Edmund and Belkin

[2016] FamCA 371

FAMILY COURT OF AUSTRALIA

EDMUND & BELKIN [2016] FamCA 371

FAMILY LAW – CHILDREN – with whom the child lives – with whom the child spends time – where the child is eleven years old – where the mother has historically failed to facilitate and encourage a relationship between the child and her father – whether the mother is able to facilitate a relationship with the father into the future – where the child is ordered to live with her father and spend time with her mother – parental responsibility – where orders are made for equal shared parental responsibility.

Family Law Act 1975 (Cth)

Baghti & Baghti [2015] FamCAFC 71
Banks & Banks (2015) FLC 93-637
Goode & Goode (2006) FLC 93-286;

SCVG & KLD

APPLICANT: Mr Edmund

RESPONDENT: Ms Belkin

INDEPENDENT CHILDREN’S LAWYER: Legal Aid Queensland

FILE NUMBER: BRC 1821 of 2012

DATE DELIVERED: 16 May 2016

PLACE DELIVERED: Brisbane

PLACE HEARD: Brisbane

JUDGMENT OF: Carew J

HEARING DATE: 10 - 12 May 2016

REPRESENTATION

COUNSEL FOR THE APPLICANT: Dr Sayers

SOLICITOR FOR THE APPLICANT: Best Wilson Buckley Family Lawyers

SOLICITOR FOR THE RESPONDENT: Rosen Lawyers

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: Ms McDiarmid

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Legal Aid Queensland

Orders

1. That all previous orders be discharged.

2. That except as otherwise stated, Mr Edmund (“the father”) and Ms Belkin (“the mother”) (collectively “the parents”) are to have equal shared parental responsibility for the major long term issues for B born … 2005 (“the child”).

3. That the parents are to consult with each other about decisions to be made in the exercise of their equal shared parental responsibility as follows:

   (a)       They shall inform the other parent about the decision to be made;

   (b)       They shall consult with each other on terms that they agree;

   (c)       They shall make a genuine effort to come to a joint decision.

4. That notwithstanding the provisions of Order 3:

   (a)       The mother shall be responsible for the daily care, welfare and development of the child when she is living with or spending time with her;

   (b)       The father shall be responsible for the daily care, welfare and development of the child when she is living with or spending time with him.

Exchange of information

1. That the mother and father shall:

   (a)       Keep the other parent informed at all times of their residential address, email address, landline and mobile contact telephone number;

   (b)       Keep the other parent informed of the names and addresses of any treating medical or other health practitioners who treat the child and authorise those practitioners to provide the other parent with information that they are lawfully able to provide about the child;

   (c)       Inform the other parent as soon as reasonably practicable of any medical condition, significant health issue or illness suffered by the child.  This Order authorises any treating medical practitioner to release the child’s medical information to the other parent.

2. That the parents authorise, by this Order, the school attended by the child to give each parent information about the child’s educational progress and other school-related activities and supply them with copies of school reports, photographs, certificates and awards obtained by the child (at that parent’s cost).

3. That during the time the child is with either parent, that parent shall:

   (a)       Respect the privacy of the other parent and not question the child about the personal life of the other parent;

   (b)       Speak to the other parent respectfully; and

   (c)       Not denigrate or insult the other parent in the presence or hearing of the child and use their best endeavours to ensure that others so not denigrate or insult the other parent in the hearing of presence of the child.

Time with the parents

1. That the child live with the father.

2. That the father personally collect the child from school on each school day for a period of one (1) month.

3. That for a period of six (6) weeks, the mother be restrained from initiating any contact or communication with the child or attending at or approaching the child’s school.

4. Upon the expiration of six (6) weeks, the mother shall spend time with and/or communicate with the child as agreed between the parents and failing agreement:

   (a)       During each alternate weekend from after school Friday until 4.30 pm Sunday;

   (b)       Order 11(a) shall be suspended during any school holiday period (which shall be deemed to include the first weekend after the school term ends and the weekend before the school term recommenced) and shall resume at the start of each school term as if the sequence had not been interrupted;

   (c)       During school holiday periods as follows:

   (i)For the first half of the Autumn, Winter, Spring and Christmas school holidays in odd numbered years, with the father to have the first half in even numbered years;

   (ii)For the second half of the Autumn, Winter, Spring and Christmas school holidays in even numbered years, with the father to have the first half in odd numbered years;

   (d)       The school holiday time shall commence:

   (i)When a parent’s time falls in the first half of the holidays, from after school on the day the school term finished and to conclude at 5.00 pm on the day calculated to be half of the holidays;

   (ii)When the parent’s time falls in the second half of the school holidays, from 5.00pm on the day calculated to be half of the holidays and to conclude at 5.00 pm on the day before the school term commences;

   (iii)School holidays shall be deemed to commence at close of school on the day the school term finishes and conclude at 5.00 pm on the day before the child returns to school and the number of nights in each school holiday period is to be used to calculate one half of the school holiday period and if there is an uneven number of nights, the father shall retain the additional night.

   (e)       On special occasions as follows:

   (i)On Christmas Day:

   A.In odd numbered years, from 12.00 noon on 24 December until 12.00 noon on 26 December, with the father to have from 12.00 noon on 26 December until 12.00 noon on 28 December;

   B.In even numbered years, from 12.00 noon on 26 December until 12.00 noon on 28 December, with the father to have 12.00 noon on 24 December until 12.00 noon on 26 December.

   (ii)For Easter:

   A.In odd numbered years, from 4.00 pm on Easter Thursday until 4.00 pm on Easter Saturday, with the father to have from 4.00 pm on Easter Saturday until 4.00 pm on Easter Monday;

   B.In even numbered years, from 4.00 pm on Easter Saturday until 4.00 pm on Easter Monday, with the father to have from 4.00 pm on Easter Thursday until 4.00 pm on Easter Saturday.

   (iii)On the birthday of the child (with the parent who does not have care of the child on that day):

   A.If a school day, from after school until 6.00 pm;

   B.If a non-school day, from 1.00 pm until 6.00 pm;

   With that parent to be responsible to collect and return the child.

   (iv)With the father on the father’s birthday:

   A.If a school day, from after school until 6.00 pm;

   B.If a non-school day, from 1.00 pm until 6.00 pm;

   With the Father to be responsible to collect and return the child.

   (v)With the mother for the mother’s birthday:

   A.If a school day, from after school until 6.00 pm;

   B.If a non-school day, from 1.00 pm until 6.00 pm;

   With the mother to be responsible to collect and return the child.

   (vi)With the father on Father’s Day (if a non-contact weekend) from after school Friday until 5.00 pm on Sunday.

   (vii)With the mother on Mother’s Day (if a non-contact weekend) from after school Friday until 5.00 pm on Sunday.

   (f)       That each parent facilitate telephone communication with the other parent at such times as the child reasonably requests but otherwise between the hours of 5.30 pm and 7.00 pm on Tuesday and Thursday and in relation to such communication each parent shall:

   (i)Ensure that the child is available to receive the telephone call; and

   (ii)Arrange for the child to telephone the other parent on the following night if, for unforeseen circumstance, the child misses the telephone call from that parent; and

   (iii)Ensure that the child has privacy during the conversation.

Collection and delivery

1. That, after the expiration of the time period and conditions specified in Orders 9 and 10, the father and mother (and/or their nominee) shall collect the child from and return her to school during the times that they have care of the child.

2. That except as otherwise agreed, that if the child is not attending school, changeover shall occur at the Hungry Jacks Restaurant C Town.

3. That each parent shall deliver and return the child’s clothing, school supplies and belongings and the child’s clothing shall be returned in a clean condition.

Further dispute resolution

1. That the process to be used for resolving future disputes about the child or the terms or operation of this Order shall be as follows:

   (a)       Family Relationships Centre D Town shall be appointed as Family Dispute Resolution practitioner.

   (b)       The parents shall consult with the Family Dispute Resolution practitioner at the Family Relationship Centre in D Town to assist with resolving any dispute in relation to the child or reaching agreement about changes to be made to the parenting arrangement for the child.

   (c)       The parents shall pay the costs of the Family Dispute Resolution practitioner equally.

Miscellaneous

1. That the Independent Children’s Lawyer shall be discharged upon the expiration of two months from the date of this Order.

2. Pursuant to section 65DA(2) and section 62B, the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders, and details of who can assist parties adjust to and comply with an order are set out in the fact sheet attached hereto.  And these particulars are included in these orders.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Edmund & Belkin has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

FAMILY COURT OF AUSTRALIA AT BRISBANE

FILE NUMBER: BRC 1821 of 2012

Mr Edmund

Applicant

And

Ms Belkin

Respondent

REASONS FOR JUDGMENT

1. This is a dispute between Mr Edmund (“the father”) and Ms Belkin (“the mother”). It is a parenting matter in relation to one child, B born in 2005.

2. The father seeks an order for equal shared parental responsibility and that the child live primarily with him and spend alternate weekend and holiday time with the mother. The mother seeks an order for equal shared parental responsibility and that the child live primarily with her and spend alternate weekend and holiday time with father.

Issues to be determined

1. At the case management hearing on 21 April 2016 the parties and Independent Children’s Lawyer agreed that the issues to be determined in this case are as follows:

   a)The capacity of the mother to comply with court orders;

   b)The ability of the mother to foster a relationship between the child and the father;

   c)The child’s views and wishes;

   d)The father’s availability to provide care for the child;

   And at this hearing those issues were confirmed by the parties as the only issues but the Independent Children’s Lawyer included a further issue:

   e)The ability of the parents to co-parent and make joint decisions

Relevant Background

1. The parties commenced cohabitation in late 2004 and separated in May 2006. B is the only child of their union. The father was born in 1983 and the mother was also born in the same year. The father operates his own business. The mother is not employed and is a full time mother.

2. The father commenced a relationship with Ms Edmund in May 2008 and they married in 2016. They have two children together, namely, E, aged almost five and F, aged almost two. Ms Edmund has two sons from two previous relationships, namely, G, aged eleven and H aged eight. All four children live with the father and Ms Edmund at their ten acre property at I Town, near J Town. It is about an hour and a half’s drive from their home to the child’s current school at K Town, Region L. They have lived at this property since 2009. G and H have very little to do with their respective fathers but speak to them on the telephone regularly. Ms Edmund works at times convenient to the family routine.

3. In September 2006 the mother commenced a relationship with Mr M and married him in 2010. They are now divorced. The mother and Mr M have a child together, namely, N born in 2009. N has some contact with his father.

4. The mother commenced cohabitation with Mr O in late 2014 having commenced a relationship with him in February 2014. The mother and Mr O separated in mid-April 2016. They have one child together, namely, P, born in 2015. A Temporary Protection Order is in place against Mr O taken out on the mother’s behalf on 28 April 2016 by police.

5. The mother recently moved into a three bedroom home with a person she describes as “a male family friend” by the name of Mr Q whom she deposes to having known for four years. The mother describes her recent separation from Mr O as temporary. ‘Mr Q’ is included on the Protection Order and is one and the same as Mr Q. The mother denies she is in a relationship with Mr Q although accepts that Mr O may have a contrary view. That he does, is supported by the Application for Protection Order dated 28 April 2015 at Exhibit 2.

6. Subsequent to the separation of the mother and father in 2006, the child and the father spent regular time together, generally each alternate weekend for a few nights at a time, and for a week at Christmas in about 2008. His time continued until the child’s fourth birthday on 10 May 2009. There is no evidence of any event occurring that would explain why time ceased at that time.

7. The child did not see her father again until 28 April 2013 although an order had been made in October 2012 that he spend time with her initially to be supervised at a contact centre but thereafter unsupervised.

8. The father commenced proceedings in March 2012. He explains the delay as being a combination of insufficient funds and the impact on him of the death of his mother. When the matter first came before the court the mother opposed the father having time with the child because of alleged sexual abuse and his alleged history of drug and alcohol abuse.

9. The father’s time with the child was reinstated by Order on 23 October 2012. At that time, as Mr R (the family report writer) opines, the mother appears to have ‘resiled’ from her allegations of sexual abuse. Time was to commence on a supervised basis as soon as possible and was due to graduate to unsupervised time by April 2013. The father had no time with the child until 28 April 2013. The matter returned to court on 30 April 2013 when further Orders for time were made.

10. The father spent time with the child on 12 and 24 May 2013.

11. There were further Orders made on 19 September 2013 and it seems that time between the child and her father occurred for the remainder of 2013 and into 2014.

12. Further Orders were made on 22 September 2014 providing for the child to spend time with her father each alternate weekend, during holidays and for telephone communication twice per week.

13. Further interruptions in time arose in 2015 and ultimately all time between the child and her father stopped from 24 July 2015.

14. The last time the father saw the child was on the weekend of 24 July 2015 other than at the family report interviews on 13 April 2016.

15. The child currently attends K Town State School where she is in grade 6. She is progressing reasonably well at school. This is the fourth primary school she has attended. She has lived in six different residences since 2006 and has had the experience of Mr M, Mr S and Mr O as father figures in her mother’s household. She was for a time known by the surname, ‘M’ and for a further time known by the surname, ‘Belkin’. It seems she has adjusted reasonably well to the many changes in her life to date.

16. The father presents his case for the child to live with him, in what he says is a ‘last resort’ after years of the mother failing to comply with Court Orders and after years of the mother failing to promote his relationship with the child.

17. The mother concedes through her solicitor advocate, Mr Rosen, her past failure to comply with Court Orders and her history of leaving the arrangements in relation to time with the father up to her daughter to manage. 

How parenting applications are determined

1. Part VII of the Family Law Act 1975 (Cth)(as amended) (“the Act”) sets out the objects, principles and matters that must be considered when determining what parenting order is proper, but such consideration will focus in particular on matters raised as significant issues by the parties and the Independent Children’s Lawyer. (see Goode & Goode (2006) FLC 93-286; SCVG & KLD ; Banks & Banks (2015) FLC 93-637) The Court is of course not required to make findings of fact on all factual disputes raised by the parties. Baghti & Baghti [2015] FamCAFC 71

2. Section 60B(1) relevantly provides that the objects of the Act are to ensure that the best interests of children are met by:

   a)ensuring that children have the benefit of both of their parents having a meaningful involvement in their lives, to the maximum extent consistent with the best interests of the child; and

   b)protecting children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence; and

   c)ensuring that children receive adequate and proper parenting to help them achieve their full potential; and

   d)ensuring that parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of their children.

3. Section 60B(2) relevantly provides that the principles underlying these objects are that (except when it is or would be contrary to a child's best interests):

   a)children have the right to know and be cared for by both their parents, regardless of whether their parents are married, separated, have never married or have never lived together; and

   b)children have a right to spend time on a regular basis with, and communicate on a regular basis with, both their parents and other people significant to their care, welfare and development (such as grandparents and other relatives); and

   c)parents jointly share duties and responsibilities concerning the care, welfare and development of their children; and

   d)parents should agree about the future parenting of their children;

   e)…

4. Section 60CA provides that in deciding whether to make a particular parenting order, the court is to regard the best interests of the child as the paramount consideration.

5. Section 60CC then outlines the primary and additional considerations that the court must consider in determining what is in the best interests of the child.

6. Section 61DA provides that when making a parenting order, the court must apply a presumption that it is in the best interests of the child for the child’s parents to have equal shared parental responsibility. The presumption does not apply where there are reasonable grounds to believe a parent has engaged in abuse of the child or family violence, and the presumption may be rebutted if the court is satisfied that an order for equal shared parental responsibility would not be in the child’s best interests.

7. Where the presumption does apply the Court is required to consider s65DAA as to whether equal time or substantial and significant time is in the child’s best interests and reasonably practicable.

1. Section 65DAC makes clear that an order for shared parental responsibility requires decisions about major long-term issues to be made jointly after consultation.

2. Although I may not specifically discuss in these reasons each subparagraph of each relevant section in the ‘legislative pathway’ I have considered all sections as required (Banks & Banks (2015) FLC 93-637).

Father’s case

1. The father relied on the following material:

   a)Case information filed 9 May 2016

   b)Amended Initiating Application filed 11 March 2015

   c)Affidavit of Mr Edmund filed 3 May 2016

   d)Affidavit of Mr Edmund filed 5 May 2016

   e)Affidavit of Ms Edmund filed 3 May 2016

2. Essentially the father’s case is that the mother has persistently failed to facilitate his relationship with the child to the point of regularly disregarding Court Orders, such that the only way the child can have a relationship with both parents is for her to live with him.

3. The father details in his affidavit his initial attempts to engage with the mother in alternative dispute resolution and after failing he commenced these proceedings in March 2012.

4. When the matter first came before the Court in 2012 the mother opposed the father’s application for time. She raised allegations of sexual abuse. The first time the father knew of any allegation of sexual abuse against him was after the proceedings commenced. This is despite the fact that according to Exhibit 1 the mother had first contacted the police in 2010 with the following complaint:

   In June 2010 [Region L] CPIU (PCSC [T]) took a phone call from [Ms Belkin] stating she had suspicions that something had happened to [the child] whilst she was still with [Edmund]. [The child] had told a councellor [sic] that daddy hurt her. Advice was given to [Ms Belkin] by [PCSC T] in relation to making the report and for the child to make a 93A statement. An appointment was made. However [Ms Belkin] broke the appointment and then disconnected her mobile telephone number.

   …

   On the 19/7/10 messages were left for [Ms Belkin] on the mobile number provided by child safety. No calls were returned.

   On the 6/9/10 the R/O PCSC [U] attended [Ms Belkin’s] address of [V Street, W Town] and spoke with her about making a report and the child providing a 93A statement. She acted surprised and didn’t mention previous conversation with PCSC [T]. [Ms Belkin’s] was unsure if she wanted to make a formal complainant [sic] or not. A card was given and she agreed to contact CPIU within three days to advise. Her new mobile number was also obtained. No calls were returned by [Ms Belkin’s].

   On the 18/9/10 PCSC [U] attempted to contact [Ms Belkin’s] but the number provided has been disconnected. No further police action to be taken regarding this matter due to no initial complaint or statement provided.

5. I note that the mother denied the child had ever told a counsellor that her father had hurt her.

6. Then on 25 May 2012 police again became involved in relation to the same allegations raised by the mother in 2010. Exhibit 1 continues:

   … The mother is now residing at X Street, Y Town attempts are to be made to obtain a 93a statement from the victim child and obtain a statement from the mother in relation to what the child told her. …

   On 14/06/12 police attempted to contact [Ms Belkin] by phone. A voicemail message was left. On 16/06/12 police attended [X Street, Y Town]… Police attempted to arrange a 93A with the child for Sunday 17/6/12, however [Ms Belkin] stated they had a birthday party to go to and she didn’t want to have to rush. [Ms Belkin] refused to state what school her daughter went to, claiming she does not it want recorded anywhere as she fears for her daughter’s life, and this was advice she had received from her lawyer. The reporting officer confirmed [Ms Belkin’s] mobile number and arranged to contact her on tuesday [sic] to make an appointment for the statement. At 1050hrs on 19/06/12 the reporting officer left another voicemail message on [Ms Belkin’s] mobile phone requesting a return call to make this arrangement.

   The reporting officer has left a further two voicemail messages on the mobile phone of the [Ms Belkin] reques ing [sic] she call to arrange a time for her daughter to provide a statement. One on 25/06/12 and another on 27/06/12. No response has been received.

7. While the mother did not present a case involving any allegations of sexual abuse in the current hearing she was cross-examined about her earlier allegations and I note that the first family report also sets out some of this history. It appears that the initial allegation, first made in the middle of 2010, occurred as a result of the child, stating to her mother that her father had “tickled my fu fu” (fu fu being the family’s colloquialism for vagina). The father had not seen the child since her fourth birthday in May 2009.

8. The father submits that the mother achieved her aim of delaying the recommencement of his time by raising the allegations of sexual abuse, the implication being that the allegations were made for this purpose only. While the evidence before me would tend to support such a submission I am conscious of the fact that the mother did not agitate a case involving such allegations so I cannot be confident that all relevant evidence relating to this issue was presented at this trial. Certainly, if that were the extent of the evidence (i.e. a statement allegedly made by the child more than a year after she had ceased her time with her father) then the submission made by the father would indeed appear to be a reasonable conclusion to draw. I do find however that the consequence of the mother’s allegations did indeed delay the implementation of the father’s time with the child.

9. After the 23 October 2012 Order was made for the father to spend time with the child the father contends that the mother then delayed in doing all that was required of her to enable that time to commence. Paragraph 7a of the October Order provided as follows:

   That within seven (7) days of the date of this Order, the parties will do all acts and things and sign all documents necessary to complete the intake process with the [Suburb Z] children’s contact service at the [D Town] children’s contact Centre.

10. The mother did not register with the contact service until 7 November 2012 and did not undertake her intake interview until 1 February 2013. On 16 March 2013 the parties were advised that the supervised visits would commence on 31 March 2013 and would occur on a four weekly basis thereafter. The father was unable to attend the visit on 31 March 2013.

11. His first visit occurred on 28 April 2013 and subsequent to the father’s first supervised visit a further Order was made on 30 April 2013 providing for further supervised visits progressing to unsupervised time by October 2013. These Orders also provided for the father and the child to have telephone communication each Monday and Wednesday.

12. The father enjoyed some limited time with the child at the centre on the 12 and 24 May 2013, but on 26 May 2013 and 23 June 2013 the scheduled visits were cancelled by the mother. On 14 July 2013 and 11 August 2013 the mother did not arrive at the Centre for the supervised visits. The Contact Service cancelled the parties’ access at the Centre and required re-registration if the parties wished to use the service in the future.

13. Throughout May, June and July 2013 the father attempted to speak to the child in accordance with the communication times set out in the April Order, all to no avail. When the father made his call on 10 July 2013 he found that the mother’s telephone number had been disconnected.

14. The order made on 23 October 2012 also provided that the father and mother were to have equal shared parental responsibility for the major long-term issues and set out with some particularity how such decisions were to be made. By letter dated 9 May 2013 the father, through his solicitor, sought information from the mother about the child’s current schooling arrangements. No response was provided. Another request for information about her schooling was contained in correspondence dated 30 May 2013 and again no response was provided.

15. Further Orders were made on 19 September 2013 providing for the child to spend specific times and then alternate weekends with the father and provided that a recovery order issue in the event the mother failed to transition the child to the father as required by the Order. The mother largely facilitated that time for the remainder of 2013 and throughout 2014, however, problems persisted.

16. Telephone time did not occur on 15 April 2014 with the mother, citing her refusal to do so being as a result of the child witnessing Ms Edmund hitting the other children with a belt. The mother indicated that as a result of this incident she had arranged for the child to consult with a psychologist. By letter dated 16 April 2014 the father, through his solicitor, denied the allegations and sought details relevant to the psychologist. That letter is annexed to the father’s affidavit of evidence in chief at annexure “B”. The mother’s response, through her solicitor, also forms part of annexure “B” and relevantly states:

    We are instructed by our client that the contents and tone of your letter clearly indicates that your client intends to continue to “bully” our client in relation to these proceedings. Examples are but not limited to: –

    (i)Your client complains about our client allegedly not facilitating telephone time between [the child] and your client but chooses to ignore that he failed to facilitate telephone time between [the child] and our client when [the child] was with him.

    (ii)Your client refuses or neglects to acknowledge what [the child] in fact saw when she was at your client’s home.

    (iii)Our client has arranged for [the child] to see a psychologist on a therapeutic basis to assist [the child] in dealing with problems she is currently facing, including but not limited to your client. Having regard to the attitude expressed by your client in your correspondence our client declines to identify the psychologist in order that the psychologist will not be harassed by your client and equally, our client is not prepared to provide a copy of any reports in writing, which at the present time do not exist.

17. In my view nothing contained in the letter from the father’s solicitor to the mother’s solicitor dated 16 April 2014 could rationally be described as “bullying”. What he did do was clearly put the mother on notice in relation to her failure to comply with existing court orders.

18. The ‘belt incident’, as it became known in the trial, appears to have been a relatively insignificant incident which assumed more attention than it deserved. Initially an allegation was made by the mother that Ms Edmund had on one occasion in April 2014 hit some of her children with a belt in the presence of the child thereby upsetting her. This is also referred to in Ms AA’s affidavit as something reported to her by the child. The mother relied on this allegation to prevent telephone communication between the father and the child at the time. When the child was interviewed by Mr R on 13 April 2016 she disavowed that Ms Edmund had ever struck the children with a belt and stated that she had threatened them only. She confirmed that she had never been threatened in that way. Ms Edmund denies ever striking any of the children with the belt but does acknowledge using it as a threat to gain compliance on occasions. I do not accept that any such incident excused the mother’s failure to comply with Court Orders.

19. The father details the many times he called the mother’s mobile pursuant to the Court Order to speak to the child and the phone was not answered. Indeed the mother conceded that when the mobile would ring she would sit there and tell the child to answer it but take no action herself to do so. I find that the mother failed to facilitate the telephone time as required by the Order.

20. The father details the many attempts in 2014 and 2015 to collect the child from school on Fridays when she was not in attendance. On many of these occasions his wife drove the one and a half hours to the school and then back again all to no avail. Her own children were in after school care while she attended to the child’s school. The father’s work commitments most often prevented him from attending personally and the mother was well aware of this fact. This had not been an issue for the mother in the past viz Ms Edmund collecting the child but for some reason on 6 March 2015 the mother sought to have Ms Edmund removed as a person who could collect the child. The immediate impact of such an act would be to make it all the more difficult for the child to see her father. The school declined to accede to the mother’s request. Thereafter, the child was absent from school on nineteen Fridays up to and including 22 April 2016. Most of those Fridays were ‘unexplained’ absences according to the school records. Absent any corroborative evidence I do not accept the mother’s oral evidence that the child was sick on each of those Fridays. I find that the mother kept the child away from school in order to avoid her being collected for time with her father.

21. The father enjoyed school holiday time with the child in 2014 pursuant to the 22 September 2014 Court Order but it did not provide for holiday time in 2015. Despite the father’s requests for school holiday time in 2015 the mother refused, relying on the fact that the Order made no provision for school holiday time in 2015.  On the last day of school in 2015, the mother anticipated that the father might turn up at the school and collect the child so she took her home early. I completely reject her evidence that had the father requested holiday time she would have taken a bag up to the school to facilitate the time.

22. Paragraph 8(b) of the Order made on the 22 September 2014 (as amended on 1 December 2014) provided:

    Time pursuant to paragraph 8(a) herein shall commence from before netball each Saturday should the parties agree to the child’s participation in netball fixtures.

23. The mother enrolled the child in netball January 2015 without consulting the father. Once the season commenced, the father specifically objected to the child playing netball on his Saturdays but the mother ignored that objection. Despite the mother stating in oral evidence that it would have been possible for the child to play netball only on weekends when she was with her, this was not conveyed to the father and it put him in direct conflict with his daughter. I find that the mother’s actions were yet another example of her flouting Court Orders with no regard for the consequences.

24. The father contends that on 15 October 2015 he became aware for the first time that the child was consulting with a counsellor. The father sought the name and details of the counsellor. The father spoke with Ms AA on 13 November 2015 and asked to be kept informed with the child’s progress. The father contends that he has received no information. This was not the first time that the mother had taken the child to a psychologist without consultation with the father.

25. The father contends that his attempts to be involved in the child’s life and spend time with her have been thwarted by the mother and I so find.

26. The father has his own business. His hours of work vary but he generally leaves home between 5. 30 am and 6.00 am and arrives home generally between 5.00 pm and 6.00 pm although there is usually an afternoon a week where he arrives home about lunch time. He works some Saturday mornings but not more than two a month. He has in the past employed other workers and is prepared to do so again should the child live with him. Despite currently working on his own he has demonstrated a degree of flexibility in attending events at the children’s school from time to time. I accept his evidence in relation to these matters. Of course, he also has the assistance of his wife who has demonstrated a capacity and willingness to assist in the past and I accept she will continue to do so in the future.

Mother’s case

1. The mother relied on the following material:

   a)Outline of submissions filed 5 May 2016

   b)Response to amended initiating Application filed 26 March 2015

   c)Affidavit of Ms Belkin filed 3 May 2016

   d)Affidavit of Ms AA filed 3 May 2016

2. During her oral evidence the mother contended that time between the child and her father had not occurred since July 2015 by reason of a number of factors including that the father refused to take the child to her netball commitments; that she was ill; that requests to spend time during holiday time were received too late to accommodate such request.

3. The mother also sought to shift the responsibility for the interruptions in the child’s relationship with her father, to the father’s failure to meet with the child on a one on one basis.

4. Ultimately, however, the mother rightly conceded through her lawyer at the conclusion of the trial, that she has a history of failing to comply with Court Orders and failing to facilitate the child’s time with her father.

5. Having made those concessions the mother’s case was reduced to one of mere resistance to a change in the living arrangements on the basis of it being “a huge leap of faith” to remove the child from her mother with whom she has lived all her life.

6. It is true that such a change will be a significant one. It is one that even the father would have preferred to avoid. It is one that Mr R also saw as a last resort.

7. The mother tearfully sought to convey that she had in effect learnt her lesson and would in the future comply with orders and this was reflected in the submissions made on her behalf. However, she remained staunchly of the view in her oral evidence that she had only been doing what the child wanted which gave me little confidence that she would be able to take on the role expected of a parent in these circumstances.

8. Further, I am not at all satisfied that what the child may have said from time to time truly reflected her views or that she was sufficiently mature to understand the consequences of what she may have conveyed. Mr R describes the inconsistencies in what the child said to him on occasion with how she then acted when she saw her father.

9. I find that the child has in fact always wanted a relationship with her father despite statements to the contrary. I note for instance as early as August 2010 when the child was attending counselling at Bravehearts it is recorded that she said to the counsellor:

   …she misses [Mr Edmund] (her biological father) and wants to see him, but that Mum said no.

10. It is also of some note that the child referred to her father by his Christian name at that time. It is consistent with the mother’s attempts to minimise the father’s role in the child’s life. She has twice enrolled the child in school with surnames other than her birth name without informing the father.

11. The child has endured the very great burden of negotiating her relationship with her father without any assistance or support from her mother. Ms AA stated that the mother was conscious of being accused of influencing the child so had taken no role in assisting her with these matters. I accept Mr R’s opinion that such decisions should not be left up to such a young person. It is clear that the child did not want to have this burden. The only thing the mother could point to as evidence of her alleged change of heart was to say that when she received a text message from the father (after the last family report interviews) to provide the child’s mobile number she permitted the child to immediately provide it. She did nothing more.

12. The mother accepted that the father would do all in his power to assist the child make the adjustment if it came to it and she conceded that he was “a great father”.

13. Even without this move to her father, the child can expect significant further change in her life. Her mother’s relationship with Mr O is in a state of flux. The child was exposed to a very frightening event on 28 April 2016 when Mr O attended at the residence currently occupied by the mother. He was abusing the mother, repeatedly calling her a slut. He ran at the door and kicked it. The mother was so frightened she called the police. The mother describes all of her three children crying. The mother does not rule out a return to Mr O and it is likely to involve a move to yet another residence. Whether that will also involve a further change of school is unknown. Mr O was not a witness in the mother’s case and though the mother stated that his behaviour was very much out of character I have no evidentiary basis to accept that such behaviour will not recur. I was most unimpressed with the mother’s attempt to minimise the effect of this incident on the child by saying the child was only crying on the day of this incident because she was so upset about Mr O behaving out of character. I note that in Exhibit 2 it is recorded that Mr O threatened to make the mother’s life a living hell.

1. Although the mother identified as following a religious faith there is no evidence before me that the child has any particular religious affinity. I note that she is currently attending a State School. The father proposes that the child attend Suburb BB State School with two of his other children and then CC School next year for High School. The mother had proposed that the child attend Suburb DD State High School in 2017.

2. The mother made allegations in her affidavit that the father was physically and verbally violent towards her during the relationship including grabbing her by the throat, pinning her against walls, and screaming and yelling at her and the child. Other than a general assertion no particulars were provided of the alleged violence towards the mother and the child. She also contended that the father drank alcohol excessively and used recreational drugs on a regular basis, including taking speed. She contended that the father has always and continues to be a heavy drinker and asserts that Ms Edmund “would phone me on a regular basis upset by Mr Edmund’s heavy drinking habits and violent rages”. No question was put to the father about these allegations which were denied by him in his reply affidavit. The mother has failed to prove her allegations.

Evidence from Mr R, social worker

1. Mr R prepared four family reports in this matter and gave oral evidence at the commencement of the trial. He interviewed relevant family members on 15 October 2012, 19 September 2013, 5 June 2015 and 13 April 2016.

2. A concise summary of his current recommendations are that if the court could be satisfied that the mother would comply with Court Orders and promote the father/daughter relationship his preference would be for the child to continue to live with her mother. If the Court could not be so satisfied he would recommend a change in the primary living arrangements so that the child lived with her father and spent time with her mother.

3. Given his long involvement with this family, Mr R is in a unique position to provide some helpful insights into this family and particularly, the child.

4. On each occasion that he interviewed the child, he described her as a ‘pleasant and cooperative child’ and in his oral evidence opined that she always presented as confident in a way that was indicative of resilience. In 2012 he did not observe the child with her father even though the child initially indicated a wish to see her father. She later was said by her mother to have changed her mind. Mr R opined:

   It is my opinion that the child looks to her mother for guidance in regard to issues concerning her father and her articulated views might well reflect those she believes to be shared by [Ms Belkin] [the mother].

5. When interviewed on 19 September 2013 the child described having visited with her father on three occasions at the contact centre and explains that she was “a bit scared” each time. When asked if scary means creepy or exciting she replied “Both”. Mr R formed the view that the child “has a great fondness for many aspects of her life and would experience considerable distress in response to a change of residency”.

6. Of note are his conclusions that:

   Although it may not be completely clear to what level the mother has been actively obstructive there is certainly no evidence that she has actively promoted the relationship between the child and her father.

7. When interviewed on 5 June 2015, the child was happy to talk about the time spent with her father. She described the time as ranging from okay to good. The okay visits were the ones where her father had to work for some or all of her visit and the good visits were the ones where he was present all the time. The child commented that it would be easier for her if her mother and father got along. The child recalled that when she started restoring her relationship with her father her mother “didn’t like the visits at first” but “is a bit better now”. The child understood that at this time her father was seeking an Order that she live with him. Mr R noted that the child:

   … acknowledges that she could be happy living with either. She also states that if she was the judge and had to consider if she should have more time with her father, more time with her mother, or fundamentally leave arrangements as they are, she stated that she would do the latter.

   Nevertheless, [the child] also commented that she would like to see more of her father. She would like to see more of him in the context of the existing visits…

   …

   [The child] comments that she generally gets along well with the children in her father’s home. She notes that [G] and [H] will sometimes ‘quarrel and fight’, but clarified that no one gets hurt. She also states that the boys do not quarrel and fight with her.

   …

   [The child] was observed to farewell [Mr Edmund], [Ms Edmund], [G], [H] and [E] with unsolicited and seemingly warm hugs before leaving the building.

8. At the conclusion of his report he opined:

   In my view there is no clear evidence that a change in residency would be of benefit to [the child]. In general terms I consider it likely that the existing parenting arrangements are appropriate to [the child’s] developmental needs.

9. At the interview on 13 April 2016 Mr R notes the mothers statements as follows:

   … she then suggested that [the child] is of an age where it is appropriate for her to be entitled to decide whether or not she wants a relationship with her father and, if so, the nature and frequency of visits. She later commented that she will support whatever [the child] wants.

   …

   [Ms Belkin] describes her relationship with [Mr O] in positive terms.

10. Having formed the view that the mother’s relationship with Mr O was positive he opined that “[Ms Belkin] appears to have established a level of stability.” At the time of this interview the mother had either been separated from Mr O for about three months (according to Exhibit 2) or separated one week after the interviews according to her oral evidence. On either version the mother misled Mr R about her current circumstances and the factual basis for his opinion was not sound.

11. At the time of interview the child had not seen her father since 24 July 2015, shortly after the last family report.

12. It remains unclear what, if anything, occurred on that weekend. The father and Ms Edmund describe an enjoyable and unremarkable weekend but noted an unusual act by the child in packing up all her belongings at the end of the weekend including gifts and things she generally left at their home. The mother describes the child returning home in an emotional mess and saying she did not want to go back. The mother said she did not know why the child was upset, which Mr R regarded as “somewhat unusual”. The child confirmed to Mr R that something did happen and made reference to Ms Edmund threatening her own children with a belt. The father rejected this, telling Mr R that this was not even raised until October 2015.

13. What followed were numerous attendances by the father or Ms Edmund at the child’s school on Fridays only to find her not in attendance. 

14. There were a number of unpleasant text messages sent to the father from the mother’s mobile telephone ostensibly from the child including one that was a photograph of a letter purportedly written by the child to the father in which she said ‘stuff you’. The mother denies having been aware of such messages until after the event and told the child to apologise. The following text message does contain an apology. Interestingly, the child emphatically and categorically refuted to Mr R that she had ever told Mr Edmund to ‘get stuffed’.

15. In interview Mr R reports that the child commented that she does not want to see her father but also stated “I want to see dad on his own. I don’t feel safe when I go to his house.” She then acknowledged that she enjoyed her visits at her father’s home when her father was present. Mr R comments that he “cannot discount the possibility that things would be informed by her mother’s views”.

16. When the issue of safety was explored with the child she stated “the boys and Rebecca bully me”. She later clarified “they can be short. They don’t say things in a nice way”. She agreed with Mr R’s description that they could sometimes be a bit rude or possibly insensitive rather than bullying. She also acknowledged that sometimes she felt she had to compete for her father’s attention. Despite acknowledging that she did miss her father she emphatically declined to participate in a joint interview. She told Mr R that if the Court were to order her to live with her father she would refuse to go and would run away.

17. While Mr R interviewed the mother, the child remained in the waiting room with her father and Ms Edmund and the other children. Despite the mother telling Mr R that the child was anxious waiting there on her own, the child refuted that when later re-interviewed by Mr R. The child described the time as “good” and indicated that neither her father or her step-mother had put any pressure on her or otherwise asked her to explain why she had not been visiting.

18. The father described the interaction in the waiting room as initially quiet and withdrawn until the mother left and then the child relaxed and started speaking with him and the other members of his household and was cuddling the younger children.  I accept that evidence.

19. The child acknowledged to Mr R that her parents did not have a good relationship and repeated what she said in June 2015 viz that it would not be so hard if her parents had a good relationship.

20. Mr R opines:

    In my view this child has become increasingly conflicted. There is some evidence [Ms Belkin] has had trouble supporting the child’s relationship with her father. She makes her attitude towards [Mr Edmund] quite clear. The mother describes [Mr Edmund] as a bully and acknowledges that she does not like him and does not wish to engage with him. 

    …

    … In my view it is not at all appropriate for a child of 10 years to have any significant level of autonomy in determining future arrangements for her parenting.

    … [the child] acknowledges that she likely has too much power in regard to the parenting dispute and that her life would be easier if the adults simply made the decisions. Certainly [Ms Belkin] has indicated that she is not prepared to make any decisions which actively support the existing Orders.

    …

    At the very least it would seem that [Ms Belkin] has not taken much initiative in enabling the relationship between [the child] and members of the paternal family and it is my view that she has an obligation to do significantly more. She has demonstrated a cavalier attitude in regard to her obligations vis-à-vis the existing Orders. She appears to believe that she can absolve herself of responsibility by pretending to be ignorant of the issues and suggesting that the dispute is fundamentally one between [the child] and her father.

    In my view some of the mother’s behaviour could be described as passive-aggressive. She can be oppositional without the appearance of rudeness. …

    …

    … It is not unusual that when a child experiences prolonged conflict between the parents that he or she will eventually align with one parent and distance him or herself from the other. … I suspect that this principle may have some application in this family.

    …

    It is generally in the long term interests of a child to have the opportunity to establish and maintain relationships with their birth parents and I consider that principle to have application in this family. In my view there is no reason to justify the fact that the child has not spent any time with her father since the June/July school holidays of 2015.

    … Although I understand the father’s frustrations, … it is my view that a change of residency could be extremely destabilising for [the child]. …I have some concerns about the … potential for relationships to be to be damaged as a consequence of the child’s reactions to such a development. I do not have any concerns about the parenting provided by [Mr Edmund] and his wife.

    However if it is determined that [Ms Belkin] is simply unwilling or unable to support [the child’s] relationships with members of the paternal family it could be in [the child’s] long term interests to reside with [Mr Edmund].

    …

    … [S]hould the Court determine that [Ms Belkin] will simply not support a continuing relationship between [the child] and her father then [the child] reside with [Mr Edmund]. In such a scenario I would recommend that:

    ·    The reverse of the provisions in paragraph 104 be established [alternate weekends and half holidays] but private communication between the child and [Ms Belkin] initially be suspended for a period of one month and visits initially suspended for a period of two to three months.

    [emphasis added]

21. In his oral evidence, Mr R opined that the long-term implications for a child who loses a relationship with a parent are that it is likely to have a negative impact on a child’s self-concept and identity and a child entering adolescence with uncertain identity and poor self-concept tends to make poor decisions for themselves. While acknowledging that it is difficult to predict a child’s resilience, Mr R opined that if faced with a choice between a change of residence or one parent disappearing from the child’s life, he would recommend a change of residence. As to his recommendation relating to a break in communication between the child and her mother if an order is made that she live with the father he stressed that there was no ‘magic’ in the particular times recommended by him.

Assessment

1. The child has lived all her life with her mother and as would be expected has a close relationship with her as she no doubt does with her half siblings, N and P. It seems she sees other members of her mother’s extended family on a regular basis.

2. The child has had an interrupted relationship with her father, Ms Edmund and her half and step siblings but I find she also has a loving relationship with all of them although not as close and loving as with her mother and half siblings in her mother’s household.

3. The child will benefit from having a meaningful relationship with both parents.

4. I have a concern about the potential for the child to be exposed to family violence if she remains in the mother’s household. She has recently been exposed to a frightening incident involving Mr O and it seems likely that the mother will resume her relationship with him at some future time. I am unable to form any view about him as he was not called by the mother although he was available.

5. Ideally the child would like to remain living with her mother and spend time with her father but her mother has made that impossible to achieve. The only way the child can have a relationship with both parents, which is what she wants, is for her to live with the father.

6. The mother has acted with complete disdain for the importance of the father being involved in decisions which affect the child from the school she attends to the surname she uses to the father figures in her life. The father has tried for years to be involved in the child’s life. He could do no more. It is with a heavy heart that he pursues a change in living arrangements for the child but it is the only realistic solution in the circumstances and the one that is in her best interests.

7. The child has coped with significant change in her life to date including having at least two father figures in her life other than her own father. Mr M and Mr O are now no longer part of the household. The child at one stage was known by the surname “M”. At another time the mother had a relationship with a man by the name of S who was described in the school enrolment records as the child’s step-father. I have no doubt that the child has experienced some level of grief with the loss of these people from her life.

8. The child has had at least six changes of residence and attended four different schools. The family report writer, Mr R, did not seem overly concerned about such change given the child’s age but opined that if such changes were to continue into adolescence it may well be problematical because when young a child’s relationship is more dependent upon a parent but when older their peer group assumes a greater relevance.

9. It will be a very great change for the child moving to her father’s home. She has never before spent extended time with him and his family and has said to Mr R that she would run away if such an order were made. Mr R considers such a scenario to be unlikely. He describes the child as a confident, articulate young girl but one who should never have had the burden of deciding when she sees her father, placed upon her. He does not consider she is mature enough now or even at twelve to have that responsibility. He opines that she would manage the change to her father but recommended that there be a period of no time or communication with her mother so that she has time to settle in her new household.

10. I accept the submissions made on behalf of the Independent Children’s Lawyer and the father that history is most often the best predictor of future behaviour and regrettably I come to the view that the mother is unwilling to facilitate the father’s relationship with the child. 

11. The child is a girl used to change and by all accounts she has coped remarkably well with it to date but as Mr R opined, such change is easier to deal with as a young child than as an adolescent when significant attachments to a parent shifts to that of the peer group. In short, Mr R opined that the child is still at the developmental stage where such a change could occur and be managed.

12. I gave serious consideration to making an interim Order that the child remain with her mother and spend time with the father so that the mother could have further time to demonstrate her willingness and ability to facilitate the father/child relationship but ultimately I rejected the idea for a number of reasons. Firstly it was opposed by the parties and the Independent Children’s Lawyer. Secondly, the mother has at times complied with Orders so, even were she to comply for a period there is no assurance that she will continue to comply once the Court ceases to be involved. Thirdly, if the change does not occur now it is likely to be too late for the child to be able to make the adjustment.

13. The child will no doubt miss her mother, her half siblings and her mother’s extended family whom she sees regularly. She will miss her friends at school and netball and she will be moving mid-term which will no doubt add to the challenges she will face. 

14. Mr R had a definite preference for the child to remain with her mother if the Court could be satisfied that the mother would hereafter promote the father’s relationship with the child. Unfortunately I cannot be so satisfied.

15. I have confidence in the father and Ms Edmund as parents and in their being able to sensitively assist the child in adjusting to this massive change in her life. They each impressed me with their thoughtful and realistic assessment about what might occur and how best to address any issues. The child is, however, a child who has shown great resilience to date and I am satisfied that she will adapt in time. She will require a period of time to settle and that can best be achieved by preventing the mother from contacting her for the period suggested by Mr R and delaying the re-introduction of time with her mother for a further period although not as long as suggested by Mr R. I adopt the period submitted by the Independent Children’s Lawyer. I was impressed with the father’s obvious sensitivity to the child’s likely need to have some communication with her mother so will leave that decision up to him.

16. The parties live about an hour and a half apart which precludes more frequent time than alternate weekends. That said, as the mother is not employed, she may in future be able to attend at school events for the child or sporting activities to enable her to have a greater involvement in the child’s life than may be possible with just an alternate weekend regime.

1. Both parents have the capacity to provide for the child’s emotional and intellectual needs and but for the mother’s attitude to the father, the child would not have to make the change in her living arrangements.

2. The child needs to have the burden of negotiating parental relationships lifted from her weary shoulders. The father has the capacity and willingness to take over that burden.

3. There is a Temporary Protection Order in place which names the child, as well as her mother and half siblings and Mr Q, as protected persons. The circumstances leading to the making of the Order support the need for the child to be protected from Mr O at this time.

Equal shared parental responsibility

1. Both parties and the Independent Children’s Lawyer advocate for such an order despite the history of the parties conflict and inability to communicate. Mr R also recommends such an order as being at least ‘symbolic’.

2. Section 65DAC of the Family Law Act provides that such an order requires major long term issues to be made jointly. But for the fact of this ‘united front’ I would be disinclined to make such an Order in the circumstances of this case. However, I accept the submission made on behalf of the father that although historically decisions have not been made jointly the father is committed to engaging in such a process. Mr R was confident that the mother would want to remain involved in the child’s life. Accordingly, I am persuaded that such an Order should be made.

Equal or significant and substantial time 

1. Neither parent seeks an order for equal time or significant and substantial time which seems sensible given the distance between their households. It is recognition by them in my view that such an order would not be in the child’s best interests, and I so find.

Miscellaneous

1. The child is going to find the transition to her father’s household difficult. I am also confident that the mother will find the transition difficult. They are both likely to experience grief. The child may resent her father. For these reasons I propose to request that the Independent Children’s Lawyer, with the assistance of Mr R, and if necessary a family consultant from Child Dispute Services, be involved in explaining the Orders to the child and facilitating the change over this afternoon to the father.

2. Apart from the ‘live with’ and ‘spend time with’ provisions the parties largely adopted the draft Order submitted on behalf of the Independent Children’s Lawyer which is Exhibit 10.

I certify that the preceding one hundred and fifteen (115) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Carew delivered on 16 May 2016.

Associate:

Date:  16 May 2016