Deledio and Deledio
[2012] FMCAfam 646
•29 June 2012
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| DELEDIO & DELEDIO | [2012] FMCAfam 646 |
| FAMILY LAW – Parenting – unilateral relocation – allegations of persistent family violence and alcohol abuse – allegations of father denigrating mother to child – parental responsibility – with whom child should live and where. |
| Family Law Act 1975, ss.4(1), 60B, 60CA, 60CC, 61DA, 65DAA, 65DAB, 69ZT Family Law Legislation Amendment (Family Violence and Other Measures) Act 2011, Schedule 1, Item 45 Family Law (Child Abduction Convention) Regulations 1986, Schedule 2 |
| Goode v Goode, [2006] FamCA 1346, (2006) 36 Fam LR 422, (2006) FLC 93-296 Makita (Australia) Pty Limited v Sprowles, (2001) NSWCA 305, (2001) 52 NSWLR 705 |
| Applicant: | MR DELEDIO |
| Respondent: | MS DELEDIO |
| File Number: | PAC 1075 of 2010 |
| Judgment of: | Halligan FM |
| Hearing dates: | 30, 31 May, 1, 2 June 2011, 5, 6, 20 March 2012 |
| Date of Last Submission: | 20 March 2012 |
| Delivered at: | Parramatta |
| Delivered on: | 29 June 2012 |
REPRESENTATION
| Counsel for the Applicant: | The applicant appeared in person |
| Counsel for the Respondent: | Mr DeGreenlaw |
| Solicitors for the Respondent: | Veritas Legal |
| Counsel for the Independent Children's Lawyer: | Mr Berry |
| Solicitors for the Independent Children's Lawyer: | Legal Aid NSW |
ORDERS
All prior parenting orders in relation to the child [X] born [in] 2004 are discharged.
The mother shall have sole parental responsibility for the child.
The child shall live with the mother.
Unless otherwise agreed between the parties in writing, the child shall spend time with the father-
(a)During school terms, on the weekend commencing on the second Saturday of each month, from 10.00 am Saturday to 4.00 pm Sunday, or 4.00 pm Monday if a public holiday, provided that-
(i)if the father's weekend time falls on the Mother's Day weekend, his weekend time that month shall occur instead on the next weekend; and
(ii)if the father's weekend time does not fall on the Father's Day weekend, his weekend time that month shall occur instead on the Father's Day weekend;
(b)For the whole of the school holidays at the end of Term 2 each year, from 9.00 am on the first Saturday of those holidays to 4.00 pm on the last Saturday of those holidays;
(c)For half of the school holidays at the end of Terms 1 and 3 each year, being from 9.00 am on the first Saturday of the holidays to 4.00 pm of the day that is midway through the holidays in odd numbered years and from 9.00 am on the day that is midway through the holidays to 4.00 pm on the last Saturday of the holidays; and
(d)For half of each Christmas school holiday period from 9.00 am on the first Saturday after the conclusion of Term 4 to 4.00 pm on the day that is midway through the holidays in the 2012/2013 Christmas school holidays and in each alternate Christmas school holidays thereafter, and from 9.00 am on the day that is midway through the holidays to 4.00 pm on the Saturday immediately before the commencement of Term 1 in the 2013/2014 Christmas school holidays and in each alternate Christmas school holidays thereafter.
Changeovers for the preceding order shall occur at the Newcastle Children’s Contact Centre or, if that centre is unavailable for any reason, in the foyer of the Newcastle Police Station.
If changeover occurs in the foyer of the Newcastle Police Station, the following provisions apply-
(a)At the commencement of the father's time with the child-
(i)The father shall arrive ten minutes prior to the commencement of his time with the child.
(ii)Immediately on the child coming into his care, the father shall leave the foyer and the vicinity of the Police Station.
(iii)The mother shall remain in the foyer of the Police Station for not less than ten minutes after the father and the child leave.
(b)At the conclusion of the father's time with the child-
(i)The mother shall arrive ten minutes prior to the conclusion of the father's time with the child.
(ii)Immediately on the child coming into her care, the mother shall leave the foyer and the vicinity of the Police Station.
(iii)The father shall remain in the foyer of the Police Station for not less than ten minutes after the mother and the child leave.
The father may communicate with the child via Skype or webcam or, if either party does not have the necessary internet connection or hardware to enable this form of communication, by phone, each Monday, Wednesday and Friday the child is not spending time with him between 5.00 pm and 5.30 pm, and the mother shall ensure her computer is on and connected to the internet or that her phone service is available as the case may be, and that [X] is ready to receive the father's call, at the appropriate times, and shall ensure the child has privacy for his communication with the father.
The mother may communicate with the child via Skype or webcam or, if either party does not have the necessary internet connection or hardware to enable this form of communication, by phone, each Monday, Wednesday and Friday during school holiday time the child is spending with the father, between 5.00 pm and 5.30 pm, and the father shall ensure his computer is on and connected to the internet or that his phone service is available as the case may be, and that [X] is ready to receive the mother's call, at the appropriate times, and shall ensure the child has privacy for his communication with the mother.
The father is restrained from consuming any alcohol for twelve hours before the child comes into his care and while the child is in his care.
Each of the parents is restrained from denigrating the other parent or members of the other parent’s family to or in the presence or hearing of the child, and from allowing any other person to do so.
Each parent shall keep the other informed of their residential address, phone number and email address.
The parents are to communicate with each other only about the child and, except in case of emergency, are to communicate only via email or text message.
Each parent shall immediately notify the other in case of any medical emergency affecting the child or if the child consults a doctor or attends hospital, and shall keep the other parent informed of any medical diagnosis and of any medication or other treatment to be administered to the child on the advice of a medical practitioner, and shall authorise any doctor or hospital to which he or she may take the child to give information about the child to the other parent.
The mother shall keep the father informed of the school the child attends from time to time and shall authorise the child’s school from time to time to furnish the father with copies of all school reports, notices and advices concerning the child and any school activity involving the child.
The mother shall provide the father promptly with information about how to obtain copies of the child’s school photographs whenever they are available, including providing to him a copy of any relevant order form promptly on the mother receiving one.
IT IS NOTED that publication of this judgment under the pseudonym Deledio & Deledio is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT PARRAMATTA |
PAC 1075 of 2010
| MR DELEDIO |
Applicant
And
| MS DELEDIO |
Respondent
REASONS FOR JUDGMENT
Introduction
These are contested parenting proceedings under the Family Law Act 1975 concerning the parties’ son, [X], who will turn eight [shortly].
The father conducted his case without legal representation. It required some perseverance to attempt to understand the orders he ultimately sought. Based on a written minute of the orders he sought and his clarification of what he sought during final submissions, the father’s primary position apparently was that-
a)the parents have equal shared parental responsibility for [X];
b)[X] live with him;
c)the mother be required to relocate to live within one hour of [C] and to remain living within that area;
d)he be restrained from moving more than one hour from [C];
e)the mother spend time with the child on alternate weekends from after school Friday to before school the following Monday, each other Monday from after school to before school Tuesday, and for the whole of each Term 3 school holidays and half of all other school holidays.
The father also proposed arrangements for the child to spend Father's Day with him, and Mother's Day with the mother.
The father proposed three alternatives if the court did not make the orders reflected in his primary position.
In the first alternative, if the child was to live with him and the mother was not ordered to return to live in the Sydney area, he proposed that her time with the child during school terms be one weekend a month. He proposed the child spend time with the mother during school holidays in accordance with his primary position.
If the court did not order the child to live with him, the father's second alternative position was that the court require the mother to relocate with the child to live within one hour of [C] and that he spend time with the child on the same basis he proposed the child spend time with the mother if living with him and both parents were in the Sydney area, his primary position.
If the court ordered the child to live with the mother and did not require the mother to relocate to the Sydney area, the father's third alternative was that he spend time with the child on the same basis he proposed the mother spend time with the child if the child was living with him and the mother did not return to the Sydney area.
Irrespective of the other orders the court might make, the father sought orders to allow both parents to travel overseas with the child provided the travelling parent gave to the other parent at least 21 days notice, with an itinerary and contact details while travelling. As I understood his case, the father did not seek to travel overseas with the child otherwise than to travel to Serbia, where his father and brother live, during the Term 3 or Term 4 school holidays in any year when the child would otherwise be spending time with him under the parenting orders he proposed.
During the fourth day of the hearing, at which point the orders the father was seeking were those in his amended application filed 3 March 2011 and a supplementary handwritten minute marked Ex K, the father indicated that by the orders he then sought in terms of paras.7 and 8 of his amended application he was seeking to prevent the child being taken to any place of worship but not to otherwise inhibit either parent providing the child with religious instruction or otherwise exposing the child to the practise of any religion, although that is not how those orders were framed. The father did not subsequently refer to the issue of the child’s religious upbringing, either in the minute of orders he ultimately sought at the conclusion of the evidence, which was marked Ex S, or in his final submissions. It was thus uncertain whether the father pressed any order about religious instruction.
The orders ultimately sought by the mother were to the effect that-
a)she have sole parental responsibility;
b)the child live with her on the NSW Mid North Coast;
c)so long as the parents live more than one hour’s drive apart, the father spend time with the child on two weekends each school term from 9.00 am Saturday to 4.00 pm Sunday, or 4.00 pm Monday of a public holiday, for half of the school holidays at the end of Terms 1, 3 and 4, and for the whole of the school holidays at the end of Term 2, with changeovers at the Newcastle Contact Centre or Newcastle police station;
d)if the parties live within one hour of each other, then the father's time with the child be alternate weekends from 6.00 pm Friday to 6.00 pm Sunday or 6.00 pm Monday if a public holiday during school terms, and for half of all school holidays, for nine hours on Father's Day, and for three hours on the child’s birthday, and otherwise as agreed, changeovers to occur at the father's home at the commencement of his time and at the mother's home at the conclusion of his time;
e)the mother keep the father informed, or facilitate the father being kept informed, of specified matters concerning the child’s health and education;
f)the father not consume alcohol for 24 hours before, and during, his time with the child;
g)both parties be restrained from removing the child from Australia and that the child’s name be maintained on the airport watch list; and
h)neither party denigrate the other or a member of the other’s family in the presence or hearing of the child or allow any other party to do so.
The Independent Children's Lawyer proposed orders in substantially the same terms as those sought by the mother, except for the restraint on removal of the child from Australia. However, the Independent Children's Lawyer opposed the father's application for orders permitting him to take the child to Serbia.
The mother's position was that if the court ordered the child to live in the Sydney area, she would also return to live there. As I understand the father's position, if I order the child to live with the mother on the NSW Mid North Coast, he will not relocate to be closer to the mother and child to spend more time with the child than would otherwise be possible.
Background
The father is aged 40 (born [in]1972), the mother 41 (born [in] 1970). The parties commenced cohabitation in March 1999 according to the father or in late 1999 according to the mother. They married [in] 2002 and finally separated on 6 or 7 December 2009.
[X] was born [in] 2004.
The father is a qualified [occupation omitted], having a degree in [omitted] and a graduate diploma in [omitted]. However, he has never worked professionally as a [omitted]. The mother is also a qualified [omitted] and this is the career she has pursued.
On 6 May 2010, interim parenting orders were made by consent providing for the father to spend time with the child each Saturday from 11.00 am to 3.00 pm supervised by the mother's aunt at the home of the supervisor, and to communicate with the child by phone each Monday, Wednesday and Friday for 15 minutes between 5.00 pm and 5.30 pm. The court also ordered by consent that neither party denigrate the other in the presence of the child, and that the father not go within 100 metres of the mother and not intimidate the mother. Under these orders, the father was to enrol and participate in “an approved drug and alcohol course” to commence before 22 May 2010, and the father was restrained from consuming alcohol from 12.00 am Saturday morning to 3.00 pm Saturday afternoon.
On 28 July 2010, after a hearing, the court made interim orders that the mother have sole parental responsibility for the child, that the child live with the mother, and that the child spend time with the father each Saturday from 10.00 am to 4.00 pm, and at other times as agreed. Changeovers were ordered to occur at the Newcastle Children’s Contact Service, and pending arrangements being made to facilitate this, changeovers were to occur in the foyer of Newcastle police station. For changeovers at Newcastle police station, the father was to arrive ten minutes prior to the designated changeover time at the beginning of his time with the child and was to leave the vicinity of the police station immediately after receiving the child, while the mother was to remain at the police station for ten minutes after the father left. The reverse was to occur on the father returning the child at the end of his time.
Otherwise than for changeovers for the father's time with the child, the father was ordered not to knowingly go within 100 metres of the mother or to intimidate her.
The orders of 28 July 2010 further provided that-
a)from 7 days after the father provided to the mother's solicitors evidence he had completed a drug and alcohol counselling course conducted at [W] Hospital or other course agreed to by the parties, the father's time with the child was to become each weekend from 10.00 am Saturday to 4.00 pm Sunday;
b)both parties were to complete a post-separation parenting course, to which the parties may be referred by a Family Relationships Centre, within 6 months;
c)the father was not to consume alcohol;
d)neither party was to denigrate the other or any member of the other’s family in the presence or hearing of the child or allow any other party to do so;
e)both parties were restrained from removing the child from Australia, and the Australian Federal Police were to place the child‘s name on the airport watch list;
f)the father was to have telephone communication with the child each Monday, Wednesday and Friday between 5.00 pm and 5.30 pm for such period as the child will engage with him; and
g)the orders of 6 May 2010 were discharged.
At that time, an order was made for the preparation of a Family Report.
The matter was listed for hearing over four days. The matter did not conclude in that time, and when it became necessary to adjourn the proceedings on the fourth day, 2 June 2011, on the application of the Independent Children's Lawyer, and after hearing submissions, I made further interim orders discharging those parts of the orders of 28 July 2010 that dealt with parental responsibility, the child living with the mother, the child spending time with the father, and the restraint on the father consuming alcohol. In place of the discharged orders, I made interim orders providing that-
a)the mother have sole parental responsibility for the child;
b)the child live with the mother;
c)the child spend time with the father on one weekend a month during school term from 10.00 am Saturday to 4.00 pm Sunday, or 4.00 pm Monday if a public holiday, for the whole of the Term 2 school holidays, and for half of all other school holidays;
d)if the child resided within one hour’s drive of the father, the child spend longer and more frequent periods of time with the father during school terms as specified in the orders;
e)the mother keep the father informed of specified information about the child’s health and schooling;
f)changeovers for the father's time when the child resided more than one hour’s drive from the father's home to occur in terms similar to those under the July 2010 orders;
g)the mother not listen to or record any conversations between [X] and his father by phone or Skype. and
h)the father not consume alcohol during the period of 24 hours before, and during, the time the child spends with him.
The parties continued to live more than one hour apart after those orders were made.
Credit of witnesses
Significant parts of the affidavit evidence in both parties’ cases was inadmissible other than for s.69ZT, Family Law Act 1975.
The supporting witnesses in the mother's case prepared written statements that were then attached to an affidavit saying the statement was true. The statements predominantly contained favourable opinions about the mother and unfavourable ones about the father, expressed at great and unnecessary length, and were argumentative or in the nature of submissions to support the mother's case. They contained general assertions of facts and circumstances of which in many cases the witness could have had no personal knowledge. They contained little evidence of objective facts within the witnesses’ personal knowledge to support the opinions expressed, and their highly partisan character satisfies me I should exercise great care before giving any weight to opinions and conclusions expressed in them in the absence of evidence proving to my satisfaction, on the balance of probability but bearing in mind the seriousness of the fact in issue, objective facts that I am satisfied would support those opinions or conclusions. This is especially so where a purpose of these affidavits was to support serious allegations of family violence and alcohol abuse against the father, and to justify or exculpate the mother in her unilateral move with the child to a secret location after separation, resulting in no contact between [X] and his father for about five months.
Both parties sought to rely on unsworn statements and references from others that they attached to their own affidavits. I place no weight on those statements, since they were not on oath, and the makers of them were not available for cross-examination.
The witnesses in the father's case, in addition to the father, were Mr S and Mr D.
Mr D was not made available to cross-examination, the father saying he was unwell but producing no evidence of the fact. I allowed his affidavit subject to weight, it remaining untested. However, Mr D’s affidavit provided no evidence of any objective fact that would assist me in determining this case. His statement that he considered the father to be “a family man of sobriety” is not probative of any relevant fact, it simply being Mr D’s subjective opinion.
Mr S was not required for cross-examination, and I accept his unchallenged evidence. However, his affidavit too provides nothing that in my opinion assists in deciding this case. He has known the father since 1998, and is the father's immediate work supervisor, they having worked for the same employer since 2007. He said that in 2007, 2008 and 2009 the father worked reduced hours to take his child to and from child care, but he would not know whether the father did so or not.
The witnesses in the mother's case, in addition to the mother, were
Ms S (the maternal grandmother), Ms J, Ms L, Ms M, Mr P, Ms B and Mr Z.
Ms B was not made available for cross-examination. No explanation was provided for her unavailability. I allowed her affidavit on the same basis I allowed Mr D’s affidavit in the father's case. However, her affidavit is of limited use in deciding this case. She gave evidence of the time over which, and the circumstances in which, she has socialised with the mother and [X]. She said she only met the father once, and said the father was not otherwise present on the occasions she met the mother and [X] played with her children. This untested evidence does not assist me to decide matters in issue in these proceedings.
Mr Z, Ms M and Mr P were not required for cross-examination. I accept their unchallenged evidence where it is probative of relevant facts.
The only other witness was the Family Consultant who wrote the Family Report. No issue arose concerning his credit.
As to the credit of the remaining witnesses-
The father
The father asserted that in late 2009 the mother made a fraudulent claim for worker’s compensation. However, in cross-examination, he admitted that he had possession of a Workcover certificate in relation to the mother's injury. He did not rely on it in his evidence in chief at the hearing before me. He admitted in cross-examination that the mother's worker’s compensation claim was not declined because it was fraudulent, and he agreed that this was confirmed by the document he had in his possession but which he did not include in the evidence he relied on before me. Despite conceding documents in his possession showed there had been no fraudulent claim by the mother, he nonetheless stated he still believed the mother's claim was fraudulent.
I am satisfied the father had no objective foundation for his allegation that the mother's claim was in any way dishonest, much less fraudulent, and that he was selective in the evidence he put forward in support of his contention to the extent of withholding evidence that contradicted his assertion.
The father also sought to criticise the mother's care of [X] by asserting that the child came to spend time with him in April 2011 unwell and with sores around his mouth, and that a doctor he consulted told him the boy had a vitamin deficiency and needed to eat more fruit and vegetables. He said this was evidence of the mother neglecting to feed the child properly.
What the father failed to disclose in his evidence in chief, but admitted in cross-examination, was that before the child came to him that weekend, he was advised the boy was unwell with a diagnosed viral throat infection and the doctor had advised against the boy travelling, that the boy himself had confirmed to the father that he was unwell, but that the father insisted on the child spending time with him that weekend nonetheless, requiring the child to undertake travel when unwell that the father had written in August 2010 he would not require an animal to undertake, much less his son. He also failed to disclose that the doctor he consulted diagnosed the boy suffering a cold with high temperature, consistent with what the father had been told before insisting the boy travel to spend the weekend with him.
In my view the way the father sought to press the allegation of fraudulent conduct by the mother and the allegation that [X] was not being properly fed by the mother, notwithstanding his knowledge of facts that would indicate both allegations were without foundation, and in fact contrary to objective evidence he was aware of, reflects negatively on his credit.
The father was cross-examined about allegations he had made about the maternal grandparents in an earlier affidavit he filed in the proceedings, but did not rely on before me. He alleged the maternal grandmother had made a sexual advance to him that he agreed he had never mentioned before raising it in this affidavit. He said he did not raise it earlier, and had not told the mother about it, because-
a)The maternal grandmother is the mother's mother;
b)He understood the maternal grandmother’s situation in her marriage, she was sexually starved;
c)Why cause a split between mother and daughter;
d)He did not think it needed to be disclosed;
e)He felt sorry for the lady;
f)He felt embarrassed; and
g)He felt pity for the maternal grandmother.
He said he thought it appropriate to reveal this alleged incident in his affidavit, but could not think why. The maternal grandmother denied anything untoward in her actions towards the father.
The father was also cross-examined about allegations he raised in the same affidavit in which he suggested the paternal grandfather was homosexual because, he asserted, the maternal grandparents slept in separate beds, and he expressed fears of sexual advances by the maternal grandfather to his infant son. He asserted in cross-examination that as the maternal grandparents do not sleep together, logically he was concerned about sexual interference with the child by the maternal grandfather. He explained the fact that he did not seek any orders restricting the maternal grandfather’s contact with the child by saying he believed his allegations would be thrown out.
I was unconvinced by the father's attempts to explain these allegations against the maternal grandparents. The allegation against the maternal grandmother, even if true, is irrelevant to parenting issues, and the allegation against the maternal grandfather is totally lacking in any rational or logical foundation whatsoever.
I am satisfied that neither allegation against the maternal grandparents has any basis whatever, that the father knew this and that is why he did not rely on these allegations in his case before me, and that making them in a sworn affidavit calls his credit as a witness into question. I am satisfied that these baseless allegations are indicative of the father's abusive attitude to those who seek to thwart what he wants, at least in relation to his son, and are entirely consistent with the mother's depiction of the father's treatment of her.
The father also sought to restrict the mother taking the child into contact with her sister’s partner, Mr J. In cross-examination he said he had objected to [X] coming into contact with Mr J, but not the mother's sister, since [X] was born. He said his objection was based on having smelt marijuana on a few occasions he had visited the home of the mother's sister and Mr J in 2002/2003. He conceded that probably both the mother's sister and Mr J were using any marijuana he smelt. When challenged further about the reasons for his asserted objection to Mr J but not the mother's sister since [X]’s birth, the father said he was concerned about Mr J’s criminal record. But the father admitted he was not aware of Mr J’s criminal record until 2009. When it was put to the father that this could not have been the reason for his alleged objection to Mr J, the father was unable to explain the basis for his alleged objection.
I am not satisfied the father ever expressed any objection to [X] coming into contact with Mr J before these proceedings commenced, and I am satisfied his evidence that he did object is not true. His complaints against Mr J are opportunistic, and pressed as were the false allegations against the maternal grandparents, as a product of vindictiveness and malice towards the mother and the members of her family, and not through any genuinely held concern for [X]’s welfare.
There is an example of similar behaviour by the father in relation to
Ms J. When cross-examined about a text message he sent her after visiting her in mid December 2009 trying to locate the mother and [X], in which he said “[Ms J] I want to say that I have never met a woman with such a drive impressive is an understatement”, he said that while he could not recall sending the message, Ms J had a strong drive to look after her children, and said she was a really devoted mother. When asked why he had sought orders earlier in the proceedings that [X] not come into contact with Ms J to shield him from a person who bashed her own children, he said he had seen her hit her elder child, who was a similar age as [X]. He said that as circumstances had now changed, he thought it was his duty to ensure [X] was not exposed to this behaviour. Yet, the father a few days after visiting Ms J in mid December 2009, texted her asking her to agree to him moving in with her and sharing the rent. When it was put to him that at this time he expected at some stage to have [X] with him, and if Ms J had agreed to his request, he would have been exposed to her, he asserted this would not have happened as there was never a possibility of him moving in with Ms J.
The father's evidence on this point is fanciful. He asked to move into Ms J’s home. There clearly was a possibility of him moving in. The father, I am satisfied, lied to attempt to provide an explanation for the obvious inconsistency in seeking to move in with a person from whom he subsequently alleged [X] needed to be protected. I am satisfied the father's attempt to besmirch Ms J was another example of his approach of attacking everyone who supported the mother, as well as the mother herself, and that he was prepared to lie and misrepresent facts to do so. It is consistent with an effort to isolate the mother from those who support her and thus to re-exert a degree of control over her, and, when taken with evidence of family violence to which I will refer later, is cause for serious concern about the father.
The father was cross-examined about text messages shortly before and shortly after midnight on 11/12 September 2010. He admitted sending the second two in the terms alleged by the mother, but professed not to know what he meant by part of what he wrote. Nonetheless he accepted that these messages were intentionally offensive to the mother and her lawyer. It is a patent nonsense for the father to suggest that he did not understand what a message that he sent and that he said was intentionally offensive to the mother and her solicitor meant. I am satisfied the father was intentionally dishonest under affirmation in suggesting he did not know what he meant by this message.
For the foregoing reasons, I am satisfied that the father has been shown to lack credit as a witness generally and that his evidence cannot be accepted on any controversial fact unless independently corroborated.
The mother
As previously mentioned, the father asserted the mother made a fraudulent worker’s compensation claim. If that allegation was true, it would call the mother's credit into question. I am not satisfied the mother made a fraudulent claim, but that the father’s assertion she did without any objective basis for the allegation and despite having documents that contradicted his contention reflects adversely on his credit, not the mother's.
The father also asserted there were inconsistencies in the mother's evidence about how she sustained the injury that resulted in the worker’s compensation claim, citing two sentences in paragraphs 128 and 165 respectively of an affidavit the mother swore on 31 March 2010, where in the former she said it occurred in the car on the way to work and in the latter she said it occurred in the driveway before going to work. However, when the whole of both paragraphs are read, both consistently assert the mother had an injury when she arrived at work, that she had been lifting heavy objects in connection with her work, and that her doctor formed an opinion as to the cause of the injury. I am not satisfied there is any inconsistency such as to call the mother's credit into question.
The father also said the mother falsely asserted in the same affidavit that there was no compensation claimed, stating that two letters from the relevant insurer contradicted the mother's assertion. However, these letters are consistent with what the mother said. The first, dated 9 December 2009, refers to an “initial notification of injury”. While this letter indicates the insurer would not be commencing provisional payment of compensation because it did not accept the injury occurred at the mother's place of work or was a “journey claim”, it also advised the mother she was entitled to make a claim for workers compensation, and invited her to complete and return an enclosed form if she wished to do so. There is no evidence the mother completed and submitted this form. In fact, the second letter the father relied on, dated some three months after the first, refers only to an initial notification, as did the first, and is consistent with no claim having been made after the first letter. Thus, I am not satisfied the mother's assertion she made no claim for worker’s compensation was incorrect.
The mother said in her affidavit sworn on 31 March 2010 that she had not told any of her family where she and [X] were living. She and [X] moved into the maternal grandparents’ holiday home at [O] in January 2010. When cross-examined about her evidence she had not informed any members of her family of her whereabouts as at 31 March 2010, the mother conceded that by January 2010 her parents knew where she and [X] were living and that her parents were part of her family, yet the mother persisted in asserting her statement in her affidavit of 31 March 2010 was true.
The mother thus persisted in asserting as true a fact she had conceded could not be true, and was not prepared to concede the inaccuracy of her affidavit evidence. This persistence in asserting as true a fact that was patently untrue causes me concern about the mother's credit as a witness.
The mother said in her affidavit sworn on 15 September 2010 that changeover for the father's time with the child under the interim orders of 28 July 2010 “did not occur inside but rather outside the Police Station”. While the mother did not agree that changeover occurred exactly where the father said it did, at a particular location in a park about 300 metres from the police station, she agreed it did not occur on the footpath outside the front of the police station. I am satisfied the mother was being less than candid in asserting in her evidence in chief and in cross-examination that the changeover occurred “outside” the police station.
In her evidence in chief, the mother asserted that in the few years after an incident in 2005 when the father was convicted of assault, friends and family stopped visiting their home, and she also asserted that they did not have visitors to their home. She conceded in cross-examination that members of both her family and the father's family visited them when they lived at both [G] and at [W], that is, after the incident in 2005.
She sought to explain her first statement by asserting that she did not name the family and friends who stopped visiting, and that she was not attempting to suggest that all their family and friends stopped visiting. In relation to the second assertion, she said it needed to be read with the following sentence, which asserted that she took [X] out of the home to spend time with other children and to socialise, and that her assertion that they did not have visitors at their home was referring to [X]’s socialisation with other children and their families in the parties’ homes. She conceded however that her explanations or qualifications of her evidence in chief were not the reasonably obvious meaning of the words she used. I am again satisfied that the mother was not being candid in her evidence in chief, and was exaggerating what occurred to the point of inaccuracy in her sworn evidence.
The mother said she was never aware “of the criminal record” of her sister’s partner, Mr J, until these proceedings, but admitted that she knew before these proceedings that he had served periodic detention for criminal conduct. Her attempt to explain this inconsistency by saying her evidence was referring to his full criminal record was a pedantic and contrived attempt to reconcile her knowledge with her evidence.
This and the two preceding matters of concern in the mother's evidence shows the mother was prepared to be untruthful to advance her case against the father.
The mother put into evidence her record of phone conversations [X] had with his father that she “overheard”, comprising 70 pages and covering the period 2 October 2010 to 4 May 2011. The detail of that record and its apparent recording of the whole of phone conversations the boy had with his father satisfies me that the mother “overheard” these conversations by deliberately listening to the boy’s phone calls with his father. Saying she “overheard” them in my view was a deliberate misrepresentation by the mother of how she heard what [X] said.
In the result, I have some general concerns about the mother's credit as a witness, and believe her evidence generally must be treated with some caution. However, I am not satisfied the issues with her credit are as serious and pervasive as those with the father’s credit.
Ms J
Most of the affidavit evidence of Ms J dealt with things the mother told her and contained comments, opinions and conclusions about the father based solely or principally on what she had been told, not what she herself had seen or heard. I am not prepared to place any weight on those parts of her evidence, as the mother is a witness and capable of giving the evidence in proper form and able to be cross-examined on the substance of it. Where I am prepared to consider an aspect of
Ms J’s evidence, I relate it in these reasons.
However, I have significant concerns that Ms J’s obvious antipathy towards the father lead her to at least exaggerate her evidence.
She said in cross-examination that the father was not drinking every time she attended the parties home, both at [G] and at [W], but was drinking most of the time. When challenged as to why she continued to take her children to the parties’ home when she objected so strongly to the father's drinking, she then said that a lot of the times she visited the parties’ home she did not see the father at all.
When challenged about her evidence of inspecting the parties’ recycling bin one night when the mother and [X] were away and the father was alone in the home, to determine how much the father had been drinking, and saying it was full to the top with empty alcohol bottles, she admitted she could not see to the bottom of the bin. When it was put to her that she did not know if the bin had not been collected for some time, she asserted that the bin was full every week, before reluctantly acknowledging that she did not know whether the bin was emptied every week.
Ms L
Ms L, a friend of the mother's, said that as a result of the father's behaviour while she and her fiancé stayed in the parties’ home for a week in October 2009-
“Not only did we fear what he might do to us but what he may do to (the mother) and [X].”
In cross-examination about this statement, Ms L said she was fearful that she would be embarrassed, and was not fearful of anything else for herself. She said she was not fearful of any physical violence. That is not consistent with an assertion she was fearful of “what he might do to us”, and is another example of at best exaggerated and at worst false and misleading evidence.
Ms S
I have concerns that Ms S, the maternal grandmother, was also highly partisan in her evidence, to the point of warranting her evidence being approached with some caution. Having said that the child adjusted “fantastically” when the mother moved him unilaterally from Sydney to [O], and agreeing that [X] is good at making new friends, she disingenuously denied that [X] would adjust “fantastically” to returning to familiar surroundings in Sydney.
The evidence
Child care before separation
I am satisfied that the mother was the child’s primary carer until separation. I do not accept the father's assertion that he was the child’s primary carer. Apart from the issues with his credit, an examination of the parties’ work histories from [X]’s birth until separation, and the father's study commitments in 2007 and 2008, shows the mother was far more available to care for the child than the father was. Even when the father reduced his working hours to collect [X] from child care when the mother's work hours increased in the final year of cohabitation, the father regularly picked up [X] long after he could have, had he gone straight from work to the child care centre. The father's participation in [activity omitted] on weekends and during the week, even to the lesser extent he conceded, further restricted his availability to care for [X]. And the only matter the father said proved he was the child’s primary carer was the fact he was the one who preponderantly delivered [X] to and collected him from child care in the final year of cohabitation.
I accept the mother's evidence that she was the one who took [X] to any medical appointments, and she was the one who attended to him at night if he was unwell.
There appears to be no issue that the father was involved in the care of the child, albeit I am satisfied it was to a lesser extent than the mother. The mother said the father would play with the child, and said the father and child had “much fun” together.
I also accept the evidence of the mother that before she returned to work after [X]’s birth, the father would often call her after he had been drinking and demand that she come and get him. I accept her evidence that she tried to explain she could not do so as [X] was asleep, but the father would tell her to put him in the car and come and get him, or to leave him in the home and come and get him. The mother would comply with the father's demands out of fear refusal would enrage the father. She usually took [X] with her to collect the father, but on one occasion, when the father was so aggressive she was concerned at what he would do if she did not comply, she arranged for a neighbour to watch [X], who was asleep, while she collected the father.
Child care after separation until interim orders of 6 May 2010
The mother said she left the parties’ home on the evening of 7 December 2009 to escape the father's constant abuse and violence, and because of the effect exposure to it was having on the child. She said she drove away with only the clothes she and the child were wearing. She reported to the police that she had the child, and why she had left.
After staying briefly with friends, the mother moved into the maternal grandparents’ holiday accommodation at [O] in January 2010. She did not tell the father where she and [X] were, and told the father in a text message that she would not respond to any messages or calls from him.
The father reported the mother and [X] missing to the police about nine days after the mother left.
The mother said that in the period after leaving, she asked the child many times if he wanted to see his father but the child always said no. However, the mother also said that she was fearful that if the father found her and the child he would hurt her and take the child away, and that she believed the child should not see his father while he was drinking and she believed at the time that he was still drinking. This suggests that the mother would not have let the child see his father in any event, and raises questions about why the mother would ask the child if he wanted to do something the mother seemed at that time to be firmly opposed to. This was not explored with the mother in cross-examination.
The child did not spend any time with the father from separation until after the first interim orders were made on 6 May 2010.
Child care after interim orders of 6 May 2010 until interim orders of 28 July 2010
As mentioned, under interim orders made on 6 May 2010 the child was to live with the mother and spend time with the father each Saturday from 11.00 am to 3.00 pm supervised by the mother's aunt at the home of the supervisor.
When the child resumed contact with his father, the mother said the child still expressed love for his father and was pleased to see him. It is not clear when the child first spent time with the father after separation. The father expressed some dissatisfaction with his time with the child under this regime of supervised time and suggested the supervisor placed unreasonable restrictions on him. The supervisor was not called as a witness in the mother's case. However, even if the father's criticisms are accurate and justified, I am not satisfied this reflects adversely on the mother or is otherwise relevant now.
Child care after interim orders of 28 July 2010 until interim orders of 2 June 2011
As mentioned, under the interim orders made on 28 July 2010, until the father completed a drug and alcohol counselling course conducted at [W] Hospital or other course agreed to by the parties, the father was to spend time with [X] each Saturday from 10.00 am to 4.00 pm, and at other times as agreed. From seven days after the father provided evidence to the mother's solicitors of completion of the drug and alcohol counselling course, the father's time with the child was to become each weekend from 10.00 am Saturday to 4.00 pm Sunday. Changeovers were to occur at the Newcastle Children’s Contact Service, and pending arrangements being made to facilitate this, changeovers were to occur in the foyer of Newcastle police station.
On the first occasion the father was to spend time with the child after the interim orders were made on 28 July 2010, the changeover was to occur at the Newcastle police station as the parties had not yet engaged with the contact centre.
On this occasion, changeover at the commencement of the father's time did not commence at the police station, but, I am satisfied, in the general vicinity of the police station. Changeover at the conclusion of the father's time occurred at a public place several kilometres from the police station.
The father said the mother readily agreed to depart from the changeovers arrangements under the interim orders of 28 July 2010, and suggested this was not consistent with the mother’s expressed fear of him.
I accept the mother's evidence that the night before this changeover,
30 July 2010, the father rang the mother and asked to meet her the next day to apologise and see if they could reach an agreement on the issues before the court. The father brought her roses and gifts, and the mother did not feel in any immediate danger. I also accept the mother's evidence that the reason she attended to collect the child that afternoon some distance from the police station was because the father told her that was where he would return the child to her, and she had no alternative than to attend there if she wished to have [X] returned to her that day.
The mother said that after 31 July 2010, she received numerous telephone calls from the father as a result of which she felt the father was pressuring her to change the orders, and she decided to cease direct contact with the father.
On 6 August 2010, the mother's solicitors wrote to the father on her instructions suggesting that the parties were not at liberty to vary the interim orders without court approval, asserting (disingenuously) that-
“To suggest to our client that she is entitled to vary such Orders without Court approval is simply in breach of the Orders.”
While it was true that the parties themselves could not change the Court’s orders, it was always open to the parties to agree to arrangements contrary to the terms of the then operative orders, and a mutually agreed departure from them would not have been a breach of those orders.
The mother's solicitors further conveyed to the father that the mother's instructions to them were that until the father completed the drug and alcohol course, communication between the parents “be limited and preferably through a communications book”.
The next day, 7 August 2010, when the father was next due to spend time with [X], the mother provided a communications book, which was kept at the Contact Centre. In it she provided information about things the father could do with the child in Newcastle, indicated that the child had requested his scooter and provided instructions about folding and unfolding the scooter, and asked that he communicate with her through the communications book, and not through the child.
The father wrote in the book that he would not be able to come to Newcastle anymore as his car needed repairs costing $3,000,which he could not afford, and continued-
“I understand that I will not see my son [X] probably ever again. We have given each other our last hugs and kisses and said goodbye.
…
The trauma that these Newcastle visits create for both me and [X], has reached its threshold. It is unbearable.
…
And any possible future visits for a weekend would mean me to drive to Newcastle for 3 hours, pick up [X] at 10am, drive back to Sydney for 3 hours, get there after 1pm, then on Sunday, leave Sydney at 1pm, drive for 3 hours to Newcastle to get there by 4pm, and then drive back to Sydney for another 3 hours. Not to mention you carting him up and down. I would not put an animal through that much driving in a short period of time, let alone my own child.
…
Like I said before, [X] will receive copies of all Court papers in relation to his custody, when he turns 18, so you have until then to brainwash him, and make him believe that the only person responsible for the breakdown of our family is me, and that you had absolutely nothing to do with it.
…
The torture you have put me and [X] through is over, he is better off not seeing me at all, then (sic) seeing me in shocking circumstances/conditions.
If through some miracle, a drop of warm blood happens to enter your heart, and it occurs to you that [X] should see his father, you know my address and my number.”
I accept the mother's evidence that [X] was upset on the way home after this visit, and made statements to the effect that-
a)his dogs were going to die and why do they live so far away from the dogs;
b)the father told him the mother was the boss and would not let him go and look after his dogs;
c)he would see his father when he was older; and
d)the father really does not drink beer anymore.
I am satisfied the father deliberately exposed the child to the parental conflict, telling the boy he would not see him again and that it was the mother's fault. This was emotionally and psychologically abusive of the child.
The father sent numerous text messages to the mother, including 61 in the six weeks between 4 August and 14 September 2010. The father attended five sessions with a drug and alcohol counsellor between
10 August 2010 and 7 September 2010. The father’s text messages alternated between abuse and denigration of the mother and anyone supporting or helping her, including her lawyers, and entreaties to the mother to reunite their family. One message, referring to the mother's allegation of being forced by the father to have anal sex against her will, stated “u brought onto yourself” and suggested the mother's lawyer was having anal sex with her. Four days after this message, the father sent a further text message saying “I love you … and I still see us two, old and grey, holding hands sitting on a park bench”.
Three messages the father sent to the mother over a half hour period before and after midnight on 11/12 September 2010 were expressed as being to the mother's solicitor and suggested a sexual relationship between the mother and her solicitor and made offensive and demeaning comments of a sexual nature about the mother. In another text message, on 13 September 2010, the father called the mother “a cold hearted bitch”, and stated that the child would get the message printed out for him.
I accept the mother's unchallenged and uncontradicted evidence that on 9 August 2010, during a phone conversation with [X], the father asked [X] to put the call on speaker, and he attempted to talk to the mother about the parenting proceedings. The mother made no reply, but the father continued to speak to the child suggesting the mother could and should “help us be a happy family” by driving the child to Sydney to see the father. He also told the child the mother's lawyers sent him a letter that was not very nice, were hiding things from the mother, were not helping the mother and were not “our friends”. The father's exposure of the child to the parental dispute and the attempted use of the child to emotionally manipulate the mother was reprehensible, and showed a complete and callous disregard of the child’s welfare. This is another example of conduct by the father that was emotionally and psychologically abusive of the child.
On 12 August 2010, the father sent an email to the mother's solicitors advising that he would not be attending to spend time with [X] on the following Saturday, 14 August 2010, due to his car needing a new engine, which he could not afford. The father said he would notify the contact centre. This email did not repeat the statement the father made in the communications book the prior Saturday that he would not see the child again, even when able to do so in Sydney, due to the travel involved. In fact, it is clear the father was prepared to see the child in Sydney, provided he did not have to do the travelling. His expressed concern at the child having to undertake the travel is thus shown not to be genuine.
On 20 August 2010, in a phone call to the child, the father again asked the child to put the phone on loud speaker and said it was all in the mother's hands, and he and the child could see each other only when the mother let them. The mother made no reply. [X] was crying. This is a further example of the father being emotionally and psychologically abusive of the child.
The father's expressed concern at the effect of the travel on [X] as stated in the communications book was insincere, and, I am satisfied, was simply an attempt to put emotional pressure on the mother to agree to what he wanted, as was his behaviour during the two phone conversations with [X] on 12 and 20 August 2010. The father's insincerity in his communication book entry is further demonstrated by the fact that he subsequently insisted the child undertake the very travel he said in his communication book entry he “would not put an animal through” even though the child was ill and under medical advice not to travel. The father's use of the communication book and the phone calls with [X] show the father being prepared to use the child for his own purposes and to get his own way without any real appreciation of or regard for the boy’s welfare.
The Independent Children's Lawyer, to whom the father sent an email on 12 August 2010 in similar terms to the one he sent to the mother's solicitors that day, advised the father by email on the same day that he should attempt to borrow a car to travel to Newcastle, and if that was not possible, he should travel by public transport, and emphasised that it was his responsibility to ensure he complied with the court orders, noting that it would not be in [X]’s best interests not to see the father for a protracted period while the father waited until he had the funds to have his car repaired. The father replied on 18 August 2010 that no-one would lend him a car, and public transport was too expensive as he needed to save money to repair his car.
On 1 September 2010, the father sent an email to the Independent Children's Lawyer, copied to the mother's solicitor, saying he still could not afford to repair his car or to use public transport to see [X].
One week later, the father emailed the Independent Children's Lawyer and the mother's solicitor attaching a letter from a drug and alcohol counsellor, and stating-
“I expect my Son to be in Newcastle Contact Centre on Saturday 18.09.2010 at 9.45am for me to pick him up as per Court Order.”
I find it curious that within one week of advising the Independent Children's Lawyer and the mother's solicitor that he still could not afford to repair his car, the father could afford the repairs and had in fact had the necessary repairs effected. Of more significance in the father's resumption of his time with [X], in my view, was the father's completion of drug and alcohol counselling at the time of the email saying he would resume spending time, which he believed would entitle him to commence spending overnight time with [X]. I am satisfied in fact that the reason the father stopped spending time with [X] was not because of car trouble, but because he was not prepared to undertake the travel involved if he could only spend day time periods with [X] in the Newcastle area.
The father thus did not see the child between 7 August 2010 and 18 September 2010. He then spent day time only with the child in Newcastle on Saturdays from 18 September 2010 until 16 October 2010, when the father commenced spending overnight time with [X] in Sydney.
I note that in his email of 8 September 2010, the father was again abusive and offensive towards the mother's solicitor personally.
I also note that the counselling the father undertook was not in accordance with the orders of July 2010, as it was not done at [W] Hospital, and the mother did not agree to the father undertaking the counselling he had. There is no evidence that the father asked the mother to agree to it before commencing it, and there is no evidence he attempted to undertake a program at [W] Hospital. The mother's agreement to the father's time progressing to overnight time despite the father not complying with the requirements of the orders of 28 July 2010 as to drug and alcohol counselling is not consistent with a mother seeking to restrict or frustrate the father's time with the child, on the contrary, the mother agreed to the progression in the father's time despite the father's failure to do what the orders required him to do as a precondition to him spending overnight time with [X].
On the other hand, it is concerning that the mother routinely listened to the child’s conversations with the father and questioned him about what he talked about with the father, and made copious and detailed records of everything. The extent of these records, reproduced in part in her affidavit and there consisting of 178 items over the seven month period of 2 October 2010 to 4 May 2011, suggests very strongly that the child must have been aware that the mother was recording everything he said to his father and everything he said after speaking to or spending time with the father that may have been referable to his interaction with his father. Why the mother did so was not satisfactorily explained, and in my view had the effect of involving the child in the parental conflict, and was potentially abusive of him.
The father completed a parenting course, Keeping Kids in Mind, on 4 November 2010. He said the course taught him the importance of maintaining a child focus and of communication between the parents. The mother completed a Post Separation Parenting Group between November 2010 and January 2011.
Ms J said that the mother and [X] were at her home at Christmas time in 2010 when [X] was due to receive a phone call from his father. She said [X] insisted on sitting in the car by himself on a hot afternoon to wait for his father's call. She said the mother persuaded him to wait on the front veranda by explaining it was too hot in the car. She said she observed [X] during the call with his father to appear to become “very withdrawn”, and in the part of the conversation she heard it appeared to her that [X] “was restricting what he was saying”. While this evidence was clearly intended to suggest discomfort in [X] at speaking with his father, in my view it is consistent with the boy being stressed by the mother's actions in recording everything she heard him say while on the phone to the father.
The father sought to criticise the mother for persisting with changeovers in Newcastle on 26 December 2010 and 1 January 2011 despite at that time being in western Sydney staying with her sister. While the mother did not dispute the fact she was staying at her sister’s in western Sydney at the time, and did not suggest she proposed alternate changeover arrangements to the father that might have obviated the child enduring such long and unnecessary car trips, of even more concern to me is the behaviour of both parents in relation to a severe rash [X] developed in the groin area around this time.
The father asserted that the child developed “a massive sweat rash near his private parts” when travelling to spend time with him in the hot weather. He said he applied “sweat-rash cream” each time over his weekend with the child which cleared the rash by the time he returned to the mother, but the rash would be present again on the child’s return to him.
The father said that thereafter, the child came to him with “a new cream each weekend”, but the rash did not get any better for weeks and lasted for two months. The father did not suggest he used the cream the mother sent with the child. He only gave evidence of using his own “sweat-rash cream” each weekend the child was with him. There is no evidence the father took the child to see a doctor about the rash, despite its severity and persistence as described by the father.
The mother said the child developed a rash in his groin area in December 2010, she took him to the local doctor, and the doctor prescribed some cream which she applied, and by the end of December 2010 the rash had nearly disappeared. She said that on the child returning from spending time with the father on 23 January 2011, the rash appeared aggravated, and was blistery and sore. The child brought some cream that he said was his “dad’s doctor cream, he said he would fix it”, and the following day, after speaking to his father by phone, [X] told her “my dad said if I put his doctor cream on he would give me some money”.
The child’s medical records from the medical practice to which the mother has taken the child while living on the Mid North Coast (Exhibit E) indicate that on 25 January 2011, the doctor was consulted about a rash in the boy’s groin, recording a history that three to four weeks ago the child was in Sydney visiting his father, he had a groin rash, he was to see a doctor and was on a named medication that cleared the rash, but the rash flared again after visiting the father. The clinical record for this visit indicates the doctor prescribed Bactroban Cream for bacterial infection and Clonea Cream for fungal infection, both to be applied three times a day. He also prescribed Elocon Cream, and referred the boy for pathology tests.
The boy’s clinical notes confirm that he was seen again on 3 February 2011, when he was prescribed Cephalexan Granules three times a day “for skin infection”. The clinical notes record the result of the pathology swab as being staphylococcus aureus. The boy was referred to a dermatologist for the rash. [X] was seen again by the general practice on 1 March 2011, when it was noted he had an appointment with the dermatologist, and he was prescribed Hydrocortisone Ointment, to be applied three times a day.
The mother said that when she took the child to the doctor on
3 February 2011, the doctor advised her that the boy’s staph infection could not be treated properly if the cream was not applied for a continuous period of one to two weeks. She said it appeared that when [X] spent time with the father that the cream was not being applied. There is no evidence the mother told the father of the advice she received from the doctor.
The clear inference from the evidence of both parents and the medical records is that the “new cream” the father said the boy came with each weekend was in fact medication prescribed by a doctor.
In my view, the saga of the boy’s rash illustrates the risks to [X]’s welfare from the parents’ animosity, distrust and inability to communicate civilly about their child’s welfare. There is no evidence the mother passed on to the father the information she received from the doctor, other than to send the currently prescribed medication with the child each weekend. Despite the father receiving prescription medication for the boy, there is no evidence he used it. Rather, he persisted in using a proprietary medication he obtained and sought to persuade the child to use that medication when with the mother despite the child having been prescribed medication by a doctor, to his knowledge. Despite thus being aware the mother had taken the child to a doctor about the rash, there is no evidence the father enquired of the mother about what the doctor had said about it. The father at no time sought medical treatment for the child despite the boy repeatedly coming to him with a “massive rash” that would not clear. Each parent sought to blame the other for the boy’s rash, and all the while the boy unnecessarily suffered from a severe and painful rash.
In my view, this episode reflects poorly on both parents, and shows both parents can be blinded to the boy’s welfare by their distrust and animosity for each other, and by their desire to find fault with and criticise the other. It also proves that while the parenting course the father completed only a month or two before this incident may have taught him the importance of maintaining a child focus and of communication between the parents, he failed to learn the lesson being taught or, having learnt it, chose to ignore it.
Ms J said she and her five and six year old sons stayed with the mother and [X] at [O] for a week in January 2011, after [X] had spent time with his father. She said initially [X] was “aggressive” towards his mother and friends, but gave no evidence of what she saw or heard to lead her to conclude that [X] was “aggressive”. She said [X] was “emotional”, “rude”, “generally angry” and “frustrated”, but again gave no evidence of what she saw or heard to lead her to draw those conclusions. I therefore place no weight on this evidence. But assuming the child’s behaviour was as described, there is no evidence to prove that it was caused by spending time with the father, rather than, for example, having to leave the care of the father, or having three extra people living with him and his mother in what Ms J described as a “small” home.
The mother said in her affidavit sworn on 6 May 2011 that the weekly travel between [O] and Sydney via the Newcastle Contact Centre was becoming “significantly burdensome” for the child. She said that because the child was spending time with the father each weekend, the child was unable to play [omitted] or participate in [omitted] locally.
In an affidavit sworn on 4 May 2011, the maternal grandmother said that she had been living with the mother and [X] since before Christmas. She said her husband had remained in [T] to prepare their house for sale, and they intended to relocate, inferentially to the [O] area, where the maternal grandmother said she had family.
Child care since interim orders of 2 June 2011
Under the interim orders of 2 June 2011, the child was to live with the mother and, while the parties continued to live more than one hour’s drive apart, to spend time with the father on one weekend a month during school term from 10.00 am Saturday to 4.00 pm Sunday, or 4.00 pm Monday if a public holiday, for the whole of the Term 2 school holidays, and for half of all other school holidays, with changeovers to continue to occur at the Newcastle Contact Centre. The father was not to consume alcohol during the period of 24 hours before, and during, the time the child spent with him. The mother was restrained from listening to or recording any conversations between [X] and his father by phone or Skype.
The only evidence in chief about how these interim orders operated that was placed before me was an affidavit of the mother that I granted her leave to file in Court and to rely on on 5 March 2012. The father objected to my allowing the mother to rely on this affidavit, but after he read it, I having advised him that if I allowed the mother to rely on it I would afford him an opportunity to give further evidence in chief on how the orders had operated, he advised me that if I allowed the mother to rely on it he did not wish to lead any further evidence in chief in his own case or to cross-examine the mother on it. Counsel for the Independent Children's Lawyer supported leave being given to the mother to rely on this affidavit. I therefore granted that leave.
However, in final submissions the father for the first time sought to dispute the mother's evidence in that affidavit that he had worked when [X] spent block school holiday time with him in January 2012. In light of the circumstances under which I allowed the mother to rely on that affidavit, in particular the father's declining the opportunity to give further evidence himself or to cross-examine the mother on the affidavit, I was not prepared to hear the father dispute the contents of this affidavit, which I accept as true.
The mother said the arrangements under these interim orders were a viable and good option for [X], and said in her affidavit sworn on 5 March 2012 that she sought the continuation of those orders on a final basis. She said any issues that had arisen had been dealt with in a way that had the least impact on [X]. She said changeovers at Newcastle were working well, and there was no conflict between the parents. She said [X] had communicated with the father each Monday, Wednesday and Friday, often via Skype. She said there was also communication between the father and the child at other times by arrangement between the parents via email. Nonetheless, the mother said there had been some missed calls from the father outside the stipulated times, and she had received some text messages from the father that were sometimes rude or belittling, although she gave no evidence of any. She said that overall the June 2011 orders had worked better than the previous orders. She said that as communication between her and the father was by email, the child was not aware of the communication between them.
The mother said the paternal grandmother had been present at all school holiday time [X] had spent with the father under the June 2011 orders. She said that after the Christmas Holiday time [X] had spent with the father in January 2012, he had told her he was cared for by the paternal grandmother and his father had worked, returning home around 9.00 or 9.30 pm most nights.
In her affidavit of 5 March 2012, the mother for the first time mentioned that the child was seeing a psychologist. She said he had seen the psychologist in 2011 initially weekly, then fortnightly, then monthly, which was continuing at the time of that affidavit.
The maternal grandmother, in cross-examination in March 2012, said that she was not allowed anywhere near where [X] communicates with his father, and the mother leaves the house and goes into the garden when it happens. She said [X] enjoys his communication with the father. I accept this evidence.
Mother's allegations of family violence against father
The mother alleged a number of incidents of family violence by the father against her. I will deal with each specific incident in turn.
Family violence is defined as follows (s.4(1), Family Law Act 1975)-
“family violence means conduct, whether actual or threatened, by a person towards, or towards the property of, a member of the person’s family that causes that or any other member of the person’s family reasonably to fear for, or reasonably to be apprehensive about, his or her personal wellbeing or safety.
Note:A person reasonably fears for, or reasonably is apprehensive about, his or her personal wellbeing or safety in particular circumstances if a reasonable person in those circumstances would fear for, or be apprehensive about, his or her personal wellbeing or safety.”
Mid [month omitted] 2002
Based on the mother's uncontradicted and unchallenged evidence, which I accept, about a week before the parties’ wedding, when they were sharing accommodation with the father's cousin Mr J, the mother was in bed asleep when she was woken by the father hitting her and dragging her out of bed. She thought the father was “heavily intoxicated”. She was “terrified and scared”.
The mother left the parties’ house on this occasion, but returned about one hour later after the father's cousin rang her and said the father had “sobered and calmed down”. When she returned to the residence the father was “calm” and he apologised.
The mother described this as the first instance of aggressive behaviour towards her by the father.
However, based on the uncontradicted and unchallenged evidence of the maternal grandmother, which I accept, in late 2001 or early 2002, when the parties were living with the maternal grandparents, the maternal grandmother observed the father arrive home some hours after going to the local club “obviously inebriated”, because of the way he talked and held himself. She said soon after she heard the father's raised voice telling the mother to “clean it up”. The maternal grandmother went to the kitchen and saw the mother cleaning up a broken ornament on the floor and the father standing over hear yelling at her. She told the father she would not tolerate him speaking like that in her home, and she enquired if the mother was alright. The father then yelled at her “You better get to your room now [Ms S], this is between me and [Ms Deledio] ”. The maternal grandmother was scared because of the father's size, demeanour and tone of voice, and went and locked herself in her room out of fear, after the mother nodded in agreement. The next morning she heard the father tell the mother to make a choice, he took all their clothes to the car and told the mother to get in, and they left and went to live at his cousin’s home.
While the maternal grandmother’s evidence of this incident, which pre-dates the incident the mother said occurred a week before their wedding, would contradict the mother's assertion that the incident she said occurred a week before the wedding was the first instance of aggressive behaviour, I am not satisfied this apparent inconsistency detracts from the credibility of either the mother or the maternal grandmother. The mother gave specific evidence of many instances of family violence against her by the father, and it would be entirely unsurprising if she could not remember them all.
I therefore find that as a result of the father's violent behaviour towards the mother a week before their wedding, the mother was reasonably terrified and scared, and this was an incident of family violence. I also find that that the incident recounted by the maternal grandmother was an instance of family violence by the father against both the mother and the maternal grandmother, his aggressive and threatening behaviour reasonably instilling fear in both women.
[Date omitted] 2002, parties’ wedding day
I accept the mother's undisputed evidence that on the evening of the parties wedding, the father having consumed alcohol both at the wedding reception and at the motel at which the parties were to spend their wedding night, the parties went through the cards received from the wedding guests. A number of guests had given them money, and it became apparent her family had given less money than his. The father then became verbally abusive of the mother and her family. The father said to her “move off the bed and see what happens”. The mother was terrified.
The father then told the mother to write that her family would never come to their home and he never wanted to see them again, and he made the mother sign it.
When the father awoke the following morning he behaved as if nothing had happened. When the mother attempted to raise what had occurred the previous evening with him, the father accused her of trying to ruin their honeymoon, so she did not persist.
I find that the father verbally abused and threatened the mother on their wedding night, that the mother was fearful for her safety as a result, and that, in light of the incident of actual violence that occurred about a week before, her fear was reasonable. I am satisfied this was an incident of family violence.
During honeymoon [months omitted] 2002
The mother said the parties had a touring honeymoon, travelling by car. She said they stayed in motels at night and toured by day. She said the father would go out at night leaving her alone, and return after having been drinking.
The mother said on two occasions the father came back and told her to go out and get him some food, even when she protested she was in a strange town and did not know where to get food late at night. She said on one occasion he pushed her out the door to go and get food, she brought back food he did not like, and he threw the food at her and sent her out again.
The father did not dispute the mother's evidence about these incidents, and I accept it. I find that on one occasion the father pushed the mother out the door and threw food at her. I find that the mother was reasonably fearful and apprehensive about her wellbeing because of the father's behaviour towards her on this occasion. I am satisfied this was an incident of family violence.
Late 2002
The mother said that in late 2002 the father began verbally abusing her and following her around the home. She said she was pregnant at the time. She said the father pushed her with two hands on her chest and she fell backwards onto the bed. She said she was crying and telling him to stop yelling at her. He then left.
As with the preceding incidents, the father did not contradict the mother's version of this incident in his evidence in chief, nor did he cross-examine the mother about it. I therefore accept the mother's unchallenged evidence and find that on this occasion the father pushed the mother causing her to fall over when she was pregnant, and I am satisfied that this incident reasonably caused the mother to fear for her safety and wellbeing. It was an incident of family violence.
January 2005
The mother said that in January 2005, the father took the access card for her bank account and went drinking all day. On his return the mother told him she was angry and upset he had done so. The father raised his voice, was verbally abusive of the mother, and he threatened to hit her. She said she was terrified. The child was woken by the noise. The mother went to calm the child, and while she was holding the child, the father kicked her in the legs. The mother fell to the floor in pain. The mother called the police, who facilitated the mother and child going to the home of the mother's parents. The father then sent the mother text messages accusing her of stealing the child, and saying that it was all her fault.
This confirms my concern already expressed that the Family Consultant appears to have given little if any serious consideration to the mother's allegations of family violence and alcohol abuse, and for these reasons in my view the recommendations of the Family Consultant can be given little weight where they may be affected by that evidence.
I accept the Family Consultant’s opinions about the child’s relationships with his parents. He said the child had expressed great affection for both parents, and displayed no fear or anxiety with the father. He also said that the child’s primary attachment to a parent would depend on which was the child’s primary carer, whether one parent was the child’s primary carer was a matter for the court to determine. However, he said he saw no signs of a stronger attachment of the child to one parent rather than the other, noting that the parents had been separated about twelve months when he conducted his interviews and observations, and the father and child had spent no time together for the first half of that period.
The Family Consultant said that if the Court was satisfied the father would return [X] to Australia, and that [X] would be appropriately cared for while in Serbia, it is important for him to have an understanding of and exposure to his heritage. The major, and only, disadvantage he could see was the father not bringing him back.
The applicable law
The determination of the appropriate parenting orders is governed by Part VII of the Family Law Act 1975. The objects of Part VII and the principles underlying them are set out in s.60B.
The Court may make such parenting order as it sees fit, subject to ss.61DA (presumption of equal shared parental responsibility) and 65DAB (parenting plans) (s.65D). There have been no parenting plans about this child, so s.65DAB is not relevant.
The child’s best interests are the paramount consideration in deciding what parenting orders should be made (s.60CA). The child’s best interests fall to be determined by reference to the s.60CC.
The synthesis of ss.60B and 60CC in the decision making process is explained by the Full Court of the Family Court of Australia in Goode v Goode [2006] FamCA 1346 at [10], (2006) 36 Fam LR 422 at 428, (2006) FLC 93-296 at 80,888-9, as follows:
“10. Thus, in deciding to make a particular parenting order, including an order for parental responsibility, the individual child’s best interests remain the paramount consideration (as they did prior to the amending Act – see B v B: Family Law Reform Act 1995 (1997) FLC ¶92-755 at paragraph 9.51) and the framework in which best interests are to be determined are the factors in ss 60CC(1), (2), (3), (4) and (4A). The objects and principles contained in s 60B provide the context in which the factors in s 60CC are to be examined, weighed and applied in the individual case.”
If the court is to make an equal shared parental responsibility order, the court must consider the children spending equal time with each parent, and if such an order is not to be made, must consider the children spending substantial and significant time with each parent (s.65DAA). In relation to each of these options, which the court must consider sequentially, not concurrently, the court must consider whether such an arrangement would be in the children's best interests (S.65DAA(1)(a) and (2)(c)) and then consider whether such an arrangement is reasonably practicable (s.65DAA(1)(b), (2)(d) and (5)). If so satisfied on both these matters, the court must consider making such an order (s.65DAA(1)(c) and (2)(e), and see MRR v GR, [2010] HCA 4, (2010) 42 Fam LR 531, (2010) FLC 93-424).
These proceedings having commenced before 7 June 2012, the amendments to the definition of “family violence” in s.4(1) of the Family Law Act, and to ss.60B and 60CC that took effect on that date do not apply to these proceedings, and the provisions in force immediately before that date continue to apply (Family Law Legislation Amendment (Family Violence and Other Measures) Act 2011, Schedule 1, Item 45).
Assessment of primary considerations (s.60CC(2))
(a) The benefit to the child of having a meaningful relationship with both of the child’s parents
I accept the opinion of the Family Consultant that [X] presently has a good and close relationship with both parents, that is, I am satisfied the child currently has a beneficially meaningful relationship with both parents. I am satisfied that, provided this can be facilitated without exposing the mother or child to further family violence, and further provided this can be facilitated without the child being exposed to denigration of one parent by the other, the child can benefit from an opportunity to continue to develop and deepen these meaningful relationships.
(b) The need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.
The mother and her supporting witnesses all said their main concern about the father was his drinking. The mother and Ms J both said that if they were satisfied the father was not still drinking to excess, they would have no concerns about [X] spending time with the father.
Why the mother's main concern was not the father's persistent controlling and coercive family violence, which continued after separation, was never explained in the evidence. Proceeding on the basis that it was because she saw the family violence as solely the consequence of his alcohol abuse is pure conjecture on my behalf.
But I am not bound by the way the mother or her witnesses express their concerns. My obligation is to decide what is in [X]’s best interests according to law and based on the facts of which I am satisfied by the evidence before me. And that evidence, and the law, require me to have serious concerns about the father's proven family violence.
The father's violent and abusive behaviour was not only directed towards the mother but also to those of her family and friends who supported and helped her when she sought to escape the father's violence. It continued for some time after separation.
It now seems to have abated. There is no evidence of significant violent or abusive behaviour by the father towards the mother for some time. The mother said that since the orders of 2 June 2011, changeovers at the contact centre had progressed well, any issues that had arisen had been dealt with in a way that had least impact on [X], and there had been no conflict between the parents. The mother said however that she had received text messages from the father that sometimes contained rude or belittling material. As communication between her and the father had been by email, [X] was not aware of it.
While this suggests a significant improvement, I am concerned that the depth of the father's ongoing feeling against the mother, as indicated by his evidence in these proceedings and confirmed by the continuation of some rude and belittling communications, indicates that factors that may have contributed to the significant reduction in the father's abusive behaviour, including geographic separation of the parties and changeovers at a contact centre, remain necessary to seek to limit the risk of a resumption of the father's previous violent and abusive behaviour.
I am conscious that one possible ameliorating factor that may have contributed to the current improvement, namely these proceedings and the scrutiny of both parties’ actions they involve, will be removed on my making final orders. This reinforces in my view the need for considerable caution by the court in framing orders to ensure as much as possible that the mother, and thus the child, remain protected from the father's abusive behaviour.
Assessment of additional considerations (s.60CC(3))
(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.
There is no evidence of explicit views by the child that the could may take into account. As reported by the Family Consultant, the child maintains a wish that his parents reconcile. While this is not necessarily unusual in young children whose parents have separated, I am concerned it may also be a product of the child being exposed to the father's views.
(b) The nature of the relationship of the child with each of the child’s parents and other persons (including any grandparent or other relative of the child)
The Family Consultant found no discernible difference in the child’s relationships with each of the parents, despite the significant interruption to the child’s time with the father in the period after separation up to the time of the interviews and observations for the Family Report.
I am unable on the evidence to make any comparative assessment of the child’s relationships with his grandparents and other family members on both sides of his family in Australia. I am satisfied he has no relationship with members of his paternal family in Serbia.
(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
I find that the mother was justified in unilaterally moving with [X] to the Mid North Coast area. I am not satisfied this was due to any unwillingness to facilitate the father's relationship with the child. I am satisfied that the mother is willing and able to facilitate the child’s relationship with the father in the future, consistent with ensuring the protection of the child from exposure to further family violence or alcohol abuse by the father.
I have some serious concerns about the father's commitment to facilitating and encouraging the child’s relationship with the mother. I find that the father has denigrated and belittled the mother to the child on various occasions during the parties’ cohabitation, including in front of others apart from the mother. The father’s vehement persistence in pursuing various criticisms of the mother in these proceedings despite his criticisms being inconsistent with information he possessed, suggests an ongoing animosity by the father towards the mother, and based on his behaviour during cohabitation, warrants concern that the father may continue to criticise and belittle the mother to the child. This can be destructive of the relationship between mother and son and hinder or prevent a close and continuing relationship between the mother and the child.
(d) The likely effect of any changes in the child’s circumstances, including the likely effect on the child of any separation from either of his or her parents or any other child, or other person (including any grandparent or other relative of the child), with whom he or she has been living
I am satisfied the child is well settled in his current environment with the mother on the Mid North Coast. Requiring the child to move back to the Sydney area will be unsettling for the child, although it will enable the child to spend more time with the father than if he remained on the Mid North Coast.
I am concerned that requiring the child to move back to Sydney to live with the father will remove the child from his primary carer. It will place him with a parent who, I am satisfied, has been consistently physically and verbally abusive of the mother and who has demonstrated a serious lack of respect for the mother, which he has shared with the child and has sought to actively enlist the child in a similarly disrespectful view of the mother. It would also place the child with a parent who I am satisfied has a much poorer appreciation of the child’s needs and ability to meet them than the mother, despite the opinion of the Family Consultant that the father could care for the child. His parenting deficits are well illustrated by his exposure of the child to family violence, his alcohol abuse, his denigration of the mother to the child, and his direct involvement of the child in the parental conflict when he sought to pressure the mother to depart from the interim orders of July 2010.
Ordering the child to live in the Sydney area with the mother in my view would expose the mother, and thus the child, to a resumption of the father's physically and verbally abusive behaviour.
Leaving the child with the mother on the Mid North Coast will reduce the opportunities for [X] to spend time with the father, but will ensure a greater degree of protection of the mother, and thus of [X], from a resumption of the father's physically and verbally abusive behaviour.
(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
If the child remains on the Mid North Coast, it will be more difficult and expensive for the father and child to spend time together. It will reduce the frequency of the time the child can spend with the father, and will necessitate the child undertaking a lengthy car journey to Sydney and back each time he spends time with the father. If the child and both parents lived in close geographic proximity, then [X] could spend more and more frequent time with his father, a father with whom he has a close relationship. However, I am not satisfied that the reduction in the opportunities for [X] to spend time with his father that would result if he remained living on the Mid North Coast will have a significant adverse impact on [X]’s relationship with the father, as evidenced by the maintenance of that relationship under the June 2011 orders.
(f) The capacity of each of the child’s parents and 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 am satisfied the mother has and will continue to well meet all of [X]’s needs, including his need for a relationship with his father. I do not accept the father's contention that the mother sought to limit and restrict his relationship with [X] when she unilaterally relocated on separation. I have found she was well justified in doing so. In doing so, she showed a better appreciation of [X]’s need to live in a peaceful home, free from violence and abuse, than did the father, the perpetrator of persistent physical and verbal abuse of the mother throughout their cohabitation.
I am satisfied the mother has a better appreciation of [X]’s needs than the father, and is better able to meet them.
The father complained about the mother taking the child to the home of her sister where he came into contact with the sister’s partner, Mr J. Mr J has a number of criminal convictions recorded against him in New South Wales as follows-
a)Self administer a prohibited drug, offensive language, trespass and escape lawful custody in 1988;
b)Two separate convictions of exceed the speed limit in 1993;
c)Drive while licence cancelled in 1993;
d)Stealing in 1993;
e)Give a false name, exceed the speed limit and drive while disqualified in 1994;
f)Drive while licence cancelled in 1997;
g)Drive while licence cancelled in 1998;
h)Drive while licence suspended, drive an unregistered vehicle and drive an uninsured vehicle in 2008;
i)Give false information in 2008; and
j)Drive while disqualified in 2009;
Mr J’s criminal history suggests he is currently a disqualified driver until 21 October 2011.
The mother disingenuously said she was unaware of Mr J’s criminal record until it came to light in these proceedings. She knew he had served periodic detention for criminal conduct, and any ignorance on her part about Mr J’s criminal record was wilful.
The mother however asserted that Mr J’s criminal record had not impacted on his interaction with [X].
I am not satisfied on the evidence that the mother has been neglectful of [X]’s needs in allowing him to come into contact with Mr J, who is the partner of the boy’s maternal aunt. I am not satisfied there is sufficient justification for the order the father sought to restrain the mother bringing [X] into contact with Mr J. I am not satisfied the father raised any objection to [X] coming into contact with Mr J before the parties separated.
(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
Apart from the child’s age and Serbian heritage, there are no matters relevant under this consideration.
(h) If the child is an Aboriginal child or a Torres Strait Islander child, 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 the likely impact any proposed parenting order under this Part will have on that right
This consideration is not relevant.
The attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child’s parents
The father's persistent family violence and his alcohol abuse indicate a poor attitude to the child, and involved an abrogation of his responsibility as a parent to provide his child with a safe environment free from violence.
As mentioned, I am not satisfied the mother's unilateral relocation and the consequent interruption to the child’s relationship with his father warrants any criticism. In fact, she demonstrated an appropriate attitude to the child and as a parent in removing the child from an environment in which he was consistently being exposed to the father's family violence, alcohol abuse, and denigration of the mother.
As previously noted, there have been occasions when both parents have let their personal conflict prejudice the child’s welfare, especially in the episode when [X] suffered a serious infected rash and the parties inconsistently treated it without attempting to communicate with each other about treatment of the child’s condition.
(j) Any family violence involving the child or a member of the child’s family
I have dealt in depth with the evidence of family violence and made findings in relation to it.
(k) Any family violence order that applies to the child or a member of the child’s family, if the order is a final order or the making of the order was contested by a person
There is no current family violence order in force affecting either party or the child.
(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
To the extent possible, it would be preferable to make an order least likely to result in further litigation over the child. However, it has not been demonstrated that any particular option is more likely than another to have that result.
Section 60CC(4) and (4A)
In addition to the matters already dealt with in relation to s.60CC(3)(c) and (i), I am satisfied that, in particular since separation, the father has generally taken available opportunities to spend time with [X], with the exception of the period in 2010 when he ceased travelling to Newcastle to see him. I do not accept the father's suggestion that car trouble prevented him travelling to see [X]. Rather, I am satisfied that the father did not wish to undertake that travel until he could bring [X] back to Sydney and spend overnight time with him. I also note the significant number of occasions in 2009 after the father had reduced his working hours to pick up [X] when the father did not in fact pick him up until a considerable period after finishing work. I was not satisfied with the father's suggestion that he left the child in child care to go home and perform house work, as that was not the reason he reduced his working hours.
I am satisfied the father has paid child support as assessed from time to time.
I am not satisfied the mother’s failure to facilitate the father's time with the child and his participation in decision making about where the child lived and went to school after separation was inappropriate, having regard to my findings of the father's persistent family violence, alcohol abuse and denigration of the mother to the child.
Assessment of competing proposals and other options
Because of my findings as to family violence, the rebuttable presumption as to equal shared parental responsibility under s.61DA does not arise (s.61DA(2)).
I am satisfied that an order for equal shared parental responsibility, as sought by the father, is not in [X]’s best interests. I am satisfied that the level of distrust and hostility between the parties, the father's history of family violence, and his propensity to verbally abuse and belittle the mother renders such an order unworkable. I am satisfied that the need to protect the mother from exposure to the father's verbal abuse and denigration dictates that there be no requirement for the parties to consult and seek to reach agreement about major decisions concerning [X]. I am satisfied that it is in [X]’s best interests that the parent with whom he primarily lives have sole parental responsibility for him.
The orders the father sought in relation to religious instruction and what he sought to achieve by them were far from clear. This is an aspect of parental responsibility. I am not satisfied any specific order should be made concerning the child’s religious instruction.
I am satisfied that it is in [X]’s best interests to primarily live with the mother, not the father. I am satisfied she is better able to meet [X]’s needs. She has been the child’s primary carer even though the Family Consultant could not discern any difference in the child’s relationship with each of his parents. I am concerned that the father does not understand the child’s need for a positive relationship with his mother. This is illustrated by the father's proven history of denigrating the mother to the child, which itself is a matter of significant concern if the child was to live primarily with the father. I am satisfied the father has not altered his extremely negative and dismissive attitude towards the mother, I am satisfied he has shown no true regret or remorse for the highly offensive, degrading and belittling messages he sent the mother after separation, and I am satisfied there is a significant risk that, despite a non-denigration order, the father will not shield the child from his very negative attitude towards the mother, putting the child’s relationship with the mother at risk. I am satisfied that the more time the child spends with the father, the greater is that risk.
I am satisfied it is in [X]’s best interests to remain with the mother on the Mid North Coast, not to live with her in geographic proximity to the father. Remaining on the Mid North Coast will provide greater protection for the mother, and hence for [X], from the father's violent and abusive behaviour. The fact there have been few instances of his abusive behaviour towards the mother since interim orders have been in place does not, in my view, warrant an assumption that there is now little risk of a resumption of that behaviour if the mother were required to live near the father. I am satisfied that significant factors in ameliorating the father's behaviour have been the geographic separation of the parties and effecting changeovers at a contact centre. As already mentioned, I am not satisfied the father's very negative attitude towards the mother has ameliorated to any significant extent, and the insincerity in his stated regret and remorse for his messages to the mother after separation is further cause for concern.
The significant disadvantage for [X] of remaining living with the mother on the Mid North Coast is the reduced opportunities to spend time with the father that will result from the geographic separation, which would be overcome by requiring the mother to live with [X] in proximity to the father. However, I note that the child has been able to maintain a good relationship with the father since the mother moved away, and that there has been no suggestion of any deterioration in that relationship since the frequency of the child’s time with the father was reduced under the interim orders of June 2011. On the other hand, as I have already commented, the risk of the child being exposed to the father's very negative and critical attitude towards the mother is greater the more time he spends with the father. The balancing of the protective issues for [X] with the benefit of spending more regular time with the father in my view tip in favour of affording the child protection through maintaining greater geographic separation despite the reduced opportunities to spend time with the father that will entail.
The father indicated he would not relocate to the Mid North Coast if the court found that was where the child should remain, and hence the arrangements for the child to spend time with the father must be predicated on the parties living a significant distance apart.
In determining the time [X] should spend with the father, I take into account the good relationship between the child and his father, the potential benefit to the child of maintaining and developing that relationship, and the need for the child to spend regular time with the father to facilitate this. I also take into account the significant travel the child must undertake to spend time with the father, the fact he must move away from the area where his peers are and in which his extra curricular activities will occur to do so, limiting his opportunity to participate in those activities, and the risk to the child from exposure to the father's negative and critical attitude towards the mother, which risk increases the more time the child spends with the father. I am satisfied any risk of a relapse by the father in relation to his prior excessive alcohol consumption can be adequately managed by an order restraining him from consuming alcohol at relevant times.
I also take into account the mother's evidence that the regime for the child to spend time with the father implemented under the orders made on 2 June 2011 has worked well.
I am satisfied that it will best promote [X]’s interests to spend time with the father for the whole of the Term 2 school holidays, for half of the other school holidays, alternating between the first and second half each year unless the parties agree otherwise, and on one weekend each month during school term, as provided for in the interim orders made on 2 June 2011.
I am not satisfied the mother should be restrained from bringing [X] into contact with Mr J. While his criminal behaviour is of concern, there is no evidence the child has been exposed to it or has otherwise been adversely affected by his contact with Mr J.
In relation to the father's application for permission to take [X] overseas, based on the father's stated inability to accept the possibility [X] may not live with him despite subsequently proposing orders that did contemplate such an outcome, his extremely negative attitude towards the mother, his insincere expression of regret and remorse about the offensive and abusive messages he sent to the mother after separation, and my views about his credit, I am satisfied there is a significant risk the father may not return [X] to Australia if permitted to take him overseas.
I note that Serbia, the only country to which the father said he wished to take [X], is a party to the Convention on the Civil Aspects of International Child Abduction (Family Law (Child Abduction Convention) Regulations 1986, Schedule 2). Despite the father proposing an order that would not have limited the countries to which he could take [X], I will deal with his application as if it were limited to travel to Serbia, a Convention country.
Despite being a Convention country, if the father took [X] to Serbia and did not return him to Australia, there would be a significant delay in securing the child’s return to Australia and a consequent significant interruption to the child’s relationship with the mother, which would have a serious adverse effect on the child. That adverse impact would be exacerbated by the exposure of the child to the father's very negative attitude to the mother, and the risk of the father actively denigrating the mother to the child and seeking to enlist him to his side of the parental conflict, as he has attempted to do in the past.
I note the child has no relationship with his paternal family in Serbia, and that members of his paternal family live in Australia, and that he will see them regularly when spending time with the father. Therefore, refusing permission for the father to take the child to Serbia will not deny the child contact with all his extended paternal family, or to all his Serbian heritage.
In those circumstances, I am satisfied that the risk of the child not being returned to Australia and the adverse consequences if that occurred far outweigh the benefit to the child of travelling to Serbia and meeting those members of his paternal family who live there, and therefore the father's application should not be granted.
However, I am not satisfied an order restraining the father taking the child out of Australia is appropriate. Under the parenting orders I intend to make, both parties must consent to a passport being obtained for the child, and must also consent to the child leaving Australia. If the parties agree to the child travelling overseas, there should not be an order preventing that occurring.
Decision
I am therefore satisfied that it is in [X]’s best interests to live with the mother on the Mid North Coast of New South Wales, that the mother have sole parental responsibility for him, that the father spend time with him on one weekend a month during school terms, for all the Term 2 school holidays and for half of all other school holidays, with changeovers to occur at the contact centre in Newcastle. I am satisfied it is in [X]’s best interests that the father not be permitted to take him overseas. I am satisfied there should be an order restricting communication between the parties to matters concerning the child, that such communication occur via email or text message except in case of emergency, that the father be restrained from consuming alcohol immediately before and while [X] is in his care, and that both parties be restrained from denigrating the other or members of the other’s family to or in the presence or hearing of the child.
I certify that the preceding three hundred and seventy-five (375) paragraphs are a true copy of the reasons for judgment of Halligan FM
Date: 29 June 2012
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