Edwards and Tiem

FAMILY COURT OF AUSTRALIA

EDWARDS & TIEM

[2016] FamCA 769

FAMILY LAW – CHILDREN – with whom the child shall live

Family Law Act 1975 (Cth)

McCall & Clark (2009) FLC 93-405
M v M (1988) 166 CLR 69
Vigano & Desmond (2012) FLC 93-509

APPLICANT:

Mr Edwards

RESPONDENT:

Ms Tiem

INDEPENDENT CHILDREN’S LAWYER:

Geldard Sherrington Lawyers

FILE NUMBER:

BRC

10229

2014

DATE DELIVERED:

12 September 2016

PLACE DELIVERED:

Brisbane

PLACE HEARD:

Brisbane

JUDGMENT OF:

Hogan J

HEARING DATE:

7 and 8 September 2016

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Mr George

SOLICITOR FOR THE APPLICANT:

Suthers Lawyers

COUNSEL FOR THE RESPONDENT:

Ms Bertone

SOLICITOR FOR THE RESPONDENT:

VM Family Law

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER:

Mr Nguyen

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER:

McGarvie Family Law Practice

Orders

IT IS ORDERED BY WY OF FINAL ORDER THAT

All previous Orders are discharged.
The child, B (the child), born … 2011, shall live with the mother from 24 September 2016.
The mother have sole parental responsibility for the major long term issues for the child with such issues to include but not be limited to:
(a)       the child’s education;
(b)       the child’s religious and cultural upbringing; and
(c)       the child’s health.
Before making a decision about any such issue, the mother shall:
(a)inform the father in writing of the issue about which a decision needs to be made, the decision she would like to make in respect of such issue and the reasons for that proposed decision; and
(b)allow the father fourteen (14) days after the provision by her of the information referred to above to respond to the same in writing; and
(c)consider the father’s response, if any, when coming to her decision about any such issue; and
(d)inform the father of the final decision she has made with respect to that issue as soon as practicable thereafter.
Each party has responsibility for daily decisions about the day to day care, welfare and development of the child whilst he is in his or her care.
The child shall spend time with the father at all times as may be agreed between the parties and failing agreement as follows:
(a)during school Terms:
(i)in week 1 (commencing on Thursday 13 October 2016): from after school or 3.00 pm Thursday 13 October 2016 until before school or 8.30 am Monday 17 October 2016 and each alternate week/end thereafter, with the father to collect the child from school at the start of this time and to return the child to school at the conclusion of such time; and
(ii)in week 2 (commencing on Thursday 20 October 2016): from after school or 3.00 pm Thursday 20 October 2016 until before school Friday 21 October 2016 and each alternate week thereafter, with the father to collect the child from school at the start of this time and to return the child to school at the conclusion of such time; and
(b)for half of the gazetted school holiday periods at the end of Terms, 1, 2 and 3 each year, being:
(i)the first half in even numbered years: from 9.00 am on the Sunday immediately after school ends for the Term until 9.00 am on the following Sunday, with changeovers to occur at the McDonald’s Restaurant carpark, C Town (McDonald’s Restaurant, C Town); and
(ii)the second half in odd numbered years: from 9.00 am on the second Sunday after school ends for the Term until 9.00 am the following Sunday, with changeovers to occur at the McDonald’s Restaurant, C Town; and
(c)for half of the gazetted school holiday periods at the end of Term 4 each year, being:
(i)for the holiday period commencing in December 2016: for the first, third and fifth week of the December 2016/January 2017 school holiday period and, unless otherwise agreed between the parties in writing:
A.from 9.00 am on the Sunday immediately after school concludes for the Term until 9.00 am on the second Sunday after school concludes for the Term, with changeovers to occur at McDonald’s Restaurant C Town; and
B.from 9.00 am on the third Sunday after school concludes for the Term until 9.00 am on the fourth Sunday after school concludes for the Term, with changeovers to occur at McDonald’s Restaurant C Town; and
C.from 9.00 am on the fifth Sunday after school concludes for the Term until 9.00 am on the sixth Sunday after school concludes for the Term, with changeovers to occur at McDonald’s Restaurant C Town; and
(ii)for the holiday period commencing in December 2017: for the second, fourth and sixth week of the December 2017/January 2018 school holiday period and, unless otherwise agreed between the parties in writing:
A.from 9.00 am on the second Sunday after school concludes for the Term until 9.00 am on the third Sunday after school concludes for the Term, with changeovers to occur at McDonald’s Restaurant C Town; and
B.from 9.00 am on the fourth Sunday after school concludes for the Term until 9.00 am on the fifth Sunday after school concludes for the Term, with changeovers to occur at McDonald’s Restaurant C Town; and
C.from 9.00 am on the sixth Saturday after school concludes for the Term until 9.00 am on the seventh Sunday after school concludes for the Term, with changeovers to occur at McDonald’s Restaurant C Town; and
(iii)for the holiday period commencing in December 2018 and each alternate year thereafter: for the first half of the school holiday period, with such time to commence at 9.00 am on the first Sunday after school ends for the Term and to conclude at 9.00 am on the fourth Sunday after school ends for the Term and with changeovers to occur at McDonald’s Restaurant C Town; and
(iv)for the holiday period commencing in December 2019 and each alternate year thereafter: for the second half of the school holiday period, with such time to commence at 9.00 am on the fourth Sunday after school ends for the Term and to conclude at 9.00 am on the seventh Sunday after school ends for the Term and with changeovers to occur at McDonald’s Restaurant C Town; and
(d)from 3.00 pm Good Friday until 3.00 pm Easter Sunday in even numbered years and from 3.00 pm Easter Sunday until 3.00 pm Easter Monday in odd numbered years; and
(e)on the child’s birthday (if the child is not otherwise in his care pursuant to this Order):
(i)when it occurs on a school day: from after school until 6.00 pm; and
(ii)when it does not occur on a school day: from 1.00 pm until 5.00 pm; and
(f)on the father’s birthday ( if the child is not otherwise in his care pursuant to this Order):
(i)when it occurs on a school day: from after school until 6.00 pm; and
(ii)when it does not occur on a school day: from 1.00 pm until 5.00 pm; and
(g)if the child is not otherwise in his care pursuant to this Order:
(i)from 3.00 pm Christmas Eve until 3.00 pm Christmas Day in even numbered years; and
(ii)from 3.00 pm Christmas Day until 3.00 pm on Boxing Day in odd numbered years.
The operation of Clause (6)(a) shall be suspended during all school holiday periods and shall recommence with the implementation of the time provided for in Clause (6)(a)(i):
(a)when the child has spent the first half of the school holiday period with the father – on the first weekend after school starts for the Term; and
(b)when the child has spent the second half of the school holiday periods with the father – on the second weekend after school starts for the Term.
In the event that the time the child will spend with the father pursuant to Clause (6)(a)(i) above does not fall on the weekend on which Father’s Day occurs, the child will spend time with the father from after school or 3.00 pm on the Friday immediately before Father’s Day until school the Monday immediately after Father’s Day, with the father to collect the child from school at the start of this time and to return the child to school at the conclusion of such time.
The operation of Clause (6)(a)(i) of this Order is suspended for the weekend on which Mother’s Day occurs, such that the child will remain in the mother’s care for that weekend.
Unless otherwise agreed between the parties in writing, the child shall spend time with the mother:
(a)from 3.00 pm Good Friday until 3.00 pm Easter Sunday in odd numbered years and from 3.00 pm Easter Sunday until 3.00 pm Easter Monday in even numbered years; and
(b)on the child’s birthday (if the child is not otherwise in her care pursuant to this Order):
(i)when it occurs on a school day: from after school until 6.00 pm; and
(ii)when it does not occur on a school day: from 1.00 pm until 5.00 pm; and
(c)on the mother’s birthday ( if the child is not otherwise in her care pursuant to this Order):
(i)when it occurs on a school day: from after school until 6.00 pm; and
(ii)when it does not occur on a school day: from 1.00 pm until 5.00 pm; and
(d)if the child is not otherwise in her care pursuant to this Order:
(i)from 3.00 pm Christmas Eve until 3.00 pm Christmas Day in odd numbered years; and
(ii)from 3.00 pm Christmas Day until 3.00 pm on Boxing Day in even numbered years.
Each party communicate with the child, when he is not in their care, by telephone at all reasonable times and not less than each Wednesday and Sunday between 6.00 pm and 6.30 pm and, in order to facilitate this:
(a)the parent in whose care the child is at that time shall make the child available to receive the telephone call; and
(b)the parent with whom the child is not spending time shall initiate the telephone call.
In order to facilitate telephone communication referred to in Clause (11) of this Order, each parent shall:
(a)ensure that the child is available to receive the telephone call; and
(b)arrange for the child to telephone the calling parent on the following night if, for any unforeseen circumstance, the child misses the telephone call from that parent; and
(c)ensure that the child has privacy during the communication.
The child shall be at liberty to call either parent at all reasonable times and the parent with whom he is at the time shall assist him to make any calls he reasonably requests.
Unless otherwise specified in this Order or agreed between the parties in writing, changeover on a school day shall occur to and from school and, otherwise, at McDonald’s Restaurant, C Town.
Each party shall be entitled to have another person attend changeover on their behalf, provided that such person is known to the child.
Neither parent shall enrol the child in any activity which occurs during time he is living or spending time with the other parent without first obtaining the written consent of that parent.
Neither parent denigrate the other, or their family to, or in front of, or within the hearing of, the child and each shall direct third parties to refrain from denigrating either party or their family to, or in front of, or within hearing of, the child and, failing their compliance with such a direction, shall remove the child from that environment immediately.
Neither parent shall discuss these proceedings nor the allegations made herein with the child.
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; and
(b) speak of the other parent respectfully; and
(c)not denigrate or insult the other parent in the presence or hearing of the child; and
(d)use their best endeavours to ensure that others do not denigrate or insult the other parent in the hearing or presence of the child.
Each party keep the other informed of the child’s doctors, health care and other treatment providers and, by this Order, those practitioners are authorised to provide each parent with such information as they are lawfully able to provide about the child.
Each party inform the other parent as soon as reasonably practicable of any medical emergency, significant health issue or significant illness suffered by the child and authorise any treating medical practitioner to release the child’s medical information to the other parent.
Each party keep the other informed of any day-care, school, educational facility or extra-curricular activity provider at which the child attends and, by this Order, such providers are authorised to provide each parent with such information as they are lawfully able to provide about the child and his progress.
If there is a cost associated with the provision of any information or documents by the child’s doctors, health care and other treatment providers or day-care, school, educational facility or extra-curricular activity provider, that expense shall be borne by the parent requesting the information.
Each party shall ensure that the other is nominated as an emergency contact with any school, medical practitioner or extra-curricular service provider upon which the child attends.
Subject to the conditions imposed by the child’s schools, this Order authorises both parents to attend school functions to which parents are ordinarily invited, including but not limited to carnivals, sports days, fetes, concerts, plays and parent/teacher interviews.
Each parent keep the other parent informed at all times of their contact telephone number and:
(a)notify the other as to any change in those details as soon as practicable after such change; and
(b)notify the other parent at least 30 days prior to relocating their residence beyond a 50 kilometre radius from where they currently reside.
Each parent has liberty to provide a copy of the Order made 12 September 2016 and the Reasons for Judgment delivered 12 September 2016 to the school at which and the medical practitioner/s upon whom the child attends and to the Department of Communities, Child Safety and Disability Services.

IT IS FURTHER ORDERED THAT

All outstanding Applications are dismissed.
The Independent Children’s Lawyer is discharged.
Pursuant to s 65DA(2) and s 62B of the Family Law Act 1975 (Cth), 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 to adjust to and comply with an Order are set out in the Fact Sheet attached and these particulars are included in these Orders.

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 Edwards & Tiem 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 BRISBANE

FILE NUMBER: BRC 10229 of 2014

Mr Edwards

Applicant

And

Ms Tiem

Respondent

And

Independent Children’s Lawyer

REASONS FOR JUDGMENT

B was born in 2011. His mother, who was born in South East Asia in 1991 and travelled to Australia on a student visa in 2009, was about 19 years of age when she met his father – who was born in Australia and was then about 41 years of age - in about July 2010.
The mother’s command of English when the parties commenced their relationship was limited. Whilst improved, it remains somewhat limited.[1] Even though English is his first language, the father has his own struggles and limitations in terms of his literacy.[2]
[1] The mother was assisted throughout the trial by an interpreter.
[2]He attended school to grade 9 but did not complete that year and had attended what he described to Mr D as a ‘special school’ as he was a bit slow with reading and writing: Family Report dated 21 March 2015 at [26]; testing done by The Mater Rehabilitation Service in December 2002 revealed that he obtained a full-scale IQ of 70 (which was said to place him in the borderline range of intellectual functioning) and a verbal IQ of 69 (which placed him at the second percentile when compared to individuals of his age): Exhibit 1, p. 152.
B’s parents commenced their relationship in about July 2010 and married in 2010. They separated under the one roof in about February 2014 and physically separated in about October 2014, when the mother left their joint residence.
Both parents continue to live in the same central Queensland city. This has meant that there are no practical or logistical impediments[3] to the time the child has spent with each of them since they separated. It also means there are no such impediments to his future time with each of them.
[3] s 60CC(3)(e) of the Family Law Act 1975 (Cth) (“the Act”).
The father took the child into his care on 3 October 2014. I accept he telephoned the mother on 5 October 2014 and told her she needed to move out of their shared residence. I also accept he called her on 7 October 2014 to tell her she had to give him her key to the house and that she had to attend at the real estate agent to sign papers to acknowledge that she was no longer living at the property. I accept she did as he directed. I also accept that, later that day, she went to the child’s childcare centre to collect him and take him into her care.
Those in charge of the day-care centre did not permit this because, by then, the father had told them not to allow the mother to remove the child from their care. An impasse developed. Police were called and attended. Once it was clarified that there was no existing parenting order, the mother took the child into her care.
The father subsequently commenced proceedings.
On 24 November 2014, Judge Coates ordered that the child live with the father and, until he started Prep, spend time with his mother (from 5.00 pm Friday until 5.00 pm Sunday each week) and communicate with her by telephone three times a week.
After returning to live primarily with his father, the child continued to attend day-care as he has done from when he was about 12 months of age: that is, between about 8.30 am and about 5.00 pm each Monday, Tuesday, Wednesday and Thursday.
B is his mother’s only child. Whilst he is his father’s fourth child, it is clear that the father has had, at most, very limited involvement with only one of his other children.
Each parent sought to advance that he or she was the parent who predominately cared for the child prior to separation. In my view, the evidence given by Mr D - the author of the Family Reports - about the child’s current capacity to have multiple attachments makes resolution of these contrary contentions unnecessary. The fact of each parent’s engagement in this litigation clearly demonstrates, in my view, that both want to be meaningfully involved in the child’s life into the future and that both seek the opportunity to discharge the responsibilities of parenthood.
B currently spends time with his mother each alternate weekend from 5.00 pm Friday until 4.00 pm Sunday. This has been the case since he started Prep at the end of January this year.

Proposals

The father’s formal proposal is that the child continue to live with him and spend time with his mother each alternate weekend and for half of each school holiday period (on the basis of a week about arrangement). However, it became apparent during his cross-examination that he thought the child should spend no more than, perhaps, three consecutive nights in his mother’s care until he is older: that is, from Friday afternoon until Monday morning each alternate week. His expressed rationale for this was that the child would be at risk of harm if he spent any more consecutive nights with his mother than this.

However, when pressed to identify the basis for his view about “the harm” he asserted the child would suffer - if afforded the opportunity to spend more than three consecutive nights in his mother’s care - one of the matters he identified (completely paradoxically it seems to me) is that the child would suffer harm because his mother would not spend enough time with him, even if she had such opportunity. That is, he seemed to say that the child would be harmed if he did not have the opportunity to spend enough time with his mother.
This contradiction mirrors that which Mr D noted from his most recent interview with the father: that is, despite asserting that the child had been sexually abused by his mother on a number of occasions and in a number of different ways and had also been physically abused by her, the father told Mr D that “if he is honest”, he thinks the mother is likely a good mother.[4]
[4] Family Report dated 30 August 2016, [62].
The mother consistently has proposed that the child’s best interests will be met by an order that he live primarily with her. Her proposals for his time with his father in such a scenario changed during the course of the hearing to largely echo and adopt the recommendations made by the Independent Children’s Lawyer – who, whilst remaining consistent in proposing that the child live primarily with his mother, also changed her position about the amount of time the child should properly spend with his father. Ultimately, the Independent Children’s Lawyer submitted that the child’s best interests will be met by an order which will see him live primarily with his mother and spend time each week with his father.[5]
[5] In the manner outlined in Exhibit A2.
Whilst the mother agreed that weekly time between the child and his father is something that is in his best interests, she and the Independent Children’s Lawyer differed about the extent of that time in that:
a)the mother ultimately proposed that the child spend time with his father each alternate weekend from after school Friday until before school Monday and from after school Thursday until before school Friday in the alternate week; whereas
b)the Independent Children’s Lawyer ultimately proposed that the child spend time with his father each alternate weekend from after school Thursday until before school Monday and from after school Thursday until before school Friday in the alternate week.
Whilst no specific submissions were made about which of these proposals the father supported in the event that his primary position that the child live with him did not find favour, I have proceeded on the basis that, in such a scenario, the father would seek that the child spend as much time with him as possible.
That the mother vacillated at trial about her proposal for the child’s time with the father is consistent with her vacillation during her interview with Mr D where she expressed her thoughts that the child should spend time with his father every week or, alternatively, live with each of his parent in an equal time (14 night block) parenting arrangement.
An equal time arrangement was not supported by Mr D or by either parent or by the Independent Children’s Lawyer. This shared position reflects the reality of the parental relationship. It is, in my view, a proper acknowledgement of the fact that it is not in the child’s best interests for him to live in an equal time parenting regime.

Principles

I may, subject to s 61DA[6] and s 65DAB[7] and Division 6 of Part VII of the Family Law Act 1975 (Cth) (the Act), make such parenting order as I think proper.[8] I must have regard to the Objects of Part VII of the Act and the principles which underpin those Objects.[9] In deciding whether to make a parenting order, I must regard the child’s best interests as the paramount consideration.[10]
[6] The presumption of equal shared parental responsibility.
[7] Parenting plans.
[8] s 65D of the Act.
[9] s 60B of the Act.
[10] ss 60CA, 65AA of the Act.
The presumption that it is in the child’s best interests that his parents have equal shared parental responsibility for him must be applied unless the Court is satisfied of the matters prescribed in s 61DA(2) of the Act. If, as Counsel for each of the parents submitted, the parties engaged in domestic violence, the presumption does not apply. Counsel for the father and the mother both submitted that, even if the presumption applied, the Court would conclude that it is rebutted in this case because the evidence persuades that it will not be in the child’s best interests for his parents to have equal shared parental responsibility for him.
For reasons which will follow, I accept that, even if the presumption of equal shared parental responsibility applies in this case, the parental relationship is such that it is not in the child’s best interests that his parents have equal shared parental responsibility for major long-term decisions in relation to him.
The benefit to the child of having a meaningful relationship with both of his parents
The Act does not define the term meaningful relationship, nor does it prescribe criteria on which the Court should rely to assess how the child’s parents have, or should have, a meaningful involvement in his life.
In McCall & Clark,[11] the Full Court concluded that the preferred interpretation of ‘benefit to a child of a meaningful relationship’ is the prospective approach. That is, the Court should consider and weigh the evidence at trial and determine how, if it is in a child’s best interests, orders can be framed to ensure that the child has a meaningful relationship with both of that child’s parents. Thus, the Court must consider and determine whether there is a benefit to the child in having a meaningful relationship with each of his parents, such finding not being dependent simply on a lack of danger of physical or psychological harm arising from time and/or communication with his parents.
[11] (2009) FLC 93-405
If I determine that such benefit exists, then I must consider whether the benefit needs to give way to the requirement to protect the child from physical or psychological harm.[12]
[12]Vigano & Desmond (2012) FLC 93-509, [128]-[129] per Bryant CJ, Strickland & Murphy JJ.
I accept that which implicitly follows from the parents’ respective parenting proposals: namely, that the child will benefit, now and into the future, from the opportunity to have a meaningful relationship with both of them.
The need to protect the child from harm from being subjected or exposed to abuse, neglect or family violence
When asked to outline the findings sought on behalf of the father, Counsel informed the Court that the father was not seeking a finding that the child had been sexually abused by his mother. He also did not seek a finding that the child will be at an unacceptable risk of harm if he continues to spend unsupervised time with his mother.
Counsel for the father did, however, seek findings[13] that:
a)the mother had committed acts of domestic violence during the relationship, including in the child’s presence; and
b)the mother physically abused the child when she kissed him hard enough on the chin and the neck to cause bruises, which the father described as ‘love bites’.
[13]As well as that the father has been the child’s primary carer since birth, about which I have already expressed my conclusions.
Authority makes it clear that the resolution of allegations of sexual and other abuse are “subservient and ancillary” to this Court’s determination of that parenting order which is in the child’s best interests.[14] However, an assessment of such allegations is clearly necessary when the prescribed statutory framework imposes an imperative of protecting him from harm.[15]
[14] M v M (1988) 166 CLR 69 and the numerous authorities which have followed it.
[15] ss 60CC(2)(b) and 60CC(2A) of the Act.
As already noted, the parties and the child live in the same city in central Queensland. Given the size of that city, it is highly likely their paths may cross in the course of their day to day activities. They will both, obviously, remain involved in the child’s life and both will interact with his school.
Given these realities (and despite the fact that the father does not press for positive findings about the allegations he makes about the mother’s behaviours as outlined in his affidavit material) in my view it is in the child’s best interests that I make findings about these allegations. It could not be thought to be beneficial for the child to permit such allegations to linger undetermined.[16]
[16]It is for this reason, also, that I have concluded it is in the child’s best interests for his parents to be able to provide a copy of these Reasons to his school, his treating medical practitioner and the Department of Communities. Child Safety and Disability Services
It is trite to observe that an assessment of the allegations necessitates an assessment of the parties’ veracity. So much is obvious given that the father alleges that the child told him that his mother acted toward him in a particular manner, whilst the mother denies behaving like that at any time. This necessity is heightened by the fact that, save for those events directly seen by Ms E and Mr F (witnesses called in the father’s case whose evidence went only to allegations of physical interaction with the child and not any behaviours which could really be thought to amount to sexual abuse or sexualised behaviours), the father is the only person whose evidence is before me about these alleged events.
That is, as the father is the only source of many of the allegations that the mother behaved inappropriately toward the child, the first step in the process of assessing the substance of the allegations is, it seems to me, to determine whether he is a truthful witness and/or someone whose evidence can be accepted as accurately recounting events which actually happened.
The father’s veracity
I have concluded that the father is not a truthful witness. I arrive at this conclusion for the following reasons.
First, his oral evidence during cross-examination about his involvement with G, his child from a previous relationship with Ms H, is inconsistent with his own earlier evidence and his account to Mr D (which I accept Mr D reported accurately in the first Family Report) during his first interview in March 2015:
a)during his cross-examination, the father said he had started to spend time with G about three years ago - that is, from 2013 onwards – and that he did so by taking the child to see G after school when the mother was at work, even if this was not regularly; but
b)in his affidavit filed on 12 November 2014, the father said (when referring to G) that: “I did not pursue time with the child as he was young and [Ms H] re-partnered. I have recently had discussions with [Ms H] about seeing the child”;[17] and
c)in his affidavit filed on 10 June 2015, the father said (when referring to G) that: “I did not pursue time with the child as he was young and [Ms H] re-partnered. I had in more recent times had discussions with [Ms H] about seeing the child but I have not followed up with this. The child does not know that I am his father. I understand he regards [Ms H’s] partner as his father.”;[18] and
d)when he spoke with Mr D in March 2015, the father provided information (when referring to G) that resulted in Mr D outlining the following: “…The father does not know the name of the child he had with [Ms H]. He claims that [Ms H] has encouraged him to form a relationship with her but he declined because, “That baby doesn’t know me as a father.” He also explained that he has seen [Ms H] with black eyes and formed the view that she has a violent relationship with a recent partner. As a consequence of that he does not want to involve himself in the family.”[19]
[17] Father’s affidavit filed 12 November 2014, paragraph 3 (d).
[18] Father’s affidavit filed 10 June 2015, paragraph 3 (d).
[19] Exhibit 7, Family Report dated 21 March 2015 at [31].
Secondly, despite accepting that he contacted police on 13 October 2014 to ask that a welfare check be carried out on the child (who was then in his mother’s care), he denied telling police the following matters which are recorded in the relevant police document on which he is recorded as the ‘informant’:
a)the mother wanted to kill herself, him and the child by running into a tree; and
b)the mother could put a pillow over his (B’s) face because she does not like the boy crying.[20]
[20] Exhibit 1, page 49.
Thirdly, given the content quoted in paragraph 36(d) above and that the father did not correct this asserted error (despite specifically commenting on the contents of Mr D’s first Family Report in an affidavit he prepared himself[21]), I do not accept his oral evidence during cross-examination that, during the March 2015 interview, he told Mr D the names of his three other children.
[21] filed on 19 April 2016.
Even if I am wrong in concluding that the father is not a witness of truth, his evidence needs to be assessed in the context that, in August 2014, he suffered a head injury of sufficient severity as to result in him telling the Emergency Department at the C Town Hospital on 13 September 2014 that he was forgetful[22] and to tell a doctor at his local medical clinic that he had forgotten to pick the child up and had forgotten where his car was parked.[23]
[22] Exhibit 1, p.169.
[23] Exhibit 1, p.171.
The conclusion I have reached about the father’s lack of veracity and/or accuracy as a witness may well have permitted of a broad-brush disposition of the allegations of impropriety he makes against the mother. Again, however, I consider it in the child’s best interests that I outline the specifics of the allegations and my specific conclusions about them so that there is no doubt that they have been considered and determined and so as to ensure that they are not the subject of any later proceedings.
The father’s allegations
The father alleges that the child has been sexually abused by his mother. His allegations of her inappropriate behaviour, which involve a number of separate events, can be summarised as follows:
a)on 20 March 2015: while they were in the waiting room at the C Town Hospital, he saw the mother grab the child’s penis and the child grabbed her crotch in response; and
b)on 16 April 2015: the child grabbed his penis and said “mummy does this to me dick” and the child put his finger up his own bottom in the bath and said his mummy did that; and
c)in mid-July 2015: the child humped the floor and said “mummy does this to her girlfriend” and complained of his mother pulling his “dicky”; and
d)in mid-August 2015: he saw the child licking his [the father’s] breast, explaining that “mummy does that to her girlfriend”; and
e)on 20 September 2015: the child returned from his mother’s care with a “love bite” on his chin and neck; and
f)on 21 October 2015: whist in the bath, the child had a ‘hard penis’ which he was stroking – the child said “mummy does this to me, stroke me like this”; and
g)on 10 February 2016: during a telephone call which was facilitated on loud speaker, he heard the mother tell the child she loved his hair and his ‘bum bum’ and engaged in what he said was sexualised conversation with him.
The mother denies ever acting in a manner which might be considered sexually abusive of the child. I accept her denials. The mother says that the child has never displayed any sexualised behaviour in her care. I also accept that she has never seen the child behave in the manner described by the father.
As I have already noted, the father’s allegations that the mother has sexually abused the child are inconsistent with his comment to Mr D in August 2016 that, “if he is honest”, he has the view that the mother is likely a good mother.[24] They are also inconsistent with his evidence that, as recently as about 30 August 2016[25] - when the child asked him if his mother was coming back - the father told the child that he (the father) would have her back, but the mother did not want this. It is difficult to conceive of a circumstance in which a parent who genuinely thought the other parent had sexually abused their child would express the wish that they recommence cohabitation.
[24] Family Report dated 30 August 2016, [62].
[25] The day after the most recent interviews with Mr D.
Allegation that the mother grabbed the child’s penis in the waiting room at the C Town Hospital
The father says[26] that, at 4.45 pm on 20 March 2015, he telephoned the mother to tell her he and the child were at the hospital as the child had a temperature and was complaining of a sore stomach. He says they [he and the child] were sitting in the waiting room when the mother arrived. He says, having been called into a cubicle and waiting to be seen by medical staff, the mother “grabbed the child by the penis then the child sat up and grabbed Ms Tiem between her legs. (Crotch area)”. The father says he told the mother not to do that and she then asked the child who taught him to do that. He says he told the mother the child had done that because she had grabbed the child’s penis. After he returned home, he telephoned Ms E and told her what had happened at the hospital.
[26] Affidavit of the father filed 19 April 2016 at [6]
On 23 March 2015 (the following Monday), the father told the child’s day-care centre about what he says happened at the hospital. He also telephoned the child’s medical clinic and made an appointment to discuss what happened at the hospital.
The mother denies that she grabbed the child by the penis or that she had the conversation with the father that he asserts occurred. She also denies having the conversation with the child that the father alleges occurred at this time. She says the child has never behaved in this way with her.
I accept the mother’s evidence in this respect.
Allegation that the mother was somehow responsible for the child humping the floor
The father says[27] on 15 July 2015, when he and the child were visiting his friends the child was lying on the floor on his stomach and started humping the floor and licking his lips. When he asked the child what he was doing, the child replied, “mummy does this to her girlfriend like this”. He says the child also “mentioned” that the mother had been pulling his penis.
[27] Affidavit of the Father filed 19 April 2016 at [14]
The mother denies ever acting in a manner described by the father. Further, she says she has never had a sexual relationship with a woman and has not had a partner since she and the father separated.
I am not persuaded by any asserted inconsistencies in her evidence surrounding the approximately two week period when a female friend shared her residence and paid rent to her that I should conclude that the mother is other than a witness of truth and I accept her evidence in this respect.
Allegation that the mother exposed the child to adult sexual interaction
The father says that, on 19 August 2015, he was sitting on the couch without a shirt on: “all of a sudden the child jumped on to the couch and started licking my breast”. When he told the child to stop doing that and asked him why he was doing that, the child said: “mummy does that to her girlfriend”.
The mother denies behaving in the manner alleged. I accept her denials.
The bruise: the asserted “love bite”
It is accepted that, when the child returned to his father’s care on 20 September 2015, he had bruise-like marks on his chin and neck.[28] The father has described these as “love bites.” On his account, the child was upset and told him that the mother had kissed him hard and hurt him.
[28] Exhibit 2.

Whilst the father continued to press for findings about the mother’s behaviour toward the child on this occasion, he also told Mr D that he did not really attach a great deal of significance to this ‘love bite’ because the mother had never done ‘that’ before. Despite holding this view, he had taken the child to the doctor, the police, the Department of Child Safety and to various friends - specifically to show them this mark – in the days after the child returned to his care.
I do not accept that the term ‘love bite’ is an appropriate term to describe the bruising the child presented with on this occasion. That term has a clear connotation which I do not consider apposite. I do not accept that, in kissing the child on the chin – as the mother admits she did – the mother acted with any sort of sexual intention or for any sort of sexual gratification. Given these conclusions, the more appropriate term to describe what is captured in the photographs the father asked Ms E to take[29] (after he had already taken some on his iPad) is ‘bruises’.
[29] Exhibit 2.
Neither parent spoke to the other about these bruises. I accept that the father could not ask the mother what had happened because she left the changeover very quickly. I also accept that she did so because she was fearful of the father’s reaction. I suspect that this apprehension was likely increased by the presence of Ms E at the changeover.
Given my conclusions about the father’s veracity generally, I have serious doubts about his evidence that, when the child got into his car, he said “I don’t want to go back to mummy anymore because she hurts me.” However, even if he did make such a comment, I am not persuaded that it is reflective of an overall attitude to his mother: one needs only to have regard to Mr D’s recounting of the child’s interaction with her during the most recent Family Report interviews to reach such a conclusion.
I accept the mother’s evidence about how the child came to have the bruise on his chin: that is, I accept that she kissed him there in something of a gnawing manner and that she did not initially appreciate that she had bruised him. I also accept that, at the time, the child did not indicate that she was hurting him. I accept that, when she saw the mark she had caused, she apologised to the child.
I accept that the mother did not mean to hurt the child or to make a mark on his skin. Given the reaction to this event, I am confident she will not act like this again.
The mother has been consistent in saying that she did not cause the bruise to the child’s neck and that he suffered this during play. I accept her evidence in this respect and note also that the child did not mention the bruise to his neck when he spoke with Mr D most recently.
The allegation that the mother touched the child’s penis
The father asserts[30] that, on 16 April 2015, he and the child were at his friends’ house for dinner. They were sitting in the lounge room. He and the child were rolling a ball on the floor and “all of a sudden the child grabbed his penis and said ‘mummy does this to me dick’” while pulling at himself and saying “mummy do that”. The father asked him “where” and the child allegedly replied “at home and over north”. When the adults present explained to him that it was naughty and his mother should not do that, the child replied, “No, that’s naughty I tell mummy that’s naughty”.
[30] Affidavit of the father filed 19 April 2016 at [8]
He also says that, on 21 October 2015, he went in to check on the child while he was in the bath and saw the child “stroking his penis” and observed that “it was hard”. When he told the child not to do that, the child replied, “Daddy, mummy does this to me stroke me like this.”
The mother denies ever acting in the manner alleged by the father.[31] She also denied to Mr D that she had touched the child’s penis. I accept her denials. I accept her evidence that the father’s accusations have left her scared to the point where she does not assist the child to shower.
[31] Affidavit of the mother filed 10 June 2016 at [105(c)]
I also note that, having investigated this allegation, the Department has concluded that it is unsubstantiated and that, when Mr D explored the issue of where the mother had touched, or was touching, the child’s body – after the child spontaneously raised this topic with him – the child only made reference to his chin and did not mention either his neck or his penis.[32]
[32]Affidavit of Mr D filed 5 September 2016, Family Report dated 30 August 2016 at [72] & [73].
Allegation that the mother put her finger up the child’s bottom
The father says that, on the night of 16 April 2015, while in the bath, the child had stood up and, with his finger in his bottom, said “look daddy bum bum look bum bum”. When the father asked him why he was doing that, he said “mummy do that”.
I accept the mother’s denials of ever behaving in the manner alleged by the father.
Allegation that the mother engaged in sexualised conversation with the child
The father says that, on 10 February 2016, the mother telephoned to speak to the child while they were driving home. While speaking to his mother, the child put the telephone on speakerphone. The father says he heard the mother say “I love your hair, I love your bum bum.” He says the child then replied: “I love your bum bum, I love your wee wee, I love your boobies” and hung up the phone.
The mother denies that that conversation happened in the manner described by the father. She says she told the child that she had had her hair done; she asked him if he loved her hair and he replied: “yes I love your hair”. She says she did not say she loved his bottom and the child did not say anything about “wee wee” or “boobies”. I prefer the mother’s account of the conversation which occurred on this occasion to the account given by the father.
Conclusions about the father’s allegations that the mother sexually abused the child or that he is at risk of harm in her care
Despite raising the issues discussed above, the father’s proposal (as already noted) is that the child continue to spend unsupervised time with his mother each alternate weekend and for times during the school holiday periods. That such proposal is made can only logically indicate that, whatever the mother’s behaviours toward the child, either the father does not regard the child as being at an unacceptable risk of harm in her care or he is not particularly protective of his son.
On balance, I incline to the former explanation rather than the latter. Such conclusion is more consistent with the father’s more recent comments to Mr D about the mother’s parenting. It is also much more consistent with the father’s proposal that, if he is required to have surgery later in the year, it is appropriate for the child’s mother to care for the child during any period of convalescence and further during any period he (the father) may travel to South East Asia for a holiday early in 2017.[33]
[33]Affidavit of Mr D filed 5 September 2016, Family Report dated 30 August 2016 at [18].
In any event, for the reasons I have already expressed in terms of the difficulties with the father’s veracity and my preference for the mother’s account to his, I am easily persuaded the child is not at risk of sexual abuse if he continues to spend unsupervised time with his mother.
Is there a risk of physical harm?
The father has also alleged that the child is at risk of suffering physical harm in the mother’s care because he has previously been restrained with a belt by the father of his friend, J.
The father says that, on 10 April 2016, after the child had returned to his care after spending the weekend with his mother, the child told him that “[J’s] dad put a belt around his wrist and pulled it tight and also tied it around his legs and pulled it tight”. The child said he was crying. When the father asked the child if the mother was in the room, he replied: “No”. The father then took the child to the police station at about 4.30 pm. They were not seen by an officer of the Child Protection Unit until 7.30 pm.
The mother says she took the child to his friend J’s house. The child and J were playing. The child became upset because he did not like the game they were playing. When she asked J’s father, Mr I, what had happened he laughed and told her the boys were playing a game with a ribbon which involved them seeing how fast they could unwrap it from around their wrists. She suggested to Mr I they should play a different game. She says it was a ribbon and not a belt which was used by the children in this game.
The mother accepts that, when she spoke with police about this incident, she used the word “gladwrap” because she did not know the English word for ribbon; she did not have the assistance of an interpreter at the time and had struggled to select the right word. I accept her account.
I am not persuaded that the child was harmed during this play event with his friend, J. I accept the mother’s evidence generally to the effect that she has never hit the child nor physically punished him. I accept that, on occasions, she has warned him that, if he is naughty, she will smack his “bum bum”.
I am not persuaded by the evidence given by Ms E of what she saw on two changeovers (of the very many she has attended since late November 2014) that the child is at an unacceptable risk of suffering physical harm whilst in his mother’s care. I am also not persuaded that, even if I accepted the evidence given by Mr F about the mother smacking the child on the back of the head when he was a baby (an event denied by the mother) the child is now at any risk of suffering physical harm when in his mother’s care. In fact, his father cannot have thought he was at risk when he was a baby because he did not take any action to separate from the mother after the incident Mr F spoke of.
I am not persuaded that the child will be at an unacceptable risk of suffering physical harm during his time with his mother. Again, the father cannot think so either given the orders he proposes.
B: his views and his relationship with each of his parents[34]
[34] ss 60CC(3)(a) and (b) of the Act.
B is in Prep at a local state school. Both parents agree he is a physically healthy, active child.
Mr D reports that, during his August 2016 interview of the child, the child “very soon” made the “unsolicited comment” that he lives with his father and not his mother because she was touching his body. When Mr D asked him if anybody had reminded him about what he should say during the interview, the child said that his father had reminded him about what to say.[35]
[35] Family Report dated 30 August 2016, [72].
The father gave evidence, in an affidavit filed by leave on the first morning of the trial, to attempt to deal with Mr D’s recounting of this aspect of the child’s interaction with him that day. His evidence sought to move any responsibility for the child’s comments to the mother: that is, he asserted that, before the child spoke with Mr D, he (the father) took him away from the interview rooms to go to the toilet and, during that time, the child told him that the mother had told him (B) he had to tell Mr D that his father said that she touched him on the “wee wee”. Additionally, the father says that, after the child had been interviewed and they were travelling home, the child told him that he had told ‘the man’ what the mother told him to say and, when he asked him what he was talking about, the child told him that he told Mr D “what mummy told me to say you said about mummy touching me on the wee wee”.
The mother denies that there would have been any reason for the father to take the child away to the toilet as she had attended to this when Mr D was interviewing the father.
I think it highly unlikely that, at his age, the child – whom both parents described to Mr D as being academically challenged (the father saying that he was not doing particularly well at school and was academically behind and the mother saying that she had been told by his teacher that he was ‘a bit slow’) – would have been capable of the thinking which underpins the father’s accounts.
Even if this conclusion is wrong, it is relevant to note that, when Mr D asked the child to explain how his mother had touched him on his body, the child referred to her kissing him on the chin and made no reference to his neck or penis. This being the case, even on the father’s recounting, the child told him (shortly after the interview with Mr D) something which did not in fact happen during the interview: namely, that he told Mr D the mother touched him on the ‘wee wee’.
Therefore, whilst I am inclined to think that the evidence the father gave about the child’s asserted comments to him on the day of the most recent interview with Mr D is yet another example of his lack of veracity, even if I am wrong in such inclination, his evidence suggests that little weight could be placed on any comments the child in fact made to him (or in his presence) about such an issue at any time.
I accept Mr D’s recounting of the things the child told him during his late August 2106 interview: that is, that he had more fun at his mother’s home than at his father’s; his father did not play with him and that his mother is the person who gives the best hugs and who is the best cook. I also accept that he told Mr D that, whilst his father sometimes was angry with him and smacked him on the backside, his mother did not get angry with him and never hit him. He also said that, whilst he occasionally got scared at night, this was because of the scary movies he watched whilst in his father’s care.
The child clearly articulated his view that his parents are not friends. He told Mr D that sometimes his father became angry with his mother.
Mr D reports his observation that, when both parents were in the waiting room, the child tended to gravitate towards his mother.
Whilst the child clearly articulated to Mr D that he would like to spend more time with his mother than he currently does, his age is such that, for the reasons expressed by Mr D[36] (whose opinions in this regard I accept), it is inappropriate to accord significant weight to such expressions of wish.
[36] Family Report dated 30 August 2016, [84].
The father: the relevant s 60CC considerations[37]
[37] ss 60CC(3)(c), (f), (g) and (i) of the Act.
The father is not currently in paid employment. It appears he is engaged in attempts to successfully prosecute a WorkCover claim. As a consequence of residual lower back pain, he takes OxyContin twice daily. He has done so regularly since about 2003. There is no expert evidence before me about the impacts (if any) of such long-term use of this prescribed medication.
It seems that, in mid-2007, the father was convicted of two counts of possessing dangerous drugs and one count of possessing property in connection with the commission of a drug offence. He says no conviction was recorded.
When the father first spoke with Mr D in March 2015, he revealed that he has three children by three previous relationships. The information he provided to Mr D indicated that one of these children was then about five years of age. Additionally, the father told Mr D that, although paternity of that child was confirmed via DNA testing, he had taken no steps to establish a relationship with the child because “she” was young and her mother had re-partnered. However, when the father spoke with Mr D in August 2016, he told him (Mr D) that this child was, in fact, a male named G and that he is eight years of age. Whilst he was unable to nominate G’s date of birth, the father claimed to Mr D that he had been regularly spending time with G for the past three years and that this time occurred during weekends when the child is in his care.
It appears from the content of the conversation between Mr D and the father in August 2016 that the father is contemplating forming a relationship with another South East Asian woman – the sister of a friend of his - with whom he has been communicating via Facebook. However, when asked her name, he said he was unable to pronounce it; when asked how old she is, he said that she is “nearly 30”. It appears he intends to visit South East Asia over the summer holiday period with the intention of becoming acquainted with her: from his perspective, if they like each other, they might marry and she may eventually move to live with him in C Town. During cross-examination, the father denied telling Mr D this. He said he in fact told Mr D that he had no intentions of re-marrying. I do not accept the father’s evidence in this respect and I prefer and accept Mr D’s evidence about this issue.
Mr D noted that, during the August 2016 joint interview with the parents, the father was “relatively unrestrained” in recounting matters which implied criticism of the child’s mother.[38] These appeared to be consistent with comments he had made during the earlier interview. The father’s evidence is that he does not think he said anything critical of the mother to Mr D during this most recent interview.
[38] Family Report dated 30 August 2016, [47].
Whilst the mother alleged that, during the relationship, the child’s father supplied marijuana to other farm workers (a matter he refutes), she conceded to Mr D in August 2016 that she has no current information about whether the father has any ongoing involvement with marijuana.
The father’s approach to, and attitude toward, the mother appears to me to be inconsistent: on one hand he is critical of her, yet tells Mr D that, if he is “being honest”, she is likely a good mother.
I accept Mr D’s concerns that the father’s attitude toward the mother is such that there is a question-mark over his capacity to promote the child’s relationship with her into the future.
B’s comments to Mr D about his father being angry at or toward his mother are, in one sense, corroborated by the contents of the Magellan Report prepared by the Department (as at 29 March 2016). This document notes that the father has been noted to be angry and aggressive on occasions when he has presented the child to the local hospital.
The mother says that, since the start of 2016, the father has only allowed the child to spend time with her each alternate weekend – that is what the operative Order provides for. She also says he takes advantage of her limitations with the English language by telling her that she is not allowed to speak with the child during the week because the Court Order does not allow it. Her evidence was not really the subject of challenge in this respect and I accept it.
The mother also says that, when she speaks with the child on Monday and Wednesday each week, she knows she is on speaker phone because she can hear the father in the background - on occasions he makes comments. Whilst it seemed that the father accepted that the child’s conversations with his mother may well occur with the speaker-phone option on, he says that this is because the child puts the phone on speaker phone. Whilst I am not persuaded that anything really turns on the manner in which the father has managed the child’s telephone communications with his mother, I consider it preferable that both parents give him some privacy during his communications with each of them.
The mother also says that as soon as it is 6.00 pm the line disconnects – that is, the father brings the call she is having with the child to an end (because that is what the Order says is the end time). Whilst I accept that this may well have happened on occasion, I consider the father’s actions in bringing such calls to an end to have more likely occurred as a consequence of his strict adherence to the terms of the Order.
The mother also says that, at the beginning of March this year, she bought invitations for the child to use to invite his classmates to his birthday party. She gave the invitations to the father (because he is the parent who drops the child to school) and asked him if he could write the names of the child’s friends on the invitations and give them out before the party. She says that, on 26 March 2016, she prepared food for a barbecue and set up decorations with the child at the park but none of his school friends attended. She is concerned the father did not hand out the invitations: she says she did not ask the father whether he gave the invitations out because she did not want to become more upset as she felt very sad and disappointed for the child who had been looking forward to his party and he was sad and/or upset because his friends did not attend. The father says he did hand out the invitations and that one of the child’s friends attended and other friends of the mother attended.

Neither the mother nor the father were cross-examined about this event. Whatever occurred, the fact that there is a dispute about who did what in order to facilitate a celebration for the child’s birthday further strengthens the conclusion I have reached about the manner in which it is in the child’s best interests for parental responsibility to be allocated between his parents.
In my view, that the father relied upon Ms E’s recounting of a changeover on 11 March 2016 – when the mother chose simply to collect the child and not wait for him to receive a balloon from a lady making them and handing them out to children in the play area – says more about his attitude toward the mother than it does about her parenting of the child. Given the close relationship between the father and Ms E, it seems to me to be much more likely than not that the child will continue to be exposed to this petty criticism of his mother’s parenting choices during his time with his father and his associated interactions with Ms E. That this event was thought significant enough to necessitate an entry in Ms E’s diary clearly demonstrates the extent to which the mother’s parenting decisions are the subject of scrutiny – and, at the very least, implied criticism - by the father and those who support him.
The mother: the relevant s 60CC considerations[39]
[39] ss 60CC(3)(c), (f), (g) and (i) of the Act.
B’s mother is now a permanent resident of Australia. She does not intend to return to live in South East Asia. She generally works four days per week (for a total of 35 hours each week). She earns between about $450.00 and $500.00 per week (gross). She says that, if the child lives primarily with her, she can adjust her work hours so that they are generally confined to school hours or she will make use of the after-school care service. She has her own car and is licenced to drive it.
In her most recent discussions with Mr D, she expressed her opinion that her English continued to improve. Whilst she is teaching the child her language, they often converse in English.
Whilst the parties differ in their accounts of the cause of the mother’s past employment (with the mother asserting the father told her she had to go to work because he could not pay the rent and the father asserting that she preferred to work rather than care for the child), this difference seems to me to matter little because both parties agreed that the child attend day-care for four days per week from when he was about 12 months of age and it is clear that both parties continue to seek the opportunity to have and develop an ongoing, meaningful relationship with their son.
When asked by Mr D to express her view of the father as a father, the mother said that, while she had some concerns about his capacity to teach the child appropriate attitudes, values and behaviours, he was likely an adequate parent.
I accept that time with the mother will permit the child the opportunity to be exposed to the cultural aspect of his heritage. Already he and his mother converse in her language. I accept that the mother is the parent best placed to assist the child to develop his language skills and an understanding of his culture. I also accept that, in so far as this aspect of his development is concerned, she is uniquely placed to contribute to his developing self-concept and identity formation.
Likely effects on the child of any changes in his circumstances[40]
[40] ss 60CC(3)(d) of the Act.
I consider that the quality of the child’s relationship with his mother is such that it is highly unlikely he will suffer any emotional harm or any other detriment if he lives predominantly with her. Given Mr D’s most recent assessment of him - via his comments about the parent from whom he obtains most emotional support and nurturing at present - it seems to me that he is highly likely to benefit from the opportunity to spend more time with his mother.
Further, as long as he is afforded the opportunity to spend time with his father each week, I am confident the child will be able to maintain and develop his relationship with him in a meaningful way. He will also have the opportunity to continue to develop whatever relationship he has with his father’s son, G.
Family violence and family violence orders[41]
[41] ss 60CC(3)(j) and (k) of the Act.
Each party has a Protection Order against the other. Each Order was made by consent without admissions. Each will expire in about December this year. There is no suggestion that either party has breached the terms of the exiting Orders. In fact, the mother’s evidence is that, since the Protection Order was made in late October 2014, the father has not committed domestic violence against her.
Each party accused the other of physically violent behaviour during their relationship. Each party refutes the other’s accusations about their interactions. The father’s claims include that the mother once threatened him with a knife. The mother denies this. On balance, I accept her denials.
The mother says that during their relationship the father abused her physically and verbally and has spoken badly about her to his friends and others. She says that, when she told the father that if he did not stop hurting her she would report him to police, he told her that if she did so he would have her sent back to South East Asia and she would not be able to see the child. Whilst the father denies making such a comment, I suspect it may well have been said during the course of arguments between the parties.
Whilst the father has alleged that the mother has been aggressive and abusive toward him at changeovers since separation, Ms E (who has attended most of the weekly changeovers since November 2014 and the fortnightly changeovers since January 2016) describes the mother as keeping her head down and not responding to the father’s attempts to communicate. She also, however, described one occasion where she heard the mother yelling at the father about something to do with a car seat. On Ms E’s evidence, therefore, of all of the changeovers she has attended, there seems to have been a very, very limited number of occasions on which the mother behaved in anything like the aggressive and/or abusive manner alleged by the father.
On balance, I have concluded that changeovers seem more likely to have been attended by an absence of communication rather than abusive and/or aggressive interactions.
Parental communication
Mr D interviewed the parties on 18 March 2015 and 29 August 2016. Based on his interaction with them, he expressed the opinion – which I accept – that the child’s parents do not enjoy a “particularly communicative, cooperative or collaborative parenting alliance”.[42]
[42] Family Report dated 30 August 2016, [21].
On the mother’s account, there is little routine communication between them other than at changeovers. From her perspective at least, the father denigrates her and uses a loud, unpleasant voice when speaking to her during changeovers.
I accept Mr D’s description[43] of his observations of the parents’ interaction with each other during their joint interview in August 2016. Based on that, I accept that, despite having separated for almost two years, the child’s parents have been unable to establish a productive parenting alliance and appear to be “distinctly uncomfortable” with each other.
[43] Family Report dated 30 August 2016, [ 47], [64].
In addition to this, the mother’s evidence is that the father does not know where she lives because of the current domestic violence order and because she is scared to disclose her address as she already had his friends attend at her work; she is concerned the father will make things up about her.
Further, during his discussion with Mr D in August 2016, the father suggested that the mother had deliberately caused the bruise on the child’s chin to enable her to accuse him of hitting the child: he hypothesised that she may have thought that such a complaint would increase her prospects of successfully achieving residency status in this country.

Allocation of Parental Responsibility

I consider that the presumption contained in s 61DA of the Act does not apply in this case. Thus, the power to make parenting orders pursuant to s 65D of the Act is ‘at large’, subject always to the child’s best interests being the paramount consideration in the determination of those orders thought proper in all the circumstances of the case.
If the Court makes an order that the parties are to share parental responsibility for the child and the exercise of that parental responsibility involves making a decision about major long-term issues in relation to him, such order requires the decision to be made jointly by the parties.
Despite expressing ‘little confidence’ that these parents will be able to discharge the responsibilities associated with an order allocating equal shared parental responsibility to them, Mr D supported the making of such an order on the basis of the symbolism associated with it.
Whilst the mother initially adopted this recommendation, she and the father both finally submitted that an order for sole parental responsibility (with an associated obligation to seek input from the other parent and consider it during the decision-making process) was the order which is in the child’s best interests.
I hold significant concerns about making an order requiring these two people to make decisions jointly about major long term issues relating to the child: after all, the father simply enrolled the child at the school he currently attends and then told the mother he had done so (as opposed to discussing that with her). By his actions, the father has already demonstrated his willingness to make unilateral decisions about a major long term issue relating to the child.
I also consider that any requirement for the child’s parents to reach decisions about major long term issues relating to the child jointly is fraught with the very real risk of an impasse – which could not be thought to be beneficial for the child or in any way in his best interests.
Given these concerns, the state of the parents’ interactions, their lack of communication, their shared attitude to the manner in which parental responsibility should be allocated between them and Mr D’s acceptance that an order in the terms ultimately advanced on behalf of both parents (that is, one which would impose the obligation to seek input and consider the same in making the ultimate decision) would also address those matters upon which he relied in forming his opinion, I have concluded that it is not in the child’s best interests for his parents to have equal shared parental responsibility for major long term decisions about him.
Rather, I have concluded that the child’s best interests will be met by an order which accords sole parental responsibility for major long term issues to the parent with whom he primarily lives but requires that parent to consult, receive and consider any input from the other parent. In that way, both of the child’s parents will be able to be involved in the decision-making process, but only one will be empowered to make the final decision.

The terms of the orders to be made in the child’s best interests

I accept Mr D’s assessment that there is no significant evidence before the Court that either parent has misused intoxicating substances or has serious mental health problems or has engaged in criminal activity.
I also accept his assessment of the parents’ capacity to interact with each other. I conclude that, whilst (at one stage) the mother proposed an equal time parenting arrangement, these parents lack the capacity to communicate, co-operate or collaborate sufficiently and/or in a manner so as to ensure that such a parenting arrangement successfully meets the child’s developmental needs - both now and into the future. Such conclusion is strengthened by the father’s opposition to such an order.
I also accept Mr D’s assessment that it is more likely than not that they will parallel parent the child: that is, rather than talking and sharing information and thoughts and reaching shared conclusions and implementing shared strategies to deal with matters associated with the child’s parenting, their inability to communicate, lack of trust and absence of interest in each other’s views about the child’s parenting means that, essentially, they ‘do their own thing’ in parenting him whilst he is in their respective care. For the child, this means that he is required to accommodate different rules and expectations as he moves between the homes of each of his parents.
I accept Mr D’s evidence that children generally can accommodate this as they become older. I also accept, however, that whilst children can – and are expected to – accommodate different rules in different aspects of their lives, they generally do better in circumstances where they are not required to deal with these differences in their home life. I accept the thrust of Mr D’s evidence to the effect that where, as here, a child is parallel parented by that child’s parents, it is more beneficial (in the sense that it will assist the child to have a greater sense of integration in aspects of their day to day life) for the child to live predominantly with one parent and spend time with the other parent.
I am, therefore, persuaded that the child’s best interests will be met by orders which will see him live predominantly with one of his parents and spend regular and frequent time with the other.
I am not persuaded that the mother’s engagement in paid employment supports the conclusion that the child’s best interests will be met by him living predominantly with his father, who is not currently in paid employment. After all, he attended long day-care for four days per week from when he was 12 months of age to accommodate his parents’ work commitments. More relevantly, it seems his father intends to return to the paid workforce once his health permits him to do so.
I have concluded from Mr D’s assessment that, at this time, the child appears to find his mother the more nurturing of his parents. I also accept that, of the parents, the mother appears less critical of the father as a person and as a parent than the father does of the mother. I accept Mr D’s assessment that the father appears “strongly” focused on criticising the child’s mother and on promoting himself as the superior parent. Having had the opportunity to observe the father during cross-examination, his apparent rigidity of thinking around this general topic suggests that such attitude is highly unlikely to change over time.
Given the father’s attitude toward the mother, I accept that there is a risk to the child’s ongoing relationship with his mother if he continues to live predominantly with his father. Whilst I am not persuaded that the risk is of such magnitude as to persuade of a conclusion that their relationship would likely be nullified if the child continues to live mostly with his father, it does persuade me that it will not be the most it can be: that is, I consider that the child’s chances of maximising his relationship with his mother and obtaining the corresponding maximal benefit from this nurturing relationship are likely to be significantly increased if he lives predominantly with her.
I consider that the determinative feature here is that, at present, the mother is the parent best able to meet the child’s emotional needs. I accept that he is seeking more time with her. I also accept and conclude that the father is the parent who is least likely to be able to support the child in maintaining a meaningful relationship with the parent with whom he is not primarily living. He is also the parent who, in my view, is most likely to continue to expose the child to medical attendances and investigations.
For these reason then, I have concluded that it is in the child’s best interests that he live predominantly with his mother and spend frequent and regular time with his father.
I consider that the determinative factors in deciding whether such time should occur in the manner proposed by the Independent Children’s Lawyer (being from Thursday until Monday in one week and overnight on Wednesday in the next week) or the mother (being from Friday until Monday in one week and overnight on Thursday in the next week) are: the likely impost on the child of having to deal with the rules and strictures in each of his parents households and, given the tenor of Mr D’s evidence, the importance of providing him with a primary place of residence or base. I also take into account the likelihood that his mother may well be required to work on Thursday evenings.
Given these matters, I have concluded that the child’s best interests will be better met by making orders which see him spend time with his father in the manner proposed by the Independent Children’s Lawyer (albeit with some modification) rather than those proposed by his mother.
The balance of the orders which I have concluded are in the child’s best interests are as particularised in the Orders set out at the commencement of these Reasons. These will accord him the opportunity to spend time with both of his parents during holidays and on special occasions and will ensure, as far as possible, he is protected from the harm which may be caused by exposure to derogatory comments about either of them.

I certify that the preceding one hundred and forty-two (142) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Hogan delivered on 12 September 2016.

Associate:

Date: 12 September 2016

[2016] FamCA 769

12 September 2016

Key Legal Topics

Areas of Law

Family Law