Delucca and Decarlo
[2016] FamCA 497
•3 June 2016
FAMILY COURT OF AUSTRALIA
| DELUCCA & DECARLO | [2016] FamCA 497 |
| FAMILY LAW – CHILDREN – Best interests of the child – With whom the child lives with – With whom the child spends time with – Parental responsibility – Benefit of a meaningful relationship with both parents – Consideration of risks of harm in both households – Family violence – Extent to which each parent took the opportunity to participate in making decisions and spending time with the child – Parental capacity of each parent a weighty factor –Order for equal shared parental responsibility – Consideration of equal time and substantial time – Child to live with the father and spend significant and substantial time with the mother. |
| Evidence Act 1995 (Cth) s 140 Family Law Act 1975 (Cth) ss 4, 60B, 60CA, 60CC, 61C, 61DA, 65DAA, 65DAC. |
| G & C [2006] FamCA 994 |
| APPLICANT: | Ms Delucca |
| RESPONDENT: | Mr Decarlo |
| INDEPENDENT CHILDREN’S LAWYER: | Ms Crawford |
| FILE NUMBER: | PAC | 2584 | of | 2013 |
| DATE DELIVERED: | 3 June 2016 |
| PLACE DELIVERED: | Parramatta |
| PLACE HEARD: | Parramatta |
| JUDGMENT OF: | Hannam J |
| HEARING DATE: | 2, 3, 4, 5 and 6 February 2015, 27 and 28 January 2016. |
REPRESENTATION
| COUNSEL FOR THE APPLICANT: | Ms Hamilton |
| SOLICITOR FOR THE APPLICANT: | Salvos Legal Humanitarian Law |
| COUNSEL FOR THE RESPONDENT: | Mr O'Connor |
| SOLICITOR FOR THE RESPONDENT: | A J & Associates Lawyers |
| COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: | Mr Alexander |
| SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: | Legal Aid NSW Penrith |
Orders
That the child, B born … 2007 (“the child”), live with the father.
That the parties have equal shared parental responsibility for the child.
That the child shall spend time with the mother as follows:
(a)During the school term, in a fortnightly cycle as follows:
(i)In week 1: from after school Friday to before school Tuesday, commencing 3 June 2016.
(ii)In week 2: from after school Monday to before school Tuesday, commencing 13 June 2016.
(b)For the first half of each school holiday period being the period ending at 5.00pm on the second Saturday of the holiday periods following Terms 1, 2 and 3 and at 5.00pm on the midpoint of the Christmas school holiday period;
(c) If the child is not otherwise in the care of the mother:
(i)On the child’s birthday from 3.00pm until 6.00pm;
(ii)On Mother’s Day from 9.00am until before school on Tuesday;
(iii)On Christmas Day from 9.00am until 5.00pm.
If the child is not otherwise in the care of the father, the child shall spend time with the father:
(a) On the child’s birthday from 12.00pm until 3.00pm;
(b) On Father’s Day from 9.00am until before school on Monday;
(c) On Christmas Day from 5.00pm until 9.00pm.
That when the child is in the care of one parent, the other parent shall have telephone communication with the child each Tuesday and Thursday between 7.00pm and 7.30pm.
That other than when changeover is to take place at the child’s school, it shall take place at McDonald’s at C School (D Street).
That neither parent denigrate the other to the child or in the presence and/or hearing of the child and that each do everything possible to ensure that no other person denigrates the other parent to the child in the presence and/or hearing of the child.
That both parents shall provide the other with details of their current address and contact telephone numbers and shall ensure that the other party is notified of any change within 48 hours of that occurring.
That each parent shall notify the other immediately in the event of the child suffering a medical emergency and include details of all treating practitioners and any hospital attended.
That the father continue to attend upon Dr E as recommended by Dr E in relation to:
(a) Improving his communication skills to ensure respectful communication with the mother;
(b) Improving his capacity to adopt a child focussed approach to parenting;
(c) Addressing issues of controlling behaviour in respect of the child and her mother; and
(d) Developing a better awareness in understanding the impact of words and behaviours on the child.
That the father continue to facilitate the attendance of the child upon Dr E.
That other than as provided in these orders, the parties are restrained from taking the child to any other health professional or to obtain any other medical treatment without reaching agreement with the other parent as to the provider of that treatment.
That all previous parenting orders be discharged.
That all outstanding applications and cross-applications in the parenting proceedings are dismissed.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Delucca & Decarlo has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
| FAMILY COURT OF AUSTRALIA AT PARRAMATTA |
FILE NUMBER: PAC 2584 of 2013
| Ms Delucca |
Applicant
And
| Mr Decarlo |
Respondent
REASONS FOR JUDGMENT
Introduction
Following the breakdown of their seven year relationship the parents cannot agree about future parenting arrangements for their only child B, who is eight years old.
Following the first part of the hearing, which took place in February 2015, the parents reached agreement about interim orders concerning the child’s care arrangements, and it may have been anticipated that these arrangements would continue on a final basis. However, it became clear from around August 2015 that agreement could not be reached and the parents maintained their original positions concerning the child’s future care.
Each of the parents proposes that the child predominantly live with one parent, who is proposed to hold sole parental responsibility, and that she spend substantial and significant time with the other parent. The independent children’s lawyer (ICL) supports the father’s proposal that the child live predominantly with him and spend substantial and significant time with the mother, but proposes that the parents equally share parental responsibility for the child.
The question for me to determine is which of the proposed suite of orders is in the best interests of the child.
Background
The father Mr Decarlo (“the father”) is 43 and the mother, Ms Delucca (“the mother”) is 35. The parents began living together in a de facto relationship in 2005 and were married in 2007.
The parents’ only child B (“the child”) was born in 2007. Prior to her birth both parents worked full time.
Care arrangements prior to separation
After the child was born the mother took six weeks maternity leave and then returned to full-time work. The father also continued working full time and the child was cared for during the day by the paternal grandmother who lived next door to the parents. Until July 2008 the parents both shared in the child’s care at all other times.
In late 2008, the family moved to a new home though the paternal grandmother continued to assist with some childcare and the child also attended day-care.
From about October 2010, when the child was three, the mother began working more lengthy hours and the father assumed the primary role of caring for the child when he was not at work. He attended to her needs in the morning, took her to the paternal grandmother’s home or preschool, collected her in the afternoon and cared for her until the mother came home.
The parents had different attitudes towards parenting and there was significant conflict in the home throughout the child’s life concerning issues relating to parenting including arguments to which the child was exposed.
The parents separated on 3 July 2012 and the child who was almost five, remained living with the father. On 29 July the mother returned to live at the family home.
There was an incident at the family home on 31 July 2012, which resulted in the mother leaving the home on a permanent basis.
The child continued to remain living with her father following the parents’ final separation.
The mother alleges that the father was controlling towards her throughout their relationship and attempted to keep her socially isolated. This is denied by the father and dealt with later in these Reasons.
Events following separation
Following separation the mother lived with various friends and associates for a number of months for varying periods of time. She did not have stable accommodation and the father refused to allow her to spend overnight time with the child.
On 8 August 2012, the mother made application to police for an Apprehended Domestic Violence Order (“ADVO”) on the basis that the father had attended the home at which she was then living and made threats to harm a person she was living with. This application was subsequently withdrawn by police.
On 14 August 2012, when the ADVO application was listed before a Local Court the parents signed a handwritten parenting agreement in relation to the child. This agreement provided for the child to spend time with the mother from 9.00am to 5.00pm on a weekend day and for three hours on a weekday each week and changeover was to occur at the paternal grandmother’s home.
Despite agreement having been reached about the child’s time with her mother, there were occasions when the mother did not spend any time with the child, though the reasons for this occurring are in dispute.
On 16 September 2012 there was an incident at changeover. Following this incident, the father was charged with intimidating the mother and an ADVO was sought for the protection of the mother and child. A provisional order was made which prohibited the father from having any contact with the mother. The father was convicted of the intimidation offence and the ADVO was made on a final basis in November 2012 prohibiting the father from any contact with the mother except pursuant to family law orders for 12 months.
In October 2012, the mother became aware that the father had arranged for a tracking device to be installed in her car in April 2012 and since that date had tracked her movements.
From about late October 2012 the mother moved to live with her mother at the maternal grandfather’s home.
B begins to spend overnight time with her mother
After the mother started living with her parents, the father offered that she spend time with the child each alternate weekend from Friday night to Sunday night and overnight on a weekday in the alternate week with changeovers to occur at the maternal grandparents’ home. This arrangement commenced on 7 December 2012 and continued until 3 February 2013.
The allegation against the mother’s associate, AB
The child spent time with her mother from Friday 1 February to Sunday 3 February 2013 in accordance with the parents’ agreement. After she was returned on 3 February, the father says that the child disclosed to him that a friend of the mother’s, AB, had touched her around the vagina and bottom. The child also indicated that her mother had just driven AB to a nearby bottle shop. The father then attended the bottle shop to confront the mother and AB and took the child with him. There was an incident at the bottle shop which is a matter of dispute and is dealt with later in these Reasons.
On 3 February, 2013 at the time of this incident, AB told the mother that he had been “convicted” of a sexual offence against a child when he was a minor but denied that he had actually committed this offence. It subsequently came to light that AB had been found guilty of a sexual assault and an indecent assault of a 10 year old girl when he was 14.
An investigation by JIRT[1] commenced into the alleged complaint by the child. On 6 February 2013 the father informed the mother through solicitors that as a result of the disclosure he would not be making the child available to the mother until the investigation was complete.
[1] The Joint Investigation and Response Team, made up of officers from police and Community Services which investigates allegations of serious child abuse
On around 9 March 2013 the child’s overnight time with her mother recommenced by agreement with the father, and changeovers occurred at a police station rather than at the grandparents’ home. The father insisted through his solicitor that the mother disclose the address where she intended to reside with the child and provide an undertaking that AB would not be present during any “contact period” between the mother and the child.
The mother apparently did not provide the undertaking sought but her time with the child nonetheless recommenced.
The mother continued to have some form of relationship with AB after being made aware of his sexual assault offence and the child’s alleged disclosure on 3 February. Between 10 May and 25 May 2013, the mother travelled to Asia with AB for a holiday. The issue of the ongoing relationship with AB and issues of risk associated with him are dealt with later in these Reasons.
While the mother was in Asia she directed that the electricity and gas be disconnected from the family home where the father and child were living.
The parents continued to disagree over responsibility for electricity and gas payments and the disconnection and the appropriate location for changeover through the exchange of letters between their solicitors up until the weekend of 31 May to 2 June 2013.
On 27 May 2013 the father recorded a conversation between himself and the child, in which the child expresses fears about contact with her mother as a result of the mother’s conduct. Complaint was made to Community Services about the child’s disclosures and an investigation was commenced. Although it appears that this investigation did not involve further interviews with the child, the father nonetheless indicated to the mother’s solicitor that he would not be making the child available for time with her mother.
The mother says that she was advised by Community Services that no further investigation was ongoing and on 21 June 2013 she attended at the child’s school with AB, without the father’s knowledge and collected the child for weekend time together. The mother then advised the father she had collected the child and proposed that her time with the child recommence.
On 26 June 2013 police applied for an interim ADVO against the mother for the protection of the child. The application for ADVO, based on information given to police by the father, indicates that the father’s concerns about the child’s safety resulted from disclosures made by the child in the 27 May 2013 recorded conversation and further disclosures said to have been made on 3 June 2013. The father also expressed concern about the mother’s removal of the child from her school on 21 June 2013. The application also indicates that on 26 June 2013 the child was interviewed by police and complained that “when she does something naughty mummy hits her really hard on the bum” and “mum locks her in the bedroom and locks the door with a key”. In the course of that interview the child also said that on one occasion “she had stayed with her mum at the mother’s boyfriend [AB’s] house and that they had slept in the same bed”. The child also disclosed that she had seen “dirty pictures”, “boobies and bum” on her mother’s phone. As a result of this application a provisional ADVO was granted for the protection of the child against her mother.
On 19 June 2013, the mother commenced these proceedings, seeking parenting and property orders. On 24 July 2013 the parenting matter came before a judge of the Federal Circuit Court, who declined to make the proposed orders consented to by the parties and transferred the matter to the Family Court.
As a result of the ADVO the child did not spend any time with her mother until December 2013, when orders were made with the consent of the parties that the time should resume and be supervised by a private supervision agency. The orders also provided that AB not be present at any contact with the child and that the mother complete an anger management course and a parenting course.
The child spent time with the mother, for three hours once a week supervised by a private supervision agency in December 2013, January and February 2014.
On 10 January 2014 following a hearing in the Local Court the application for the ADVO for the protection of the child against the mother was dismissed.
The family were assessed by a family consultant for the purposes of a Family Report in March 2014.
The child did not spend any time with her mother in March or April 2014, due to the mother having insufficient funds but this time recommenced in May 2014 at a contact centre.
The child’s time with her mother gradually increased and became supervised only for the purposes of changeover and was ultimately unsupervised for day time and then overnight.
Further orders were made by consent in October 2014 providing for the child to live with her father and spend time with the mother on a gradually increasing basis leading to each alternate weekend from end of school Friday until the commencement of school on the following Monday as well as a block period of seven days in the school holidays with all overnight time to occur at the maternal grandmother’s home unless otherwise agreed.
The first part of the trial-February 2015
The first part of the trial took place over five days finishing on 6 February 2015. The outstanding property dispute between the parties was settled by final orders made by consent at the commencement of the trial.
The family consultant who had prepared the Family Report gave oral evidence at the trial. She was not cross-examined by the father’s legal representative and was cross-examined only in a limited way by the legal representative of the mother. She expanded upon a number of her observations and recommendations but overall confirmed the opinions and recommendations she had expressed in her report and her evidence was not weakened by cross-examination. The family consultant has a Bachelor of Psychology and a post graduate Diploma in forensic psychology and has been employed for 13 years in child protection, health and corrective services settings and has been a family consultant for six years. She has delivered training in relation to child protection and sex offending and authored and delivered a therapeutic children’s group program. She is a member of various professional bodies and is involved in ongoing education. Given her qualifications and the nature of her assessment (which included observation of the child in her interactions with the parents and access to a wide range of documents filed by the parties and produced on subpoena) and in circumstances where she was the subject of very limited cross-examination, I accept her opinion and attach significant weight to it.
At the completion of the five days, Judgement was reserved in relation to parenting and the interim orders of October 2014 continued. It subsequently became apparent that the parties agreed that the interim orders provided for the child to spend insufficient time with her mother and agreement was reached for alternate interim parenting arrangements pending judgement.
Although the mother and ICL were not aware of this referral, on 26 March 2015 the father obtained a referral for the child to commence seeing a clinical psychologist and the following day he and the child both attended the first appointment.
On 1 April 2015 amended interim orders were made in accordance with the agreement the parents had reached. One of the orders made on 1 April 2015 provided for the father to obtain a referral for him to attend upon Dr E, a psychologist and family therapist to assist him in various aspects of his parenting. As I understand it, it had been hoped that the interim parenting arrangement may be adopted by the parties as the final parenting arrangement. For this reason, rather than proceed to judgement, the proceedings were adjourned for the purposes of monitoring the progress of the interim arrangement.
Despite the orders made on the previous day, on 2 April 2015 there was a dispute between the parties concerning the child’s school holiday time with each of her parents. Pursuant to the orders, the child was to spend the first half of the school holidays with her mother but that did not occur. The child spent the Easter weekend, which occurred in the first part of the holidays, camping with her father and then spent one week with her mother. The mother’s time did not include the Easter weekend and appears to have been a few days less than half of the school holiday period. Although the mother requested it, the father did not agree to any “make up time” for the days the child missed spending time with her mother.
In the June/July 2015 school holidays the child also did not spend time with her parents in accordance with the orders. The mother agreed for the child to accompany the father on a holiday to the US but as the trip took longer than anticipated the child missed spending a weekend and Monday evening with the mother in accordance with the orders. The father did not agree that the mother should have “make up time” for the time she missed with the child during the holiday period.
On 19 August 2015 when the matter was next before the Court for monitoring of the April orders, it became apparent that the father had arranged for the child to see another psychologist, even though it had been anticipated that the child would commence appointments with Dr E. On that date, orders were made by consent restraining the father from taking the child to any psychologist other than Dr E. It also became apparent that an agreed position in relation to the child’s future parenting had not been reached and the parties sought to reopen the proceedings.
Between 9 September 2015 and 14 January 2016 the child attended appointments with Dr E on a number of occasions. The father also attended a couple of appointments. The father contends that the child expressed to him on a number of occasions that the mother coached her with respect to what she should tell Dr E and complained that her mother said that Dr E was telling the mother everything that the child disclosed in her sessions with Dr E.
On 27 to 28 January 2016 the proceedings were reopened and further evidence was received.
The parties’ proposals
The applicant mother’s proposal in summary is that the current parenting arrangement be reversed. Her proposed orders would see the child live predominantly with her and spend time with the father each alternate weekend from after school on Friday until before school on Monday and overnight on Monday in each alternate week. She also proposes that the child spend block periods of time with the father in the holidays and on special occasions and other orders in relation to changeover, communication and the like. She also proposes that she have sole parental responsibility for the child. It is essentially the mother’s case that the child would be exposed to an unacceptable risk of psychological harm resulting from the father’s conduct if she were to live primarily with him. She also contends that the only way to ensure that the child has a meaningful relationship with both of her parents is for the mother to hold sole parental responsibility.
The respondent father essentially wishes to maintain the status quo agreed to by the parties during the interim period pending judgement. He contends that this arrangement is in the child’s best interest with him remaining as her primary carer. He proposes that the child spend substantial and significant time with her mother being alternate weekends from Friday night to Monday morning and overnight on a Monday in the alternate week. He also proposes similar orders to the mother for equal block time with the child during the holidays and on special days, and also proposes orders concerning communication, changeover and the like. His particular concern in relation to the mother having primary care of the child relates to the mother bringing the child into contact with AB, a convicted child sex offender. He also proposes that he have sole parental responsibility for the child.
The ICL contends that it is in the child’s best interests for the parents to share parental responsibility for the child equally and for her to live with her father and spend five nights per fortnight in her mother’s care, being from after school Friday to before school Tuesday each alternate weekend and overnight on a Monday in each alternate week. The ICL makes similar proposals as the parents for holiday time and time on special occasions and many of the other orders. In particular the ICL proposes that the father continue to attend upon Dr E to improve aspects of his parenting and address issues relating to his controlling conduct. It is also proposed that the father continue to facilitate the child’s attendance upon Dr E.
THE MOTHER
The mother who is aged 35 was in a relationship with the father for seven years before they separated when the child was almost five years old. The mother has a strong work ethic and has experienced her employment to be personally satisfying and rewarding and a means through which she can provide support for herself and the child. At the time of the proceedings she was employed as a specialist with Company F, with whom I understand she has worked for some time. The mother says that her employer has offered her the possibility of flexible working arrangements in the future to allow her to care for the child in the event that she assumes the child’s primary care.
The mother returned to full-time work when the child was six weeks old, and from October 2010 when the child was three it was agreed between the parents that the father would take a greater deal of responsibility for the child’s day to day care.
As previously noted, the parents acknowledge that they have very different ideas about child rearing. The mother also acknowledges that the child has been inappropriately exposed to conflict and volatility between the parents and says that she takes responsibility for her part in arguments and was assisted by an anger management course that she undertook following separation.
The mother had some instability in her accommodation following separation but after some months settled to live with her mother. The father then permitted the child to spend overnight time with the mother with changeovers occurring at the maternal grandmother’s home. This arrangement continued until February 2013 when the father alleges that the child made a complaint about the mother’s partner, AB.
The mother’s relationship with AB and risk of harm posed by AB
A central issue in these proceedings relates to the mother’s association with AB and a consideration of the risk of harm to the child posed by him. It had been the father’s case that there is an unacceptable risk that the child may be sexually abused by AB if she were to predominantly live with the mother and that the mother’s conduct with AB demonstrates a lack of insight and capacity on her part. Although the father did not attach any weight to this issue in final submissions put on his behalf, any issue of risk arising from sexual misconduct and significant matters of alleged parental incapacity must, of their nature, be resolved.
The relevant risk is said to arise from a complaint of inappropriate touching made by the child to her father against AB, the fact that AB had previously committed a sexual assault and indecent assault against a child, and the mother’s continued association with AB and allowing the child also to associate with him after being aware of his offences and the child’s complaint.
The allegation of sexual abuse made by the child against AB
The allegation that AB inappropriately touched the child on the vagina and bottom was first made on 3 February 2013. The father says that the child made this disclosure just after the mother returned the child to him following weekend time together. The child also indicated to the father that the mother had dropped AB off at a bottle shop. The father then attended the bottle shop and briefly encountered the mother before she left. The father then approached AB and told him that “my daughter has just told me, you touched her up”. The mother then returned to the area and the father asked the child to repeat her disclosure to the mother. He says that the following conversation occurred.
[The child] said “Mummy, [AB] touched me on my pacocha and my bumble [it is agreed between the parties that this is a reference to the child’s vagina and bottom]
[The mother] said: “don’t fucken lie [the child], I was with you the whole time, don’t lie”.
Although the mother does not give any detail of the confrontation at the bottle shop in her affidavit, under cross-examination she said that this conversation related by the father between the child and herself definitely did not occur. She did agree however, that the allegation [that AB had inappropriately touched the child] was made on that day. So far as the allegation of improper touching is concerned, the mother says that there was “no possibility whatsoever for [AB] to have touched the child improperly prior to [ the father] confronting him… on 3 February 2013”.
In her first affidavit, the mother does not give any detail concerning her relationship with AB, other than to describe him as “a male friend”. The mother also does not provide any context for her evidence concerning what she refers to as “the allegation” and subsequent police investigation. In particular, she does not address her knowledge of any risk factors associated with AB, or the circumstances surrounding the child’s contact with AB, except to say that she told police she had never left the child alone with AB.
Following the child’s allegation and the father’s confrontation with AB and the mother, the father informed police of the child’s complaint and then took the child home. The father then instructed his solicitor to notify the mother in writing of the disclosure, and that as the matter was under investigation the father would be suspending further contact between the mother and the child until the investigation was complete.
The father does not give any details concerning the JIRT investigation, including its outcome in his affidavit, but it is clear from the Magellan Program[2] report that the complaint was not substantiated. It is recorded that during her JIRT interview the child did not disclose any sexual abuse, but stated that AB had touched her on the shoulder. As the allegation was not substantiated the investigation was closed.
[2] The Magellan Program is a program in the Family Court of Australia developed to deal with cases involving serious allegations of physical or sexual child abuse.
AB’s criminal history
It would appear that the father had no knowledge of past offences committed by AB at the time he claims the child made the allegation against AB. Further, the mother says in her second affidavit filed in January 2015 that she had no knowledge of AB’s past offending until after the confrontation on 3 February 2013.
The mother agreed under cross-examination that AB told her about his offending on 3 February 2013. She said that after the father had confronted AB in the bottle shop AB said words to the effect of “you should know this… I have a criminal history”. The mother said she assumed from the conversation that AB’s past offending was of a sexual nature.
Under further cross-examination, the mother said that the details of AB’s offences “came out” during the subsequent investigation. She first said that within five weeks of 3 February 2013 a JIRT investigator told her that AB “has a prior conviction when he was 14 and it is alleged he inappropriately touched a girl”. Later the mother said that AB obtained the documents [relating to his offending] and that they “went through them with JIRT”. In her second affidavit however, she says that she has not seen any documents “relating to AB’s children’s court matter”.
In his affidavit AB describes the mother as his friend and work colleague. He says that he and the mother became “quite close friends” from about January 2013 but “were never in a romantic relationship”. He said that they had sexual intercourse on one occasion at his home. He first met the child on 2 February 2013 when he, the mother and child had dinner together and says that he and the child were never alone.
AB says that on 3 February 2013 when he was confronted by the father in the bottle shop, he told the mother that there had been an incident when he was 11 which resulted in him being charged with an offence. He denied that he was charged when he was 14, but ultimately when shown documents relating to his prosecution agreed that he was 14 at the time of the commission of the offence. AB said he remembered telling the mother later on 3 February 2013 when they were in the car that he had committed a sexual offence and that that child’s claim [about his behaviour] was also “mentioned” in this discussion.
When asked about this conduct which led to the finding of guilt, AB said that he “touched a minor in her private parts” and that he thought she was 10. Upon further cross-examination when asked whether he had penetrated the child with his finger, he agreed that he had done this.
AB continued to maintain that although he had been found guilty he had not committed any offence.
The records from the Children’s Court indicate that AB was found guilty following a defended hearing of one count of aggravated sexual assault of a victim under 16 years and one count of indecent assault of a victim under the age of 16 years and was released on a probation order for 12 months which included that he accept the supervision of the Department of Juvenile Justice. AB’s criminal history indicates that AB did not appeal the finding of guilt in relation to the two offences or his sentence. Police records indicate that the complaint was that AB inserted his finger into the vagina of the victim who was the younger sister of one of his school friends.
The mother’s ongoing association with AB
Although there is slightly conflicting evidence about exactly what AB told the mother in relation to his offending on 3 February 2013, she agrees that she was aware on that day that the child was alleged to have complained that AB touched her inappropriately on her vagina and bottom and that AB informed her that he had been “convicted” of an offence of a sexual nature as a minor. She also became subsequently aware that the father was not prepared to make the child available to spend time with her until the investigation of this complaint was complete and had sought an undertaking that AB would not be present during any time between her and the child.
The mother’s evidence concerning the nature of her relationship with AB generally and particularly after 3 February 2013 is contradictory and unclear. In her affidavit she describes AB as a friend and she told the family consultant he was a colleague. The family consultant said she understood that the relationship was platonic. Although the mother agrees that she had a sexual relationship with AB she said that it was never “a romantic relationship” and that she never thought of herself as AB’s girlfriend.
In her second affidavit filed just prior to the proceedings in February 2015 the mother gives no details of her ongoing relationship with AB , except to say that she was no longer “friends with” him. She also says in that affidavit “it was also not possible for [AB] to have touched [the child] improperly on any occasion since [the confrontation] including on “the one occasion” when she, AB and the child “fell asleep watching a movie at [AB]’s residence”. She gives no other details or context for this last mentioned incident.
It is the father’s case that following the complaint and confrontation of AB and JIRT investigation, the mother continued to have an ongoing relationship with AB which included AB coming into contact with the child. In his affidavit he says that on around 9 March 2013 the mother’s overnight contact with the child recommenced and although he required an undertaking from the mother that the child would not come into contact with AB, this undertaking was not given. The father through his solicitor also required that the mother disclose the address where she intended to reside with the child. The mother’s letter in response, through her solicitors includes the following “…there is no risk to the child and furthermore, it is not a matter for your client to control who our client spends time with”. The father does not say in his affidavit why he agreed to overnight time with the mother resuming despite having not received the undertaking he required.
On 19 March 2013, AB was present with the mother during the child’s changeover at a police station.
Although the mother does not address this in her affidavit, it is clear from a letter annexed to the father’s affidavit sent by her solicitors, that she proposed taking a two week holiday (to an unstated destination) for two weeks commencing Friday 10 May 2013. In that letter it is also stated that the mother “would love to take the child on holidays with her, but assumes that [the father] will not agree to this”. She also proposed makeup time for the time that would be missed due to this holiday. It subsequently came to light that the mother travelled to Asia with AB on a two week holiday during this period.
A witness called on behalf of the father, Ms G, was at one point a friend of the mother and AB, but at the time of the proceedings they were no longer friends. She says that between January and approximately August 2013, she shared a house with AB and that the mother would stay over at the home three to four days a week and on a weekend. On these occasions she says the mother slept in AB’s room in a double bed with him. She says there were also other times when the child slept over at the house, and although she offered to the mother for the child to stay in the spare room, the mother said the child would sleep between herself and AB. Ms G said the child slept with her mother and AB on 10 to 12 occasions during this period. Ms G also claimed that on occasions the mother left the child in her care.
Ms G maintained under cross-examination that the child had slept with the mother and AB in his room and that she had the sense they were in a relationship. She said that she was aware that the mother was at one stage pregnant to AB, as the mother contacted her from Asia to tell her so and to ask Ms G to book an abortion for her. Ms G produced a copy of the Facebook message she had received from the mother and a transcript of the message was tendered. Although the message does not state in clear terms that the mother was pregnant and request that Ms G book an abortion, it is consistent with the general tenor of Ms G’s evidence. It is written in a friendly chatty tone and in it the mother makes reference to requesting Ms G to cancel or reschedule a Doctor’s appointment. The mother also refers to “dry reach [ing]” (sic) and writes “lucky I’m booked in on Monday other (sic) my mum would figure it out in two seconds”.
Under cross-examination, the mother said that after the child made the disclosure and the matter was investigated by police, she resumed contact with AB, but he had contact with the child “probably once, at most, twice”. When she was asked about the child sleeping in a bed with AB the mother said that this occurred on “that one occasion” . When asked further about this incident, the mother said that there was an occasion when she, the child and AB were in bed watching a movie and all three fell asleep and did not wake up until the morning. The mother agreed said she did not think it was sensible at the time to do this but that the child was “demanding” that they all be in bed together.
AB says that he had seen the child on 15 to 20 occasions including the confrontation on 3 February 2013. AB met the child for the first time on 2 February 2013.
On 21 June 2013, AB was in the company of the mother when she attended the child’s school and removed her before the end of the school day.
In his affidavit AB denied ever having touched the child in her vaginal area or bottom or in any indecent manner. He said that he has had physical contact with the child in the course of games and that on occasions she has “run to me for a hug and she will tackle me in a playful manner”.
The mother does not deny that she continued to regularly associate with AB following the incident on 3 February 2013. On her own case, shortly after she resumed spending time with the child following an investigation into AB’s conduct, AB accompanied her to a police station for changeover and accompanied her when she collected the child from school without the father’s consent. AB travelled to Asia with the mother who had envisaged at one stage that the child would accompany them. On the mother’s evidence, there was an occasion when she, AB and the child slept in a bed together overnight and according to AB’s evidence, he had an ongoing relationship with the mother which involved spending time with the child on many occasions.
In my opinion, the mother’s evidence concerning her relationship with AB is particularly unsatisfactory. The regularity of her contact with AB, sleeping in a bed together, and engaging in sexual intercourse are all in my view inconsistent with a friendship or platonic relationship. Ms G’s evidence was not significantly altered under cross-examination and the Facebook messages are consistent with her evidence. Her evidence concerning the regularity of the child’s contact with AB is consistent with AB’s evidence and for these reasons I accept it. Accordingly I am satisfied that the mother and AB shared a sexual relationship for some time and that the mother regularly took the child with her to stay overnight with AB when the two were spending time together from around late January to late June 2013.
Current circumstances of the mother
At the time of the first part of the proceedings the mother was living with her mother and said she expected to be doing so for some time. Four months later, in June 2015 she met and formed a relationship with Mr H, a work colleague who in the second part of the proceedings she describes as her “partner”. Mr H is 42 and has a 13-year-old daughter. The mother says that she and Mr H do not live together and he does not spend the night at her house when the child is spending time with her.
The mother says she introduced the child to Mr H in August 2015. The mother does not provide any other details concerning her current living arrangements or her future arrangements for the child if she is to become her primary carer.
THE FATHER
The father who is 44 has been involved in a number of occupations and businesses. At the time of the February 2015 proceedings he said he worked part-time as a “fill-in manager” during school hours.
Under cross-examination the father said he was living for the time being with his parents at Suburb I but did not intend remaining there and probably intended moving “local to the vicinity”. The father has been in a relationship with a woman named Ms J for around four months. Little else is known of Ms J.
One of the particular matters in dispute and which forms the basis of the orders proposed by the mother is her contention that the father is the perpetrator of family violence and in particular has been controlling in his actions towards her and the child . She says that on this basis the father represents a risk of harm to the child. The father denies this contention.
Family violence allegations
The mother makes wide ranging claims concerning the father’s control of her during the relationship and that she was “socially isolated”. She complains that the father did not allow her to join a gym, caused a fight with her sister that led to a fracture in maternal family relationships and was particularly jealous about her male colleagues and friends. She claims that the father interrogated her male friends, demanded the password to her phone and would scrutinise and record phone numbers stored in it. The mother says that her telephone provider informed her that a person had accessed information from her telephone account and she believed this to have been the father. She says that he interrogated her constantly about her movements, especially towards the end of the relationship.
Under cross-examination, the mother was unable to give any further detail about her alleged “social isolation” and agreed that she was a member of the gym and did attend social functions including on her own.
The incident that led to a fracture in the relationships between the mother and her family was revealed under cross-examination to have resulted from the maternal grandmother taking umbrage to comments made by the father to the mother’s sister, who it appears also used offensive language towards the father.
The father denies that he ever behaved in a controlling manner towards the mother. He agrees in his affidavit that he was aware towards the end of the relationship of the level of telephone calls between the mother and a male friend Mr K, but says that he became aware of this as the bills were sent to the home. He later conceded under cross-examination that he would on occasions demand to see the mother’s phone towards the end of the relationship. He had difficulty but ultimately conceded that he had no right to do so.
During the course of the relationship, the mother also alleges that the father was physically aggressive and on one occasion assaulted her.
The mother alleges that the father lost control and destroyed her personal property when he was unhappy. For example, she said that he destroyed a laptop computer when he was refused a home loan and smashed a cordless phone and threw a container of milk at her head which smashed against the wall in the course of an argument. The father denied under cross-examination that he had behaved as the mother alleges.
Although the mother makes a broad statement that the father was “always generally aggressive and controlling” she makes no specific allegations of assault, except for a particular incident on 31 July 2012, when she moved back into the family home after an initial separation and which resulted in final separation. On this occasion the parties became involved in an argument when the father was attempting to have the mother reconcile with him and both parties, and the child who was also present, were crying. In the curse of this argument the mother alleges that the father spat in her face while verbally abusing her. The mother says that in response she slapped the father in the face and then contacted the father’s parents and requested that they attend the home. She says that later that night, in the presence of the paternal grandmother, the father kicked her in the back and pushed her down a few steps and then grabbed her by the throat. The mother maintained under cross-examination that these events had occurred.
The father provides little detail about the incident that caused the parties to finally separate on around 31 July 2012 other than to say the mother “smashed the hands free phone and punched [him] in the head” and rang his mother and asked her to come to the home. The father says that when his parents and brother arrived he showed them the injury to his face (the right side was drooping and he could not open his right eye) as a result of the mother hitting him. He also said he sought medical attention for this injury the following day. The father denies that he pushed the mother on the stairs as she alleges but does not specifically address the allegation of him placing his hands around the mother’s throat. Under cross-examination the father denied hitting the mother in the head, being right up in her face, tipping the bed and spitting in her face. He said that he did not remember verbally abusing the mother but agreed that the child was present during this argument.
The paternal grandmother says that she went to the parents’ home as a result of receiving a telephone call from the mother. When she arrived at the home, the father told her the mother had punched him in the face and subsequently the mother admitted that as well. The paternal grandmother says that the later incident in which the mother alleges the father pushed her on the stairs did not occur in the manner the mother alleges. She says that the mother tripped on her foot and fell and the paternal grandmother lost her balance and fell on top of the mother. She maintained this version of events under cross-examination.
Following separation the mother says that the father continued to be violent and controlling.
The mother outlines an incident in August 2012, one month after the parties separated, which resulted in her seeking an ADVO against the father. This arose as a result of alleged threats said to have been made by the father against Mr K, a person who the father believed was in a relationship with the mother. The mother describes Mr K as a “work colleague” with whom she shared a house at the time. Although the mother does not give a detailed version of this incident in her affidavit, under cross examination she maintained that she and Mr K received multiple messages from neighbours informing them that the father had a gun and was threatening to shoot both of them. The mother said that she believed the threat at the time, felt traumatised by it and still believed it at the time of the proceedings.
The father gives no details concerning this incident except to say that the allegations are not true and that the application for an ADVO was withdrawn by police. Police records indicate that the application was withdrawn.
There was another incident in the course of changeover on 16 September 2012, which resulted in a police seeking an ADVO for the protection of the mother and child against the father and the father being charged. The mother does not give an account of this incident but says that it occurred as recorded in the application for the ADVO. The application records that when the father arrived for changeover of the child on that day the following occurred.
[the father] has immediately approached the complainant and step up (sic) into her personal space, placing his face only a few centimetres away from the complainants (sic). Subsequently the complainant had to back up against her vehicle. The accused then stated “I just want to get one fucking thing straight, if you ever take my daughter around to that scum family I’ll fucking kill you”.
This caused the complainant immediate fear for her personal safety.
The accused then continued to abuse, swear and threaten the complainant. The accused told the complainant that he had been getting people to follow her and that she was a “slut”.
The application then records that after the mother began placing the child into her car, the father continued to verbally abuse her and held the door open so that she could not leave. The mother then started to yell at the father telling him to “fuck off and get the hell away from me”.
The father’s version is that at changeover the parties engaged in an argument about the mother’s intentions to take the child to Mr K’s home. He says
When I voiced my objections to the applicant [the mother] during the argument word to the effect (sic);
I said “listen [Ms Delucca] I’m gonna tell you up front, I don’t want [Mr K] around my daughter”
[mother] said “I’ll do what I fucken want”
Although neither the mother nor the father say in their respective affidavits that the father was charged as a result of this incident, his criminal record indicates that he was charged and convicted of intimidating the mother and placed on a two year good behaviour bond by way of sentence.
A matter of particular significance in relation to alleged controlling behaviour perpetrated by the father, relates to his actions in placing a tracking device in the mother’s car.
The mother first became aware of a suggestion that the father had been stalking her through the tracking device a couple of weeks after the changeover incident on 16 September 2012, while the interim ADVO was in place for her protection. On 6 October 2012, the mother says she received an anonymous text message in which the writer informed her that there was a “tracker” in her car and that “he has been following your every move… No visual phone calls and is currently working on a plan with his mate to discredit you at work”. The mother searched her car and found a “tracker” which she disconnected and took to the police. She says that the police told her that the sim card in it was registered to the father.
The maternal grandmother also gives evidence about the tracking device. She says that although she was estranged from the mother for a number of years prior to mid-2012, she first reconnected with the family through the father making contact with her in around August 2012. The maternal grandmother says that when she visited the father at his invitation in about September 2012, he showed her some telephone records on a laptop which indicated that the mother had been at particular locations at the time the phone calls were made. She told the family consultant that she formed the impression that the father was tracking the mother’s movements.
The father says in his affidavit, told the family consultant and maintained under cross-examination that he was aware of the tracking device in the mother’s car as he had arranged to have it installed when it was bought for “insurance purposes”. The mother said she purchased the car at the end of April 2012, before she and the father separated for the first time. The mother says that it is a work car, is registered in her name and the insurance company does not require that a tracking device be placed in it. She did not give permission for the installation of the tracking device and was unaware of it.
The father says that the tracking device was installed on around 28 April 2012 and was deactivated soon after the applicant moved out of the house.
The father was extensively cross-examined about his contention that he only arranged for the tracking device to be installed in the wife’s car for “insurance purposes” and had it deactivated soon after she moved out of the house [in July 2012]. In my view, his answers were highly unsatisfactory and an affront to common sense. In particular he was cross-examined about annexures to an earlier affidavit he had filed on 12 May 2014 which he agrees contains various Facebook entries made by him. On 18 September 2012 (two days after the incident at changeover which resulted in the father being charged) in the course of the following conversation with a person named “Ms L” the father wrote the following:
[Ms L]
Yea she has major issues. So who keeps seeing her doing all this?
18/09/2012 22:39
[Mr Decarlo]
My mates that are in the car seen plus I have a t device active
I her carotsa (sic)
18/09/2012 22:40
[Ms L]
Whats a T device do
18/09/2012 22:40
[Mr Decarlo]
Tracker. 24/7
18/09/2012 22:41
[Ms L]
Oh so it tells you where she’s been?
18/09/2012 22:41
[Mr Decarlo]
Livevtracking and all history dates time and all
18/09/2012 22:42
[Ms L]
Wow!!! So you’ve known for a while then where she’s been going:
18/09/2012 22:42
[Mr Decarlo]
Yeah months
And she lies every single day evry (sic) day
18/09/2012 22:43
[Ms L]
Well she can’t deny it then
18/09/2012 22:44
[Mr Decarlo]
Nope and she thinks she is smarter than me….
18/09/2012 22:45
[Ms L]
Well just remember to stick to the rules cause you don’t want it to come back on you.
18/09/2012 22:47
[Mr Decarlo]
I know im going to disable it soon its just good to have when the child is with her must incase (sic) she takes her to his house or doesn’t return her.
18/09/2012 22:47
[Ms L]
Yessssss so cant you leave it on?
18/09/2012 22:
[Mr Decarlo]
Yeah if I want
18/09/2012 22:49
[Ms L]
Maybe safe to keep it there then. She obviously knows its there?
18/09/2012 22:50
[Mr Decarlo]
Nah she don’t know [Ms L] no idea
18/09/2012 22:53
When cross-examined about these Facebook entries, the father continued to deny that he used a tracking device to see where the mother was though he did concede he had the capacity to use the device in this way.
When further cross-examined about the tracking device the father said that at the time it was installed he paid a yearly tracking fee, that is, until March or April 2013. He agreed that immediately after the separation he was keen to know where the mother was and was very interested in knowing what she was doing and what men she was seeing. He then claimed that he informed the mother about the device prior to installing it. He also said that he disconnected it (at an unspecified time) by contacting the company that undertakes the tracking because his solicitor told him to do so.
According to the mother, the father also behaves in a controlling manner towards the child. The mother says that the child often relates to her instructions she has been given by the father about her conduct when she is with the mother, such as having to have her phone on at all times, wearing her hair in a particular hairstyle, wearing particular clothes and eating only particular foods. In relation to clothing, the mother says that the child reports that the father has disallowed her from dressing in a particular way, which he describes as “not like that slut of the mother of yours”. According to the mother the child also often cannot provide a response to a general question and says words to the effect of “I have to ask daddy. I don’t know-don’t ask me what I’m thinking don’t ask me any questions”.
The father denies “coaching” or making comments to the child “about what she can do or not do with her mother”. Under cross-examination he rejected the allegation made by the mother and opinion of the family report writer that he has exhibited behaviour suggesting inappropriate and excessive controlling of the child. He ultimately agreed however, that he has insisted on the child having her telephone switched on when with her mother. He also conceded that the child may have said to the mother, when asked a question “I have to ask Daddy first” instead of replying.
I am not satisfied that the father generally engaged in coercive and controlling behaviour throughout the relationship towards the mother and that the mother was socially isolated. The mother made significant concessions under cross-examination and clearly was able to exercise significant personal autonomy in the course of the relationship. She conceded that she did have a social life including attending social functions on her own and returned to full time work when the child was only a few weeks old. The mother had no difficulty leaving the relationship when she did.
However, I am satisfied that towards the end of the relationship when the father began to become concerned about the mother’s association with other males in particular, he did begin engaging in stalking behaviour by tracking her movements through a device he had arranged to be installed in her car. I reject the father’s explanation that he installed the device for “insurance purposes” as it was a car registered in the mother’s name, used for her work purposes and there is no evidence that the insurance company required the device or discounted the insurance costs if the device was installed. I am satisfied that the father installed the device covertly and maintained surveillance of the mother through it. The Facebook entries written by the father in September 2012, two days after he was charged with intimidation and when an ADVO was in place, is a particularly significant piece of evidence. In my view the father makes clear and unequivocal statements in those entries that he is tracking the mother’s movements at the time. I am also satisfied on the basis of his own evidence that he only removed the device on the advice of his solicitor, rather than of his own volition.
I am not satisfied that the father assaulted the mother as she alleges at the time of their separation on 31 July 2012. Such allegations must be proved on the balance of probabilities having regard to the matters set out in s 140(2)(a)-(c) of the Evidence Act 1995 (Cth). This is a matter where there is no corroborative evidence of either of the parties’ versions of events, other than the paternal grandmother who, in my view is not an independent witness. Each parent makes serious allegations of physical abuse against the other.
In assessing each of the parent’s versions I begin by observing that I do not make general credit findings, favouring the evidence of one parent over the other on every issue. Both of the parents, in my view, are unsatisfactory witnesses. The mother on many occasions appeared to make a concession inconsistent with her evidence and then almost immediately retracted it. Her concessions concerning the topic of social isolation and her evidence that she believed the father had a gun and was going to shoot her indicate that she has tendency to exaggerate. In my view, her evidence concerning her relationship with AB was particularly misleading. Both parents omitted some incidents completely from their respective affidavits when such incidents may not have reflected well on them. The father for example selectively omits all references to having been charged over the incident in September 2012. His evidence concerning his involvement in installing the tracking device in the mother’s car was unconvincing and maintaining his version under cross-examination on his Facebook entries is particularly unbelievable. He constantly had to be directed to answer the actual question asked, and had a tendency to provide general information about the topic instead, which created the impression that he was evasive. In relation to the incident on 31 July 2012, the father alleges that he sought medical attention for the injury perpetrated by the mother, but does not produce any corroborative evidence which would be expected in these circumstances.
I am also not satisfied that the incident in August 2012, shortly after the parties separated occurred as alleged by the mother. The allegation developed from a second hand hearsay claim that the father had told Mr K’s neighbour that the father was going to kill her. Under cross-examination it became a claim that the father had a gun and was threatening to shoot both herself and Mr K which she still believed to be true. It is inconceivable that if the mother genuinely believed this she would agree for an ADVO application which she had sought for her protection to be withdrawn.
So far as the incident in the course of changeover on 16 September 2012 is concerned, I am satisfied that the father behaved in a threatening and intimidating way as alleged in the police records, and was screaming verbal abuse and threats in the mother’s face and in the presence of the child in the course of changeover. It is not to the father’s credit that he fails to set out in his affidavit that he was charged and convicted in this incident and gave varying versions in his affidavit, to the family consultant and under cross-examination.
So far as the father’s controlling conduct of the child is concerned, I am satisfied that he has made remarks to the child about the way in which she should behave when in the company of her mother. Such remarks are consistent with the observations of the family consultant, which were not challenged under cross-examination, that the father does display controlling tendencies in his conduct in relation to the child.
The Law & Discussion
The objects of Part VII of the Family Law Act 1975 (Cth) (“the Act”) and the principles underlying them set out in s 60B, form the framework for the part of the Act dealing with parenting.
The objects are to ensure that the best interests of children are met by:-
(a)ensuring that children have the benefit of both of their parents having a meaningful involvement in their lives, to the maximum extent consistent with the best interests of the child; and
(b)protecting children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence; and
(c)ensuring that children receive adequate and proper parenting to help them achieve their full potential; and
(d)ensuring that parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of their children.
The principles underlying these objects are that (except when it is or would be contrary to a child’s best interests):
(a)children have the right to know and be cared for by both their parents, regardless of whether their parents are married, separated, have never married or have never lived together; and
(b)children have a right to spend time on a regular basis with, and communicate on a regular basis with, both their parents and other people significant to their care, welfare and development (such as grandparents and other relatives); and
(c)parents jointly share duties and responsibilities concerning the care, welfare and development of their children; and
(d)parents should agree about the future parenting of their children; and
(e)children have a right to enjoy their culture (including the right to enjoy that culture with other people who share that culture).
According to s 60CA of the Act, in deciding whether to make a particular parenting order in relation to a child, a Court must regard the best interests of a child as the paramount consideration.
Section 60CC sets out the primary considerations and additional considerations to be considered by a Court in determining what is in a child’s best interests.
Primary considerations
The primary considerations (under s 60CC(2)) are:-
(a)The benefit to the child of having a meaningful relationship with both of the child’s parents; and
(b)The need to protect the child from physical or psychological harm, from being subjected to or exposed to abuse, neglect or family violence.
The law requires that I give greater weight to the need to protect the child from harm than to the benefit to the child of having a meaningful relationship with both parents.
Meaningful Relationship
The meaning of the phrase “meaningful relationship” is not defined in the Act. The Full Court in McCall & Clark[3] has approved the interpretation of the phrase by Brown J in Mazorski & Albright[4] and has also agreed with the reasoning of Bennett J in G & C[5]. Brown J in Mazorski & Albright (supra) said at [26], after setting out the definition of “meaningful” and “meaning”:
What these definitions convey is that “meaningful”, when used in the context of “meaningful relationship”, is synonymous with “significant” which, in turn, is generally used as a synonym for “important” or “of consequence”.
[3] (2009) FLC 93-405; (2009) 41 Fam LR 483; [2009] FamCAFC 92.
[4] (2007) Fam LR 518.
[5] [2006] FamCA 994.
Bennett J discussed the terminology in G & C (supra) and said “the enquiry was a ‘prospective’ one which requires a court to evaluate the extent to which a meaningful or significant relationship with both parents is going to be of advantage a child (sic).”
Central to the mother’s position that it would be in the child’s best interest for her to live with the mother is the contention that there is a risk the child will not enjoy a meaningful relationship with her under the orders proposed by the father. This is said to arise from the father’s history of undermining the relationship between the child and her mother and the likelihood that he will continue to do so in the future.
There is in my view no evidence to support the contention the father has in fact damaged the child’s relationship with her mother or, as it has been suggested, that the child has been alienated. The family consultant saw the family members at a stage where the child was having limited supervised time with her mother. Although the family consultant speculated that it was possible that the child was then in the process of being alienated from her mother, it appeared to the family consultant that “there was some strength and positive regard in the child’s relationship with [the mother]”. In her oral evidence the family consultant confirmed that it appeared at the stage she saw the child that there was a warm relationship between the two and said that in her opinion the child was not alienated from her mother in February 2015 when she gave evidence.
Since the family consultant’s assessment and since the first part of the proceedings in February 2015, the child’s time with her mother has steadily increased and has become unsupervised. In addition to spending weekends overnight with her mother and one single night in the alternate week, the child has for some time been spending half of her school holidays with her mother. The father proposes that this regime continue and the ICL goes further, proposing that the child spend four nights with her mother over each alternate weekend and one overnight in the alternate week as well as half of the school holidays. I am not satisfied that it is likely that the child will not enjoy a meaningful relationship with her mother under the orders proposed by the father.
Each of the suites of orders proposed by the parties and the orders proposed by the ICL would promote the child having a meaningful relationship with each of her parents. Clearly each parent acknowledges that there is a benefit to the child in her sharing such a relationship with each parent. I agree that there is such a benefit to the child in sharing a meaningful relationship with each parent.
The need to protect the child from physical or psychological harm
Harm arising from allegations of the father’s emotional abuse of the child
The mother contends that there is a need to protect the child from the harm envisaged in this consideration. As I understand it, she contends that there is an unacceptable risk that the child will be subjected to “abuse” as defined in the Act[6].
[6] Family Law Act 1975 (Cth) s 4(1) provides “abuse, in relation to a child, means;…
It is the mother’s case that the need to protect the child from such harm requires that the orders she proposes (that the child live with her and that she have sole parental responsibility) are made.
In contending that there is an unacceptable risk that the child will suffer serious psychological harm as a result of the father’s conduct, the mother relies heavily upon the opinion of the family consultant. The family consultant reports that she observed a number of concerning behaviours during the observation session between the father and the child such as:
[the father] appeared unable to allow [the child] to lead the play and he appeared to control her actions throughout, by instructing her drawings and her activities…. [The child] presented as overly compliant in observation, routinely following [the father’s] instructions without hesitation. If this kind of behaviour is indicative of his interactions with [the child] in other contexts, this may mean that he is unable to prioritise her needs above his own and would seek to control her, physically and emotionally. This may be increasingly problematic when [the child] attempts to individuate and [the father] senses a loss of control over her. Serious concerns would then be held for [the child’s] physical and emotional safety if [the father] attempted to maintain or regain control.
The family consultant also noted that the mother had made allegations regarding the father being violent and controlling towards her during the relationship and after separation. She also noted the allegations regarding the father installing a tracking device in the mother’s car which she describes as “of significant concern”. The family consultant opines
If the court finds that [the father] has been monitoring [the mother] this would indicate stalking and controlling behaviour and significant concerns would be held for [the mother’s] safety.
She expressed the view that if the Court accepts [the mother’s] allegations, [the father’s] behaviour would be considered coercive and controlling violence.
Although the family consultant’s recommendations arise from a consideration of a number of factors, she recommended that if the Court finds that the father has engaged in stalking and controlling behaviour and the child is not at unacceptable risk of harm in the mother’s care, the child should live with the mother. If however, the Court did not find that the father had engaged in controlling and stalking behaviour, it was her recommendation that the child continue to live with him.
Under cross-examination, the family consultant maintained her view that it was important that the Court make a determination about the extent and nature of the father’s controlling behaviour. She also maintained that controlling behaviour in a parent can amount to emotional abuse of a child. In this regard the family consultant gave consideration to the father’s alleged controlling behaviour in combination with his denigration of the mother.
Although the family consultant maintained her recommendations about where the child should live, depending upon the findings of the Court, she had not in her report considered that the Court may find that the father had engaged in stalking and controlling behaviour but that the child is also at a risk of harm in the mother’s care. Under cross-examination she said the following of that scenario:
I think that if the court found that the mother didn’t prioritise her relationship with her child and wasn’t protective of her child, the court would need to look at whether that is likely to pose more harm to [the child] that residing in a house where – with a parent who is highly controlling of her. There are negatives in both situations, and I think the court would need to balance up those two possible negatives.
For the reasons previously given, I am satisfied that the father did engage in stalking the mother and has shown controlling tendencies since separation in both his interactions with the mother concerning her relationship with the child and with the child herself. However, it is some time since he has engaged in overt conduct such as stalking and there have been few opportunities in more recent times for the father to behave in a controlling manner towards the mother. Although she has some complaints about makeup time of a few days not having been given, it appears that generally the current arrangements for the child have operated well for over 12 months without concerns about the father’s controlling tendencies towards the mother. So far as the father’s interactions with the child are concerned, at the time of the resumed hearing the father had received the benefit of expert therapeutic intervention to assist him with his parenting style. It appears that he will have continued to be assisted in this manner during the four months preceding the delivery of these Reasons.
In addition to a reduction in the father’s controlling behaviour, the family consultant agreed that the child’s general presentation and progress indicates she is developing well. In these circumstances I am not satisfied that there is an unacceptable risk that the child will be subjected to abuse in the sense she will suffer serious psychological harm as a result of the father’s conduct if she were to continue to live with him as he proposes.
Harm arising from risks of abuse in the mother’s household
It is not submitted on behalf of the father or the ICL that shortcomings in the mother’s parenting capacity are such that there is an unacceptable risk that the child may be exposed to family violence or subjected to abuse or neglect in her mother’s care. Rather, this is dealt with when considering and attaching appropriate weight to considerations such as parental capacity, and parental attitudes to the responsibility of parenthood.
At an earlier stage in the proceedings the father appears to have contended that there was an unacceptable risk that the child may have been subjected to sexual abuse by AB when in the care of the mother. It also previously appears to have been the father’s case that there may be an unacceptable risk that the child would be exposed to physical abuse (in the form of excessive discipline and harsh and aggressive parenting) at the hands of the mother. However, these concerns where not relied upon in final submissions. A suggestion that there is a risk of harm arising from either of these matters while in the care of the mother is also inconsistent with the orders the father proposes, that the child spend substantial and significant time with her mother. Further there was unchallenged evidence that the mother is now in a new relationship and no longer associates with AB and agrees to a restraint upon her permitting the child to come into contact with AB.
Harm arising from allegations of exposure to family violence
Both parents agree that their relationship prior to separation was characterised by aggressive and volatile conduct by each of them. I am unable to make a positive finding about the parties respective behaviour on the day they separated, 31 July 2012, as there are difficulties associated with each of their evidence referred to earlier in these Reasons and I do not make a general credit finding favouring one party’s version over the other.
On the basis of their own admissions, the conduct perpetrated by each of them against the other during the currency of the relationship was verbally abusive and conflictual and the child was present on a number of such occasions. According to the family consultant it is likely that such exposure will have caused the child some psychological harm.
The important issue so far as the proposals for the future parenting arrangements are concerned, is that the child be shielded from future conflict between the parents which appears to have been ongoing since separation and throughout the proceedings. While none of the recent conduct of the parties towards one another falls within the definition of family violence, there is no dispute that the parties for some time following separation exposed the child to a serious level of conflict between themselves. According to the Magellan Report, the greatest area of concern arising from the reports made to Community Services between September 2012 and August 2013 related to the risk of harm to the child due to the animosity of the parents towards each other. In my view, there was also a disturbing pattern by both parents of encouraging disclosures by the child concerning the actions of the other parent. There is also evidence that each of the parents has seriously denigrated the other parent in the child’s presence. This has lessened somewhat as time has gone by, and the child has also been receiving therapeutic support from the psychologist Dr E since 2015.
Dr E did not provide a detailed report about her sessions with the child and said she was “reluctant to disclose any further information about the confidences the child has shared with me because of her expressed views that she is afraid of either parent finding out what she has disclosed to me”. Dr E did however say that she had seen a marked improvement in the child’s reports of her comfort level moving between her parents and recommended that the child continue with some therapeutic intervention after final orders are made.
In my view, against this background it is important to shield the child from ongoing conflict, through limiting physical contact between the parents as much as possible. For this reason the orders in relation to changeover occurring wherever possible at school are consistent with the child’s best interests.
Additional considerations
Section 60CC(3) then sets out additional considerations the Court must consider when determining a child’s best interests and I will refer to those which are relevant in this case.
Views of the child and factors underlying those views
It has been some time since the child has expressed her views, and her circumstances have significantly changed.
When assessed by the family consultant for the purposes of a Magellan Family Report in March 2014, the child who was then six and half told the family consultant that she currently saw her mother “sometimes” and “[does not] want to see mum more than that”. She said she “only want [s] to live with dad” and when asked why this was the case, the child is described as smiling broadly and stating “[because of] smacking me and locking me in my bedroom”. The family report also records the following:
[The child] said that she was “really scared of mum”. [The child] explained that [her father] had told her to “tell the lady that mum smacked you on the bottom”. [The child] said “dad’s telling the truth, when I was naughty she locked me in the room”. [The child] then went on to add the door to the room was closed, but not locked.
When asked about the observation session with her mother the child pointed out “that [the mother] was crying because she missed me”. The child then paused and in the words of the family consultant remarked thoughtfully “I missed her too”.
The family consultant expressed the following opinion:
[The child’s] presentation during her interview was of concern, as her statements were often not reflected in her non-verbal behaviours. For example, she smiled broadly while declaring that her mother smacked her and she stated, matter of factly, that she was scared of her mother.
Given her presentation, it cannot be guaranteed that [the child] truly feels the way that she stated that she does. Furthermore, it appeared that [the child] had been reminded by [the father] to tell the family consultant about the smacking and it is unknown if she was prompted or coached by [the father] in any other way.
In oral evidence the family consultant expressed the view that little weight should be given to the child’s wishes given her age. She also agreed that less weight should also be attributed to the child’s views by reason of the controlling nature of the father, and the fact that he is the primary carer. I accept that these are powerful reasons to give the child’s views little weight.
Nature of the child’s relationship with each parent and other significant persons
According to the family consultant, the child enjoys a warm relationship with her mother. Although the family consultant had considered that the child may be beginning to be alienated from her mother, she did not assess that the child was alienated at that time. Despite the views expressed by the child to the family consultant that she was “really scared” of the mother, the child appeared relaxed and comfortable throughout her observation with her mother and displayed no sign of being fearful. The child sought her mother out, and was open to physical affection. The child’s behaviour of repeating her cousin’s names and recalling time she had spent with her mother appeared to the family consultant to be an indication of her remembering positive times with her maternal family and thinking about this.
It was submitted on behalf of the mother that the child has an anxious attachment to her father. There is no evidence about the nature of the child’s attachment to her father and this proposition was not put to the family consultant under cross-examination. Although in her report the family consultant described a number of concerning features in the interaction between the child and her father, the family consultant also observed warmth between the father and child such as the child hugging the father.
There is no dispute between the parties that the father has played a greater role in caring for the child than the mother, and has been her primary caregiver for five years.
The child also appears to have well developed relationships with her paternal grandparents, with the paternal grandmother having played a significant role in the child’s care. The family consultant also observed warm interactions between the child and her maternal grandmother during her assessment.
Nothing is known of the relationship between the child and the current partners of either the mother or the father.
Extent to which each of the parents has taken or failed to take the opportunity to participate in long-term decision making regarding the child, spend time with and/or communicate with the child
In my view this is a weighty factor in this matter.
Following separation, the child was left in the care of her father and spent time with her mother which was limited and at times inconsistent. The tenor of the mother’s evidence of events following separation is that the father was threatening and attempted to control her actions which affected her capacity to have meaningful relationship with the child. In this regard she refers in particular to the threats made to shoot herself and Mr K a short time following separation, the confrontation at changeover two months following separation in which the father threatened her and the father’s alleged overreaction to the mother’s association with AB. She also refers to complaints made by the father to Community Services and police of her alleged physical abuse of the child, the father’s ongoing denigration of her and involving the child in the parental dispute as matters which interfered with her capacity to spend time with the child.
For the reasons given earlier, I am unable to make a finding in relation to the incident which led to the parties final separation on 31 July 2012, though I am satisfied that the father behaved in a threatening manner towards the mother at the changeover in September 2012 and stalked her by tracking her movements through the device he arranged to be placed in her car. However, I am not satisfied that this conduct of the father prevented the mother from spending time with the child as she contends. While the mother is not necessarily to be criticised for her lack of secure accommodation for the five months following separation, I am satisfied that she minimised and obfuscated the nature of her personal relationships with people such as Mr K and AB and displayed a tendency to prioritise her own relationships over spending time with her child, who she had left in the care of the father.
It was not unreasonable in my view, given the child’s age and the apparent lack of stability in the mother’s circumstances, that the father only consented to the mother spending overnight time with the child when the mother’s circumstances had stabilised and she had reconciled with and resumed living with her parents.
The mother’s failure to prioritise her relationship with the child over her personal relationship with AB, in my view is particularly apparent after February 2013 when she was aware of the alleged complaint had made against AB and of AB’s prior criminal history. For the reasons previously given, I am of the view that the mother was misleading towards the father, the family consultant and this Court as to the nature of her relationship with AB. I am satisfied that AB was not merely a friend or a person with whom she had a platonic relationship, but that she was in a sexual relationship with him which was ongoing for some time. The mother’s insistence that the child spend time with AB including overnight time (and on occasions sleeping in the same bed as him) during the limited time that was available to support her own relationship with the child, in my view, is strong evidence of the mother prioritising her own needs above her relationship with the child. I am also of the view that this is the reason that she spent less time with the child than she could have done for some time following separation, rather that it being due to the father undermining the mother’s relationship with the child.
The mother acknowledges that the father assumed primary responsibility for making decisions about major long term issues in relation to the child following the parties separation in July 2012, but contends that since February 2015 he has attempted to exclude her from such decisions by making them unilaterally without consulting or informing her.
In more recent times, particularly in the few months prior to the first part of the proceedings and between February 2015 and January 2016, the mother did take more opportunities to participate in the long-term decision making regarding the child, to spend time with the child and communicate with the child. I am satisfied that there was a slight improvement in the parent’s capacity to jointly make long term decisions. They were for example, able to reach agreement about the child’s school education and were able to co-operate reasonably well in addressing a medical issue for the child and in obtaining the child’s passport.
However, the father made some long term and significant decisions unilaterally at a time when he ought to have been acutely conscious that the decision should have been made together with the mother in their joint exercise of parental responsibility. I am of the view that he deliberately disregarded the mother’s decision making role when he took the child to a psychologist without her consent and agreement. The timing of this decision shows a flagrant disregard for the mother’s input and indicates the strategic nature of the father’s decision-making. On 6 February 2015, Judgment in this matter was first reserved but by 24 March 2015, the parties had reached agreement about interim consent orders including an order that the child receive therapeutic support from a psychologist. Two days after agreement was reached, without the mother’s knowledge, the father obtained a referral for the child to see a clinical psychologist of his choosing and who would be briefed by him alone. The following day the father collected the child from school early and notified the mother that she was unwell but took the child to attend her first appointment with the psychologist. A few days later, on 1 April 2015, the interim consent orders were made which included an order for the child to be provided with psychological intervention from an appropriately qualified therapist, Dr E. The father failed to mention to the mother or the court that the child had already begun receiving some form of therapy from the other psychologist. The following day the father again collected the child from school early to attend a second appointment with the psychologist. The mother did not become aware until late July 2015, that the child had been receiving treatment from the psychologist for the previous four months.
Since the first part of the proceedings in February 2015, the mother has also taken more opportunities to spend time and communicate with the child. The parties agreed that the previous orders made in October 2014 provided for insufficient time between the child and her mother and as a result of the 1 April 2015 orders, that time increased to four nights per fortnight and half of the school holidays. There have been occasions in this period when the child has missed out on a couple of days with her mother. The mother has been diligent in seeking to have the father agree to make up time but for reasons which have not be adequately explained, the father has not offered makeup time or made the child available exactly in accordance with the interim orders.
Extent to which each parent has fulfilled or failed to fulfil their obligation to maintain the child
Following separation, the child remained in the care of her father who financially supported her. However, the mother did make some contribution as the home in which the father and child were living was owned by her and she continued to pay the mortgage. It is of some concern however, that the mother had the utilities to the home disconnected while she was on an overseas holiday with AB when the child and father were living there.
The mother has been paying child support since May 2013 and it appears that each parent maintains the child when she is in their respective care.
Likely effect of change in the child’s circumstances
In my view, this is a weighty factor in this matter. Under the orders proposed by the mother the child will move from the care of the parent who has been her primary care giver for the last five years to a parent who has only been having, unsupervised overnight time for about two years. Although there have been some significant shortcomings identified by the family consultant in the father’s parenting style, the child is closely aligned to him and is my view is likely to find the increased separation from him difficult. The family consultant agreed that in circumstances where the father has been the child’s primary carer and she appears to be developing well, the court should give some weight to that fact. She was of the opinion that the only circumstance “where primary care isn’t necessarily the most important thing, is when you’re looking at issues of risk”.
Given the close relationship between the father and his parents and the role they have played in the child’s care, the orders proposed by the mother would also involve some loss for the child in her separation from her paternal grandparents.
The child’s circumstances would also change under the mother’s proposed orders as she would move to the mother’s household and have new relationships to negotiate, including the mother’s partner and the partner’s child regardless of whether those people form part of the mother’s household on a full time basis. Nothing is known about the relationship between the child and the mother’s partner.
The proposed orders of the father would not result in any change in the child’s circumstances, while the ICL's proposal would result in a small change for the child of an additional night in her mother’s care each fortnight. This change in my view is likely to be of benefit to the child given the increasing role of her mother in her life in recent times.
Practical difficulty or significant expense involved in spending time with and communicating with the other parent
Neither party identifies any practical difficulty or significant expense involved in spending time with and communicating with the other parent under their respective proposed orders.
Capacity of each parent and any other person to provide for the child’s needs
I am of the view that parental capacity is a very salient consideration in this matter.
Mother’s capacity
My findings concerning the mother’s conduct during the first two years following separation and matters identified by the family consultant in her assessment of March 2014, give rise to a number of concerns about the mother’s parental capacity. In particular, concern arises from the mother’s tendency to prioritise her own needs especially for personal relationships over her relationship with the child, which has been dealt with at length in these Reasons.
Further, the mother’s ongoing relationship with AB (in circumstances where a complaint had been made about his conduct towards the child and as he had committed a sexual offence as a 14 year old) give rise to concerns about the mother’s protective capacity. As discussed earlier in these Reasons, the mother clearly did not believe that it was possible for AB to have behaved inappropriately with the child and she had limited knowledge about the exact circumstances of AB’s offending and the risk that may pose to the child. The correspondence sent on her behalf about the father’s demand that she give an undertaking not to bring the child into contact with AB indicates that she regarded this as an attempt by the father to control the people she associated with. She also asserted in that letter that there was “no risk to the child”. In my view, in these circumstances, the mother showed a serious lack of protective capacity in having the child not only associate with AB but sleep in the same bed as him, with this contact occurring as soon as her time with the child resumed.
According to the family consultant, the same concerns arise in relation to the mother prioritising her relationship with AB over her relationship with the child, regardless of whether AB was the mother’s friend or partner. The family consultant opined
Prioritising a relationship with her friend or partner over a child is problematic because it indicates a lack of insight into the child’s needs, a lack of empathy for the child’s experience.
As previously indicated, the family consultant also said that if the court found that the mother didn’t prioritise her relationship with her child and was not protective of her child (as has been found) “the court would need to look at whether that is likely to pose more harm to the child than residing in a house with a parent who is highly controlling of her”.
When asked whether any steps could be taken to mitigate those concerns if those findings were made, the family consultant said that the mother could benefit from therapy to gain some insight into her own behaviour in the past and learn ways to avoid repeating it in the future. However, she said that any such therapy would be undone if [the mother] didn’t recognise that there was an issue to begin with. In my view, in continuing to maintain throughout the proceedings that AB was nothing more than a friend and failing to appreciate that (even if he were only a friend) she prioritised her own needs to continue that relationship above the relationship of her child, the mother does not have insight into her past behaviour and there is risk she will repeat it in the future.
Other concerns about the mother’s parenting capacity relate to her aggressive parenting style. Although the father did not maintain that the mother’s physical discipline of the child and aggressive behaviour were such that there was an unacceptable risk of physical and psychological harm in the mother’s household, he maintained that her parenting style was aggressive. There were a number of examples of evidence, which appeared to be uncontested which support this contention. For example, in a text message interchange between the mother and the father on Christmas 2013, the following was written:
[The mother:] “Nope, Just fell asleep… She has been the biggest asshole. Asked for all this food an (sic) refused to eat it then I gave her my pressie and he (sic) threw it away. My mum gave her another pressie and she totally disregarded it. So rude. She has been telling my parents that I’m a liar ova and ova again. I’m going to bed now. She has done my head in.”
[The father:] “Just ignore it [Ms Delucca] she does the same to me that’s why I take her to the psych. She must have been tired though what time u bringing her back so I can org my day if that’s ok.”
[The mother:] “Nah, she can stay with me. Won’t b (sic) doing shit but. So rude and spoilt.”
[The father:] “Give her some time [Ms Delucca] this isn’t easy she is only 5 anyway msg me a few hours before u are ready to bring her back if that’s ok.. Good night.”
[The mother:] “I shud Neve have picked her up. U have no idea………. If u want her take her…I’m still fukn pissed off with her.”
The father then sent a text message to the mother which included:
[The father:] “She will be ok 2mrw just keep her with u bonding time [Ms Delucca]. She had a big night and day [Ms Delucca] she was tired.”
[The mother:] “He said that to her after she bags me the whole day!! Bonding my ass. Nyt. Whateva.”
[The father:] “Chill out [Ms Delucca] good night. She will be ok.”
[The mother:] “She screamed like a wild animal. I used that already and anyway ur too soft on her. Nyt.”
Further, there is no dispute between the parties that in a conversation which was recorded by the father, the mother referred to “lashing out” against the child “heaps of times”. The mother also previously also agreed, at the time interim orders were made earlier in the proceedings, to participate in an anger management course, apparently to assist her in improving her parenting style. The mother acknowledged in the proceedings that she had learnt from this program, though she subsequently negated virtually all of the concessions she had made and maintained that she did not have an anger management problem.
The father did not pursue the serious allegations he earlier made about the mother’s violent conduct towards the child and gave no further examples of it in recent times. He also proposes that the mother spend substantial and significant time with the child. In these circumstances, I am not satisfied that any tendency towards aggression on the mother’s part impairs her parenting capacity to such a degree that any of the proposed orders would result in the child being at risk in the mother’s care.
Father’s capacity
The father has been the primary care giver for the child since she was three years old. Prior to separation, the mother was also involved in the child’s care and at the time of the first part of the proceedings in February 2015, the father was also gaining considerable assistance from his mother in the child’s care. The father is clearly able to meet the child’s day to day needs including her physical and material needs and educational needs.
The concerns about the father’s parental capacity arise with respect to meeting the child’s emotional needs. As previously dealt with at length in these Reasons, there are concerns about the father’s controlling tendencies towards the child and the detrimental impact that this may have upon her future development. The father’s lack of insight into this issue was apparent throughout his cross-examination where he continued to maintain that he did not display a tendency to control the child’s conduct. This gives rise to a concern that the therapeutic intervention by Dr E to assist him in his parenting which has commenced, may not be effective if he does not develop insight. However, it should be noted that the father’s controlling tendencies related more to the first two years following separation than to the more recent years.
The family consultant expressed concern that the father also prioritised his own needs above the child’s needs. For example, the father prioritised his own needs to confront AB about the improper touching and in bringing the child along with him at that confrontation disregarded the impact upon the child associated with that confrontation.
Maturity, sex, lifestyle and background (including culture and traditions) of the child and either parent
Although neither parent gives evidence of their cultural background in their respective affidavits, it became apparent in the course of the proceedings that they are each of Country M heritage and maintain aspects of the Country M culture and traditions in each of their respective households. The child appears also to have received the benefit of extended family members from her maternal and paternal side being involved in her upbringing.
At the time of delivery of these Reasons the child is eight years of age and attending the same school that each of the parents attended themselves and in this way she appears to be well connected to her local community. In a recent school report she is described as a happy and friendly student and the family consultant describes her as presenting as an articulate, polite girl. She enjoys singing and dancing and participates in a wide range of activities with each of her parents.
Unfortunately, the child has been unduly and inappropriately involved in the parental dispute. She has also been provided with counselling in the past by practitioners who do not necessarily hold the appropriate expertise to deal with the particular therapeutic needs arising from exposure to this dispute. In more recent times however, it appears she has benefited greatly from the therapeutic support of Dr E, an appropriately qualified and experienced practitioner. It is to be hoped that once the parental dispute has been resolved the child can look forward to enjoying the balance of her childhood and receive the advantages of the care of each of her parents.
Attitude to the child and responsibilities of parenthood demonstrated by each parents
Although I have no doubt that each of the parents loves the child and intends to behave in a responsible way as a parent, each of them has shown concerning behaviour in involving the child in their dispute and denigrating the other parent in the child’s presence.
Each of the respective affidavits is replete with examples of the other parent using appalling derogatory language in the presence of the child, and the child on occasions using that language herself either in the course of conversation or when reporting on the other parent. Although each of the parents attempted to minimise their own conduct is this regard, each made some concessions or did not address a particular complaint made by the other parent from which I can be satisfied that each of them engaged in this conduct.
In my view, each of the parents has at times acted in an opportunistic way and furthered their own strategic ends at the expense of the impact on the child. For example, the father in May 2013 opportunistically taped a leading conversation with the child in which she expressed fear of the mother. He then referred the child to a psychologist and played the tape to the psychologist for the purposes of having the psychologist assist in his dispute with the mother and grounding a police complaint. As a result the child spent no time with her mother from some months. Through this action the father showed an irresponsible attitude towards his responsibilities as a parent and utilised the child in his dispute against the mother.
Family violence relating to the child or a member of the child’s family
I am satisfied that the father’s conduct at changeover in September 2012 falls within the definition of family violence perpetrated by him against the mother. For the reasons previously given, I am not satisfied to the requisite standard of other acts of violence alleged by the mother against the father.
The allegations made by the father of physical abuse perpetrated by the mother against the child would also fall within the definition of family violence. However, while he maintained under cross-examination that there were occasions where the mother hit the child with sufficient force to break a bone, he ultimately appeared to resile from this allegation. In final submissions made on his behalf, the father did not refer to the mother’s violence nor did he suggest the child was at an unacceptable risk of physical harm in the care of the mother. I am not satisfied that the mother is a perpetrator of family violence.
Whether it would be preferable to make an order least likely to lead to the institution of further proceedings in relation to the children
The mother alleges that the father has not complied strictly complied with previous interim parenting orders relating to her time with the child. There is some risk that she will continue to maintain this position which could lead to contravention proceedings. However, this risk always arises on the part of unsuccessful party to a parenting application and is not a weighty factor in this matter.
Parental responsibility
Unless the Court makes an order changing the statutory conferral of joint parental responsibility, s 61C(1) of the Act provides that each of the parents of a child has parental responsibility for the child.
In Goode & Goode[7] the Full Court held that there is a difference between parental responsibility which exists as a result of s 61C of the Act and an order for shared parental responsibility, which has the effect set out in s 65DAC of the Act. The Court held that in the former, as there is no Court order in effect, the parties will exercise the responsibility either independently or jointly. On the other hand, once the Court has made an order allocating parental responsibility between two or more people, including an order for equal shared responsibility, the major decisions for long-term care and welfare of children must be made jointly, unless the Court provides otherwise.
[7] (2006) FLC 93-286
In this matter, each of the parents seeks an order allocating sole parental responsibility for the child to him or herself, while the ICL contends that it is in the child’s best interest for them to share parental responsibility.
Where the Court is to determine parental responsibility, the starting point is s 61DA. This section provides that when making a parenting order in relation to a child, the Court must apply a presumption that it is in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child. The presumption does not apply if there are reasonable grounds to believe that a parent or person who lives with a parent has engaged in abuse of the child, or another child, or family violence (subsection 61DA(2)), or may be rebutted by evidence satisfying the Court that it would not be in the child’s best interest for the parents to have equal shared parental responsibility for them (subsection 61DA(4)).
For the reasons previously given, I am satisfied that the father has engaged in family violence and accordingly the presumption does not apply. However, as the ICL seeks an order for equal shared parental responsibility, a determination must be made as to whether this is in the child’s best interests.
Section 61B defines “parental responsibility” as “all the duties, powers, responsibilities and authority which, by law parents have in relation to children”.
Each of the parents seeks an order that he or she have “sole parental responsibility” for the child. The expression “sole parental responsibility” is not defined in the Act. Having regard to the definition of parental responsibility in s 61B, the order sought by each of the parents must mean that the parent seeking sole parental responsibility would have all the duties, powers, responsibilities and authority which, by law parents have in relation to the child and that the other parent would have none of the duties, powers, responsibilities and authority with respect to the child.
It is argued on behalf of each of the parents that they would be incapable of jointly making decisions regarding the major long-term issues for the child. The mother contends that the father’s past conduct in making these decisions unilaterally even when the parents previously jointly held equal shared parental responsibility indicate that he is likely to act in a similar manner in the future.
The family consultant had recommended in her report that due to the high level of acrimony and poor communication between the parents, the court consider an order for sole parental responsibility to the parent with whom the child is to live. In her oral evidence, the family consultant agreed that if the child were to live with the father, it may be problematic for him to hold sole parental responsibility if the court were to find that he is predisposed to being controlling. The family consultant reiterated that her recommendation for sole parental responsibility was based more on the reported lack of communication and conflict between the parties. She said that if the parties had improved their communication and can parent co-operatively then there may be some benefit for the child for shared parental responsibility.
Both parties agree that in recent times communication between them has slightly improved and they have been able to reach agreement about a number of matters including medical treatment, the child’s education and the issue of a passport for the child. It is also to be hoped that when the parenting dispute is resolved through these proceedings, and orders are made, that the parents will settle into the future parenting arrangement and will not attempt to score points against one another for the purposes of the proceedings. Further, the disputes about parenting which have characterised the parent’s relationship appear to relate to day to day matters such as rules and discipline in the household rather than long term issues about which the parties seem to be able to reach some form of agreement.
In circumstances where each of the parents is proposing that it is in the best interests of the child to spend substantial and significant time with non-residential parent, where the father has tendencies to attempt to exert control over both the mother and the child, and the parties have been able to reach some agreement, I am of the view that the parents incapacity in this regard is not as great as they each contend. Ultimately, having regard to each of these matters and in particular considering the Principles underlying the Act and the serious nature of any order which would remove a parent from all with which is involved in the exercise of parental responsibility, I am satisfied that it would be in the child’s best interests for the parents to have equal shared parental responsibility.
As an order will be made for the parents to have equal shared parental responsibility for the child, under s 65DAA(1) of the Act, I must consider whether the child spending equal time with each of the parents would be in her best interests, and whether such an order is reasonably practicable.
Although I have found that the parents are capable of jointly making long-term decisions for the child, I am of a different view in relation to their capacity to co-parent and communicate on a day to day level. For example, each of them has at times unreasonably refused to provide the other with information when reasonably requested to do so and cannot reach agreement on simple day to day matters. For example, the mother refused to inform the father where the child would be staying with her overnight in March 2013, and in April 2015, refused to provide the information about where she and the child would be spending holidays. The father made arrangements for the child to see a psychologist and quite deliberately concealed that information from the mother. In the course of the proceedings, the parties were unable to agree about a single general practitioner for the child’s health care even when ordered to do so.
The family consultant’s opinion, which I accept is that this is an inappropriate case for an equal time arrangement, She agreed that this was due to the lack of communication and need for co-operative parenting which has not been displayed by these parents. For these reasons, I am of the view that it would not be in the child’s best interest for her to spend equal time with each of her parents.
I am then required consider under s 65DAA(2) whether the child spending substantial and significant time with each of the parents would be in her best interests and reasonably practicable. Each of the parents in this matter proposes that the child predominantly live with one parent and spend substantial and significant time with the other. There is no suggestion that such an arrangement is not reasonably practicable. Having regard to the nature of the child’s relationship with each of her parents and the role they have played in her care together with the fact that this is their proposal, I am satisfied that it is in the child’s best interest for such a parenting arrangement to be instituted.
Conclusion
There are some strengths and weaknesses in each of the proposals by both parents. Each of the parents has an established relationship with the child and has sufficient capacity to care for the child if she were to live with either of them.
There are some concerns about aspects of the father’s parenting capacity, in particular his tendency towards controlling the child. He has also shown a poor attitude towards his responsibilities as a parent in some instances, in particular in involving the child in the parental dispute. It is also a matter of concern that he has been a perpetrator of family violence against the mother on one occasion.
However, the father has been consistently available to the child throughout her life, and became the primary care giver when she was three years old. Importantly, he took on responsibility for her care when the mother left the relationship. A number of concerns have been identified in the mother’s protective capacity and in prioritising her own needs over the child’s needs in the two years that followed separation. In recent years the mother’s personal circumstances have settled and even the father proposes that the child should spend substantial and significant time with her. In my view, the ICL's proposal in going further and seeking that the child spend five nights per fortnight in the mother’s case as well as half school holidays and special days together with the order for equal shared parental responsibility is in the best interests of the child.
Taking into account each of the matters referred to, I am satisfied that it is in the child’s best interest for the orders to be made as proposed by the ICL.
For these reasons, I make the orders set out at the forefront of this judgment.
I certify that the preceding two hundred and twenty (220) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Hannam delivered on 3 June 2016.
Legal Associate:
Date: 3 June 2016
(c) causing the child to suffer serious psychological harm…”
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Family Law
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