Earl and Hilton
[2018] FamCA 181
•23 March 2018
FAMILY COURT OF AUSTRALIA
| EARL & HILTON | [2018] FamCA 181 |
| FAMILY LAW – CHILDREN – whether risk of family violence – impacts of family violence – relocation. |
| Evidence Act 1995 (Cth) s 140 Family Law Act 1975 (Cth) s 60CC |
| Amador & Amador [2009] FamCAFC 196 M v M (1988) 166 CLR 69 Johnson & Page [2007] FamCA 1235 |
| APPLICANT: | Mr Earl |
| RESPONDENT: | Ms Hilton |
| INDEPENDENT CHILDREN’S LAWYER: | Ms Strong |
| FILE NUMBER: | CAC | 1850 | of | 2015 |
| DATE DELIVERED: | 23 March 2018 |
| PLACE DELIVERED: | Canberra |
| PLACE HEARD: | Canberra |
| JUDGMENT OF: | Gill J |
| HEARING DATE: | 5 - 7 March 2018 |
REPRESENTATION
| COUNSEL FOR THE APPLICANT: | Mr J Haddock |
| SOLICITOR FOR THE APPLICANT: | Legal Aid, ACT |
| COUNSEL FOR THE RESPONDENT: | Dr J Behrens |
| SOLICITOR FOR THE RESPONDENT: | Farrar Gesini Dunn |
| COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: | Ms Musgrove |
| SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: | Strong Law Pty Ltd |
Orders
That the Mother have sole parental responsibility for the children:
(a) B, born … 2011 (“B”); and
(b) C, born … 2015 (“C”).
That the children live with their Mother.
That the Mother be at liberty to permanently relocate the children’s residence to the D Town area, being the area that is within a 50 kilometre radius of D Town in New South Wales (“the D Town area”) after a period of 28 days following the making of these orders.
That the children spend time with the Father during school term time as follows:
(a) From 9am to 5pm on Saturday and 9am to 5pm on the immediately following Sunday each weekend pending the Mother’s move to D Town;
(b) From the time the Mother moves to D Town until the end of January 2019 in the D Town region:
(i)Each fourth weekend from 9am to 5pm on Saturday and 9am to 5pm on the immediately following Sunday and (if the Father is available) 9am to 5pm on the immediately following Monday provided that the children are delivered to their schools in accordance with normal school hours;
(ii)Provided that the Mother is given 21 days’ notice in writing (including by SMS) on up to three consecutive days from 9am to 5pm across a weekend, provided that the children are delivered to their schools in accordance with normal school hours.
(c) From the end of January 2019:
(i)In the D Town region each fourth weekend of school term time from 9am Saturday to 5pm Sunday unless the time occurs on a long weekend that extends to Monday, in which case then to 5pm Monday.
(ii)During school holiday time for a period of five consecutive days as agreed, and absent agreement commencing 9am on the first Monday of the holidays and ending 5pm on the fifth day thereafter.
(iii)During the Christmas 2019 holiday period for a period of ten consecutive days as agreed, but failing agreement to commence on 2nd January 2019 at 9am and ending at 5pm on the tenth day thereafter.
(d) Thereafter:
(i)In the D Town region each fourth weekend of school term time from 9am Saturday to 5pm Sunday unless the time occurs on a long weekend that extends to Monday, in which case then to 5pm Monday.
(ii)In each odd numbered year for the first week of each school term time holiday period commencing on the first Saturday at 9am and ending 5pm on the following Saturday.
(iii)In each even numbered year for the second week of each school term holiday period commencing on the second Saturday at 9am and ending 5pm on the following Saturday.
(iv)In each odd numbered year for the first three weeks of the Christmas holidays commencing on the first day after term ends at 9am and ending at 5pm on the 21st day; and
(v)In each even numbered year for the second three weeks of the Christmas holidays commencing on the 21st day after term ends at 9am and ending at 5pm on the 21st day thereafter.
For the purpose of changeover, unless otherwise agreed in writing (to include SMS) changeovers shall occur at a supervised contact centre or, if unavailable, outside D Town police station.
That the children speak to the Father via telephone or other means (the means being at the election of the mother), such as Skype or Facetime, each Thursday night at a time between 6pm and 7pm, with the Father to call the children on a specified number and the Mother to make the children available to participate in such conversation.
That each party shall notify the other as soon as practicable of any medical emergency in which the children require medical treatment. Should any such emergency arise, each parent will inform the other of the name and address of any treating medical practitioner and authorise that practitioner to speak to the other parent.
That each of the parties is restrained from speaking in a derogatory manner about the other, or allowing any other person to do so in the children’s presence.
The wife shall authorise all schools and medical practitioners for the children to provide information to, and speak to, the husband regarding the children and shall advise the husband within 14 days of their enrolment at any school or attendance upon any medical practitioner of the name and contact details of that school or medical practitioner.
That both parents may attend the children’s school events and extracurricular activities to which parents are invited.
Parties may agree to alter the arrangements in writing, including by SMS.
Note: The form of the order is subject to the entry of the order in the Court’s records.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Earl & Hilton has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).
| FAMILY COURT OF AUSTRALIA AT CANBERRA |
FILE NUMBER: CAC 1850 of 2015
| Mr Earl |
Applicant
And
| Ms Hilton |
Respondent
REASONS FOR JUDGMENT
Introduction
1.The Father, Mr Earl and the Mother, Ms Hilton, have two children, B born in 2011and C born in 2015. The Mother and Father were in a relationship together, on and off, from about 2006, finally separating on 21 October 2015 when the Mother moved herself and the children from their home in Canberra to D Town on the NSW Region E.
2.The Mother was ordered by the Federal Circuit Court to return the children to the ACT region by 1 April 2016, and since that time the boys have lived with her and spent non-overnight time with their Father on a frequent basis.
3.The Mother seeks to move with the boys to D Town, and to have sole parental responsibility for the boys. The Father accepts that the boys should live with the Mother, but opposes an order for sole parental responsibility, the move and the limited time with the boys that such a move could mean.
4.The principal factual dispute between the parties centres on whether the Father perpetuated serious, continuing family violence upon the Mother during the relationship.
5.The material relied upon and the specific orders sought by each of the parties are contained in the appendices at the end of the judgment.
Procedural history
1.On 21 October 2015 the Mother moved to D Town with the two children, without notice to the Father. He commenced proceedings on 25 November 2015.
2.The Federal Circuit Court made orders on 22 December 2015 that the Father could send the children material in the nature of letters, cards and gifts. The Mother was to facilitate and encourage B to make any response as he wished, including telephone contact.
3.On 4 March 2016 Judge Hughes made orders that the Mother return the children to reside in the ACT region. The children were to live with the Mother and spend time with the Father, the time to increase from two occasions with paid supervision to six occasions of three hours with supervision, and thereafter from 10am to 5pm on each alternate Saturday and Sunday; and in the other week from 5pm to 7pm on Tuesdays.
4.The matter was transferred to the Family Court of Australia on 8 July 2016.
5.On 16 February 2017 orders were made that the Father spend time with the children, each alternate weekend from 9:30am to 4.30pm on Saturday and Sunday and in the other week from 2pm for C and from the end of school, or 2pm of a non-school day, for B until 5pm Fridays. The children were to have telephone contact with the Father each Wednesday from 5pm to 5:30pm.
6.The matter was listed for trial to commence on 8 May 2017 however, shortly before this occurred there was a loss of legal representation for the Father and the Mother was awaiting a decision as to whether she would receive legal aid, causing the trial date to be vacated.
7.The matter was over-listed to commence the week of 21 August 2017 on the basis that it was a three day matter. However it did not proceed on the basis that counsel advised shortly before it was due to commence that it would take five days.
8.The matter was listed for five days commencing on 5 March 2018. Shortly before the trial date counsel advised that the matter would take approximately two and a half days. The matter proceeded for just over three days.
The central contest
1.The central factual dispute in this matter concerns allegations of family violence made by the Mother against the Father. They include instances of sexual assault, acts of indecency, other physical abuse, verbal abuse, controlling behaviour concerning the finances of the parties, access to the internet and the running and maintenance of the household, stalking, breaches of a Domestic Violence Order and threats concerning the removal of the children. Of these allegations one received particular focus, being the allegation that, at the point of separation on 20 October 2015, the Father had sexual intercourse with the Mother without her consent. This event was explained by the Mother to be the immediate precursor to her leaving the home in Canberra, with the children, and relocating to the Region E of New South Wales. She presents as fearful of the Father and traumatised by what she says that he has done to her, a fear that is apparent to her children.
2.The Father says that, but for a number of isolated instances, the history presented by the Mother is untrue. While he accepts that he engaged in stalking behaviour and breached an interim Domestic Violence Order, and accepts some use of verbally abusive language, he says that he has not physically assaulted the Mother, nor acted in the controlling manner that she describes, nor sexually abused her. He has responded to the allegations in his affidavit material in a detailed manner, denying violence against and control of the Mother.
3.Although these did not constitute the sum of the considerations in this case, the centrality of these matters in these proceedings was appropriately the focus of the parties’ cases given both the potential impact of family violence, and the potential impact of false allegations of family violence.
Potential impacts of alleged family violence
4.The Single Expert, Dr F, noted the potential developmental impact of family violence as alleged by the Mother. She stated that children are completely dependent upon their primary caregiver (here assessed by her to be the Mother) early in life. Should that caregiver be living in fear, this could engender fear on the part of the children. This ongoing fear could prevent the children from developing along their optimal developmental trajectory. Dr F stated that should the Mother’s allegations of sexual assault, groping, verbal abuse and physical assault be substantiated, this would “undermine the emotional wellbeing” of the children “in a general sense”. It could lead to insecurity, anxiety and difficulty adjusting, leading to a greater need for stability, safety and routine. This could negatively impact the children’s capacity to adjust to changing circumstances.
5.According to the Single Expert, the Mother is likely suffering from psychological vulnerability. The Mother was described as having the appearance of someone who has suffered a great deal of traumatic stress, and who has not yet recovered her sense of safety and self-confidence. The Single Expert considered it possible that the Mother’s psychological vulnerability stemmed from the Father’s conduct, especially as no other sources appeared as likely alternatives.
6.Dr F further stated that fear as expressed by the Mother, be it caused by the actions of the Father or by his close proximity, would impede the Mother’s ability to create a home and community environment with a safe and secure atmosphere for the children.
Potential impacts of false allegations
7.Dr F also identified the impact upon the children should the Mother’s allegations of family violence prove untrue. She stated that the Mother consistently presented as frightened and distressed, consistent with exposure to family violence. Should this family violence not have occurred, Dr F stated that the children would likely find the Mother’s behaviour unpredictable, in that the Mother is falsely teaching the children that “the world and their Father are not safe”. Dr F considered that should the children be exposed to this stress and confusion, it would produce negative impacts similar to those impacts as caused by exposure to family violence. That is, the children would believe that they are “not safe”, in a manner similar to that caused by actual exposure to family violence.
8.Further, the children would be deprived of the relationship with their Father, as the Mother’s fears would undermine any relationship.
The evidence as to family violence
9.As is not unusual in family violence cases, much of the evidence centres around the accounts of the parties. Neither has brought significant supporting evidence to the Court. The nature of the allegations is such that there is little scope for external support for the allegations. Similarly, there is little that can be called in support of the denials of the behaviour.
10.However, there was some scope to call evidence in support of some of the Mother’s allegations. Previously the Mother filed affidavits by Ms G and Ms H. These previous affidavits were responded to by the Father in his trial affidavit, identifying that the subject matter was the support of the Mother’s claims of family violence, although, understandably, not the detail.
11.Ms H alleged family violence against the Father upon the Mother, including, apparently, in relation to the circumstances of the Mother leaving the home.[1] Although Ms H lives in Tasmania, the Mother did not ask Ms H whether she would be able to attend the hearing to give evidence. No sufficient explanation was given for failing to call Ms H, a person who might reasonably be expected to be a witness in the proceedings.
[1] At [138]ff of the Father’s trial affidavit dated 9 January 2018.
12.The Father also criticised the Mother for failing to call Ms G to give evidence to support the allegations of family violence. Ms G previously filed an affidavit in the proceedings alleging violence by the Father upon the Mother.[2] The Mother said that she had not called Ms G to give evidence due to Ms G’s fear of the Father. The Mother did not provide evidence setting out how she came to believe that Ms G held such a fear. No sufficient explanation was given for the failure to call her.
[2] At [102]ff of the Father’s trial affidavit dated 9 January 2018.
13.Further, the Mother did not call evidence from her father, despite his involvement on the day the Mother left the home. However, his involvement on that day occurred after the alleged incidents involving the Father. The Mother explained that he is 85 years old, has health problems and a declining mental state. It is unclear what controversial matters he may have been able to give evidence about.
14.It should be inferred that neither Ms H nor Ms G would have assisted the Mother’s case. However, such an inference is of limited worth absent an understanding of what, precisely, it was that they may have been expected to be able to corroborate. While Ms G and Ms H provided earlier affidavits that were filed, these did not form part of the evidence in the trial to identify the scope of the evidence that they may have been expected to give.
15.The Mother criticised the Father for his failure to call his mother to give evidence. The Mother claimed in her evidence that she had called the Father’s mother by telephone following the incident of 20 October 2015, seeking her help due to the Father’s violence. The Mother did not set out what she said to the Father’s mother (which presumably could have been the subject of evidence from the Father’s mother). Absent this evidence, the criticism is without merit.
16.Particularly absent supporting evidence, careful attention must be paid to the allegations made, and their surrounding circumstances.
17.The first instance of physical violence alleged against the Father was when the Mother was pregnant with B (B was born in 2011). The Mother says that she was pushed to the ground by the Father.[3]
[3] At [28] of the Mother’s affidavit sworn 15 December 2017.
18.The Mother alleges that in late 2010 she and the Father had a conversation about the paternal grandparents’ relationship, a relationship which the Mother characterised as abusive. As a result of this, the Father was alleged to have pushed the Mother into her bedroom, and then verbally abused her over a period of two to three hours. The Father denied both the Mother’s characterisation of his parent’s relationship, and the incident.
19.After this the Mother says that the Father threatened that he would take the child, after birth, to Sydney, and that the Mother would not see the child again. The Father said that he did not, and would not, engage in such behaviour.
20.The Mother says that the abuse continued after B was born.
21.After the first incident the Mother made a general assertion that she was pushed or shoved on occasion, with the Father saying “I haven’t punched you.” The Mother claims that the Father would often touch or grope her breasts and other parts of her body without her permission.[4] This was asserted to have occurred in the presence of B, often as the Mother was settling B into bed.[5] The Father said that he did not engage in such abuse, and did not touch the Mother as alleged.
[4] At [31] of the Mother’s affidavit sworn 15 December 2017.
[5] At [31] of the Mother’s affidavit sworn 15 December 2017.
22.Until B was born such incidents could not have occurred in the presence of B.
The first separation
23.The Mother decided to separate in mid-2012. She says that by this time the parties were sleeping in different parts of the house, and the Mother thought that they had no relationship from the time that she became pregnant. The Father agrees that there were difficulties in the relationship at that stage.
24.The Mother says that the Father refused to leave the house, although she did not describe her actions to have him leave the house, nor his manner of refusal.
25.The Father says that the Mother said to him “I want to live my life, I want you to go.” He says that the Mother had formed another relationship before this point, although he did not realise that until he left the house. The Father says that he did not resist the Mother and that as a result of this he left the home, was temporarily homeless, and lived in his car in a car park. He subsequently obtained a rental property.
26.At this time the Mother alleges a pattern of abusive conduct, denied by the Father, characterised as:[6]
a)Refusing to return the house keys, continuing to come to the house as he pleased and stating to the Mother that “she had no right to be here”;
b)Entering the house without permission whilst the Mother was at work, and on one occasion leaving a photo of the parties on the dining room table with the words “you will die” written on it;
c)Refusing to remove his belongings from the home;
d)Threatening the Mother with the prospect of taking B, saying that should “you try and take B from me I will disappear with him and take matters into my own hands”, whilst also being verbally abusive, calling the Mother a “loser” and stating “B doesn’t need a Mother”; and
e)Sitting outside under the Mother’s window all night on a regular basis, pleading with and threatening her to let him in.
[6] At [38] of the Mother’s affidavit sworn 15 December 2017.
27.The Father denies that he engaged in this behaviour.
28.To these the Mother added to Dr F the Father both breaking in through the man hole, and preventing the Mother from pursuing a relationship with her biological family at D Town. It is not clear how he prevented such a relationship, and the breaking in through the man hole was not supported by direct evidence.
29.Although it is unclear precisely when the Father moved out, he put it as a short period before the Mother obtained an Interim Domestic Violence Order (IDVO). The above allegations, which would constitute breaches of such an order, do not appear to have been made to the police at the time.
30.The IDVO was obtained on 7 October 2012. The immediate precursor for this was that the Father says that he became aware, through a picture on Facebook, that the Mother was with her boyfriend in the home. On his version of the timing, which was not challenged, this was a matter of days after he had left the home. He says that he was upset by this as he thought that the Mother was cheating on him. According to the Mother, he attended the home, had a confrontation with the Mother and switched off the power at the electric meter.
31.While the Father says that the Mother left the home with the children and he then turned off the power, her evidence was that she locked herself in the bathroom. His assertion that she had left the house was inconsistent with his acceptance that the Mother would have been terrified by his turning off of the power. He says twenty minutes later he returned to switch it back on, having regretted his action, only to see that the Mother’s father was in attendance and that the power was already back on in the home. He said that it was an action that he undertook out of hurt. The Mother says that he continued to call and send SMS messages throughout the night. He agrees that he called the Mother angrily several times. He says that he used inappropriate language toward the Mother. He denied that cutting the power provided a basis for the Domestic Violence Order for the Mother. This denial was inconsistent with his acceptance that the Mother would have been terrified.
32.The Father expressed strong regret for turning off the power. He said that it was to his “great shame” and described it as a “stupid, childish and ridiculous thing to do.” However, he questioned why the Mother continued to raise it in the proceedings,[7] showing a lack of insight into the ongoing significance of such conduct for the Mother, and for the Court.
[7] At [211] of the Father’s trial affidavit dated 9 January 2018.
33.Shortly after the Mother obtained the IDVO the Father had contact with the Domestic Violence Crisis Service (DVCS), and made criticism of the Mother to that service. He accepted that he had attributed particular actions on the part of the Mother to the Mother having a guilty conscience. He did not explain why he contacted the DVCS. It has the appearance of an attempt to undermine the Mother to the support service.
34.Police records were produced that showed an interaction with the J Town police on 11 October 2012.[8] The Father was asked to attend the police station and was served with the IDVO. He had sent a number of texts to the Mother (alleged to include a text identifying the address that she was at), and had left a parcel on the wheel of her car (presumably in the region of the J Town police station). The police attended and located the parcel with a card in it, identifying that the Father had been there. They later examined the Father’s telephone and texts, without identifying an offence. The leaving of the parcel at J Town on the Mother’s car is suggestive of stalking on the part of the Father.
[8] Exhibit M4.
35.The Mother alleged that the Father attended the home and physically assaulted her by pinning her against a car on 20 October 2012. The Father denied this. The police records[9] indicate that the Mother told the police of the attendance the following day, although they do not contain a reference to being pinned against the car. While the Independent Children’s Lawyer (ICL) cross-examined the Mother to suggest that this meant that such an assertion was not made to the police, the DVCS records show the police describing to them the report as being pinned against the car.[10] The Mother was recorded as saying that she was not willing to provide a statement, but might if the Father continued to breach the order.
[9] Exhibit M3.
[10] Exhibit M5.
36.The Father accepted that he knew that the Domestic Violence Order meant that he was not to attend at the Mother’s house, but agreed that he did attend the house on 21 October 2012. He denied yelling at the Mother on that occasion, saying that he attended at the home, knocked on the door, bringing two coffees with him and a toy for B. He hoped to speak to the Mother on that occasion. The Mother’s boyfriend was present and called the police. In response the Father drove straight to the Suburb K Police Station and informed them that he had breached the order by attending at the home. The police record him as making full admissions and as remorseful. He was not charged, but was cautioned. The records further show that the Mother “was happy with the outcome and would call Police if he breaches the DVO again.”[11]
[11] Exhibit M3.
37.The Mother says that in 2012 (presumably after the separation) the Father said that he would “go to counselling and do anything you want” and that she resumed the relationship “as I truly believed that [Mr Earl] would not let me have a life without him, and I partly hoped [Mr Earl] would change as he promised.”
38.The parties agreed to a parenting plan that resulted in B spending time with the Father three days per week from 9am until 5pm.
39.The Mother then alleges a further incident occurring in early 2013, when the Mother says that the Father became aware that she was dating a family friend. The timing of this incident sits uncomfortably with the Mother’s assertion as to when and why she decided to resume the relationship. The Mother claims that the Father said to her words to the following effect “I went to this guy’s house and threatened to break his legs and kill him if he didn’t stay away” and that about four weeks following the incident sent her a text saying “you won’t live without me anyway, you know I won’t let you”. The Mother says that she showed a copy of this message to the J Town police and broke off the relationship with the boyfriend immediately. The Father denied this conduct, denying that he even knew the identity of the person.
40.No police records were produced to show evidence of such a text being shown to them, despite the production of police records for the earlier 11 October 2012 event.
Resumption of cohabitation
41.The Father says that the relationship resumed in February 2013, at which time he says that the Mother worked full time and he looked after B during the week, until B commenced day care in mid-2013. He says that he did not move back into the home until June 2013.
42.The Mother says that she permitted the Father to move back into the family home in early 2013 “out of desperation and fear for her life”.[12] The Mother alleged that the Father’s abusive behaviour continued following the resumption of co-habitation.
[12] At [41] of the Mother’s affidavit sworn 15 December 2017.
43.The family acquired a dog, L, towards which the Mother claims the Father was increasingly violent, culminating in the Father repeatedly hitting the dog whilst the Mother and B watched.[13] The Father denied this behaviour, saying that it made no sense.
[13] At [48] of the Mother’s affidavit sworn 15 December 2017.
44.According to the Mother the Father was critical about the house and the backyard, often drawing the Mother’s attention to perceived damage or mess and yelling at her about them whilst in the presence of B. The Mother said that yelling at her was a daily event, occurring in the backyard. It was suggested that the lack of reports by neighbours to the police undermined this assertion. Such an inference would be dependent upon neighbours reliably reporting such matters. Such reliability ought not be assumed.
45.The Mother also gave an account of behaviour concerning a mark on the couch. She explained that B had accidentally left a mark on the lounge while moving a pen out of fear that the Mother would be in trouble “if [Mr Earl] saw that I left it there.” There is no explanation as to how the Mother was able to attribute this motive to B. She says that following this, for about three months, each evening when she came home from work the Father would get out cleaning products and “aggressively” clean the mark. The conduct was described differently by the Mother to Dr F, where she said that the “pen mark on the lounge was three months aggression at story time and bed time. He’d be yelling and upset.” The Father denied the conduct. The description at trial made no sense and conflicted with the version described to Dr F.
46.On 10 February 2014 the Mother attended M Hospital in relation to migraines. She was supported in this by a work colleague who told the nurse of the colleague’s concerns regarding the Mother having “domestic violence issues at home.” This followed the Mother having spoken of those issues to the work colleague. Those discussions occurred while the relationship was still on foot.
47.The Mother says that the Father sexually assaulted her in mid-2014 following an argument relating to the Father not wanting to work in Canberra. The Mother went to bed following the argument, and was joined there a short time later by the Father. The Father got into bed, and after a period of several minutes roughly groped the Mother’s breasts. The Mother left the bedroom and entered the lounge room, then the kitchen, then returned to the lounge room. The Father followed her. The Mother then returned to the bedroom, where the Father followed. The Mother yelled at the Father to get out, which he did. Later that night the Father returned to the bedroom and proceeded to undress the Mother, whilst holding her tightly. At that point the Father proceeded to have intercourse with the Mother. The Mother stated that she was crying throughout, and that, after, when she told the Father this he stated “I did not realise you were upset”. The Father denied this incident.
48.The Mother alleged that the Father, from the time that B was three years old, used wooden spoons to discipline him. The Father admitted that he had used a wooden spoon to discipline B during the relationship. He said that this had occurred when B was about three years old. He said that it had happened only once, that he saw the effects and stopped using a wooden spoon. This was inconsistent with his affidavit evidence,[14] where he said that he had used the wooden spoon on “very few occasions”. He then accepted that he had used the wooden spoon more than the once that he had said his oral evidence. He denied that he was lying and said that he had simply used the wrong word.
[14] At [236] of the Father’s trial affidavit dated 9 January 2018.
49.The Mother said that the Father had broken a wooden spoon on B and then bought a bulk bag of wooden spoons that he said were to be used on B. The Father denied both of these allegations.
50.The Mother related an incident two days following the birth of C (May 2015) where the Father came upon the Mother breastfeeding C. She said that the Father threw a tin of baby formula at her head, yelling “you have to use formula”, before slapping the Mother in the face. The Father denied such an incident, expressing an understanding that the Mother wished to breast feed but was unable to do so.
51.The Mother alleges that the Father prevented her from putting magnets on the refrigerator. He denies this, saying that there were letters kept toward the bottom of the refrigerator that he used to help B to spell simple words.
52.The Mother further alleges several instances of family violence directed towards her in the presence of B, and later C. The Mother states that when she was about seven months pregnant with C, the Father punched her in the stomach, causing her to slide across the kitchen floor. B observed this and started crying, to which the Father was said to have stated “B its mummy’s fault mate, it’s nothing to do with you”. The Mother also related a number of instances of verbal abuse directed against her by the Father in B’s presence. The Father denied this behaviour. The Mother, on attending the hospital for a check-up shortly after, did not report that she had been punched in the stomach.
53.The Father accepted that close to the date of their second separation in October 2015 he was carving a wooden spoon in B’s presence. She said that he told both her and B that it was to be used on B. He denied saying to B or the Mother that the wooden spoon was going to be used for smacking B.
54.The Mother kept the partially carved wooden spoon following moving out of the family home and it was produced to the Father during the proceedings. He accepted that it appeared to be the spoon that he was carving, but said that he and B together made a number of wooden objects. He says that this was an activity that B was involved in, in the sense that they were sitting at a fire and roasting marshmallows while he carved the wooden spoon with a knife. He did not accept that B would then have a memory of having been struck by the wooden spoon and did not accept that the exercise was frightening to B.
55.The family report writer accepted that the previous use of the spoon may not have been remembered by B at that stage (if it was last used on him when he was three years old). However, she said that depending upon the use of the spoon on B, the carving of the spoon could have proved confusing for him.
Verbal abuse
56.The Mother alleges that the Father was verbally abusive towards her “almost daily”, suggesting that she was a “weak person”, “uneducated” and undeserving of any love from the Father,[15] along with other verbal abuse occurring in the presence of B.
[15] At [22] – [23] of the Mother’s affidavit sworn 15 December 2017.
57.The Father accepted that on one occasion he had called the Mother a “leg spreader.” This, he said, was during a verbal argument between them following the Mother saying that she had been unfaithful to him. He accepted that the use of that term was inappropriate. He further accepted that he had also used words such as “fuck” and “shit” (although his initial admission only went as far as “shit”). He accepted that it was not nice for him to use those terms. He denied that he had used the term “leg spreader” as an expression of his view that he was entitled to the Mother’s body. He said that he had no such view. The Father denied ever saying to the Mother “go neck yourself” or saying to B that “your Mother takes it up the arse from ten men”.
58.The Mother alleged that the Father threatened to harm her. He denied doing so.
Controlling behaviour related to technology and finances
59.The Mother stated that in the time leading up to her leaving the home in October 2015, the Father restricted her internet access and checked the GPS, email and phone call logs on her telephone. The Mother said that the Father forced her to sign into her Facebook account to check her account and messages and was able to do this as her iPad used his Apple ID. The Father denied such control and pointed to the Mother accessing his account post-separation using his Apple ID.[16]
[16] At annexure J of the Father’s trial affidavit dated 9 January 2018.
60.The Mother said that the Father would take her bank cards, and that she was required to ask the Father for money to purchase anything.
61.The Father denies that he exercised financial control of the Mother. He says that the Mother had financial control, having the passwords to his accounts, while he says that he did not have the passwords to her accounts. Further, he points to the fact that the Mother was in full time work for the bulk of the relationship, giving her access to her own funds.
62.The Mother deposes to using her own funds to purchase new furniture, without saying that she needed to have reference to the Father for that purpose. The Mother accepted that she had internet banking facilities with the N Bank that she could have accessed while at work. She says that although she had access to her own funds, she could not exercise this access without repercussions. She did not set out what these repercussions were or incidences of suffering such.
63.The Mother told Dr F that she had been so deprived of financial support by virtue of the Father’s threats that she had to rely on her support network for groceries to prevent herself and the children from starving. She did not call or give evidence in support of this contention.
64.Countering the idea that the Father financially controlled the Mother was the account given by the Mother of the Father forcing her to attend car yards in search of a vehicle for him for months. She accepted that they did not buy the first suitable car identified by the Father. She accepted that she had the equity available at that time to purchase a car for the Father but did not do so, despite her account of this continuing over months. This undermined the notion that the Father controlled the Mother’s finances.
65.This was also undermined by the Mother’s own account of the conflict leading up to the sexual assault she alleges occurred in October 2015, where she says that she refused to sign documents for the Father to obtain finance for a motorcycle.
66.The Mother alleged that the Father holds inflexible religious beliefs that resulted in his abuse of the Mother, in particular by belittling her, both for not holding equivalent beliefs and for her not being important to him as a consequence of his religious beliefs. The Father denied that his religious beliefs had such a consequence, saying such behaviour would have been in conflict with his religious beliefs.
67.He accepted that he wanted his boys to be exposed to his religious beliefs, potentially by attending a church of his chosen denomination. He accepted that this was a likely source of future conflict, which he thought could be managed by exposing the boys to alternate views and allowing them to make their own decision.
The Alleged October 2015 sexual assault
68.In October 2015 the Mother underwent surgery in relation to cervical cysts. This involved stitches in her uterus. She was at home the next day recovering from the surgery. She gave an account of the Father harassing her in order to secure her support for him obtaining finance for a motorcycle. He agrees that he did seek her support for the finance, to the extent that she would be a person who could confirm his details, but denied harassing her. The Mother said that the Father thrust a note with a telephone number for her to call in relation to the finance at her. She produced a note that she asserted was in fact the note. The Father did not accept that it was the note. He, however, agreed that he may have given her a note with a telephone number to call.
69.The Mother gave an account in her affidavit material of the Father subsequently having sexual intercourse with her without her consent. In her affidavit she described C being in his bassinet asleep on the bed next to her. She said that she rolled over, on the Father entering the room, hoping that he would leave. According to her affidavit he approached her, and knelt on the bed. This differed from her oral account in which she asserted that he knelt beside the bed.
70.In her affidavit she said that he grabbed her right knee with his left hand and forced her legs apart. She says that she responded by rolling forcefully onto her side and shuffling away from him. In her affidavit she says he again grabbed her knee and forced her legs apart and she again tried to get away by rolling onto her side, this happening about two or three times. She was cross-examined about the location of the bassinet on the bed, on the basis that her account of rolling away was inconsistent with the presence of the bassinet on the bed. This was not the case. It is apparent from her account that each instance of rolling away involved an instance of being pulled back and so no inconsistency emerged in relation to this aspect.
71.The Mother said that the final time that he forced her legs apart, she looked at him and he was “pulling his pants down looking at his penis while he held my legs apart”. She closed her knees again and reached for the covers telling him that she could not “do this”. She says that he said “I need to do this” pulling the covers out of her hands and off her. She then says that he penetrated her vagina with his penis and began to have intercourse with her. She says that he put his hand on her throat and kept it there during the intercourse. During the intercourse she said he did not look at her but rather looked at himself having intercourse.
72.Following the intercourse there was blood “all over” the bed. Under cross-examination she explained to the ICL that the bed was a queen-sized bed, with white sheets and a quilt. She was lying on the sheets. The Mother said that she had been told to expect bleeding following the operation and was wearing a thick pad underneath underpants, but with nothing over her underpants. She said she usually wore a t-shirt or singlet.
73.Under cross-examination she said that the Father forced her legs apart in between undoing his pants. She had previously under cross-examination been unable to recall what pants he was wearing, and that she observed him shuffling his pants down while he was kneeling. She said that he used both hands to remove his pants, although not at the same time, using the other hand on each occasion to hold her legs apart while he pulled his pants down. She then described him unbuttoning his pants and undoing his fly, details that she had not previously recounted. She said that during the cross-examination she was able to recall the trousers that he was wearing.
74.The Mother said that she could not recall the Father removing or moving her underwear, nor the removal of the surgical pad.
75.The Mother said that on the following morning (in October 2015) the Father threatened to put her in concrete. She says that she heard B ask the Father to “try harder to stop being mean” and that the Father responded by telling B that B would not be going to any of his activities, such as [martial arts] any more.
76.Prior to the Father leaving the home she described an incident involving him siphoning fuel from her car. She has variously said that the Father siphoned fuel, said he would siphon fuel, and told her to siphon fuel. The Father pointed to these inconsistencies.
77.In her evidence the Mother said that initially the Father told her to siphon the fuel and then, apparently, siphoned the fuel himself. He had also instructed her to remove the child seats, then apparently going on to do it himself. He subsequently told her she would need to remove the child seats as he did not have time. According to the Mother he subsequently left.
78.The Mother called the police and the Father’s mother, seeking assistance to separate.
79.The Mother’s father attended to give her assistance that morning after the Father had left the home.
80.That afternoon at 13:31 the Mother called DVCS,[17] while her father was there. She told them that the Father had threatened to put her in concrete and ride over her if she did not call people to allow him to obtain a motorcycle loan. She said that he had threatened to kill her, burn the house and take the children. She agrees that she did not allege that she had been sexually assaulted. She told DVCS that his parents were coming to facilitate the separation.
[17] Exhibit M6.
81.By 14:50 the Mother had left the home, with her father remaining to wait for a locksmith to change the locks to exclude the Father. The Mother drove her car to the local service station to obtain fuel and drove on to the Region E of New South Wales with the children in her car. In the meantime she had the locks changed on the house. The Father returned later that day to find that he did not have access to the house due to the change in locks. Some of his belongings were on the front porch.
82.The Mother arrived at D Town at 3am. She stayed at her mother’s home. The first person that she told about the sexual assault was her mother, the following day. The Mother said to her mother, Ms O, that the Father had forced himself upon her. Ms O was concerned because the Mother was bleeding heavily. There was concern that the stitches may have been broken. Ms O is a nurse and consulted her friends about care for the Mother and who the Mother might be referred to for medical attention. At no stage did she look at the Mother’s pads to assess the heaviness of the bleeding, taking the bleeding to be heavy from what she observed in the toilet.
83.The local police attended at the home and subsequently the Mother attended the police station on 22 October 2015 to give a statement. That statement involved no account of the sexual assault. While the matters recorded by the police included quotes of the Father, as specific examples of attempts to control the Mother, and details the Father breaking a telephone and crushing the Mother’s hand (snatching of the telephone from the Mother’s hand and it breaking were accepted as having occurred by the Father), along with an account of the Father making demands of the Mother concerning a motorbike loan, there was no account of the sexual assault.[18] The Mother says that this was because the police told her that they had enough to apply for an Apprehended Violence Order and required no further information. In her affidavit she says that she did not tell the police because she was “shocked, exhausted, terrified and humiliated.”
[18] Exhibit M4.
84.Despite the circumstances of the alleged assault, the Mother did not attend upon a doctor for 23 days even though the attack was alleged to have taken place almost immediately post-operatively, and the concerns in relation to the breaking of the stitches, and the heavy bleeding.
85.Ms O gave a further account of observing bruising on the Mother’s arms, apparently caused in the process of the assault. No part of the Mother’s account indicated that she was held at any stage by the arms. The Mother has not asserted that she was bruised on her arms.
86.Both the Mother and Ms O said that the Mother told Ms O of the sexual assault. Ms O was not cross-examined about being told by the Mother the day following the Mother’s arrival, that the Father had “forced himself” upon the Mother.
87.In October 2015 the Father was served with a Provisional Apprehended Violence Order.
88.In November 2015 the Apprehended Violence Order was first returnable at the Local Court at D Town. It was after this, on 21 November 2015, that the Father attended again at the home, and discovered that the home was empty and had been repainted.
89.The Father filed an Initiating Application in the Federal Circuit Court on 25 November 2015 which was made returnable on 30 November 2015. The Mother stayed with her Mother until February 2016 when she moved into a rental property at Suburb P.
90.The Federal Circuit Court matter was adjourned to 22 December 2015 and again to 4 March 2016. Orders were then made for supervised time and for the Mother to return the children to the Australian Capital Territory.
The first visit following the Mother’s move to D Town
91.The records from a supervision service, Q Group (exhibit M2) state that on 16 March 2016 the Mother attended at Q Group for the intake process in order for the Father to spend time with B. She had with her a vomit bag which apparently had vomit in it which she attributed to B. B said that he was scared because his Father was really mean to his Mother. He said that “he (the Father) doesn’t love mum but he does love me.”
92.The following week on 22 March 2016 the Father spent supervised time with both boys at R Town.[19] He said in his affidavit that he was told by the supervisor, Ms S, that “that was one of the most pleasant contacts I have ever been involved with.” This was not recorded in the notes, and appears at odds with what occurred during the visit.
[19] At [30] of the Father’s trial affidavit dated 9 January 2018.
93.He described in his affidavit that B walked up to him, with his hands in his pockets. In his oral evidence he thought that B was angry with him. B then said, according to the Father, “Mum says you can see us as often as you like but we don’t want to go to Canberra, the schools are better here than they are at Canberra”. This is not recorded in the notes. The Father thought that B was parroting things that he had been told. The contact report (exhibit M1) noted that C was crying at various times, that B had said to the Father “why are you mean?”, that B repeatedly asked the Father about being mean to the Mother and said “I just don’t want you to be mean to mummy.” He accepted that B has said to him “why are you mean to mummy?” He said that in his view the boys were happy at the visit, in the context of him not having seen them for a period of about five months.
94.The Mother complained that on this visit she and the Father passed by each other, caused by his attendance at the centre at the same time as her, and that he threatened her, saying the word “dead.” She says that she reported this interaction to the handover centre. However, while exhibit M2 records the parties coming into contact with each other, it does not record any such report being made. The Mother also says that she reported the interaction to the police, although no record was produced to establish this.
95.However, the parties came into contact with each other on this occasion because of the early arrival of the Mother. When timeliness was reinforced with the Mother, as being necessary to mean that the parties will not come into contact with each other, the Mother’s response was to shrug. The Mother was cross-examined about this interaction. It was suggested to her that the shrug indicated that she did not think that it was a matter of importance. She denied this, saying that it was the product of her not thinking that anything could be done about it.
96.The absence of the records of a report to either the handover agency or the police, combined with the reported response by the Mother when dealing with the contact between the parties, means that this allegation should not be accepted.
Returning to ACT Region
97.On 1 April 2016 the Mother returned to the ACT region. She says that B was upset at returning to Canberra, crying, screaming and saying “I don’t want to leave.” Although it had been about a month since the order to return had been made, the Mother says that effectively she had no time to prepare the boys for the return because she was wrongly told by a support worker that she would not have to return.
98.The Mother says that she agreed to B speaking to the Father on the telephone to tell him that he did not want to move to Canberra. She said that this was B’s idea. On 31 March 2016 B spoke to the Father on the telephone, telling him “mum says you can see us as often as you like, the schools are better here than in Canberra and we like it here, we are about to buy a house with a swimming pool and we can’t have that if we come back.” On that same day the Mother’s then solicitors wrote to the Father to seek his agreement that the Mother stay in D Town despite the orders.
99.On her return to Canberra the Mother and the children lived in a caravan park for about four weeks. During that time the electricity failed at the caravan park and the Mother was concerned that it may have been the Father who had caused this. She found out that it was not.
100.Following the return of the Mother and the children to the ACT, the Father spent supervised time with the children on 5 and 9 April, 4, 7, 11, 14, 18 and 21 May. The 4 May visit was supervised by the Father’s mother. Unsupervised time commenced on 8 June, in week one on Saturdays and Sunday days, and in week two on Wednesday afternoons.
101.On 3 May 2016 the Mother complained to T Group regarding the changeovers, alleging problems with T Group providing her with necessary paperwork. She suggested that a particular staff member was holding up the process and that she may have a friendship with the Father. The Mother explained that she came to this view on the basis of problems she was having with T Group. There was no real basis to suggest that there was in fact some sort of relationship between the Father and the staff member.
102.In June B told the Father that he had cried upon going home from the Father.
103.The Mother said that in July and August 2016 the Father used the communication book as a means of abusing her by making demands of her, rendering it an inappropriate means of communication. At trial the Father was cross-examined about this matter, focusing on one string of communication where the Father was asking the Mother for the details of the doctor who had recommended using conjunctivitis ointment for a scratch on C’s nose.[20] He was entitled to this information by virtue of the orders of 4 March 2016. Despite repeated requests by the Father this information was not provided for a month. The Mother was questioned as to why she did not simply provide this information, but provided no adequate response. Although she had provided detailed information about another medical attendance for C, even in relation to that attendance she did not provide what she was required to under the orders. It should not be inferred that the Father used the communication book as a tool of abuse. Rather, the mother was obstructive.
[20] Exhibit M9.
104.On 13 August B reported to the Father that the Mother had been crying on the way to the visit because the Father was mean.
105.The Mother said that after some of the visits B was extremely thirsty, and the boys were not permitted to bring their Christmas presents home. The Father said that he had adequately cared for the needs of the boys and had made no requirement that they not take presents home.
106.The Mother alleges that B’s personality has changed since the visits with his Father started. She describes him as having become aggressive and rude to the Mother. B has reported that the Father has said mean things about the Mother. The Father denies saying mean things about the Mother.
107.The Mother alleges that the Father attends for handover in a manner designed to make him come into contact with the Mother. He denies this.
108.In June 2017 the Mother tried direct handovers to the Father. She says that the Father used these occasions to hug the Mother. He denies this, although he accepted that he had told the Mother that he missed her.
109.After these direct handovers the parties resumed handovers through T Group. The Father accepted that it was important that he be on time for the T Group handovers. He agreed that he was ten to fifteen minutes late on twelve occasions between September 2017 and January 2018, and twenty five minutes late on another occasion. While he said that it was first through the subpoenaed material that he understood that the lateness was an issue for T Group, the subpoenaed records show that lateness was taken up with him directly by T Group.
110.The Mother is currently prescribed antidepressants. She describes suffering from extreme anxiety, vomiting often in her car when attending for changeover. During the hearing of the matter the case was stood down for a period as it appeared that the Mother was about to vomit.
Child support
111.The Father has paid no child support. He has purchased food and clothing for the boys while they have been with him. Until July 2017 he had work which meant that he was earning $60,000 per year. While he said in his evidence that he paid an amount of $150 per week for the support of the boys, for a period of six months in 2017, on production of his bank records the only payments that he made between August 2015 and February 2017 were three payments of $200 in July and August of 2016. He has made no payments in 2017, despite the fact that since July 2017 he has obtained different work which has meant that he has been paid $120,000 per year plus superannuation. He sought to explain the difference between his initial evidence as to payments and what was shown on his bank accounts by saying that it was merely a miscalculation rather than a lie. He subsequently accepted that his earlier response was a lie.
112.He sought to explain a reason for the non-payment relating to difficulties in obtaining the Mother’s bank account details. However, these were provided to his lawyers on 10 August 2017 shortly after they were requested. No payments followed.
113.He further sought to explain the lack of child support on the basis that the Mother had received some monies from the sale of the home that they had lived in which was in her sole name. She received $100,000 less $35,000 worth of expenses to be paid. He said that at that time he was trying to find his feet again financially. He accepted that he had financially found his feet but made no attempts to pay any child support despite that.
114.The Mother did not apply for child support. She had sought support from him for the payment of expenses for the boys which was not forthcoming. Whether or not the Mother applied for child support, the Father had it open to him to provide financial support for B and C and did not do so.
D Town
115.The Mother says that she has significant support available to her in D Town. She has her birth mother, Ms O, who by the time of the trial had retired, to help regularly with the children. Ms O’ husband is also available to provide assistances, as is the Mother’s birth father and his wife.
116.The Mother also has a sister, who has a husband and four children aged between five and 12 years, who have a close relationship with the boys.
117.The Mother has grandparents, aunts and cousins also in the D Town area.
118.In Canberra the Mother says her only support is her 84 year old father. While the Father says that the Mother grew up in Canberra, he accepted that she has few friends and finds it difficult to make friends. He did not agree that the Mother has little support in Canberra.
119.The Mother has an offer of employment from an uncle who has a business in the D Town area. She would have different family support available in D Town to what is available in Canberra to support her in holding down work.
120.At present she has a full-time position in Canberra but only works thirteen and a half hours per week. This arrangement for part-time hours is unable to continue, but the Mother says that it is necessary in order to allow her to be available for the children. This in turn is placing the Mother under significant financial stress. She was cross-examined by the ICL as to why she had not made other arrangements for child care in order to allow her to work further hours and so alleviate the financial stress. The Mother says that she has had difficulties in arranging further care for the boys and does not want to push B into after school care until he is ready to go.
121.The Father previously sought work in a coastal area, specifically to be closer to D Town, but was unable to secure work. He said that he had considered relocating to D Town but that he felt bullied and threatened each time he went there (although he did not explain what had occurred to make him feel that way). If he could move closer to D Town, say to within one hour of D Town, he said that he would.
Single Expert
122.Dr F was appointed as the Single Expert. Her ultimate recommendations were that the children continue to live with the Mother, and spend time with the Father in accordance with the arrangements currently in place.
123.She explained the benefits of safe and emotionally secure relationships with both parents, meaning that B and C would be “more likely to enjoy positive physical and mental health, academic success and positive social relationships.” In contrast she said that children who “do not experience positive, safe, emotionally supportive relationships with their parents are at risk of their emotional and intellectual development being negatively impacted.”
124.Dr F explained that the risk posed by exposure to violence, such as that alleged by the Mother, is that it creates confusion and fear, which in turn decreases the ability of a person to trust and build relationships based on equality and reciprocity, to work with others, concentrate, build a positive sense of self-worth and to recover from adversity without “detrimental effects on mental health.” Further, if the primary carer “is living in fear, this creates fear in the children.”
125.The Mother was assessed as “likely to be suffering from psychological vulnerability,” but there was nothing to indicate that she suffers from a mental illness. Her appearance was “of someone who has suffered through a great deal of traumatic stress and who had not yet recovered her sense of safety and self-confidence.” Dr F could identify no likely source for such trauma other than the Father. She thought that it is likely that a move away from physical proximity with the Father is likely to ameliorate the vulnerability. A move to where she has “trusted and supportive extended family” would likely help her to “recover her emotional robustness and resilience.”
126.Dr F thought that if the Mother was unhappy or depressed or frightened it may impact on her parenting, whereas she was likely to be a better parent if she felt supported where she lives.
127.The Mother sought professional assistance from Mr U, a clinical therapist. His objective was recovery through therapeutic intervention rather than assessment. A large part of his practice since the 1990s has involved therapeutic intervention in relation to family violence, both in relation to victims and perpetrators of such violence. His expertise and evidence was of assistance in determining what conditions might support recovery for the Mother if she has been the subject of family violence as she alleges. His view was that therapy would be difficult where the Mother does not feel safe and that her emotional and physical wellbeing, and physical safety, would improve with the proposed relocation to D Town.
128.The Mother’s evidence was that she is seeing a General Practitioner, who has prescribed antidepressant medication that has recently been renewed, along with a new mental health plan to commence shortly after the trial.
The children’s relationships with the Father
129.The Single Expert said that the children “do not appear to have a strong and secure emotional attachment” to the Father.
130.B, she thought, “sometimes feels confused and unsure in his relationship with his Father.” However, she stated that B and the Father appeared to have a positive relationship, with B demonstrating that he wishes to be close to the Father. They were described as sharing “a close connection”; however, particular interactions between B and the Father “lacked the relaxed spontaneity expected in a secure parent-child relationship”.
131.On balance the relationship with B was assessed as “positive and important to (B).”
132.The Single Expert noted that C appeared to have mixed feelings in relation to the Father, and would repeatedly twist away when the Father attempted to get close to him. This was said to indicate that C had not experienced the Father as someone who could “consistently and safely care for him.” However, C was described as enjoying the Father’s company and accepting of the Father as a caregiver. Both of these factors were indicative of a “developing relationship” between C and the Father.
133.While B’s wishes were without the maturity or understanding to mean that he understood the implications, Dr F saw them as reflective of B’s current state of mind of his feelings about spending time with his parents, and in this respect should be accorded considerable weight. B wanted no change to the current arrangements.
134.It was further noted that should the allegations of family violence be substantiated, the assessment of the Father’s capacity to provide for the children’s needs would be significantly reduced. This was predominately characterised as a potential inability on the part of the Father to make the children feel safe. If the children have experienced the Father as frightening, it would inhibit their ability to trust him.
135.Dr F’s view was that if the Father has engaged in the behaviour alleged by the Mother, including the sexual assaults, then such behaviour impacts not only on the risks for the children, but also carries potential implications as to the nature of the relationships they may have with him, if the intimidation and control exhibited in respect of the Mother was carried over into the relationships with the children.
136.The Single Expert stated that should the children be separated from the Father for short to medium lengths of time (being days or weeks) this would not be likely to be significantly detrimental to them. This was in the context of allowing the Mother to spend more extended periods away with the children than she is currently able to in the orders, as opposed to the suggestion that this could be a regular arrangement. If this was the regular arrangement she thought such separation would be likely to disrupt the children’s developing relationship with the Father. As both children are young and developing quickly, Dr F considered that it was developmentally important for them to spend time with the Father, as such experiences would help them to feel closer to the Father in later life.
137.Dr F saw that a move to D Town would make it practically difficult to maintain the relationships between the Father and the children. She did not think that it would lead to an improvement in the changeover issues. She noted that there is a difference between having time following a seven hour drive and having time when fresh and that there is a difference, in terms of the development of relationship and experience of a parent’s life, between being able to have time in the parent’s home or not.
138.Dr F considered it possible that the children’s relationship with the Father would continue to grow closer and stronger over time should their time with the Father remain as it is now. However, she considered that, at this stage in their young lives, the children are unlikely to benefit from an increase in time spent with the Father.
139.Her view was that, given the developing relationships with the Father the appropriate frequency of time is weekly. She thought that even fortnightly time would not be enough as, although there could still be a positive relationship, the boys would not be in a position to develop trust in the Father as a significant caregiver.
140.At the time of trial she saw no reason to change her recommendation for the transition to overnight time occurring two years from the report (one year from the trial).
141.Exhibit ICL 2 was a series of handover reports prepared by T Group between 7 October 2017 and 14 January 2018. They showed difficulties in the boys moving between the Father and the Mother at changeovers, primarily being difficulties transitioning back to the Mother. Dr F did not think that the distress at changeover was caused by the frequency of the changeovers, and noted no report of difficulties in the children transitioning between the Mother and school. Although Dr F was not able to identify why this was occurring, she hypothesised that it was the product of the parental relationship making the children distressed. It led her to some concerns regarding the adjustment of the boys.
142.The Father agreed that there had been difficulties with the changeovers, including as to the length of the changeovers, which he had discussed with the staff at T Group. On 24 January 2018 he told the staff that he would “take as long as it takes” to do the changeover.
143.Dr F also noted that the family appeared to have become more vulnerable since the preparation of the report, with the Mother suffering depression, the family being under financial stress and, if the Mother’s evidence is accepted regarding the failed direct handovers, by the thwarted attempt to rebuild trust.
144.The Mother told Dr F that there were both positive and negative aspects of the Father spending time with B and C. She thought that the Father could contribute positively to their development through their enjoyable play.
145.Against that, in evidence the Mother said that the Father’s denigration of the Mother to B, and B’s fear of the Father, undermined the benefit of the relationship. The Mother expressed three concerns in her affidavit as to the Father spending overnight time with the children. These related to how he would feed them, whether it would cause regression in toileting, and whether he would be able to settle the children. In her oral evidence she added to these concerns about nappy changing, sunburn, heat exposure through sleeping in the Father’s car and excessive clothing being worn by the boys.
The children’s relationships with the Mother
146.The relationship between B and the Mother was described as “positive and trusting”, as indicated by B’s increase in positive emotion when in the presence of the Mother, and through B’s “unquestioning trust” in the Mother to care for him. The relationship between C and the Mother was similarly described as “positive and trusting”.
147.The Mother was described as being capable of meeting the children’s emotional needs, keeping them safe, and, in relation to B, meeting his educational needs.
148.The relationship between the children was described as positive, stemming from the “consistent care and attention shown to the children by their Mother as their primary carer”.
149.Further, the Single Expert considered that any prolonged separation between the children and the Mother could “potentially be devastating to the children emotionally.” The children were described as lacking the maturity to cope with longer periods of separation from the Mother than currently experienced. Even should the children be in the care of another adult who is capable of comforting them and keeping them safe, the “primary carer” attachment between the children and the Mother meant that should they be separated from the Mother, the children would feel “insecure and distressed”.
150.She thought that the children would not yet cope with longer periods of time away from the Mother.
Discussion
151.Both at the time of the assessment, and following the completion of Dr F’s report, the Father was seeking that the children live with him. This was despite the opinion expressed by Dr F that removal from the Mother would be traumatic for the boys, given that she has been their primary carer and is their most important relationship. He has since modified his position such that he supports the children being in the Mother’s primary care. The parties and the ICL agree that the boys should live with the Mother. The disputed outcome of the proceedings now centres on the degree and nature of time to be spent with the Father and whether this will involve the children living in the D Town region, and the allocation of parental responsibility.
152.While at the time of the preparation of the report the Mother was contemplating remaining in Canberra with the children rather than moving to D Town, her experience of trialling direct handovers with the Father, where she said that he hugged her against her wishes, has meant that she no longer sees this as viable.
153.The Father’s case relies substantially upon the importance of B and C having a meaningful relationship with the Father and being able to spend substantial and significant time with him, to enable them to have a positive and fulfilling relationships with both parents.
154.While the Father accepts that the presumption in favour of equal shared responsibility is rendered inapplicable by virtue of his admitted family violence, he says that equal shared parental responsibility is still necessary to allow him to be meaningfully involved with the boys.
155.The Mother’s case relies heavily upon the allegations that she has made of family violence against the Father. On her case he has exposed the children to family violence, perpetrated family violence upon B and subjected the Mother to family violence to an extent that she suffers ongoing harm and fear caused by the trauma of that violence; harm and fear that impacts upon her parenting of B and C.
156.Before assessing the evidence in this case it is important to note that I was urged to consider the demeanour and general credibility of the parties. At times there may be aspects of demeanour that properly lead a judge to make conclusions about the evidence given by a witness. However, such conclusions based on demeanour should be arrived at with caution, and in the knowledge of the frailty of such assessments, particularly when compared to a more objective assessment of the probabilities and conflicts within evidence.
157.That being said, the Mother presented as genuine and distressed in a manner that was congruent with the subject matter of her evidence. The Father’s evidence was given in a more awkward fashion, although I was unable to conclude that this was the product of a failure to give truthful evidence. His admission of lying and his evidence that was inconsistent with his affidavit gave reason to be cautious about his testimony generally. As against this, the Father also made a number of concessions against interest, although for some of these he may have had little option otherwise. I take these matters into account in otherwise assessing the evidence.
158.In Amador & Amador [2009] FamCAFC 196 the Court recognised the importance of issues of family violence to the resolution of best interests:
A finding by a trial judge in a children’s case under the Act that a party has assaulted another party or a person can have significant impact on the findings made on the matters the Court is required to consider under section 60CC of the Act. The provisions of sections 60CC(2)(b), 60CC(3)(f),(i),(j) and (m) would require a consideration of the impact of any finding of fact as to violence perpetrated by a party seeking a children’s order.
The best interests of a child the subject of an application for a parenting order must require that the Court determine relevant allegations of violence where that can be done. The consequence of placing a child under the supervision and/or care of a person who has been violent may be far reaching and very detrimental to the child’s welfare. The more serious the allegation of violence the more important it will be to the child to investigate and determine the allegation. As stated earlier we regard an allegation of rape by the Father of the Mother to be a very serious allegation which should, if possible, be determined.
159.Here the assessment of the allegation of sexual assault in October 2015 is critical to the determination of the case. It may be observed that there are factors pushing toward the acceptance and also the rejection of this incident. The parties have diametrically opposing testimony. There is no middle ground whereby it could be thought that one party is mistaken or misremembers. One of them must be lying.
160.The indispensable connection between the best interests of B and C and the issue of whether the Father sexually assaulted the Mother mean that these matters require proof according to the civil standard. If not able to be resolved in accordance with that standard, the uncertainty still bears pivotal significance to the determination of the best interests of the boys.
161.In Johnson & Page [2007] FamCA 1235 at [77] the Full Court determined that it is appropriate both that instances of sexual abuse of children and the question of whether there is an unacceptable risk be determined on the balance of probabilities:
We do not accept that the trial Judge rejected the Mother's position that there was an unacceptable risk because she had been required to satisfy an onus of proof applying an “excessively high test”. The onus of proof is not in doubt. It is the civil standard in accordance with s 140 of the Evidence Act. The evidence necessary to satisfy a finding of actual sexual abuse, as distinct from unacceptable risk, is accommodated by s 140(2)(c).
162.Section 140 of the Evidence Act 1995 is as follows:
Civil proceedings: standard of proof
(1) In a civil proceeding, the court must find the case of a party proved if it is satisfied that the case has been proved on the balance of probabilities.
(2) Without limiting the matters that the court may take into account in deciding whether it is so satisfied, it is to take into account:
(a) the nature of the cause of action or defence; and
(b) the nature of the subject-matter of the proceeding; and
(c) the gravity of the matters alleged.
163.The subject matter of the proceedings, being the parenting of the two boys, and the gravity of the matters alleged, being sexual assault or the fabrication of sexual assault, are matters that point to the strength of evidence required to meet the civil standard.
164.In support of the allegation is the Mother’s evidence, which was strongly tested by cross-examination. As indicated earlier, her oral evidence gave the impression that she was genuinely recounting a traumatic event. It was an event that she told her Mother about shortly after it happened. Her immediate conduct in fleeing Canberra is also consistent with such an event.
165.Against this the Father says that there was no sexual assault. While some caution is called for given some areas of untruthful testimony by the Father, there was nothing about his testimony that could lead to it being discounted on this point. In terms of the scope of his evidence about the alleged sexual assault, there was little available for him to do other than deny the assault. He identifies a number of potential weaknesses in the evidence in support of the allegation.
166.The alleged sexual assault was not reported to the D Town police, despite the Mother’s two attendances upon them shortly afterward. These attendances were for the apparent purpose of keeping the Father away from her. Those accounts provided detail about less serious matters, without any reference to the alleged sexual assault. The Mother explained this as the product of her being “shocked, exhausted, terrified and humiliated” and the police telling her that they had enough for the AVO, meaning that she needed to say no more.
167.The Father also points to the failure of the Mother to tell DVCS when she spoke to them the morning after the alleged assault.
168.Further, while there was no challenge to the evidence of Ms O that she had been told by the Mother, the day following her arrival in D Town, that the Father had forced himself upon her, there was challenge to the other surrounding circumstances. Ms O claimed that she and the Mother were concerned that the Mother’s stitches had been broken and Ms O claimed that the Mother was bleeding heavily following the alleged assault, yet there was no attendance upon a doctor for 23 days. When the doctor was seen, the doctor was not told of the concern that the Mother had been raped shortly after the operation.
169.Further undermining Ms O’s report of these matters in support of the notion that the Mother was sexually assaulted, was her account that the Mother had bruised arms as a result of the assault. That formed no part of the Mother’s description, giving the appearance of being an embellishment.
170.Criticism was also made of the Mother’s evidence of the sexual assault. It was suggested that her account of rolling away from the Father on multiple occasions during the assault was impossible. I do not accept that criticism. Understood properly, the account means that the Mother rolled away from the Father a number of times, being pulled back on each occasion.
171.There was some inconsistency in the Mother’s accounts, as to the positioning of the Father (whether he knelt on the bed or on the ground) and the manner of his removal of his pants and holding of her legs. Further, the Mother was able to recall matters in cross-examination that she could not earlier recall. Such matters leave questions as to her account, but must also be considered from the perspective that what is being described is, if it occurred, a deeply traumatic event, and an event occurring more than two years before the trial of this matter.
172.The Mother was also criticised for her failure to keep the sheets that she said were bloodied in the assault, in the context of keeping other items, such as the sticky note that she says she was given with a telephone number to call on that night. This raises some question as to whether the sheets were as described by the Mother.
173.The conflict in testimony between the Father and the Mother, the failure to report to the police or the DVCS, the delays in seeking medical assistance, the failure to report to the doctor and the inconsistencies in testimony mean that I am not satisfied that the sexual assault occurred on the balance of probabilities.
174.However, those matters do not deprive the testimony of the Mother of probative force. It is understandable that testimony regarding a traumatic event may be inconsistent; there were reasons given for the non-reporting of what, if it occurred, was a deeply humiliating act. There is an early report of the assault to her Mother. These matters mean that I am, likewise, not satisfied on the balance of probabilities that the sexual assault did not occur.
175.This leaves this pivotal matter in a state of uncertainty.
176.Similarly, the allegation of sexual assault alleged in mid-2014 is left in a state of uncertainty. It is neither proved, nor proved not to have occurred. It did not have the benefit of the focused evidence and attention that surrounded the 2015 allegation, leaving the matter without an adequate basis to accept, or to reject, either party’s evidence.
177.A number of other matters are able to be established on the balance of probabilities. Following the parties’ separation in 2012 the Father engaged in family violence against the Mother. I am satisfied that he turned off the electricity in the home, stalked the Mother at J Town and breached the IDVO. I am uncertain as to whether he pinned the Mother against the car as she reported to the police.
178.Similarly, I am unable to resolve whether the Father otherwise physically attacked or abused the Mother as otherwise described (e.g. siphoning the fuel, throwing the tin of formula or pushing into the floor). They remain open as possibilities. The general possibility that the Father was violent or abusive to the Mother during the relationship receives support from his behaviour at the first separation, and also support from the observations of the Mother’s colleague on her attendance at hospital on 2014, of concern that the Mother was subjected to family violence. That evidence is of limited strength because the person who made the comment was unidentified, as was the basis on which the comment was made. It gains some strength in that it is an apparent observation made that was not connected to a breakdown of the relationship.
179.I do not accept that the controlling behaviour described by the Mother as to the cleaning of the couch, the dog, the finances and access to the internet occurred. The variability of the Mother’s account regarding the couch, its inherent unlikelihood as described (even allowing for the fact that control may take many and varied forms) means that it should be rejected. Similarly, the alleged control of the finances is not made out, given the matters identified in the body of the judgment indicative that the Mother was not subject to such control. The rejection of those matters, and the Mother’s access to the iCloud password after separation, causes me to conclude that control in relation to internet access is not established.
180.I am unable to determine whether the Father used the wooden spoon on B in an abusive manner, even accepting his prevarication in his own description of the use of the wooden spoon.
181.I am also unable to determine whether family violence in the form of verbal abuse was a feature of the relationship. The Father’s admission as to the use of the term “leg spreader” and to the use of the words “shit” and “fuck” does not, without more, equate to family violence. As undesirable as it is that partners in an intimate relationship speak to each other in such terms, or expose their children to such conduct, in order to constitute family violence the use of such terms must be coercive, controlling or engendering of fear, rather than the ugly outworking of a dispute. These added features were not established.
182.The Mother’s complaint about the Father’s threatening conduct at the Q Group changeover should not be accepted for the reasons earlier identified.
183.This means that, for the bulk of the issues relating to family violence, there is a lack of resolution, such matters being left as uncertain. Uncertainty does not, however, equate to irrelevance.
184.The High Court in M v M (1988) 166 CLR 69 recognised that uncertain events still form necessary and important considerations in determining the best interests of children:
…proceedings for custody or access are not disputes inter partes in the ordinary sense of that expression… the court is not enforcing a parental right of custody or right to access. The court is concerned to make such an order for custody or access which will in the opinion of the court best promote and protect the interests of the child…
Viewed in this setting, the resolution of an allegation of sexual abuse against a parent is subservient and ancillary to the court’s determination of what is in the best interests of the child. The Family Court’s consideration of the paramount issue which it is enjoined to decide cannot be diverted by the supposed need to arrive at a definitive conclusion on the allegation of sexual abuse. The Family Court’s wide-ranging discretion to decide what is in the child’s best interests cannot be qualified by requiring the court to try the case as if it were no more than a contest between the parents to be decided solely by reference to the acceptance or rejection of the allegation of sexual abuse on the balance of probabilities.
185.In Amador & Amador [2009] FamCAFC 196 the Court recognised that where the abuse is not directly of the child, but of a parent, questions of unacceptable risk may still arise:
…the availability of a finding of “unacceptable risk” to a child is not restricted to cases where an allegation of sexual, physical or psychological abuse of children is established.
186.The uncertainty in this case, when coupled with the certain incidents of family violence, gives a proper basis to conclude that the Mother may have been the subject of significant and severe family violence. If she has, the result of this violence has been to traumatise her and subject her to ongoing fear that spills over to the children. The consequences are current and ongoing, as the fear and trauma is current and ongoing. While that is the case the children continue to be exposed to the effects of the family violence. The risk to the children is posed by that ongoing exposure.
187.Even if the case is considered from the alternate perspective, that of the risk that the children are being exposed to a falsehood regarding family violence, also exposing them to an apparent fear, the consequences for the children are similar, although the cause is different.
188.The risk then faced by the children is that posed by the exposure to apparent fear.
189.In either case, what confronts the children is similar.
190.In either case, consideration of how the children are to be protected from such effects, or how such effects may be ameliorated, is necessary, along with a consideration of how those risks fit with the balance of the s60CC matters as set out below.
191.What benefits might the children obtain from meaningful relationship with each of the parents? While there are positive relationships with each of the parents, they are qualitatively different. The relationship with the Mother is key to the children’s well-being, although the benefits of that critical relationship are compromised by exposure to the Mother’s fear, or apparent fear. As that fear subsides, so does that compromise. The relationship with the Father is developing, requiring frequent time with the children so that they may experience him as a caregiver. Experience of him as emotionally safe and secure enables the children to develop in the knowledge of who they are and where they come from and to be better equipped for dealing with relationships. That benefit is eroded if they do not experience him as safe and secure, and if they do not experience him as a caregiver, in the sense of a parent involved in their day to day lives and care. At present they do not demonstrate a fear of the Father, despite the allegations against him.
192.The views of the children should, as recommended by Dr F, receive significant weight, not because they represent mature and considered views that understand the consequences of what they wish for, but rather because they represent the current state of the relationships with the Father and the Mother. They tell against a change in the amount of time that they are to spend with their Father.
193.Consideration of the nature of the children’s relationships is subsumed into the consideration of the benefits of meaningful relationship above.
194.It cannot be said that either parent has failed to take opportunities to participate in decision making, or to spend time or communicate with the children.
195.The Father has failed to fulfil his obligation to support his children, albeit without there being an assessment of his obligation by the Child Support Agency. Whether or not such an assessment takes place, the obligation to support remains. The failure to fulfil that practical obligation undermines the confidence that might otherwise be had of a capacity to support the children in other ways, as it calls into question the priority accorded to the children’s needs by him.
196.There are a number of likely effects of a change in the circumstances, partly flowing from the practical difficulties faced by the children, specifically with a change to live in D Town, involving as it does seven hours travel to Canberra. Firstly, the frequency of time with the Father will be significantly reduced, such that they will not experience him as a regular caregiver who is intimately involved in their lives. They will also experience a likely alleviation in exposure to the Mother’s fear or apparent fear, along with an alleviation of the stressors the Mother. Additionally, their involvement with the Mother’s extended family will increase.
197.The capacity of the parties has been largely dealt with in relation to assessing the benefits of meaningful relationship. It should be observed that, but for the unresolved question as to family violence, although the Father is untested in relation to extended care of the boys and despite the doubts occasioned by his failure to financially support the boys, there is nothing to indicate a significant incapacity. The unresolved issue does present an ongoing question as to capacity, which goes to a risk that the children may be exposed to further family violence, or to the attitude of control that underpin such a relationship. Further questions as to capacity arise from the Mother’s involvement of B in the proceedings (by letting him telephone the Father to express his view regarding moving back to Canberra).
198.The essential characteristics of the children requiring consideration have been canvassed in assessing both their views and the benefits of relationships with each parent. They relate primarily to their stages of development and current reliance upon their primary carer.
199.While there was passing reference to the mother having indigenous heritage, no evidence addressed how this is significant in her or the children’s lives. While that does not render it insignificant, it means that no real consideration can be given to it as a factor.
200.As to the parent’s attitudes to the responsibilities of parenthood, the uncertainty as to family violence means that one parent at least is heavily deficient in this area. If the family violence occurred as alleged, that constitutes a severe disregard by the Father for the role of the Mother as parent and an undermining of her in that role. If it did not occur, then the allegation is a calculated effort to exclude the Father, or to minimise his role as a parent.
201.Family violence has been dealt with comprehensively in dealing with the question of risk. As at the time of this judgment it appears that there is no longer an operative family violence order.
202.In relation to the allocation of parental responsibility, the competing bases on which the parties conducted the hearing, being the allegation of serious family violence and the allegation of concoction of serious family violence, undermine the idea that the parents could consult each other, or make a genuine effort to come to a joint decision, or jointly make decisions about major long-term issues. The determination of parental responsibility will be determined in the light of the s60CC considerations.
Conclusion
203.In the light of the balance of the other s60CC considerations, key to the resolution of this matter is the reduction in quality of relationship with the Father, and loss of benefit as a result of that, if the children move to D Town, as against the risks attached to the ongoing expression of fear by the Mother.
204.It must be recognised that such a loss of relationship for the boys is significant, and has significant ramifications for their development and future. They lose the frequent involvement of a parent who they have a positive relationship with and who has the potential to help them to develop.
205.This, however, is outweighed by the potential alleviation of the position of the Mother. Support, a relief from immediate fear of the Father (or the presentation as such), and better prospects to recover from any trauma that she has suffered have a greater immediate significance for B and C, and, as she is their primary carer and the person from whom they most closely derive their emotional support, for their long-term development.
206.In order to ameliorate the disruption of the relationship with the Father, the ICL’s proposal for electronic communication will be implemented.
207.When seen in the light of the other considerations, these matters mean that it is appropriate that orders be made allowing for B and C to move to the D Town region. While the ICL sought that such an order be made, but delayed to allow the further development of the Father’s relationships with the boys, the current circumstances should be changed promptly for the reasons set out above. Further, a delay for an extended period invites the recommencement of litigation on the basis of significant change in circumstances at the time of the delayed move.
208.This also bears upon the allocation of parental responsibility. The parties are not in a position to jointly make the long-term decisions for B and C. They will be living primarily with the Mother with reduced frequency of time with the Father. It is in their interests that the Mother make the long-term decisions for them. This should not mean that the Father is excluded from knowing about those matters that are of importance for the boys so that, even if he cannot contribute to the decision, he can know what is going on sufficiently well to care for the boys in the context of the decisions that are taken.
209.There remains a consideration of how the time would be exercised under such circumstances. Dr F had recommended that the time not transition to overnight for a period of two years from the report (one year post-trial). The Mother sought that it not progress for another two years. Whatever order is made, given the allowance of a move away to D Town, cannot be optimal, as the necessary frequency of time cannot be supported unless the Father moves to the D Town region (although the Father did not present a case on the basis that he would move).
210.At present there is an assessment by Dr F both that the boys should not have a reduction in frequency, and also that they could not tolerate longer separation from the Mother. Contrary to Dr F’s view, there will be a reduction in frequency, by virtue of the move to D Town. That move will necessitate less frequent time, but also in the context of the Father travelling for seven hours in each direction. While, given the reduced frequency, there is some reason to lengthen the visits immediately, the reservations expressed by Dr F mean that should not occur. Although the result is onerous travel for, in the first year, day time visits only, the Father’s relationship with the boys should not be compromised by moving them to overnight sooner than it is expected they might tolerate it. Overnight time will not commence until the start of 2019.
211.Orders will be made to fix (subject to the parties’ alternative agreement) certain times to spend time with the boys. Provision will be made for extended time with the Father in the first year if the Father is able to accommodate it.
Appendix I - Material relied upon
Applicant Father
a)Case outline document filed 4 August 2017; and
b)Affidavit of the Father filed 9 January 2018.
Respondent wife
a)Case outline document filed 16 August 2017;
b)Affidavit of Mr U filed 28 November 2017;
c)Affidavit of Ms O filed 11 December 2017; and
d)Affidavit of the Mother filed 18 December 2017.
Independent Children’s Lawyer
a)Case outline document filed 16 August 2017; and
b)Report of Dr F filed 17 February 2017.
Appendix II - Orders Sought
Applicant Father
1.That all previous Orders be discharged.
2.That the parties have equal shared parental responsibility for the children B born … 2011 and C born … 2015.
3.That the children live with the Mother and spend time with the Father as agreed between the parties but failing agreement as follows:
f)Stage One from the date of these Orders for a period of 3 months:
i) On alternate Fridays from 2pm on a non-school day, or after school on a school day, until 5pm on Saturday.
g)Stage Two commencing at the finalisation of Stage One for a period of 3 months:
i) On alternate Fridays from 2pm on a non-school day, or after school on a school day, until 5pm on Sunday.
h)Stage Three at the finalisation of Stage Two:
i) On alternate Fridays from 2pm on a non-school day, or after school on a school day, until 9am Monday morning, or the commencement of the school day.
4.Notwithstanding Order 3, when both children have commenced school, the children shall spend the first half of each term school holiday period with the parent with whom they are living on the final day of the school term, and the second half of the school holiday period with the other parent.
5.That for the purposes of Order 4, the term school holiday periods commences at the conclusion of school or 3.00pm on the final day requiring attendance at school and concludes at 5.00pm on the day prior to the children resuming attendance at school, with changeover to occur at 12.00 noon on the middle Saturday of the school holiday period.
6.Notwithstanding Order 3, the children shall spend the Christmas/New Year school holiday period on a week about basis commencing with the parent with whom they are living on the final day of the school term and with changeover being at 12.00 noon each Saturday of the school holiday period.
7.That for the purposes of Order 6, the Christmas/New Year school holiday period concludes at 5.00pm on the Sunday before the children are required to attend school at the commencement of the new school year.
8.That notwithstanding anything else in these Orders, on the children’s birthdays, the children shall spend time with the parent they would not otherwise be spending that day with from 5.00pm to 8.00pm on a childcare/school day, and from 12.00pn to 6.00pm on a non-child care/school day.
9.That notwithstanding anything else in these Orders, the children shall spend time with the Father from 5.30pm on Christmas Eve until 6.00pm Boxing Day in each odd numbered year, and with the Mother from 5.30pm on Christmas Eve until 6.00pm Boxing Day in each even numbered year.
10.That notwithstanding anything else in these Orders, unless otherwise agreed between the parties in writing, the children shall spend time with the Father from 10.00am on Good Friday until 6.00pm on Easter Monday in each even numbered year.
11.That notwithstanding anything else in these Orders, unless otherwise agreed between the parties in writing, the children shall spend time with the Mother from 10.00am on Good Friday until 6.00pm on Easter Monday in each odd numbered year.
12.That notwithstanding anything else in these Orders, unless otherwise agreed between the parties in writing, the Mother’s time with the children shall be suspended on the Father’s Day weekend from 9.00am on Father’s Day until 9.00am on the following day.
13.That notwithstanding anything else in these Orders, unless otherwise agreed between the parties in writing, the Mother shall spend time with the children from 9.00am on Mother’s Day until 9.00am the following day.
14.That changeover shall occur at a location as agreed between the parties in writing, but failing agreement, changeover shall occur at the children’s school on school days, and T Group, if not occurring at school.
15.That the resident parent shall make the children available to communicate with the non-resident parent by way of telephone as agreed between the parties and otherwise each Wednesday and Saturday between 6.00pm and 7.00pm, with the resident parent to initiate the phone call and facilitate the children’s communication with the other parent.
16.That the parties are hereby restrained from relocating the residence of the children B born … 2011 and C born … 2015 from the ACT region.
17.That both parents are permitted to attend any school or extracurricular events to which parents are ordinarily invited.
18.That the parties will advise each other within 24 hours of any medical or dental appointments at which the children attend and will advise the other party of the name and address of any medical or dental practitioners who provide examination, treatment or diagnosis to the children, and the parties are to authorise any treating medical or dental practitioner to provide any or all information to the other party.
19.That each party will notify the other as soon as practicable of any medical emergency in which the children require medical treatment. Should any such emergency arise, each parent will inform the other of the name and address of any treating medical practitioner and authorise that practitioner to speak to the other parent.
20.That each of the parties are restrained from speaking in a derogatory manner about the other, either to the children or in their presence, or allowing any other person to do so.
21.That the parents shall use the Talking Parents application to communicate the information about the child’s welfare and development. The Talking Parents application shall not be used to communicate any other information.
Respondent Mother
1.That the Mother have sole parental responsibility for the children:
a.B, born … 2011 (B); and
b.C, born … 2015 (C).
2.That the children live with their Mother.
3.That the Mother be at liberty to permanently relocate the children’s residence to the D Town area, being the area that is within a 50 kilometre radius of D Town in New South Wales (the D Town area).
4.That each of the parents do all things necessary to ensure that the children spend time with their Father as follows:
a.For a period of 24 months from the date of these Orders, in the D Town area, from 9.00am until 5.00pm on Saturday and 9.00am until 5.00pm on Sunday on the weekend that is 4 weeks after the date of these Orders, and every 4 weeks thereafter;
b.For a further period of 12 months:
i. From 9.00am on Saturday until 5.00pm on the following Sunday on the middle weekend of each school term;
ii. For 3 consecutive nights during each school holiday period, at times to be agreed between the parents in writing; and
iii. At such other times as agreed between the parties in writing.
c.Thereafter:
i. From 9.00am on Saturday until 5.00pm on the following Sunday on the middle weekend of each school term;
ii. For one week during each school holiday period, at times to be agreed between the parents in writing; and
iii. At such other times as agreed between the parties in writing.
5.That the Mother will do all things necessary to ensure that the children communicate with their Father via telephone each Wednesday between 5.00pm and 5.30pm.
6.That, for the purposes of changeovers, unless otherwise agreed in writing between the parties:
a.When the children are spending time with their Father in the D Town area, changeover occur at a supervised contact centre in that area; and
b.When the children are spending time with their Father in Canberra changeover occur at T Group.
7.That, for the purposes of Order 4(b)(i) and 4(c)(i) the Mother arrange and pay for all of the children’s travel to Canberra, should the Father elect for the children to spend time with him in Canberra.
8.That, for the purposes of Order 4(b)(ii) and 4(c)(ii) the Father arrange and pay for all of the children’s travel to Canberra, should the Father elect for the children to spend time with him in Canberra.
9.That in the event that either child becomes distressed in the Father’s care, and cannot be settled within a reasonable period of time, the Father will contact the Mother (or her agent) via text message and arrange to return the child(ren) at an agreed handover location.
10.That the Mother within 14 days of enrolling the children in school:
a.Authorise the children’s schools to provide the Father with copies of all school reports, any other reports on school progress and behavioural issues and all school circulars in relation to the children; and
b.Provide the Father in a timely manner with copies of all notices received from the school, including details of all functions, parent and teacher nights and other activities to which parents are invited in respect of the children.
11.That both parents may attend the children’s school events and extracurricular activities to which parents are invited.
12.That each parent notify the other forthwith of any serious illness or injury affecting the children, and be at liberty to contact any doctor or hospital treating the children to obtain information.
13.That each parent notify the other of the name of any general practitioner or paediatrician or other specialist who treats the children whilst the children are in that parent’s care.
14.That neither parent say unkind or uncomplimentary things about the other to or in the presence of the children, nor cause or allow anybody else to do so.
15.That the Father is restrained from denigrating the Mother and her family members to, or in the presence of, the children, or allowing other people to do so.
16.That the Father is restrained from harassing, threatening or intimidating the Mother and her family members.
17.That the Father’s communication with the Mother will be limited to short, polite, written communication regarding the children only, and is to occur no more than once per week, unless in the case of an emergency.
Independent Children’s Lawyer
1.At the close of the evidence the ICL set out the orders she said were most appropriate to secure the best interests of the children as follows:
a)That the children, B & C, live with the Mother.
b)That the children have sole parental responsibility for the children subject to the following:
i)That the Mother is restrained from enrolling the children in any school without the written consent of the Father;
ii)That the Mother is restrained from authorising any surgery, other than minor day surgery for the children without the written consent of the Father;
iii)That the Mother is restrained from obtaining passports for the children without the written consent of the Father;
iv)That the Mother is restrained from removing the children from the Commonwealth of Australia without written consent of the Father;
v)That the Mother is to seek and consider the Father’s views, as provided by the Father in writing, regarding the children’s religious education or religious participation prior to making any decisions regarding such;
vi)That the Mother is to inform the Father of the medical practitioners who care for the children and is to undertake all things necessary for the Father to be kept informed of the medical treatment received by the children;
vii)That the Mother is to cause any day care of school the children attend to provide to the Father information in the nature of school reports, progress reports or school newsletters as are ordinarily provided regarding the children;
viii)That the Mother is to ensure the Father receives correspondence regarding school photographs so as to ensure the Father can determine whether to order such photographs.
ix)That the Mother is restrained from changing the children’s place of residence from the ACT region before January 2020. Thereafter she may cause the children to reside in the D Town region.
c)Upon the Mother moving with the children to the D Town region after January 2020 she is restrained from changing their place of residence from the region without the consent of the Father or further order.
d)That until the Mother relocates the Father shall spend time with the children as follows:
i)Until 1 June 2018:
(i)Each Wednesday afternoon from after school for B with the Father to collect B from school, and from 2pm for C, with the Father to collect C from childcare, until 5pm, with change over to occur at T Group;
(ii)Each alternate Saturday from 9am until 5pm and the following day, Sunday from 9am until 5pm with changeover to occur at T Group.
ii)After 2 June 2018 until January 2020;
(i)Each Wednesday afternoon from after school for B, with B to be collected from school, and from 2pm for C, with C to be collected from childcare, until 5pm, with 5pm change over to occur at T Group, and during school holiday periods from 2pm with the 2pm changeover to take place at T Group;
(ii)Each alternate Friday from after school for B, with B to be collected from school, and from 2pm for C, with C to be collected from childcare, until 5pm Sunday with the 4pm changeover to occur at T Group;
(iii)Commencing from December 2018 during school holidays the overnight weekend time is to commence 5pm Friday and extend until 5pm Tuesday with changeover to occur at T Group.
iii)After January 2020:
(i)One weekend a month from 9am Saturday until 5pm Sunday in the D Town or R Town region, with changeover to occur at a changeover service provider, in the nature of T Group, of the Mother’s choosing;
(ii)If the weekend is a long weekend in New South Wales, time is extended until 5pm Monday afternoon;
(iii)In each school holiday other than Christmas school holidays, commencing at the end of term 1 2020, from 9am Saturday of the first Saturday after commencement of the school holidays, until 5pm the following Friday, with changeover to occur at a point of the Mother’s choosing, but that is approximately equidistant between the towns in which the parents live;
(iv)Each odd numbered year commencing December 2021, from 9am December 30 until 5pm January 20, with changeover to occur at a point of the Mother’s choosing, but that is approximately equidistant between the towns in which the parents live.
e)That the children speak to the Father via telephone or other means, such as Skype or Facetime, each Thursday night between 6pm and 7pm, with the Father to call the children on a specified number and the Mother to make the children available to participate in such conversation.
f)That the Mother arrange for the children to receive psychological counselling as and when it is deemed required by a medical professional or child services (such as T Group) employee.
I certify that the preceding two hundred and eleven (211) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Gill delivered on 23 March 2018.
Associate:
Date: 23 March 2018
Key Legal Topics
Areas of Law
-
Family Law
0
3
2