Dale and Tang-Li
[2010] FamCA 475
•10 June 2010
FAMILY COURT OF AUSTRALIA
| DALE & TANG-LI | [2010] FamCA 475 |
| FAMILY LAW – CHILDREN – Magellan – with whom a child lives – with whom a child spends time – whether the parents should have equal shared parental responsibility – allegations by mother that the child was sexually abused by the father – are they deliberately fabricated and what flows from that – whether there’s an unacceptable risk of the child being sexually abused by the father or other person - risk of child being exposed to psychological abuse or family violence – capacity of the parents to provide for the needs of the child – willingness of parents to facilitate and encourage the child’s relationship with the other parent – capacity of parents to communicate with each other |
| Family Law Act 1975 (Cth) |
| APPLICANT: | Ms Dale |
| RESPONDENT: | Mr Tang-Li |
| INDEPENDENT CHILDREN’S LAWYER: | Peter Baker |
| FILE NUMBER: | SYC | 401 | of | 2009 |
| DATE DELIVERED: | 10 June 2010 |
| PLACE DELIVERED: | Sydney |
| PLACE HEARD: | Sydney |
| JUDGMENT OF: | Justice Fowler |
| HEARING DATE: | 17-19 and 22- 24 February 2010, 16 April 2010 |
REPRESENTATION
| COUNSEL FOR THE APPLICANT: | Ms Hausman |
| COUNSEL FOR THE RESPONDENT: | Mr Moss |
| COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: | Ms Bateman |
Orders
All previous parenting orders are discharged.
Equal shared parental responsibility
The mother and the father have equal shared parental responsibility for the child, C, born … September 2007, hereinafter referred to as “the child”, in respect of major long-term issues.
Where the mother and the father are in dispute in respect of a major long-term issue in respect of the child, the mother and the father shall participate in a mediation of that dispute in accordance with the directions of the Family Consultant prior to commencing any proceedings in a court of competent jurisdiction in respect of the dispute.
Live with
The child live with the mother.
Spend time with father
Subject to any other Orders herein, the child is to spend time with the father in the company of a member of the father’s family until the happening of the events referred to in Order 9 hereof.
The child spend time with the father:
(a) until 1 July 2010:
(i)from 9.00 am to 1.00 pm on each alternate Sunday and on each alternate Saturday from 9.00 am to 1.00 pm to the intent that he spends time with the child on either Saturday or Sunday of each weekend.
(b) from 1 July 2010:
(i)from 9.00 am to 3.00 pm on each alternate Sunday and on each alternate Saturday from 9.00 am to 3.00 pm to the intent that he spends time with the child on either Saturday or Sunday of each weekend.
(ii)from 9.00 am until 1.00 pm on each Wednesday.
(c)from 1 September 2010:
(i)on each alternate Sunday and on each alternate Saturday from 9.00 am to 5.00 pm with the intent that he spends time with the child on either Saturday or Sunday of each weekend.
(d)from February 2011:
(i)in addition to time above overnight on one of the weekends referred in to paragraph (c)(i) from 9.00 am Saturday to 9.00 am Sunday or from 9.00 am Sunday to 9.00 am Monday.
(e)from February 2012:
(i)each alternate weekend from 9.00 am Friday until 6.00 pm Sunday and in addition from the day of the child’s commencement of school or from 10.00 am Wednesday to 10.00 am Thursday in one week of two.
(f)from 11.00 am on 15 January 2013 until 11.00 am on 22 January 2013.
(g)from 1 February 2013:
(i)during school terms (the dates of which are published by the school the child attends which includes pupil free days), hereinafter referred to as the ‘School Term’:
·from 10.00 am on each alternate Wednesday, commencing on the first Wednesday of each school term, until 10.00 am on each following Thursday, and
·from 10.00 am on each alternate Friday, commencing on the second Friday of each school term, until 10.00 am on each following Monday.
(h) as otherwise agreed, in writing, between the mother and the father.
School holidays
Subject to any other Orders herein, the child spend time with the father:
(a)from 1 February 2013:
(i)from the conclusion of school on the last school day of each School Term which is in an even numbered year until 5.30 pm on the Saturday which is closest to the middle of that relevant non-School Term period, and
(ii)from 5.30 pm on the Saturday which is closest to the middle of that relevant non-School Term period which commenced in an odd numbered year until the recommencement of school immediately following the end of that relevant non-School Term period.
Spend time with father suspended
The time that the child spends with the father is suspended:
(a)from 11.00 am on 31 December in each even number year to 11.00 am on the next day
(b)from 11.00 am on 1 January in each odd number year to 11.00 am on the next day
(c)if the mother does not otherwise spend time with the child on the child’s birthday pursuant to these Orders, if the child’s birthday is on a day on which the child attends school, from the conclusion of school until 6.30 pm on the child’s birthday or, if the child’s birthday is not on a day on which the child attends school, from 9.00 am until 1.00 pm on the child’s birthday
(d)from 10.00 am on the mother’s birthday … January until 10.00 am on the next day
(e) from 10.00 am on Mother’s Day until 10.00 am on the next day
(f) from 1 February 2013:
(i)from the conclusion of school on the last school day of each School Term which is in an odd numbered year until 5.30 pm on the Saturday which is closest to the middle of that relevant non-School Term period and
(ii)from 5.30 pm on the Saturday which is closest to the middle of that relevant non-School Term period which commenced in an even numbered year until the recommencement of school immediately following the end of that relevant non-School Term period.
Special days
Subject to any other Orders herein, the child spend time with the father:
Father’s Day and Father’s birthday in 2010
(a)from 9.00 am until 3.00 pm on … June 2010.
(b)from 9.00 am until 5.00 pm on Father’s Day in 2010.
Father’s Day and Father’s birthday post 2011
(c)from … June 2011:
(i)from the conclusion of school, if a school day, and if not, from 10.00 am on each … June until 10.00 am on the next day if not a school day or to the commencement of school if a school day, and
(ii)from 10.00 am on Father’s Day until 10.00 am on the next day.
The child’s birthday
(d)if the father does not otherwise spend time with the child on the child’s birthday pursuant to these Orders, if the child’s birthday is on a day on which the child attends pre-school or school, from the conclusion of pre-school or school, as is relevant, until 6.30 pm on the child’s birthday or, if the child’s birthday is not on a day on which the child attends pre-school or school, from 9.00 am until 1.00 pm on the child’s birthday.
Easter
(e)from 6.00 pm on the day before Good Friday to 6.00 pm on the day after Good Friday in each even number year.
(f)From 6.00 pm on the day before Easter Sunday to 6.00 pm on the day after Easter Monday in each odd numbered year.
Christmas
(g)the child shall spend time with the father from 6.00 pm on Christmas Eve until 12 noon on Christmas Day in even numbered years and between 12 noon on Christmas Day until 12 noon on Boxing day in odd numbered years.
New Year’s Eve and New Year’s Day
(h)from 11.00 am on 31 December in each odd number year to 11.00 am on the next day.
(i)from 11.00 am on 1 January in each even number year to 11.00 am on the next day.
Suspension of the requirement that time spent with the father be in the presence of a member of his family
The father’s time spent with the child pursuant to these Orders shall be in the company of a member of the father’s family until the father has provided the mother with a document signed by the father’s counsellor which confirms that the father’s counsellor no longer requires the father to attend upon the father’s counsellor pursuant to Order 13 hereof as the father as satisfied the requirements of Order 13 hereof.
Changeover – collect and deliver
The father:
(a)shall collect and deliver the child to and from pre-school or school, as is relevant, in accordance with the child’s attendance schedule and/or routine, at times when the child is spending time with the father in accordance with these Orders, and
(b)at all other times, that all changeovers take place at D Park or such other place as agreed between the parties prior to the changeover in writing, which can include by email.
Counselling
The mother shall attend upon Ms A, Social Worker/Family Dispute Resolution Practitioner, of … in the State of New South Wales hereinafter referred to as the ‘Mother’s Counsellor’, for the purpose of undergoing counselling in respect of anxiety which the mother experiences and continue to attend upon the mother’s counsellor in accordance with the mother’s counsellor’s directions.
The Father shall attend upon Mr R, Clinical Psychologist, of … in the State of New South Wales, or such other person as Mr R recommends to the father, hereinafter referred to as the ‘Father’s Counsellor’, for the purpose of undergoing counselling in respect of anger management and to facilitate the father’s insight into the mother’s anxiety issues and continue to attend upon the father’s counsellor in accordance with the father’s counsellor’s direction.
The Independent Children’s Lawyer shall provide:
(a) the mother’s counsellor with a copy of:
(i)these Orders and
(ii)Dr W’s Report dated 21 October 2010
prior to the mother commencing counselling with the mother’s counsellor pursuant to Order 12 hereof.
(b) the father’s counsellor with a copy of:
(i)these Orders and
(ii)Dr W’s Report dated 21 October 2010
prior to the father commencing counselling with the father’s counsellor pursuant to Order 13 hereof.
Overseas travel
Subject to:
(a)the mother providing the father with not less than 30 days written notice of the mother’s travel itinerary, the mother is permitted to take the child from Australia to a place outside Australia on one occasion in each two calendar years and
(b)the father providing the mother with not less than 30 days written notice of the father’s travel itinerary, the father is permitted from 1 February 2013 to take the child from Australia to a place outside Australia on one occasion in each two calendar years.
The child shall not spend time with the other parent for up to one calendar month, when the mother or the father takes the child from Australia to a place outside Australia in accordance with the travel itinerary which has been provided to the other parent pursuant to Order 14 hereof.
Overseas travel – make up time
Each party provide for time equivalent to the time spent away from the other party, prior to the trip outside Australia, and upon return from the trip outside Australia.
Child’s Passport
The child’s Australian passport be held by Swaab Attorneys of Sydney subject to it being released to the mother or father from time to time by consent in writing of the mother and the father (including as to the conditions of release), such consent not to be unreasonably withheld, or by order of a court of competent jurisdiction.
A written consent, for the purposes of these Orders, must be authenticated by a prescribed person for the purposes of the Statutory Declarations Act 1959 (Cth) endorsing on the consent a statement that:
(a)the person is satisfied about the identity of the person signing the consent and
(b) the Written Consent was signed in the person’s presence.
Injunctions
The father is enjoined as follows:
(a)from entering the mother’s residential premises
(b)from entering the mother’s place of work
(c)from entering the private car park of the E located at …, E
(d)from entering …, B, being the residential premises occupied by the maternal grandparents
(e)from entering upon Y park at B except for the purpose of a changeover or when the father is present with the child.
Emergency or serious incident
In the event of any emergency or serious incident which requires the child to require the assistance of medically trained professionals, that the father notify the mother immediately by telephoning her on 04…, and in the event that the mother is not immediately available, that the father immediately notify the maternal grandfather, Mr Dale on 04…, and that the mother notify the father immediately by telephone in the same circumstances.
Sailing
The father not take the child sailing without the child wearing a size-appropriate life preserver.
Motor vehicle
The father provide a current certificate, in compliance with March 2010 legislation, that he has an approved fitted child car restraint seat for the child, and the father continue to ensure that the child travels in car restraints which comply with child safety regulations at all times.
Telephone communication
From the time the father starts having overnight visits with the child, the father ensure that the child telephones the mother before she goes to bed and such calls shall be initiated by the father to the mother’s mobile for the first four overnight visits.
The father ensure that the child telephones the mother at least once on the first occasion that she spends more than two consecutive days with the father.
While the child is living with the mother the child be able to speak to the father by mobile telephone on each second night approximately 30 minutes before she is to go to bed to sleep and the mother is to facilitate such telephone contact.
Court assistance
Pursuant to s65L of the Family Law Act 1975 (Cth) a Family Consultant as nominated by the Manager, Child Dispute Services of the Sydney Registry of this Court, (not being Ms E), give to any party to these Orders such assistance as is reasonably requested by that party in relation to compliance with, and the carrying out of, these Orders for a period of two years from the date of these Orders.
Costs and Fees
The mother is to pay the Independent Children’s Lawyer’s costs assessed at $13,419.
The mother shall pay the Single Expert Witness’s fees in the total sum of $4,631 to Dr W within 14 days.
Pursuant to Section 65DA(2) and Section 62B, the particulars of the obligations these Orders create and the particulars of the consequences that may follow if a person contravenes these Orders and details of who can assist parties adjust to and comply with an Order are set out in the Fact Sheet attached hereto and these particulars are included in these Orders.
All material produced in response to subpoenas is to be returned to the party who produced it.
The matter is removed from the list of Active Pending Cases.
IT IS NOTED that publication of this judgment under the pseudonym Dale and Tang-Li is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth)
| FAMILY COURT OF AUSTRALIA AT SYDNEY |
FILE NUMBER: SYC 401 of 2009
| MS DALE |
Applicant
And
| MR TANG-LI |
Respondent
And
INDEPENDENT CHILDREN’S LAWYER
REASONS FOR JUDGMENT
Introduction
The proceedings before the Court are proceedings between the parents of the only child of the relationship, C (“the child”), born in September 2007 and currently aged two years and seven months, in which orders are sought as to her parenting and care.
The mother filed a Notice of Child Abuse or Family Violence and asserted that the child had been abused by the father.
The father denied the allegations and said that rather than being mistaken interpretations of events they had been fabricated by the mother deliberately. He said that he believed the child had in fact been abused by the mother in order to add colour to false allegations.
The single expert, Dr W, did not consider that the child had been the subject of abuse. He proposed that, having regard to the fact that the child’s primary attachment is to the mother, the child should live with the mother and spend time with the father on an incremental basis until the child spends substantial time with the father.
The father proposed that such time be unsupervised after a short period.
The mother seeks an order that the time the father spends with the child be supervised for a period by her relatives. The father proposes that the time be supervised by his relatives but only for a short period of time.
Dr W suggests that, in order to provide some immediate assurance to the mother, the mother’s relatives first be used as supervisors for a very short period and thereafter there be no such supervision, rather that the father have available to him the help of his relatives in caring for the child.
In the maelstrom of allegations and counter allegations the court is asked to find a result which these parties are unable to find for themselves which will protect the child and promote her welfare.
Background Facts
Where in this judgment I make statements of fact they are, unless otherwise specified, my findings of fact.
The mother and father provided a joint chronology, indicating areas of agreement and disagreement and I herein incorporate those events.
In 1961, the father was born and is currently 48 years of age.
In 1972, the mother was born and is currently 38 years of age.
In July 2005 the mother and father met.
In September 2005 the mother and father commenced a relationship.
In January 2007 the father says he ended the relationship with the mother. The mother does not agree.
In early to mid February 2007 the mother told the father she was pregnant. The father said the mother told him that if he wished to be involved in the child’s life then he would have to move in with the mother. The mother does not agree that this occurred.
In February/March 2007 discussions took place between the parties as to whether the parties should cohabit in Northern Sydney where the father resided, or in the Eastern Suburbs where the mother resided. The mother indicated she would only cohabit with the father in the Eastern Suburbs.
On 6 May 2007 the mother and father commenced cohabitation in the Eastern Suburbs, and rented premises in the mother’s name in P.
On 2 July 2007 the father traded in his motor vehicle as a contribution to the purchase price of a new motor vehicle for the mother’s exclusive use.
On 1 January 2008 the mother said that the father threatened suicide if the mother left him. This was denied by the father.
On 18 January 2009 the mother said that the father said to her, “If you leave me I will take [the child] away from you”.The father denied the conversation.
From 9 May 2008 until 12 May 2008 the parties argued and at the mother’s request the father left their residence for two nights. The father says that this was done so that the mother could calm down and the mother says this was done so that the father could calm down.
On 13 May 2008 the father alleged the mother locked the child in the car.
On 14 May 2008 the father says he attended the home and bathed the child. This was not confirmed by the mother.
On 15 May 2008 the father said he resumed cohabitation with the mother at the mother’s request. The mother disagrees with his assertion.
On 17 May 2008 the mother said the father threatened suicide. The father did not agree that he did.
On 5 July 2008 the father cared for the child overnight.
On 31 July 2008 the father contends that the mother went out at night with her girlfriends and the father cared for the child at home. This was not confirmed by the mother.
On 9 August 2008 until 31 December 2008 the father spent time with the child, by agreement, on Sundays and Wednesdays for a period of two to three hours on each of those days.
In September 2008 a child support assessment was issued at the mother’s request. The father does not agree this occurred.
On 18 September 2008 the father, for the second time during the parties’ cohabitation, cared for the child overnight. Late that evening the father says that a friend of the mother’s, N, called the father in distress from the mother’s mobile telephone. The mother does not recall the incident. The father said that the mother and N returned to the home in a taxi and the mother had vomited and was unconscious. An ambulance was called and the mother was taken to hospital. The mother says she does not recall this event.
On the child’s birthday in September 2008 the father says he set up for the child’s first birthday party in the D Park, including preparing the food. The mother does not agree that he did.
On 21 September 2008 the mother alleged the father rang her on the telephone (and later confirmed in person) that he was contemplating suicide and would take the child with him. The father denies that he made those statements.
On 24 September 2008 the mother says that over the telephone the father told her that he would take the child away from her. The father does not agree that this occurred.
The mother says that in October 2008 the father made a threat to the mother that he would remove the child from her forever. The father does not agree that this occurred.
On 3 October 2008 the mother and child moved out of the parties’ home and the mother did not return to the P premises. The father asserts that this was done without notification to him, whilst the mother asserts she notified the father on that day.
On 8 October 2008 the father requested that he spend time with the child from 3.30 pm on Wednesday, 15 October 2008 until 5.30 pm on Thursday
16 October 2008, in addition to 11.00 am until 5.30 pm on Sunday, 19 October 2008. The mother denied this request. The mother says, however, that on
7 October 2008 she offered that the father spend time with the child on Wednesday or Thursday from 3.30 pm until 5.30 pm and on Saturday or Sunday from 11.00 am until 2.30 pm. The mother says that the father agreed to spend time with the child on the Thursday and Sunday.
On 10 October 2008 the father made a request to spend time with the child from 3.30 pm on Wednesday, 15 October 2008 until 5.30 pm on Thursday,
16 October 2008, in addition to Sunday 19 October 2008 from 11.00 am until 5.30 pm. This request was denied by the mother.
The mother says the father agreed not to have overnight visits with the child. The parties agreed that the child would spend time with the father on the forthcoming weekend. In addition, the father says the mother notified him that she would be breaking the lease on the P premises, and would be finding alternate accommodation for herself and the child and were staying at the residence of the mother’s parents. The mother says she asked the father if he would take over the lease.
On 11 October 2008 the father applied to take over the lease of the P premises in his own name. The mother says this fact is not known to her.
On 12 October 2008 the father requested that the child attend her cousin’s first birthday party on 15 November 2008. The father says that he received no response from the mother, whilst the mother says she did respond to the request.
On 13 October 2008 the father notified the mother that the date of the first birthday party of the child’s cousin had changed to 16 November 2008. The father says he received no response from the mother, however the mother says she provided the father with a response.
On 15 October 2008 the father was notified by the managing agent that the owner of the parties’ residence was not going to continue to lease the P premises. The father subsequently left the premises on 20 October 2008 and resided temporarily with a friend.
On 23 October 2008 the mother alleged the father returned the child to the mother with a severe facial rash, scratches over her body, bruises and severe nappy rash. The father denies that assertion.
In mid-October 2008 the father asserts that discussions took place between the parties, and they decided to attend mediation. The mother disagrees and says she proposed mediation on 10 October 2008 and 17 October 2008 and subsequently arranged appointments and notified the father who advised her on 20 October 2008 that he would attend mediation.
On 28 October 2008 the father says he attended the initial mediation with Ms M, Psychologist and Family Therapist of the Family Relationship Service. The father also says he sent an email to the mother advising her that he would be moving on Friday and Saturday. The mother agrees but says that the father did not notify her of his new location. Additionally, the father says he sent a text message to the mother requesting time with the child as part of regular schedule, but that the mother did not respond.
On 29 October 2008 the mother alleged the parties separated on a final basis, and the father disagrees. The father further says that the mother denied a visit between the father and child and cited a text message sent on the previous afternoon, and a further message on the morning of the contact day and
follow-up email sent that morning requesting pick-up time arrangements, as being insufficient notice.
On 30 October 2008 the mother’s solicitor wrote to the father requesting him to reveal his location for visits with the child. Also outlined in that communication were concerns for the child’s soiled nappies and facial chaffing.
In late October or early November 2008 the mother returns to the P residence for a short period.
On 1 November 2008 the father advises the mother that he has moved into the same building as the mother’s residence in P.
On 2 November 2008 the mother said she started to give the father contact sheets at each visit, in order to facilitate communication regarding the child and visits. The father did not return them. The father does not agree.
On 4 November 2008 the father requested that he spend more time with the child, but says he received no response from the mother. The mother says this request was sent by email, and that she did not respond that day as she was not at work to check her emails. The father says on that same day he sent a further request in relation to the child attending her cousin’s birthday party, but received no response from the mother. The mother says she responded the following day, on 5 November 2008.
On 5 November 2008 the mother asserts the father again returned the child to her following a visit, with a severe facial rash, scratches over her body, bruises and severe nappy rash. The father does not agree with this assertion.
On 6 November 2008 the parties attended mediation together. The mother says she repeated her request to ‘lock in’ regular contact times.
On 7 November 2008 the father requested increased time with the child and proposes that he spend time with the child for three hours on a Wednesday and from 3.30 pm until 5.30 pm on Thursday. He says he received no response from the mother.
On 11 November 2008 the father repeated his request for increased time with the child. The mother says she wished to discuss future contact arrangements at mediation, and that in the meantime the child would be available to spend time with the father at the times under the current arrangements.
On 12 November 2008 the mother said the child was returned to her by the father after a visit and that she again had a severe facial rash, scratches over her body, bruises and severe nappy rash. The father does not agree.
On 13 November 2008 the mother denies the request that the child attend her cousin’s birthday party.
On 18 November 2008 the mother moved out of the P premises and on 19 November 2008 the mother moves to L. This is not known to the father.
On 19 November 2008 the mother agreed, for the final time, to meet the father in a private location for the handover of the child. The father disagrees.
On 19 November 2008 the mother said she relocated to L, and the father said this event was not known to him.
On 2 December 2008 the mother notified the father that she no longer wished to engage in mediation.
On 7 December 2008 the mother withheld the child from spending time with the father on that day. The father further said, and the mother disagreed, that as he did not give the mother $80 for shoes she threatened to withhold the child from spending time with the father.
On 8 December 2008 the mother says the police attended her home following notification by the father that the child was living in derelict accommodation with the mother. The father asserts that this occurred on 10 December 2008.
On 10 December 2008 the father makes a report to the Department of Community Services (“DoCS”), as it was then known, that the child was living with the mother in derelict accommodation.
On 17 December 2008 the mother asserts that the child had a very high temperature following a visit with the father, and seeks information from the father by SMS, but that the father does not reply. The father agrees with this event as to the SMS message only.
On 21 December 2008 the mother alleges, and the father disagrees, that the child was returned to her with a severe facial rash, scratches over her body, bruises and severe nappy rash.
On 28 December 2008 the mother alleged, and the father disagrees, that the child was returned to her by the father with severe facial rash, scratches over her body, bruises and severe nappy rash.
On 31 December 2008 the mother said, and the father disagreed, that the father’s last agreed visit with the child took place, and alleged the father harassed her and grabbed the child from her, threatening that he would take the child and the mother would never see her again. The mother said she called the police, and the father said it was not known to him whether the mother did so.
Between 31 December 2008 and 27 June 2009 the father did not spend time with the child. The father agrees with this, with the exception of the occasions on 6 May 2009 and 11 May 2009, under the observation of the Family Consultant.
On 31 December 2008 the mother alleges that after the child spent time with the father that afternoon the child screamed and yelled in the bath and appeared scared. The mother says the child previously enjoyed having a bath. In relation to that event the father says it is not known to him.
On 2 January 2009 the mother consulted her local doctor, sexual abuse line and DoCS about the child’s behaviour. The father is unaware of those consultations.
On 2 January 2009 the mother says that upon referral by B Police she commences weekly domestic violence counselling sessions.
On 3 January 2009 the mother asks the father through SMS for information regarding the child’s reaction to having a bath, and there is no substantive response from the father. The father agrees that this occurred, but disagrees with the mother’s description of his response as being not “substantive”.
On 5 January 2009 the police apply for an Apprehended Violence Order (“AVO”) against the father.
On 6 January 2009 the mother called DoCS for advice regarding the child’s behaviour. The father says this was not known to him.
On 17 January 2009 the mother received two calls from the father’s mother, discussing her concerns of suicide and the general history of suicide in the father’s family. The mother says she calls the Police. The father says this event is not known to him.
On 20 January 2009 the father says he was contacted by B Local Area Command and advised that an AVO application had been filed with the Local Court, and which was faxed the following day.
On 27 January 2009 the mother commenced proceedings in the Family Court of Australia seeking, inter alia, that the father spend unsupervised time with the child for five hours in each week, over the next six months.
On 29 January 2009 the first mention of the AVO application took place at the Local Court. The second request by the Police on the mother’s behalf for an Interim AVO was refused. The mother agrees and further says she was directed by police to leave court prior to the hearing that day.
On 5 February 2009 the second mention of the AVO matter took place at the Local Court, and the third request for an Interim AVO was refused.
The father says he met with a Senior Constable D and provided documentary evidence against the application and discussed with representatives of Coles at E about acquiring CCTV footage for the date and time of the alleged assault. The father says he emailed the Senior Constable requesting that the CCTV footage be viewed. The mother says she is not aware of these steps taken by the father.
On 24 February 2009 B Police advised that the AVO was to be withdrawn on 26 February 2009 and that the father was not required to attend. The father says he filed a subpoena in relation to the CCTV footage, to which the mother says this is not known to her.
On 24 February 2009 the mother made a further allegation to police that the father tried to run her over and as a result a statement was taken from the mother and the Police decided the AVO proceedings would not be withdrawn on 26 February 2009.
On 25 February 2009 the father filed a Response to an Application to Final Orders seeking, inter alia, that the parents spend equal time with the child alternating on a two day basis for the next four months.
On 26 February 2009 at the third mention in the Local Court the fourth request for an Interim AVO was denied. The mother says the father was not present at Court on that occasion.
On 2 March 2009 the paternal grandmother asked to see the child, to which the mother agreed but received no response from the paternal grandmother.
On 4 March 2009 the father says he commenced a six week “Parenting after Separation” course with Relationships Australia, which was completed on
8 April 2009. The mother says she was unaware of this.
On 17 March 2009 the mother filed a Notice of Child Abuse or Family Violence, alleging family violence. It is alleged that on 31 December 2009 the father nudged and followed the mother and grabbed a mobile telephone from her. It is further alleged that on 24 February 2009 the father drove toward the mother at speed, requiring her to move in order to avoid being struck.
On 19 March 2009 the parties attended upon the Family Consultant, Ms E, and agreement was reached for the child to spend time with the father for two and a half hours for three days in each week.
The mother alleges that immediately following the session, and in the father’s absence, she disclosed to the Family Consultant that it was her perception that the agreement was made under duress. In response, the father says he was unaware of any such allegation at that time and denies any duress. The father disagrees with the mother’s contention that the father sent a facsimile request to the mother’s solicitor that afternoon, rescinding the agreement reached with the Family Consultant.
On 19 March 2009 an order was made appointing an Independent Children’s Lawyer for the child.
On 24 March 2009 the father says he received an email from the police attaching further allegations made against him which had not previously been made by the mother. The mother says this event is not known to her.
On 26 March 2009 a fourth Mention of the AVO proceedings took place at the Local Court and the fifth request for an Interim AVO was refused. The AVO proceedings were listed for hearing on 18 June 2009 at C Local Court.
On 26 March 2009 an Interim AVO hearing took place, however no Interim AVO was made.
On 31 March 2009 an interim hearing took place before Justice Le Poer Trench. Orders were made including that the child live with the mother, and that the mother be permitted to remove the child from Australia between
9 April 2009 and 1 May 2009. Orders were further made that the mother deliver the child to the Family Consultant on 6 May and 11 May 2009 for an assessment of the relationship between the father and child.
In April/May 2009 the mother alleges, the father cancelled her and the child’s health insurance without notice, whilst they were overseas. The father does not agree.
On 6 May and 11 May 2009 further interviews took place with the Family Consultant, Ms E.
On 6 May 2009 the mother disclosed to the Family Consultant concerns that the child may have been sexually abused by the father, to which the father says this fact is not known to him.
On 8 May 2009 the Independent Children’s Lawyer filed a Notice of Address for Service.
On 9 May 2009 the mother reported to DoCS that the child was touching the child’s genitalia on 31 December 2009 and 6 May 2009 and that the child had an extreme fear of having a bath and was displaying unusual tongue movements. The father is unable to deny those facts.
On 11 May 2009 the mother filed an affidavit alleging inappropriate behaviour by the father toward the child. The mother alleged that on 31 December 2009 she observed the child playing with her genitals and licking her lips at the same time, then kissing her fingers and repeating playing with her genitals. The mother further alleges that on 1 January 2009 the child attempted to kiss the mother’s genitals, whilst saying “Dad Dad” or “Dadda”.
On 11 May 2009 the mother tells the Family Consultant that the child demonstrated unusual behaviour after the interview with the father and Family Consultant on 6 May 2009. The father says this event is not known to him.
On 11 May 2009 an interim hearing took place before Justice Le Poer Trench. Orders were made, inter alia, that the mother and father attend appointments at the Sydney Children’s Contact Service and that the Magellan Registrar consider whether the case fits into the Magellan program.
On 18 May 2009 the mother commenced weekly counselling sessions at I Centre following a referral by B Police in December 2008 and the Department of Community Services Parent Line on 9 May 2009. The mother attended weekly sessions and a workshop from 18 May 2009 until 18 August 2009.
In late May 2009 the mother consulted a doctor at the Sexual Abuse Unit at Sydney Children’s Hospital. The child was not present and the mother showed the doctor photographs. The father was not made aware of those consultations.
On 27 May 2009 the mother says that the father had an intake interview with the Sydney Children’s Contact Centre. The father says he attended on 11 June 2009.
On 4 June 2009 a Magellan Report was ordered.
On 6 June 2009 the father objected to a Child Support Agency (“CSA”) Assessment that he pay $408.75 per month.
On 11 June 2009 the Court heard evidence from supervisors proposed by the father: Ms RN and S Tang-Li.
On 15 June 2009 interim orders were made following a hearing before
Justice Le Poer Trench that the child spend supervised time with the father as provided by the Sydney Children’s Contact Service and the matter was also expedited.
On 18 June 2009 the AVO hearing took place at C Local Court, and was adjourned to 23 November 2009.
On 27 June 2009 the father’s first supervised visit with the child took place at the Sydney Children’s Contact Centre, and thereafter fortnightly visits took place for one hour.
On 8 July 2009 the Magellan Report was released to the parties.
On 28 July 2009 orders were made by consent appointing Dr W as single expert.
On 26 August 2009 consent orders were made for time spent between the father and child to continue at the Children’s Contact Centre for one hour each fortnight.
On 27 August 2009 the father requested that the child be able to attend a family reunion picnic in September 2009.
On 10 September 2009 the mother denies the father’s request that the child attend the paternal family’s picnic.
On 30 October 2009 the Social Security Appeals Tribunal (“SSAT”) increased the child support the father was to pay from $408.75 to $561.92 per month, with child support arrears being approximately $4,450.44.
On 31 October 2009 the father alleged the child arrived at the Sydney Children’s Contact Centre with a deep three centimetre scratch on her face. The mother says this is not known to her.
On 12 November 2009 and again on 4 December 2009 the father requested that the child attend a family gathering on 26 December 2009 at the home of Ms RN. The father says the mother did not respond, however the mother says she responded on 9 December 2009 and was awaiting the report of Dr W.
On 23 November 2009 a final AVO hearing took place and the application was dismissed.
On 9 December 2009 the mother denied the father’s request in relation to the visit on 26 December 2009 and proposed that the child have a supervised visit with the father at B Park.
On 15 December 2009 the expert report of Dr W was released to the Independent Children’s Lawyer only.
On 21 December 2009 it was proposed that the child have contact with the father at D Park, and the following day the mother requested that the visit take place instead at B Park.
On 26 December 2009 the mother says the Sydney Children’s Contact Centre was closed. The mother says she offered, and the father accepted, to spend time with the child at B Park, supervised by the mother’s father, for one hour on Boxing Day. However, the father contends that the Boxing Day contact was initiated at his request.
On 12 January 2010 the matter was listed before Justice Stevenson. The mother did not attend the hearing and produced a medical certificate.
Dr W’s Report was released. An interim hearing took place and orders were made which, in summary, suspended the father’s supervised time with the child and injunctions were made in relation to the father, including that the father be restrained from entering the mother’s premises, the “E Centre” and Y Park at B.
On 12 January 2010 the parenting proceedings were listed for final hearing.
On 17 February 2010 the matter was listed for hearing between 17 February and 2 March 2010.
The Issues
Prior to the commencement of the hearing a list of Issues was formulated, as set out hereunder:
a)Whether an order for equal shared parental responsibility for the child should be made
b)The nature of the relationship of the child with each of her parents
c)The capacity of the parents to provide for the needs of the child, including her emotional and intellectual needs
d)The willingness and ability of each of the parents to facilitate and encourage a close and continuing relationship between the child and the other parent, also taking into account the lifestyle, culture and traditions of each parent
e)The current and future capacity of each of the parents to communicate with each other and resolve difficulties that may arise
f)Whether there is an unacceptable risk of the child being sexually abused by the father
g)Whether there is any degree of risk to the child of being subjected to, or exposed to, any physical or psychological harm or family violence
h)If the Court finds the child is at risk in the father’s care, what orders should be made to protect the child from that risk
i)What orders should be made with respect to the contact and communication between the parents and
j)If an order is made for the child to spend time with or live with the father, whether those periods should be supervised and the details of such supervision.
Of those issues the major issue was whether or not the child had been sexually abused by the father or whether the father posed an unacceptable risk of harm to the child.
At the conclusion of the evidence I was asked by Counsel for all parties to express my preliminary views.
My conclusions on the evidence were that:
a)The evidence did not support the allegation of sexual abuse. In coming to this conclusion I relied on the evidence of Dr W and my observations of certain video discs taken by the mother of the child and said to sustain the allegation of abuse at the hands of the father. The discs do not, in my view, portray evidence which lead to that conclusion. That evidence was unconvincing to me, as it was also to Dr W. The evidence contained in the discs was said to have been garnered at different times. However, the order in which they were said to have been taken by the mother is put in doubt given that an alleged later recording shows the child as having fewer teeth than in an earlier recording.
b)I accept the father’s evidence as truthful and the denial of any such abuse by him. I do not, where it conflicts with the father’s evidence, accept the evidence of the mother who was said by the Family Consultant to have a high state of anxiety.
c)Dr W’s observations of her were borne out by her presentation in the witness box with her evidence being liberally punctuated with crying and manic moments and sobbing.
d)In addition, allegations which the mother had made that the father had driven a car at her in a car park were not sustained on a view of the CCTV footage taken on the day and her allegation that the father had executed a “hand brake turn” within the car park were not supported as probable by independent expert evidence.
e)The whole of the evidence of the mother in support of the allegations had, if not a concocted air about them then at least were in my view likely to be embellished considerably, perhaps even created, possibly in part as a product of the mother’s anxiety, where anything was seized on to endeavour to support the abuse hypothesis she had formed without any sound basis.
f)It is however comforting that the extreme anxiety which has been the lot of the mother is presently the subject of ongoing therapy. During the course of the proceedings she was, it seems, able to come to a realisation that her worst fears had not been realised and that she could come to a position where she proposed that the interests of this child would be best served by there being a co-operative parenting regime with increasing contact with the father.
g)This was the mother’s position albeit that that regime was not as much as the father wanted, it did demonstrate a position entirely inconsistent with the assertion of and a continued belief in the proposition that the father had been guilty of sexual abuse or was an unacceptable risk to the daughter. Both parties expressed a desire that their communication improve.
h)The father in his evidence, although displaying at times understandable concern at the allegations which were made and a response to them which was reflective of the injustice that had been his lot as a result of what he conceived were fabricated allegations was, in my view nevertheless preferable to the evidence of the mother.
i)His evidence was given directly and the father did not avoid questions. He made admissions against his interest and was, notwithstanding the provocation which had been offered to him by the allegations of violence and abuse, concerned to work through the process of dealing with them in a methodical and purposeful manner and in all the circumstances with a commendable element of emotional restraint.
j)He acknowledged his need for ongoing assistance in anger management and in the Court’s view needs some assistance in gaining insight into the condition of the mother and how it might affect her particularly her capacity to make reasoned judgements and how she may be affected by what is done by others, including the father.
k)The evidence did not therefore sustain any assertion that the father was an unacceptable risk to the child.
l)The evidence in general, and particularly that of Dr W and the Family Consultant, was that the child was primarily attached to the mother.
m)I formed the view that the child should have the benefit of the parents making their decisions jointly in the future. I think that the whole of these proceedings has been a salutary example of what a lack of tolerance, co-operation and communication can produce.
n)The battlefield in this case for the parties has been littered with the corpses of costs in time, money and emotion for each of them. Each has undergone trauma.
o)Having been seized by the conflict the process has only caused harm to the one that each of them loves. The child has been deprived of significant time with a father whom she loves and who loves her. Her exposure to this conflict and to the attitudes of the father and mother with which she has been surrounded did not do her any service.
p)Notwithstanding those matters it is and remains the primary function of this Court to promote the best interests of the child and that must be paramount in its considerations of the task it has to undertake. In those considerations punishment of a parent is not a part. However as I later indicate the bringing of unsustainable allegations of this nature can have consequences in costs where a party is unnecessarily put to expense thereby.
q)I therefore proposed that the parties have joint parental responsibility but that the child should continue to live with the mother since to remove her from her primary attachment figure would be to risk harming her. It is clear that the child loves her mother and that the mother loves the child. I found that there should be incremental time spent by the child with the father.
r)In coming to this conclusion I relied on the evidence of Dr W given in the proceedings. The parties agree that they should exercise joint parental responsibility for the child. It is my hope that communication can be successfully restored between these parties and their agreement to such an order is at least indicative that this may be so. In this way the child will benefit from the efforts of each of the parents to promote her ability to reach her full potential.
s)In order to give the mother some chance to recover from her anxiety I thought it necessary to provide for some of the weeks during which the contact between the child and the father might be supervised by the mother’s relatives. That was done in the period of adjournment for the purpose of enabling the parties to see if they could reach agreement. In the end the agreement reached was, as is set out, only partial and some matters were left for adjudication.
t)I emphasise that the process of supervision was not because it was my view that the father needed supervision but that the mother needed a period in which, free from anxiety, she could come to an understanding of what had happened and not have her anxiety elevated during that period. Thereafter it was my view that whilst the father would require for a time the assistance of members of his family, some of whom had given evidence, he did not require supervision. This view was based on the evidence of Dr W given in the proceedings, and with which I agree.
At the end of the hearing the parties and the Independent Children’s Lawyer each submitted proposed minutes of order. The parties sought different arrangements to those proposed by the Independent Children’s Lawyer for the child to spend time with the father.
The Independent Children’s Lawyer’s proposal was:
1.That the Mother and the Father have equal shared parental responsibility for the child, [C], born […] September 2007, hereinafter referred to as ‘[the child]’, in respect of major long-term issues.
2.That compliance with Order 1. herein, as far as is practicable, shall be supervised by Ms [E], Family Consultant, or another Family Consultant at the Family Court of Australia at Sydney.
3.That where the Mother and the Father are in dispute in respect of a major long-term issue in respect of [the child], the Mother and the Father shall participate in a mediation of that dispute in accordance with the directions of the Family Consultant who is referred to in Order 2. herein, prior to commencing any proceedings in a court of competent jurisdiction in respect of the dispute.
4. That [the child] live with the Mother.
5.That, subject to any other Orders herein, [the child] spend time with the Father:
a.Supervised by the Mother’s Sister, [Ms CT], and/or the Mother’s Brother-in-law, [Mr CT], from 9.00 am until 1.00 pm:
i. on 17 April 2010,
ii. on 24 April 2010, and
iii. on 1 May 2010,
b. In the company of a member of the Father’s family:
i.During the period commencing on 2 May 2010 and ceasing on 1 July 2010, from 9.00 am until 1.00 pm on each Saturday,
ii.During the period commencing on 2 July 2010 and ceasing on 1 September 2010, from 9.00 am until 3.00 pm on each Saturday,
iii.From 9.00 am until 3.00 pm on [the father’s birthday in] June 2010,
iv.During the period commencing on 2 September 2010 and ceasing on 1 November 2010, from
9.00 am until 5.00 pm on each Saturday,v.On Father’s Day in 2010, from 9.00 am until
5.00 pm, andviDuring the period commencing on 2 November 2010 and ceasing on 1 January 2011, from 9.00 am on each Saturday until 9.00 am on each following Sunday,
c.During the period commencing on 2 January 2011 and ceasing on 1 July 2011, from 9.00 am on each Saturday until 9.00 am on each following Sunday,
d. From 24 December 2010:
i.From 11.00 am on 26 December to 11.00 am on
27 December in each year,ii.From 11.00 am on 31 December in each even number year to 11.00 am on the next day,
iii.From 11.00 am on 1 January in each even number year to 11.00 am on the next day,
iv.From 6.00 pm on the day before Good Friday to 6.00 pm on the day after Good Friday in each year, and
v.If the Father does not otherwise spend time with [the child] on [the child’s] birthday pursuant to these Orders, if [the child’s] birthday is on a day on which [the child] attends pre-school or school, from the conclusion of pre-school or school, as is relevant, until 6.30 pm on [the child’s] birthday or, if [the child’s] birthday is not on a day on which [the child] attends pre-school or school, from 9.00 am until 1.00 pm on [the child’s] birthday,
e. From [the father’s birthday in] June 2011:
i.From 10.00 am on each […] June until 10.00 am on the next day, and
ii.From 10.00 am on Father’s Day until 10.00 am on the next day,
f.During the period commencing on 2 July 2011 and ceasing on 1 May 2012:
i.From 9.00 am on each alternate Wednesday, commencing on 6 July 2011, until 9.00 am on each following Thursday, and
ii.From 9.00 am on each alternate Friday, commencing on 15 July 2011, until 9.00 am on each following Sunday,
g. From 2 May 2012 until 31 January 2013:
i.From 10.00 am on each alternate Wednesday, commencing on 7 November 2012, until 10.00 am on each following Thursday, and
ii.From 10.00 am on each alternate Friday, commencing on 2 November 2012, until 10.00 am on each following Monday,
h.From 11.00 am on 26 December 2012 until 11.00 am on
2 January 2013,i.From 11.00 am on 15 January 2013 until 11.00 am on
22 January 2013,j. From 1 February 2013:
i.during schools terms (the dates of which are published by the school [the child] attends which includes pupil free days), hereinafter referred to as the ‘School Term’:
·From 10.00 am on each alternate Wednesday, commencing on the first Wednesday of each school term, until 10.00 am on each following Thursday, and
·From 10.00 am on each alternate Friday, commencing on the second Friday of each school term, until 10.00 am on each following Monday,
ii.from the conclusion of school on the last school day of each School Term which is in an even numbered year until 5.30 pm on the Saturday which is closest to the middle of that relevant non-School Term period, and
iii.from 5.30 pm on the Saturday which is closest to the middle of that relevant non-School Term period which commenced in an odd numbered year until the recommencement of school immediately following the end of that relevant non-School Term period, and
k.As otherwise agreed, in writing, between the Mother and the Father.
6.That the time that [the child] spends with the Father is suspended:
a.From 11.00 am on 25 December to 11.00 am on
26 December in each year,b.From 11.00 am on 31 December in each odd number year to 11.00 am on the next day,
c.From 11.00 am on 1 January in each odd number year to 11.00 am on the next day,
d.From 6.00 pm on the day after Good Friday to 6.00 pm on the day after Easter Sunday in each year,
e.If the Mother does not otherwise spend time with [the child] on [the child’s] birthday pursuant to these Orders, if [the child’s] birthday is on a day on which [the child] attends school, from the conclusion of school until 6.30 pm on [the child’s] birthday or, if [the child’s] birthday is not on a day on which [the child] attends school, from 9.00 am until 1.00 pm on [the child’s] birthday,
f.From 10.00 am on each [mother’s birthday in] January until 10.00 am on the next day,
g.From 10.00 am on Mother’s Day until 10.00 am on the next day, and
h.From 1 February 2013:
i.From the conclusion of school on the last school day of each School Term which is in an odd numbered year until 5.30 pm on the Saturday which is closest to the middle of that relevant non-School Term period, and
ii.From 5.30 pm on the Saturday which is closest to the middle of that relevant non-School Term period which commenced in an even numbered year until the recommencement of school immediately following the end of that relevant non-School Term period.
7. Subject to:
a.The Mother providing the Father with not less than
30 days written notice of the Mother’s travel itinerary, the Mother is permitted to take [the child] from Australia to a place outside Australia on one occasion in each two calendar years, andb.The Father providing the Mother with not less than
30 days written notice of the Father’s travel itinerary, the Father is permitted, from 1 February 2013, to take [the child] from Australia to a place outside Australia on one occasion in each two calendar years.8.[The child] shall not spend time with the other parent, for up to
1 calendar month, when the Mother or the Father takes [the child] from Australia to a place outside Australia in accordance with the travel itinerary which has been provided to the other parent pursuant to Order 7. above.9. The Mother:
a.Subject to sub-Order 10.(a) herein, shall arrange for [the child] to be delivered to the Father, at a place nominated in writing by the Father in the eastern suburbs of Sydney, at the commencement of time that [the child] spends with the Father, and
b.Shall ensure that the Mother and the Father are not both present at the place that [the child] is delivered to the Father at the commencement of time that [the child] spends with the Father.
10. The Father:
a.Shall collect and deliver [the child] to and from pre-school or school, as is relevant, in accordance with [the child’s] attendance schedule and/or routine, at times when [the child] is spending time with the Father in accordance with these Orders,
b.Subject to sub-Order 10.(a) herein, shall arrange for [the child] to be delivered to the Mother, at a place nominated in writing by the Mother in the eastern suburbs of Sydney, at the cessation of time that [the child] spends with the Father, and
c.Shall ensure that the Mother and the Father are not both present at the place that [the child] is delivered to the Mother at the cessation of time that [the child] spends with the Father.
11. The Mother shall attend upon:
a.Ms [A], Social Worker/Family Dispute Resolution Practitioner, of […] in the State of New South Wales, or
b.Ms [CS], Family Relationship Practitioner, of […] in the State of New South Wales,
hereinafter referred to as the ‘Mother’s Counsellor’, for the purpose of undergoing counselling in respect of anxiety which the Mother experiences and continue to attend upon the Mother’s Counsellor in accordance with the Mother’s Counsellor’s directions.
12.The Father shall attend upon [Mr R], Clinical Psychologist, of […] in the State of New South Wales, or such other person as [Mr R] recommends to the Father, hereinafter referred to as the ‘Father’s Counsellor’, for the purpose of undergoing counselling in respect of anger management and to facilitate the Father’s insight into the Mother’s anxiety issues and continue to attend upon the Father’s Counsellor in accordance with the Father’s Counsellor’s direction.
13. The Independent Children’s Lawyer shall provide:
a. The Mother’s Counsellor with a copy:
i. of these Orders, and
ii. of Dr [W’s] Report dated 21 October 2010,
prior to the Mother commencing counselling with the Mother’s Counsellor pursuant to Order 11., and
b. The Father’s Counsellor with a copy:
i. of these Orders, and
ii. of Dr [W’s] Report dated 21 October 2010,
prior to the Father commencing counselling with the Father’s Counsellor pursuant to Order 12.
14.The Father’s time spent with [the child] pursuant to Order 5. herein shall be in the company of a member of the Father’s family until the Father has provided the Mother with a document signed by the Father’s Counsellor which confirms that the Father’s Counsellor no longer requires the Father to attend upon the Father’s Counsellor pursuant to Order 12. herein as the Father has satisfied the requirements of Order 12. herein.
15.That [the child’s] Australian passport be held by Swaab Attorneys of Level 1, 20 Hunter Street, Sydney subject to it being released to the Mother or Father from time to time by consent in writing of the Mother and the Father (including as to the conditions of release), such consent not to be unreasonably withheld, or by order of a court of competent jurisdiction.
16.A written consent, for the purposes of these Orders, must be authenticated by a prescribed person for the purposes of the Statutory Declarations Act 1959 (Cth) endorsing on the consent a statement that:
a.the person is satisfied about the identity of the person signing the consent; and
b. the Written Consent was signed in the person's presence.
17.The Mother and the Father shall each pay half of the Independent Children’s Lawyer’s professional fees in the total sum of $13,419.00 to the Independent Children’s Lawyers within 28 days.
18.The Mother and the Father shall each pay half of the Single Expert Witness’ fees in the total sum of $4,631.00 to Dr [W] within 14 days.
The mother prepared a document of proposed amendments which included injunctions in relation preventing the father from entering specific locations and premises. The mother sought that all changeovers take place at D Park, or such other place as agreed between the parties in writing. Orders were further sought in relation to notifications in the event of the child suffering any emergency or serious accident and other orders in relation to the child’s safety. In relation to telephone communication, the mother sought that the father initiate telephone contact between the child and mother for the first four occasions that the child have overnight time with the father and that the child telephone the mother at least once on the first occasion that she spends more than two consecutive days with the father.
The mother provided a further document which set out amendments to the Minute of Orders proposed by the Independent Children’s Lawyer. The mother largely agreed with the orders proposed by the Independent Children’s Lawyer. The mother sought orders which included that from the father’s birthday in June 2011 the child spend time with the father from the conclusion of school if a school day, and if not a school day then from 10.00 am. The mother further sought orders that the father ensure the child attends pre-school and proposed that the father’s time with the child be suspended from 1.00pm on 24 December to 1.00pm on 25 December in each year. In addition, the mother sought that any time the father spend with the child outside of Australia be supervised and that the father be responsible for the costs of the Independent Children’s Lawyer and Dr W.
In his proposed amendments the father sought that the child spend time with him during times that progressed more rapidly than those proposed by the Independent Children’s Lawyer, and with different dates. The father sought that initially the child spend time with him from 9.00 am until 1.00 pm on each alternate Sunday from 18 April 2010 until 20 May 2010, and from 24 April 2010 until 20 May 2010 from 9.00 am until 1.00 pm on each alternate Saturday. The orders sought by the father included that from 19 September 2010 until 20 November 2010 the child spend overnight time with him from 9.00 am on each alternate Sunday until 9.00 am on each following Monday, as compared to the proposal of the Independent Children’s Lawyer which sought that the child spend overnight time with the father commencing 2 November 2010 and ceasing on 1 January 2011 and from 9.00 am on each Saturday until 9.00 am on each following Sunday. The father further sought orders in relation to holidays, special occasions and overseas travel. In relation to changeovers, the father sought that the mother arrange for the child to be delivered to the father at the commencement of the time she spends with him, in the Eastern Suburbs and at a place nominated by the father in writing. The father proposed that he collect and deliver the child to and from pre-school or school in accordance with her schedule at times when she is spending time with him and that otherwise the father arrange for the child to be delivered to the mother at a place in the Eastern Suburbs nominated by her in writing. The father sought that the mother and father both not be present at the changeover location.
The father also set out additional orders that he proposed, including that after a time the mother have the child delivered to the father’s home and that the father deliver the child to a place agreed between the parties in writing. The father further sought that the child speak to the father each night for approximately 30 minutes, and orders in relation to the payment of fees and attendance of the mother upon a counsellor.
Fortunately the issues for determination were somewhat reduced when at the end of the hearing the parties presented a minute of consent orders in which a number of matters were agreed.
That minute of consent order proposed orders in the following terms:
1.That the mother and the father have equal shared parental responsibility for the child, [C], born […] September 2007, hereinafter referred to as “[the child]”, in respect of major long-term issues.
2.That where the mother and the father are in dispute in respect of a major long-term issue in respect of [the child], the mother and the father shall participate in a mediation of that dispute in accordance with the directions of the Family Consultant prior to commencing any proceedings in a court of competent jurisdiction in respect of the dispute.
3.That [the child] live with the mother.
4.That, subject to any other Orders herein, [the child] spend time with the father:
a. in the company of a member of the father’s family
i.from 9.00 am until 3.00 pm on [the father’s birthday in ] June 2010, and
ii.on Father’s Day in 2010, from 9.00 am until
5.00 pm,b. from 24 December 2010:
i.from 11.00 am on 31 December in each odd number year to 11.00 am on the next day
ii.from 11.00 am on 1 January in each even number year to 11.00 am on the next day,
iii.if the father does not otherwise spend time with [the child] on [the child’s] birthday pursuant to these Orders, if [the child’s] birthday is on a day on which [the child] attends pre-school or school, from the conclusion of pre-school or school, as is relevant, until 6.30 pm on [the child’s] birthday or, if [the child’s] birthday is not on a day on which [the child] attends pre-school or school, from 9.00 am until 1.00 pm on [the child’s] birthday,
c. From [the father’s birthday in] June 2011:
i.from the conclusion of school, if a school day, and if not, from 10.00 am on each […] June until
10.00 am on the next day if not a school day or to the commencement of school if a school day, andii.from 10.00 am on Father’s Day until 10.00 am on the next day,
d.from 11.00 am on 15 January 2013 until 11.00 am on
22 January 2013,e. from 1 February 2013:
i.during school terms (the dates of which are published by the school [the child] attends which includes pupil free days), hereinafter referred to as the ‘School Term’:
·from 10.00 am on each alternate Wednesday, commencing on the first Wednesday of each school term, until 10.00 am on each following Thursday, and
·from 10.00 am on each alternate Friday, commencing on the second Friday of each school term, until 10.00 am on each following Monday,
ii.from the conclusion of school on the last school day of each School Term which is in an even numbered year until 5.30 pm on the Saturday which is closest to the middle of that relevant non-School Term period, and
iii.from 5.30 pm on the Saturday which is closest to the middle of that relevant non-School Term period which commenced in an odd numbered year until the recommencement of school immediately following the end of that relevant non-School Term period, and
f.As otherwise agreed, in writing, between the mother and the father.
5.That the time that [the child] spends with the father is suspended:
a.from 11.00 am on 31 December in each even number year to 11.00 am on the next day,
b.from 11.00 am on 1 January in each odd number year to 11.00 am on the next day,
c.if the mother does not otherwise spend time with [the child] on [the child’s] birthday pursuant to these Orders, if [the child’s] birthday is on a day on which [the child] attends school, from the conclusion of school until 6.30 pm on [the child’s] birthday or, if [the child’s] birthday is not on a day on which [the child] attends school, from 9.00 am until 1.00 pm on [the child’s] birthday,
d.from 10.00 am on each [mother’s birthday in] January until 10.00 am on the next day,
e.from 10.00 am on Mother’s Day until 10.00 am on the next day, and
f.from 1 February 2013:
i.from the conclusion of school on the last school day of each School Term which is in an odd numbered year until 5.30 pm on the Saturday which is closest to the middle of that relevant non-School Term period, and
ii.from 5.30 pm on the Saturday which is closest to the middle of that relevant non-School Term period which commenced in an even numbered year until the recommencement of school immediately following the end of that relevant non-School Term period.
6. Subject to:
a.the mother providing the father with not less than 30 days written notice of the mother’s travel itinerary, the mother is permitted to take [the child] from Australia to a place outside Australia on one occasion in each two calendar years, and
b.the father providing the mother with not less than 30 days written notice of the father’s travel itinerary, the father is permitted, from 1 February 2013, to take [the child] from Australia to a place outside Australia on one occasion in each two calendar years.
7.[The child] shall not spend time with the other parent, for up to
1 calendar month, when the mother or the father takes [the child] from Australia to a place outside Australia in accordance with the travel itinerary which has been provided to the other parent pursuant to Order 7 of the document entitled ‘Short Minute of Orders Proposed by the ICL’ [set out hereunder]7. Subject to:
a.The Mother providing the Father with not less than 30 days written notice of the Mother’s travel itinerary, the Mother is permitted to take [the child] from Australia to a place outside Australia on one occasion in each two calendar years, and
b.The Father providing the Mother with not less than 30 days written notice of the Father’s travel itinerary, the Father is permitted, from 1 February 2013, to take [the child] from Australia to a place outside Australia on one occasion in each two calendar years.
8.That each party provide for time equivalent to the time spent away from the other party, prior to the trip outside Australia, and upon return from the trip outside Australia.
9. The father:
a.shall collect and deliver [the child] to and from pre-school or school, as is relevant, in accordance with [the child’s] attendance schedule and/or routine, at times when [the child] is spending time with the father in accordance with these Orders, and
b.at all other times, that all changeovers take place at [D] Park or such other place as agreed between the parties prior to the changeover in writing, which can include by email,
10.The mother shall attend upon Ms [A], Social Worker/Family Dispute Resolution Practitioner, of […] in the State of New South Wales hereinafter referred to as the ‘Mother’s Counsellor’, for the purpose of undergoing counselling in respect of anxiety which the mother experiences and continue to attend upon the mother’s counsellor in accordance with the mother’s counsellor’s directions.
11. The Independent Children’s Lawyer shall provide:
a. the mother’s counsellor with a copy:
i. of these Orders, and
ii.of Dr [W’s] Report dated 21 October 2010,
prior to the mother commencing counselling with the mother’s counsellor pursuant to Order 11. of the document entitled ‘Short Minute of Orders Proposed by the ICL’ [set out hereunder], and
11. The Mother shall attend upon:
a.Ms [A], Social Worker/Family Dispute Resolution Practitioner, of […] in the State of New South Wales, or
b.Ms [CS], Family Relationship Practitioner, of […] in the State of New South Wales,
hereinafter referred to as the ‘Mother’s Counsellor’, for the purpose of undergoing counselling in respect of anxiety which the Mother experiences and continue to attend upon the Mother’s Counsellor in accordance with the Mother’s Counsellor’s directions.
b. the father’s counsellor with a copy:
i. of these Orders, and
ii. of Dr [W’s] Report dated 21 October 2010,
prior to the father commencing counselling with the father’s counsellor pursuant to Order 12 of the document entitled ‘Short Minute of Orders Proposed by the ICL’.
12.The father’s time spent with [the child] pursuant to Order 5 and Order 7(b) of the document entitled ‘Short Minute of Orders Proposed by the ICL’ [set out hereunder] shall be in the company of a member of the father’s family until the father has provided the mother with a document signed by the father’s counsellor which confirms that the father’s counsellor no longer requires the father to attend upon the father’s counsellor pursuant to Order 12 of the document entitled ‘Short Minute of Orders Proposed by the ICL’ [set out hereunder] as the father as satisfied the requirements of Order 12 of the document entitled ‘Short Minute of Orders Proposed by the ICL’ .
5.That, subject to any other Orders herein, [the child] spend time with the Father:
a.Supervised by the Mother’s Sister, [Ms CT], and/or the Mother’s Brother-in-law, [Mr CT], from 9.00 am until 1.00 pm:
i. on 17 April 2010,
ii. on 24 April 2010, and
iii. on 1 May 2010,
b. In the company of a member of the Father’s family:
i.During the period commencing on 2 May 2010 and ceasing on 1 July 2010, from 9.00 am until 1.00 pm on each Saturday,
ii.During the period commencing on 2 July 2010 and ceasing on 1 September 2010, from 9.00 am until 3.00 pm on each Saturday,
iii.From 9.00 am until 3.00 pm on [the father’s birthday in] June 2010,
iv.During the period commencing on 2 September 2010 and ceasing on 1 November 2010, from 9.00 am until 5.00 pm on each Saturday,
v.On Father’s Day in 2010, from 9.00 am until 5.00 pm, and
viDuring the period commencing on 2 November 2010 and ceasing on 1 January 2011, from 9.00 am on each Saturday until 9.00 am on each following Sunday,
c.During the period commencing on 2 January 2011 and ceasing on 1 July 2011, from 9.00 am on each Saturday until 9.00 am on each following Sunday,
d. From 24 December 2010:
i.From 11.00 am on 26 December to 11.00 am on 27 December in each year,
ii.From 11.00 am on 31 December in each even number year to 11.00 am on the next day,
iii.From 11.00 am on 1 January in each even number year to 11.00 am on the next day,
iv.From 6.00 pm on the day before Good Friday to 6.00 pm on the day after Good Friday in each year, and
v.If the Father does not otherwise spend time with [the child] on [the child’s] birthday pursuant to these Orders, if [the child’s] birthday is on a day on which [the child] attends pre-school or school, from the conclusion of pre-school or school, as is relevant, until 6.30 pm on [the child’s] birthday or, if [the child’s] birthday is not on a day on which [the child] attends pre-school or school, from 9.00 am until 1.00 pm on [the child’s] birthday,
e. From [the father’s birthday in] June 2011:
i.From 10.00 am on each […] June until
10.00 am on the next day, andii.From 10.00 am on Father’s Day until
10.00 am on the next day,f.During the period commencing on 2 July 2011 and ceasing on 1 May 2012:
i.From 9.00 am on each alternate Wednesday, commencing on 6 July 2011, until 9.00 am on each following Thursday, and
ii.From 9.00 am on each alternate Friday, commencing on 15 July 2011, until 9.00 am on each following Sunday,
g. From 2 May 2012 until 31 January 2013:
i.From 10.00 am on each alternate Wednesday, commencing on 7 November 2012, until 10.00 am on each following Thursday, and
ii.From 10.00 am on each alternate Friday, commencing on 2 November 2012, until 10.00 am on each following Monday,
h.From 11.00 am on 26 December 2012 until 11.00 am on 2 January 2013,
i.From 11.00 am on 15 January 2013 until 11.00 am on 22 January 2013,
j. From 1 February 2013:
i.during schools terms (the dates of which are published by the school [the child] attends which includes pupil free days), hereinafter referred to as the ‘School Term’:
·From 10.00 am on each alternate Wednesday, commencing on the first Wednesday of each school term, until 10.00 am on each following Thursday, and
·From 10.00 am on each alternate Friday, commencing on the second Friday of each school term, until 10.00 am on each following Monday,
ii.from the conclusion of school on the last school day of each School Term which is in an even numbered year until 5.30 pm on the Saturday which is closest to the middle of that relevant non-School Term period, and
iii.from 5.30 pm on the Saturday which is closest to the middle of that relevant non-School Term period which commenced in an odd numbered year until the recommencement of school immediately following the end of that relevant non-School Term period, and
k.As otherwise agreed, in writing, between the Mother and the Father.
…
7. Subject to:
a.The Mother providing the Father with not less than 30 days written notice of the Mother’s travel itinerary, the Mother is permitted to take [the child] from Australia to a place outside Australia on one occasion in each two calendar years, and
b.The Father providing the Mother with not less than 30 days written notice of the Father’s travel itinerary, the Father is permitted, from 1 February 2013, to take [the child] from Australia to a place outside Australia on one occasion in each two calendar years.
…
12.The Father shall attend upon [Mr R], Clinical Psychologist, of […] in the State of New South Wales, or such other person as [Mr R] recommends to the Father, hereinafter referred to as the ‘Father’s Counsellor’, for the purpose of undergoing counselling in respect of anger management and to facilitate the Father’s insight into the Mother’s anxiety issues and continue to attend upon the Father’s Counsellor in accordance with the Father’s Counsellor’s direction.
13.That [the child’s] Australian passport be held by Swaab Attorneys of Level 1, 20 Hunter Street, Sydney subject to it being released to the mother or father from time to time by consent in writing of the mother and the father (including as to the conditions of release), such consent not to be unreasonably withheld, or by order of a court of competent jurisdiction.
14.A written consent, for the purposes of these Orders, must be authenticated by a prescribed person for the purposes of the Statutory Declarations Act 1959 (Cth) endorsing on the consent a statement that:
a.the person is satisfied about the identity of the person signing the consent; and
b. the Written Consent was signed in the person’s presence.
15.That pursuant to section 68B(12) and section 114(1)(b) of the Family Law Act, 1975, the father is enjoined as follows:
a. from entering the mother’s residential premises;
b. from entering the mother’s place of work;
c.from entering the private car park of the [E Centre] located at [E];
d.from entering […, R], being the residential premises occupied by the maternal grandparents;
e.from entering upon [Y Park] at [R] except for the purpose of a changeover or when the father is present with the child.
16.That in the event of any emergency or serious incident which requires the child to require the assistance of medically trained professionals, that the father notify the mother immediately by telephoning her on 04[…], and in the event that the mother is not immediately available, that the father immediately notify the maternal grandfather, [Mr Dale] on 04[…], and that the mother notify the father immediately by telephone in the same circumstances.
17.That the father not take the child sailing without the child wearing a size-appropriate life preserver.
18.That the father provide a current certificate, in compliance with March 2010 legislation, that he has an approved fitted child car restraint seat for the child, and the father continue to ensure that the child travels in car restraints which comply with child safety regulations at all times.
19.That from the time the father starts having overnight visits with the child, the father ensure that the child telephones the mother before she goes to bed and such calls shall be initiated by the father to the mother’s mobile for the first 4 overnight visits.
20.That the father ensure that the child telephones the mother at least once on the first occasion that she spends more than 2 consecutive days with the father.
The effect of the consent orders was that the matters for the court to determine were as follows:
a)What incremental time should the child spend with the father over what periods and under what conditions.
The Evidence
Each of the parties gave evidence orally and by affidavit.
The independent experts provided reports and were cross examined.
The following affidavits were filed on behalf of the father.
Ms AN, a former neighbour of the parties, who deposed as to conversations with each of the father and the mother and her positive observations in relation to their daughter and the father’s interaction with her. She speaks of the apparent delight of the father and the child in each other’s company.
M Tang-Li, the brother of the father in the proceedings who gave evidence that he was a writer who was married to a school teacher and that they had children of their own.
a)He attested to his provision of accommodation for the father from time to time and his willingness to accommodate the father and child.
b)He gave evidence that if the mother had alleged that the father’s brother had attempted suicide (as she had alleged) that he had never done so nor had he contemplated it.
c)He gave evidence that the mother had dangled a child over the edge of a building in punishment for walking into her bedroom.
d)He gave evidence of the mother becoming unsteady on her feet at a party and accusing the husband of dealing inappropriately with another which conduct the father and the guest and her fiancé denied.
e)The support that the father had given the mother, particularly in relation to an incident when the mother locked the child in a car with the keys and was unable to release her for over an hour.
D Tang-Li, the father’s sister in law:
a)Supporting her husband’s evidence that he had not nor had he considered committing suicide.
b)Speaking positively of the father’s relationship with her children particularly her son, who is close in age to the child C.
c)Attested to the father’s pride in the child and her observation of his care for and attention to the child.
d)She attested to the thoughtfulness and assistance displayed and rendered to her by her brother-in-law.
e)Recounted her early and contented relationship with the mother and recalled the father’s calm response in the face of the incident at the party referred to by her husband.
f)Offered her assistance in caring for the child, should it be requested by the father.
By Ms F, describing her relationship with the father which was a former defacto relationship and the assistance he had rendered to her.
a)She talked of the father’s calm demeanor in the face of a motor vehicle accident and at other times. She gave examples. She spoke of him as a man who drank infrequently and then only reasonably. The father was described by her as a man willing to cook when entertaining.
By the paternal grandmother, the father’s mother:
a)Described her son as kind, gentle, thoughtful, calm, caring and loving.
b)Described her positive observations of the relationship between the father and the child and the father’s care of the child.
c)She denied an allegation made by the mother that she had, in a telephone call, asserted that the father would commit suicide. I accept the deponent’s evidence.
d)Recounted some details of her contact with the child since the parties’ separation.
By Ms RN, the father’s sister:
a)Described her brother and his attributes and personality in positive terms.
b)Described the father’s relationship with her children.
c)Described her relationship with the mother.
d)Described the mother on two occasions as acting hysterically and without reason.
e)She described the mother’s behaviour in refusing visits at the time of the birth of the child from other than her parents and her subsequent behavior in relation to visits.
f)The father’s care for the child following the parties’ separation and his ability to not be provoked by the mother who according to her evidence, was provocative. She reports that the father commented, to the effect that the father said, “I can take it, it is [the child] who is important.”
g)The love demonstrated by the child for the father.
By Ms AY, the father’s partner, deposing as to:
a)The father’s capacity to stay calm notwithstanding the allegations made against him in these proceedings and notwithstanding the distress and sadness he felt at not being for a time able to see his daughter.
b)As to his demonstrated character and behavior, which she says it at odds with the allegations made against him.
c)Of his care and support for her.
d)Of his pride in his daughter, his care for her and her love for her father.
Overall, the tenor of the evidence concerning the father given by these deponents was of a caring, loving and calm father whose character, behaviour and demeanour were at complete odds with the allegations made in the proceedings. He was a man who demonstrated care and concern for others and particularly his child, whose interests he appeared to place primacy on. He was well loved by his daughter who delighted in his company.
The mother provided evidence on affidavit from the following persons.
From a Mr U, a security consultant:
a)Attesting to a distress call he had received from the mother asserting that the father would not return the child.
b)That notwithstanding that, the child was returned with the father who appeared happy to return her.
c)That the mother told him she was fearful of the father and instructed him to install security doors.
From Ms Q in which she deposed:
a)As to statements made to her by the mother, as to statements alleged to have been made by the father.
b)Recalls an exchange in loud voices between the father and the mother.
c)Recalls that the mother reported to her that the father had tried to run her over in a car park.
d)Recalls that in her presence the mother was a moderate drinker.
e)Recalls that the mother’s personality had undergone change from being positive, to being, after she became pregnant, nervous and that she was frequently tearful and fearful.
From the maternal grandfather, the mother’s father, deposing:
a)That the mother and the child spend almost every Sunday afternoon at his home.
b)That the mother takes the child to Mass and that the child seems to enjoy that.
c)Of his relationship with the child.
d)Of the assistance he had rendered in supervising contact between the child and the father and the fact that the child ran to him immediately upon arriving and that the father had brought playthings for her and had carefully and closely supervised her. He noted that the father used his shirt to wipe a slippery dip so that the child would not get wet.
e)Of the reassurance he gave his daughter when she rang expressing anxiety for him and the child about the visit.
f)Of his denial that he had at any time been antipathetic to the father except on one occasion he had said during a visit to Dr W that the father ought not at that time engage with the child since the visits were to be separate.
g)Of his relationship with the father which he describes as infrequent prior to the pregnancy and more frequent after it.
h)He made generalised and non-specific comments concerning the father’s “aggressive behavior” to his daughter and, unusually one would have thought, of his concern that the father had called an ambulance when the mother was seriously affected by alcohol.
i)Of reports made to him by his daughter of the father’s asserted behavior and statements.
j)Of the return of the child by the father on one occasion on which she had a fever.
k)Of his concern that the child has been returned with soiled nappies and his conclusion that the father had not provided the child with enough to drink and his advice to the father in that regard.
l)Of his advice to the mother to take photographs of the child’s red perineum and groin in the event that again she was returned with one.
m)Of an occasion when the father said that it was important for the child to not wear shoes on that occasion and should run free.
n)Of a distressed reaction the child had to getting into a bath.
From Ms SR, the secretary to the mother’s father, deposing:
a)As to the mother’s arrangements in her office for the child’s care.
b)As to her seeing the father on about eight occasions at the office following the parties’ separation.
c)As to disputes conducted in loud voices at her office between the mother and the father.
d)As to the return of the child to her when she was febrile and the father’s refusal to engage in discussion about it and the mother’s reaction to the child’s symptoms.
e)As to the handovers of the child and the change in the place of handovers.
f)As to a call from the mother saying that she had seen the father’s car in the vicinity and was concerned about the father being in the premises, which he was not.
g)As to the report made by the mother that the father had attempted to run her down in a motor vehicle.
The affidavits of the mother and the father dealt with the allegations each made against the other. Where the parties are in conflict on their evidence as indicated earlier, I prefer the evidence of the father. I accept on the whole of the evidence that the child has a loving relationship with each of her parents.
Relevant Law
Legal principles
The principles governing this case are set out in the Family Law Act 1975 (“the Act”). In deciding whether to make a particular parenting order I must regard the best interests of the child as the paramount consideration (see section 60CA). In determining what is in the child’s best interests, I must consider certain matters under section 60CC. Those matters are the “primary considerations” and the “additional considerations” set out in that section.
I am required to ensure that any order I make is consistent with any family violence order and does not expose a person to an unacceptable risk of family violence, to the extent that doing so is consistent with the child’s best interests being treated as paramount (see section 60CG).
I will also be guided by section 60B which sets out the objects of the part of the Act dealing with the child and the principles underlying it.
I am required to consider matters set out under section 60CC(4) and (4A) of the Act. Without specifically setting out what those matters are I state that I will in these reasons deal with those matters.
Section 61DA(1) requires that:
… 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.
Subsection (4) provides as follows:
… 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.
Section 65DAA requires me to consider the child spending equal time or substantial and significant time with each parent, where the court is proposing to make an order that the child’s parents are to have equal shared parental responsibility.
Section 60CC Considerations
Primary considerations
(a)the benefit to the child of having a meaningful relationship with both of the child’s parents
This child would benefit from having a meaningful relationship with each of her parents. It seems that the child has a loving relationship with each of them notwithstanding the conflict which has continued for some time. The orders which I propose to make will afford a reintroduction period for the child into the father’s care with an incremental regime to a point where the child will be spending substantial and significant time with the father.
Although the communication difficulties in this case have been legion I am satisfied that each of the parties desires to seek assistance in remedying those deficiencies and now recognises that communication, at least at a polite level, is not only good but necessary for their daughter’s wellbeing. It is the Court’s hope that each of the parents within the confines of their relationship with their daughter will be able to express in real terms for the child’s benefit, their love for her and at the same time allow the child to express, unhampered by negative attitudes of each to the other her undoubted love for each of them. In this way the parties have every opportunity of appropriately discharging their responsibility to their daughter to encourage her by rejoicing in her successes and supporting her in her failures and allowing her to attain her maximum potential.
(b)the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence
I find that this child has not been sexually assaulted and is not at risk of harm from her father who poses no danger to her, as evidenced in these proceedings. I find that there is a danger in the conflict of these parents for this child’s emotional and psychological wellbeing. With the therapy each of the parties is prepared to undertake, and is undertaking, it is my belief that they can overcome that conflict by recognising that the relationship of the child with each of them is vital to the child’s welfare. I do not otherwise find that the child has been exposed to neglect or family violence, although I accept that she has been inappropriately exposed to the anxiety and fear of her mother and on occasions parental dispute proceeding beyond the borders of reasonable discourse to shouting.
I note that the father whilst normally portrayed as calm has in this case, had more than a little provocation to anger, however he has recognised the futility of that emotion and has undertaken a course for the purpose of assisting him to put that reaction behind him.
I find that neither party in this case is likely to subject the child to neglect and that each of them is able to physically care for the child.
The one or two incidents in which it is alleged that the father did not care properly for the child are now history and the preponderance of evidence is that he is a capable and caring person. In any event, he will have the assistance of his family in the care of the child and I am impressed with those who gave oral evidence as to their concern for the welfare of the child and their capacity and willingness to render assistance in the circumstance that it may be required.
Additional considerations
(a)any views expressed by the child and any factors (such as the child’s maturity or level of understanding) that the court thinks are relevant to the weight it should give to the child’s views
The child is too young for her views to have much weight, save that the child has demonstrated a love for each of her parents.
(b)the nature of the relationship of the child with: (i) each of the child’s parents; and (ii) other persons (including any grandparent or other relative of the child)
The relationship of the child to her parents appears loving, notwithstanding that the child has been removed from the father’s ongoing influence and care for some time. The child seems to have a good relationship with all her extended family.
(c)the willingness and ability of each of the child’s parents to facilitate, and encourage, a close and continuing relationship between the child and the other parent
This willingness has been expressed in evidence and one has hopes that those positive expressions will be given effect to in deeds rather than words.
To do so will be a proper discharge of parental responsibility to this child as to do otherwise would be likely to damage the child possibly for the rest of her life.
I think that the parties have come to a realisation that they need to demonstrate the ability to talk to each other at least in those polite terms of a businesslike relationship with a greengrocer.
I am sure that with the professional therapeutic assistance they are receiving not only will the expressed willingness to communicate but also the ability to give effect to that willingness develop. The parties have expressed their recognition of the need to keep their child from the harm that could be done for her were it not so.
(d)the likely effect of any changes in the child’s circumstances, including the likely effect on the child of any separation from: (i) either of his or her parents; or (ii) any other child, or other person (including any grandparent or other relative of the child), with whom he or she has been living
This child’s primary attachment is described as being with her mother. Her relationship with her father is loving and close but has not had the opportunity of being experienced in long periods of time with the father, and the child therefore has not been separated from the mother for any lengthy period of time.
Accordingly there will be significant change for the child and for the mother in the new arrangements which my orders will require and it is for this reason that I propose to make orders which will take into account the recommendation of Dr W in this matter.
I am not of the view that the incremental slope should be quite as limited a gradient as suggested and some changes are made for that reason to Dr W’s proposals and to those of the Independent Children’s Lawyer.
The child will spend increasing time with the father and therefore have an opportunity to maintain and foster the relationships she has with her father’s extended family and also have sufficient ability to maintain the relationships she has with her mother’s extended family.
(e)the practical difficulty and expense of a child spending time with and communicating with a parent and whether that difficulty or expense will substantially affect the child’s right to maintain personal relations and direct contact with both parents on a regular basis
The parties both reside in Sydney and such is their geographical location that there is no practical difficulty or expense of the child spending time with and communicating with each parent, such as would substantially affect the child’s right to maintain personal relationships and direct contact with both parents on a regular basis.
(f)the capacity of: (i) each of the child’s parents; and (ii) any other person (including any grandparent or other relative of the child), to provide for the needs of the child, including emotional and intellectual needs
I find that the parents have the ability to meet the child’s intellectual needs. I have expressed concern about the mother’s capacity, given her own problems with anxiety, to meet the child’s emotional needs. However, those problems are being addressed and during the course of the litigation her responses became calmer and more relaxed. Hopefully this will continue.
I was concerned that, given the trauma occasioned to the father, that there might be the possibility for him to yield to the temptation to seek to justify himself in his child’s eyes by criticism of the mother in a way detectable by the child.
Such a reaction would not be abnormal but it would be harmful and dangerous to the child. I find, on a consideration of all the evidence and the way in which the father approached this case, that the father has a capacity for calmness in the face of adversity and at least an insight into the possible harm that such conduct could occasion his daughter.
I find that each of the parties has the ability to meet the child’s physical needs for care.
(g)the maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the child and of either of the child’s parents, and any other characteristics of the child that the court thinks are relevant
The child is young. The parents have the problems adumbrated above. I find that the orders which I will make will serve this child’s best interests and that they will provide the best hope for this child for stability and nurture from both parents for the future, notwithstanding the problems which have been demonstrated in this case. Neither the father’s nor the mother’s cultural background poses any likely problems for this child.
(h)if the child is an Aboriginal child or a Torres Strait Islander child: (i) the child’s right to enjoy his or her Aboriginal or Torres Strait Islander culture (including the right to enjoy that culture with other people who share that culture); and (ii) the likely impact any proposed parenting order under this Part will have on that right
The child is not an Aboriginal or Torres Strait Islander child.
(i)the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child’s parents
Each of the parents has within the scope of their ability, been a responsible parent in meeting the physical needs of the child. There has been exemplified in the conduct of the mother an overanxious and hyper vigilant approach to the child and a willingness to believe the worst of the father and a determination to prove her hypothesis of harm at his hands by any means.
I find that whilst this demonstration of irresponsibility exists it is an irresponsibility created most probably largely by her psychological problems which she is presently addressing and which will hopefully disappear.
Given that position, the child will have the benefit of two parents who understand the nature of parental responsibility and have the willingness and ability to exercise that responsibility in a manner which gives it effective and positive meaning for their daughter.
(j)any family violence involving the child or a member of the child’s family
There have been allegations of violence in this matter. The application for an AVO was dismissed. The evidence suggests that the violence complained of in that proceeding did not take place. The evidence does not support the allegation of violence by the father to the child or of abuse of the child. However, the evidence is also that there have been loud disagreements between the parties. In the interests of the child this has to cease forthwith. I do not consider that the allegations of violence or even of loud disagreement are such as suggests that I should not make the orders I propose to make in this matter.
(k)any family violence order that applies to the child or a member of the child’s family, if: (i) the order is a final order; or (ii) the making of the order was contested by a person
There is no such order.
(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 my hope that the orders which I will make will put an end to the relentless pursuit of curial remedies. It is intended by these orders that the parenting regime for the child will be determined for some time. Whilst one cannot be confident that further proceedings will not occur, it is my hope that if the parties are unable again to resolve their differences they will have the assistance of a Family Consultant of this Court to provide an alternate remedy to litigation and that this will arrive at a resolution of their differences in that way.
(m)any other fact or circumstance that the court thinks is relevant
There are a number of injunctive orders sought by the mother. Whilst I do not believe that there is a danger to the mother from the father I do believe that it is important to make these orders to help enable the mother to minimise the level of her anxiety. That anxiety has been and is destructive and harmful to the child and she should be given the security of those orders for her benefit. The father has consented to them and hopefully given time and the mother’s recovery they will not be required to be continued.
Section 60CC(4) & (4A)
I have already touched on a number of matters which fall for consideration under this heading and I will not repeat those matters.
Balancing of all considerations under Section 60CC and the defined issues
Balancing the matters set out in section 60CC and the evidence recited in these reasons I conclude that the orders I propose will operate to foster the best interests of this child for the reasons specified above.
Section 61DA
This section recites a presumption which is required to be applied by the Court unless one of the excluding factors apply. The section requires the Court to presume that it is in the child’s best interests for her parents to have equal shared parental responsibility for the child.
The presumption does not apply where there has been family violence. In this case there have been allegations of family violence as has been set out earlier.
Notwithstanding that there may have been family violence it would still be open to the Court to make an order for equal shared parental responsibility if it was determined to be in the best interests of the child.
The section further provides in sub section (4) that the presumption may be rebutted if it is determined to be not in the child’s best interests.
In this case the interests of the child require that the Court make an order for shared parental responsibility and each of the parties seeks that order. It will in my view provide a reason for the parties to develop the will and the skills for communication so that the child may have the benefit of parents parenting properly in the future.
Section 65DAA
This section requires me to consider making an order for equal shared time for the child with each parent where it is proposed to make an order for equal shared parental responsibility.
The order I propose to make will ultimately afford for the child substantial and significant time with the father. However, given the age of the child and the primary attachment to the mother I think that whilst that should be an ultimate goal in this family, it is a goal that should be approached carefully. This has been suggested by Dr W and I find that to be in this child’s best interests.
Costs of the Independent Children’s Lawyer and the Single Experts Fees
The Court received an application from the Independent Children’s Lawyer for an order that each party should pay and bear one half of the costs of the Independent Children’s Lawyer and fees of the Single Expert, Dr W.
The mother consented to such a proposed order.
The father opposed the making of the order saying that the amount should be paid by the mother since she was wholly unsuccessful in her application and her allegations of child abuse at the hands of the father were without foundation.
He further said that he believed that she had abused the child in order to support her unfounded claims. I refer to my earlier comments that this Court does not make orders for costs as punishment but because they are considered just.
Section 117 of the Act gives to the Court a wide discretion to make an order for costs and in considering this application I should consider a number of matters set out in the section.
There is no evidence that either party would be unable to meet an order for the costs of both the Single Expert and the Independent Children’s Lawyer were such an order to be made.
The amounts claimed are $13,419 in relation to the Independent Children’s Lawyer’s professional fees and $4,631 to Dr W.
In relation to the conduct of the parties in relation to the proceedings, there is no evidence before me that either party failed to make information available as a litigant, however as I have said earlier, the evidence adduced by the mother had the air of confection about it.
The proceedings did not originate in the failure of a party to comply with an order but rather in the allegations of child abuse made in the matter.
The mother was wholly unsuccessful in her application and failed to establish her case.
The parties on the final day exchanged draft minutes of orders but by then the costs of the Independent Children’s Lawyer had been incurred as had the Single Expert’s fees.
The mother, despite the advice that she had in this matter from the Single Exert, persisted in her allegations of sexual abuse at the hands of the father. It was only after the hearing had commenced and proceeded for some time that she resiled from those allegations.
This is a matter in which the father has been brought to Court to face allegations which were unsustainable. He has been obliged, as has the Independent Children’s Lawyer, to commit time and money to the demonstration of the lack of substance in those allegations. Although the costs claimed are costs of the child, in a sense it would, in my view, be unjust and inequitable in the circumstances of this case to make an order that the father bear a proportion of those costs.
I am obliged to take in to account whether any party is in receipt of legal aid and there is no evidence that either party is in receipt of such aid.
I do not consider that the mother would suffer financial hardship were she to meet the costs and expenses claimed.
In all the circumstances I find it just that the mother pay the Independent Children’s Lawyer’s costs in the sum of $13,419 and the costs of the Single Expert in the sum of $4,631 within one month of the date of these orders.
The Orders to be made
At the conclusion of the proceedings certain orders were consented to by all parties and made the subject of a separate minute of proposed consent orders. I have included those orders in the orders that I make.
Each of the parties and the Independent Children’s Lawyer submitted proposed orders. They differed in a number of respects but primarily in the quantum of time that the child would spend with the father and the timing of increases in that time as the child grows older.
In his evidence, Dr W spoke of the need to have an incremental scheme in place for time the child spent with the father.
He was asked on short notice to provide some estimation of the milestones and, whilst he agreed with some proposals put to him, I did not take the view that they were other than that he agreed to suggestions made within a range of possible arrangements.
I find that the time spent with the father should progress incrementally. The father sought additional time more quickly than was proposed by the mother and the Independent Children’s Lawyer.
I have a view that, taking the Independent Children’s Lawyer proposals as a base, there should be a steeper curve towards a goal of substantial and significant time. I think that at this time the aim should be to seek to establish a regime which provides such a result. I think that the child will benefit in her development by such a programme and I consider it to be reflective of the underlying philosophy of the Dr W’s evidence.
I accordingly made orders as set out above.
I certify that the preceding two-hundred and twenty-seven (227) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Fowler.
Associate:
Date: 10 June 2010
Key Legal Topics
Areas of Law
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Family Law
Legal Concepts
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Costs
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Procedural Fairness
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Remedies
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