desirability only operates where there is a chance of a meaningful relationship which is beneficial to the child. It is not, in other words, a question of contact for contact's sake. If there is a situation where contact with a parent is on balance likely to cause more harm to the child than good, or even is not likely to confer any benefit, then little purpose is served by this Court making orders for such contact. That does not detract from the desirability for the child to have a meaningful relationship, but the possibility of a meaningful relationship must first exist.
The means by which the child can achieve that is an issue in these proceedings insofar as the mother wishes to be able to travel with the child to visit her relatives who continue to reside in South America. In circumstances where I am satisfied there is no flight risk, I am satisfied that it is appropriate for the child to be permitted to travel overseas consistent with each parent having mutual respect for the other parent including making provision for the child to spend any make up time with the other parent in the event of the child participating in such reasonable overseas travel.
Sub-section (3)(h) – issues pertaining to the culture of the child if the child is Aboriginal or a Torres Strait Islander.
This consideration is not relevant in these proceedings.
Sub-section (3)(i) – the attitude to the child, and parental responsibilities, by each of the child’s parents.
The mother was, in my view, irresponsible in withholding the child in her care to the exclusion of the father in the period from 5 February 2014 until 8 February 2015. The mother contends that she did so in circumstances where she believed the father suffered from issues in respect to alcohol and substance abuse and had mental health issues including one (1) incident where the mother contends the father attempted to self-harm. To her credit, the mother now acknowledges that her conduct in preventing the child from spending time with the father was wrong. In that respect, the Family Consultant in the Family Report dated 23 April 2018, at paragraph 31, noted that:
She [the mother] said that she understands now that children do better if they have both parents involved in their lives and acknowledged that she made a mistake “all those years ago”...
Nevertheless, the mother’s actions resulted in the child not seeing the father for approximately 12 months during his second year of life.
The mother was also, in my view, irresponsible, in attempting to remove the child from the father in an event which occurred in February 2017. The police records, that were reviewed by the Family Consultant, reported that police observed the mother to have taken hold of the child around his torso and the parents began a “tug-of-war” like wrestle involving the child who was “crying and very distraught.” That event, however, needs to be seen in the context where the father had retained the child in his care. In her interview with the Family Consultant, the mother stated that “I wasn’t thinking. I just wanted him [the child] back.” The mother also advised the Family Consultant that, at the time, she telephoned the husband’s solicitor to apologise in respect to her conduct. She was not, however, able to spend time with the child again until the matter came before this Court in March 2017.
The father was, in my view, also irresponsible in withholding the child from the mother in the period from 21 January 2017 until 8 March 2017. The father’s actions in doing so was in breach of Final Orders dated 10 October 2016.
The father was also irresponsible in unilaterally suspending the child’s time with the mother in breach of Orders dated 10 October 2016, 8 March 2017, 21 August 2017 and 6 September 2017.
As was the case in respect to the mothers conduct, the father’s actions in withholding the child from the mother resulted in the child’s relationship with the mother being interrupted and fractured. I respectfully agree with and adopt the submissions of the Independent Children’s Lawyer that this would have caused confusion and distress in the mind of the child.
Like the mother, the father similarly regrets his conduct. In that respect, the father advised the Family Consultant in his interview for the most recent Family Report that, at the time, he was “thinking with [his] heart and not [his] head.” Nevertheless, the Family Consultant noted that despite such statements the father “gave the impression that he still believes he was in the right in retaining X.”
There is, with respect, substance in that observation of the Family Consultant which is consistent with the father’s evidence in these proceedings including his denial of the fact that the child would have suffered from increased anxiety during the period that he did not see his mother, with the father stating “he had a ball with us, I’ll be honest with you.”
The fact that the child was retained for considerable periods of time by each of his parents and was deprived from having the opportunity to spend time with his other parent is indeed regrettable. It can only have been extremely distressing for the child. It is a clear example of the adverse impact that the parents ongoing parental conflict has had on the child. It goes without saying, that the child is likely to be adversely impacted in the event of the parental conflict continuing. The parties, and members of their respective families, should pay serious regard to that in determining their future course of conduct.
Those instances where I have recorded the parents as having acted in an irresponsible manner have not, however, impacted upon the orders that I make in these proceedings.
A significant aspect of these proceedings is the father’s contention that the child still comes into contact with Mr B when he lives with his mother even though such contact is prohibited by currently applicable Orders of this Court. In that context, it is to be noted that the father’s oral evidence to that effect was more definite than the evidence set out in his Affidavit. In that respect, at paragraph 58 of his Affidavit, the father states:
To the best of my knowledge X has had contact with Mr B and Ms Correia continues to lie to me and the court. X tells me all the time that he plays with Mr B, and his pinched hard by Mr B when X is naughty.
At paragraph 60 of his Affidavit, the father states that he does not know his son to be a liar and, therefore, he has concluded that “to the best of my knowledge Anna is ignoring the current Court orders.” However, in that same paragraph the father acknowledges that he has “no evidence to support” his assertion that the child continues to have contact with Mr B.
As against that evidence of the father is the evidence of both the mother and Mr B that the child has not had contact with Mr B since the orders prohibiting that occurring were made on 12 October 2017. While I give less weight to hearsay evidence, in respect to what a young child has said, it is to be noted that the evidence of both the mother and Mr B to that effect is corroborated to an extent by the child who advised the Family Consultant that Mr B “lives by himself.”
Accordingly, for these reasons, the father has failed to satisfy me that the child has had contact with Mr B contrary to orders of this Court.
Sub-section (3)(j) – any family violence involving a child or a member of the child’s family;
As stated above, central to this determination, is the issue of whether there is an unacceptable risk that the child will be exposed to family violence in circumstances where he lives with his mother while Mr B is present. This consideration has been addressed above, as the central issue of risk in these proceedings.
Sub-section (3)(k) – any family violence order that applies or has applied involving the child or a member of the child’s family and if applicable, taking into account a number of stated matters;
As previously discussed, I am of the view that the father’s conduct in establishing a public social media page to which he posted material that denigrated the mother constituted a serious act of family violence as defined in s 4AB of the Act. This is clearly demonstrated by some of the material that was posted on the website.
One post was captioned “I miss my X” included a photo of the child with the words in capitals transposed across a photo “KIDNAPPED.”
A further post from a contributor recorded “pay to have her knocked off, to be cheaper than court in the long run!”
A further post stated, as set out in annexures to the mother’s Affidavit (marked ‘Exhibit A’ in these proceedings), that:
Beat the cunt brother!! Put the bitch in a wheel chair!!! Women using children as weapons to get back at their partners is sickening ... It’s a form of child abuse.
A further post described the mother as a “slut.”
Contrary to the position adopted by the paternal grandmother, the father now acknowledges that the material posted on his website was inappropriate. However, the father sought to justify the posting of that material on the basis of the mother similarly posting material denigrating the father on the internet. The simple fact is that the material posted by the father cannot be justified on any basis.
I agree with the opinion of the Family Consultant that the posting of that material placed the mother at risk. Indeed, in that respect, I accept the evidence of the mother that she was, on one occasion, unpleasantly confronted in a public place by an unknown member of the public as result of material that they had seen on the father’s website.
The fact that the paternal grandmother fails to recognise how inappropriate and, indeed, dangerous, that material was is of significant concern. It is important for all parties and members of their extended family to acknowledge that the ongoing conflict between these parents presents a real and present danger to the child. It is inevitably the case that they will continue to harbour resentments, and indeed, strong emotions in respect of past events. It is imperative for the child’s psychological health and the child’s ability to achieve all his developmental milestones and fulfil his maximum potential that the parties and members of their extended family move forward and beyond the unpleasant past.
As noted above, in February 2017, the mother confronted the father and the paternal grandparents in the street and attempted to remove X from the care of the father in circumstances where he had retained the child from approximately 21 January 2017. This led to a 12 month ADVO being made against the mother. That order was made on 15 February 2017 on a without admission and undefended basis. That order has now expired and does not impact upon the orders that I make in these proceedings.
Sub-section (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.
It is quite possible that there may be further litigation in this matter. As noted by the Independent Children’s Lawyer, this is the second set of substantive proceedings between the parties. The parties have been involved in litigation since the child was approximately six (6) months of age and have continued in that state of conflict for most of the child’s life.
As noted by the Family Consultant in her report dated 23 April 2018:
It seems very likely that further allegations involving Mr B will surface, even if X is not openly questioned by his father, because the paternal household is so attuned to the possibility of something bad occurring. It is also possible that further incidents of family violence occur in Ms Correia’s household.
As result of that potential for further litigation, I agree that it is appropriate for orders to be made providing for the child to participate in resilience training to empower him, to the extent that it is compatible with his age, with the ability to resist being drawn into partisan issues in either of his parent’s households.
It should be further noted that the Family Consultant recommended that the parents “attend upon [Mr CC] in the first instance, and prior to commencing further court proceedings, if they are unable to agree on X’s extracurricular activities or if either parent wishes to make change to the parenting arrangement.” I have refrained from making such an order in these proceedings, however, I draw the parties’ attention to the requirements of s 60I of the Act. In short, that section requires the parties to make a genuine effort to resolve matters in dispute before commencing parenting proceedings.
Sub-section (3)(m) – any other facts or circumstances the Court considers relevant.
There are no other facts or circumstances that I have considered to be relevant to the orders which I make in these proceedings.
Conclusion
The essential task before this Court, in this proceeding, is to balance the right of the child to have a meaningful relationship with each of his parents with making orders that avoid the child being exposed to an unacceptable risk of harm, either psychological or physical. For the reasons that I have set out above, I am satisfied that the child is not exposed to a risk of physical harm in the care of either of his parents. Insofar as history is a predictor, I have acknowledged that there is a potential risk of the child being exposed to psychological harm in the care of his mother if it were to be the case that he is exposed to family violence between the mother and her current husband, Mr B. However, I am satisfied that risk has been adequately addressed by the counselling and therapy that both the mother and Mr B have jointly and individually attended. Further, I am satisfied that the mother will not, in the future, tolerate conduct on the part of Mr B that constitutes family violence. For those reasons, I’m satisfied that the child is not exposed to an unacceptable risk of either physical or psychological harm in the care of either parent. This includes in circumstances where the child spends time with his mother and Mr B is also present.
In circumstances where I’m satisfied that both parties have appropriate parenting capacity and the child sees the mother as the child’s primary attachment figure, it is appropriate for orders to be made for the child to continue living with the mother and spend substantial and significant time with the father including sharing school holidays.
In terms of parental responsibility, living and spend time arrangements as well as ancillary orders, the Independent Children’s Lawyer submitted that the Court should make orders in terms of those sought by the mother save insofar as the Independent Children’s Lawyer proposed additional orders, as set out above.
For reasons which I have explained, I am of the view that there should be an order for the mother to have sole parental responsibility for the child. I will therefore make orders to that effect as sought by the mother.
I will, however, make orders as sought by the mother requiring the parties to notify the other party of major events impacting upon the child and for the parties to inform the other of any change in their personal circumstances including address and contact details.
For reasons which I have set out, I am satisfied that it is appropriate for orders to be made for the child to live with the mother and spend time with the father in accordance with current arrangements, whereby the child spends time with the father every second weekend from after school on Fridays until before school Mondays or, at a comparative time during non-school weeks. In addition, in accordance with current arrangements, it is appropriate for the child to continue to spend time with his father after school Wednesday until before school Thursday, or a comparative time during non-school weeks.
That arrangement enables the child to spend substantial and significant time with the father including the child having time with the father on weekends as well as spending time during the child’s weekday school routine.
I am further satisfied that is appropriate for the child to spend an equal amount of time with each parent during school holidays.
It was not contested, in these proceedings, that it is appropriate for the child to spend time with each parent on special occasions. I am satisfied that the orders proposed by the mother in that respect are appropriate.
During these proceedings, I have expressed concern regarding the level of past parental conflict and the potential for that to continue. I have also expressed concern about the child being involved in the parental conflict as result of interactions which he will have with each of his parents and, potentially, members of each parent’s broader family. I am, therefore satisfied that it is appropriate to make an order for communication to be in accordance with the proposed amended orders of the mother. In that respect the mother proposes the utilisation of a communication application that has a capacity to filter out inappropriate commentary that may otherwise be sent between the parties.
In that context, while it was not contended that either parties’ parenting ability is adversely impacted by substance abuse, I note that all parties propose that there be restraints on the child being exposed to a person under the influence of alcohol or illicit substance. I will, therefore, make orders in accordance with proposed order 6 by the Independent Children’s Lawyer. This would, of course, include any other member of the parents household including, in the context of concern expressed by the father, Mr B.
During the course of this decision, I have noted my concern about the child being drawn into the parental conflict to the point where the Family Consultant expresses concern that the child may be actually modifying his behaviour in order to avoid engaging in conduct or making statements that he anticipates could inflame parental conflict. I have also noted my concern regarding the paternal grandmother’s failure to acknowledge the inappropriateness of the public Facebook page maintained by the father. I have noted that there is a significant risk of the child being psychologically damaged as a result of the parties’ ongoing conflict and the child being bought into that conflict. Accordingly, I am satisfied that order 7 proposed by the Independent Children’s Lawyer is appropriate.
During the course of the proceedings, I noted that both the mother and Mr B committed to engaging in further relationship counselling and therapy, if required. The mother proposes an order requiring both herself and Mr B to engage in that process several times per year. I am satisfied that order is appropriate.
In light of the potential for future litigation, I am satisfied that it is appropriate for an order to be made in terms of order 12 as proposed by the Independent Children’s Lawyer which, essentially, requires the parties to make all reasonable endeavours to resolve matters in dispute before commencing further litigation.
I note that the mother has proposed an order requiring each parent to provide the other parent with the first opportunity to care for the child in circumstances where the parent with whom the child is staying is unable to do so. That order, however, has the potential to give rise to conflict as to the circumstances in which the order would be activated. Accordingly, I decline to make such an order.
The mother has proposed orders permitting either parent to travel overseas with the child in the circumstances set out in her proposed orders 9 and 10. The father agrees that there should be orders permitting each parent to travel overseas with the child, however, the orders he proposes to that effect are more constrained than that sought by the wife. I am satisfied that neither parent represents a flight risk. I am further satisfied that it is appropriate for the child to be able to travel overseas particularly in circumstances where it will enable him to establish connections to his South American and European heritage. I will, therefore, make orders in accordance with orders 9 and 10 as proposed by the mother. I will, however, extend the time period allowed for the non-traveling parent to provide written notice of consent to the travelling parent from three (3) days, as proposed by the mother, to seven (7) days to ensure each parent has sufficient time to receive and respond to such a request.
Finally, the mother has proposed that the Court make an order for a recovery order to be issued and for that order to lie the registry in the event that either parent withholds the child from the other parent. While such an act would be of significant concern, I am not satisfied that it is appropriate for such an order to be made at the present time.
The father has proposed an order restraining the mother from nominating Mr B from being present at changeovers. It was not disputed that such an order is appropriate and, accordingly, I will make an order in terms of order 7.2 as sought by the father. Aside from that restraint, I also accept that it is appropriate, that providing appropriate notice is given, that either parent be empowered to have a nominee to collect the child at changeover in circumstances where the parent is otherwise unable to do so. I will, therefore, make an order in terms of order 7.3 as proposed by the father. The mother acknowledged that changeover may occur with the assistance of one of the parent’s nominees.
The father has also proposed an order that would provide each parent with liberal telephone contact with the child when the child is in the care of the other parent. At this stage of the child’s life, I am not satisfied that such an order is appropriate and it has the potential to give rise to conflict between the parties. Clearly, however, as the child matures and inevitably obtains his own communication device, the parents are encouraged to take a cooperative approach in circumstances where one parent or, indeed, the child wishes to communicate with the other parent when the child is in the other parents care.
Significantly, the father has proposed, in proposed order 24, that the wife’s current husband, Mr B be restrained from coming into physical contact the child. For reasons which I have outlined in this decision, I am satisfied that such a restraint is no longer necessary. The mother indicated, however, that she proposes to reintroduce Mr B into the child’s life in a graduated way. I am satisfied that is appropriate, however, I do not propose to make orders to that effect but rather will leave the manner in which that occurs to the mothers good sense.
Unless otherwise addressed in these reasons, I do not propose to make any of the other orders proposed by the parties.
I certify that the preceding two hundred and fifty-eight (258) paragraphs are a true copy of the reasons for judgment of the Honourable Deputy Chief Justice McClelland delivered on 29 October 2019.
Associate:
Date: 29 October 2019
Key Legal Topics
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Family Law
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Civil Procedure
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Jurisdiction
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Injunction
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