Enys & Glasson
[2022] FedCFamC1F 144
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Enys & Glasson [2022] FedCFamC1F 144
File number(s): NCC 3145 of 2019 Judgment of: CLEARY J Date of judgment: 16 March 2022 Catchwords: FAMILY LAW – PARENTING – PARENTAL RESPONSIBILITY – With whom the child shall live – With whom the child shall spend time – Where the mother alleges family violence perpetrated by the father – Where the mother had alleged the father may have sexually assaulted the child – Where the father denied the allegations of family violence – Where the father denied the allegations of sexual assault - Where the mother stepped back from any allegation of sexual abuse – Where communication between the parties is limited – Where each parent has capacity to meet the needs of the child – Where neither of the proposals of each of the parents would be in the best interests of the child – Where interim parenting orders were made by consent for increased time for the father with the child, unsupervised, to cover a period of adjournment of trial – Where further interim orders were made at the conclusion of trial providing for a progression of time to cover the period until delivery of judgment - Ordered equal shared parental responsibility for long term decisions regarding the health of the child, otherwise sole parental responsibility to the mother for all other long term decisions with the obligation to keep the father advised – Ordered the child to live with the mother and spend progressive time with the father. Legislation: Evidence Act 1995 (Cth), s 138)
Family Law Act 1975 (Cth), ss 60CC, 69ZT
Surveillance Devices Act 2007 (NSW), ss 7, 7(3)(b))
Division: Division 1 First Instance Number of paragraphs: 145 Date of hearing: 7–10 December 2021; 28 January 2022 Place: Newcastle Counsel for the Applicant: Mr Guyder Solicitor for the Applicant: Brendan Ellis Solicitor Counsel for the Respondent: Mr Levick Solicitor for the Respondent: Mason Lawyers Counsel for the Independent Children's Lawyer: Mr Hill Solicitor for the Independent Children's Lawyer: Legal Aid NSW Newcastle Family Law ORDERS
NCC 3145 of 2019 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MS ENYS
ApplicantAND: MR GLASSON
RespondentINDEPENDENT CHILDREN'S LAWYER
ORDER MADE BY:
CLEARY J
DATE OF ORDER:
16 MARCH 2022
THE COURT ORDERS THAT:
1.That all prior parenting orders in relation to X born 2017 (“the child”) are discharged.
Parental responsibility
2.That subject to orders 3-5 inclusive, the parents shall have equal shared parental responsibility for long term decisions regarding the health of the child including any assessment, specialist medical treatment and any therapeutic interventions.
3.In the event that either parent decides to have X assessed with regard to Autism Spectrum Disorder that parent shall:
(a)Advise the other parent of the proposed assessment and the agency proposed to conduct the assessment;
(b)Advise the nominated agency of the contact details that parent has for the other parent;
(c)Request the nominated agency to include the other parent in the assessment and to keep that parent advised of outcomes.
4.In the event that either parent decides to have a full speech pathology assessment for X that parent shall:
(a)Advise the other parent of the decision to have an assessment;
(b)Obtain a referral for the assessment;
(c)Advise the other parent of the name of the speech pathologist or clinic proposed;
(d)Advise the speech pathologist of the contact details for the other parent;
(e)Request the speech pathologist to seek relevant information directly from the other parent.
5.In the event that either parent decides that the child requires counselling or therapeutic intervention of any kind that parent shall:
(a)Advise the other parent of the proposed counselling/therapy and the reasons for it prior to commencement;
(b)Advise the other parent of the name and contact details of the proposed counsellor/psychologist/therapist (“service provider”);
(c)Advise the service provider of the name and contact details of the other parent;
(d)Request the service provider to engage directly with the other parent and invite that parent to participate if he or she wishes.
6.The mother shall advise the father, in writing, of the school in which she proposes the child will be enrolled in the year prior to the child starting school.
7.The mother shall include the name and contact details of the father in the application for enrolment of X at that school.
8.The mother shall enrol the child and is thereafter restrained (with the exception of progression to high school) from changing the enrolment at school of the child other than with the prior written consent of the father.
9.The mother shall otherwise have parental responsibility for long term decisions as they arise and shall keep the father advised of decisions taken.
10.Each of the parents shall have parental responsibility for the day to day decisions concerning the child when he is living or spending time with that parent.
Residence
11.The child shall live with the mother.
Time and Communication
12.That the child shall spend time with the father in 2022 as follows:
(a)Each Tuesday from 9.00 am to 4.00 pm commencing Tuesday 22 March 2022;
(b)Saturday 19 March 2022 from 9.00 am to 5.00 pm and on Sunday 20 March 2022 from 9.00 am to 5.00 pm;
(c)Each alternate weekend from 9.00 am Saturday to 5.00 pm Sunday commencing Saturday 2 April 2022 and each alternate weekend thereafter (with Easter weekend commencing 9.00 am Saturday 16 April 2022 and concluding 5.00 pm Monday 18 April 2022);
(d)On Father’s Day 2022, if the child would otherwise be with the mother, from 5.00 pm on the evening prior until 5.00 pm Father’s Day;
(e)From 12.00 pm Christmas Eve until 12.00 pm Christmas Day 2022.
13.In the event that the child is with the father on the weekend of Mother’s Day 2022, time is suspended from 5.00 pm Saturday for the balance of the weekend period.
14.Thereafter, commencing in 2023 (whether or not the child starts school in that year) the child shall spend time with the father as follows:
14.1In school terms:
14.1.1Each alternate weekend from after school Friday until before school Tuesday commencing and recommencing on the first weekend at the beginning of each school term;
14.1.2In each other week from after school Monday to before school Tuesday;
14.1.3For one half of every school holiday period, commencing in the holiday after Term One 2023, being the first half in odd numbered years and the second half in even numbered years.
15.On special occasions the child shall spend time as follows:
(a)From after school the Friday prior to Mother’s Day until before school the Monday following Mother’s Day, with the mother;
(b)From after school the Friday prior to Father’s Day until before school the Monday following Father’s Day, with the father.
Changeovers
16.Changeover shall take place at preschool or school or in the event of a non-school day at McDonalds Suburb C with each parent or their nominee (being a person known to the child and to the other parent) to effect the changeover.
Restraints
17.The parties shall be restrained from:
(a)Discussing these proceedings and/or any final orders made with the child;
(b)Denigrating the other party or any member of the other party's family or household in the presence or hearing of the child and, as far as possible, from allowing any other person to denigrate the other party or any member of the other party's family or household in the presence or hearing of the child;
(c)Questioning or seeking information from the child in respect of the care arrangements made for him in either household or otherwise discussing with the child or in his presence care arrangements made, or to be made, for him by either parent other than for the purpose of informing him of what arrangements have been made.
18.The mother shall be restrained from referring to the child by any other surname than ‘Glasson’ either verbally or in any written documents including any school enrolments or ‘preferred name’ options of any kind.
Specific Issues
19.Each party shall keep the other informed at all times as to medical, dental or other treatments being undertaken by the child including the name and telephone number of the treating medical practitioner.
20.Each party shall advise the other as soon as possible or within 24 hours in the event the child becomes seriously ill, is hospitalised or is involved in a serious accident.
Family Violence Order invalid
21.Pursuant to Section 68Q of the Family Law Act 1975 (Cth) it is declared, that to the extent these orders are inconsistent with a provisional ADVO dated 21 February 2021 made by a Local Court of NSW, the ADVO is invalid.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Enys & Glasson has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
CLEARY J:
INTRODUCTION
These are competing applications for parenting orders by the parents of one child, a boy X, just turned four years at date of trial.
In April 2015 the parties started a relationship and began living together three months later. They were both aged thirty. They each had children from prior relationships, all three of whom lived in the household with the parties at different stages.
In 2017 X, the only child of the relationship, was born.
When the child was approximately 18 months old, in mid-2019, the parties separated and did not reconcile. The mother, and her daughter, left the home with the child.
Less than three months after separation the mother filed an application proposing that the child live with her and have no time and communication with the father.
This formal position remained unchanged for more than two years until the conclusion of the evidence in this trial.
At that point, the position of the mother changed. The mother came to the conclusion that the father should spend time and communicate with the child.
THE PARTIES
The parties live approximately 34 kilometres apart, a forty minute car trip.
The Applicant Mother
The mother is aged 36 years and is a homemaker by occupation. She lives in Suburb E, a suburb in the northern area of City F. Her household consists of herself, her fourteen year old daughter from a prior relationship, W, and the subject child X.
The Respondent Father
The father is aged 36 years. He is self-employed, the director of companies related to the transport industry. He lives in Suburb D, a suburb in the southern area of City F. His household consists of himself; the two children of his prior relationship, V aged 16 and Y aged 13, together with his partner of about ten months Ms G (41) and her two children, Q aged 15 and R aged 10 years.
THE TRIAL
The trial had been allocated for four days commencing 7 December 2021 but was unable to be completed in that time. The trial was adjourned for one further day.
Interim parenting orders for an increase of time for the father with the child, unsupervised, were made by consent of all parties, to cover the two month period of adjournment. The orders were an acknowledgment by the mother that her concerns had abated.
On 28 January 2022 the trial was concluded with judgment reserved.
Further interim orders were determined by the Court providing for a progression of time to cover the period until delivery of judgment.
THE PROPOSALS
The Applicant Mother
Within three months of separation the mother filed her Initiating Application[1] in which she proposed that she have sole parental responsibility for the subject child, that he live with her and spend no time and have no communication with the father.
[1] Filed 2/10/2019.
Prior to submissions the mother put forward an Amended Minute of Interim and Final Orders,[2] guided by recommendations in the Family Report[3] proposing a schedule of time for the father with the child commencing with blocks of hours and progressing to alternate weekends and half school holidays.
[2] Exhibit 29.
[3] Family Report dated 14/12/2020, para 445.
The Respondent Father
Initially in response to the mother, the father had proposed equal shared parental responsibility and week about shared care.[4]
[4] Response to Initiating Application filed 18/11/2019.
By his Further Amended Response[5] the father proposed that he have sole parental responsibility, and that the child move to live with him. Time with the mother would be supervised at a contact centre for six months, followed by unsupervised time graduating to alternate weekends and half school holidays by the time the child started school in 2024.
[5] Further Amended Response to Initiating Application filed 17/11/2021.
Prior to submissions the father put forward a Minute of Order[6] which proposed a Court based handover of the child followed by 14 days with the father and thereafter a graduated period of time progressing by commencement of school in 2024 to substantial time with the mother including five nights per fortnight and half school holidays.
[6] Exhibit 23.
In default, he proposed if the Court concluded that the child should remain living with the mother, there was a progression of time with the father culminating in equal time, week about, from the commencement of the 2024 school year.
The Independent Children’s Lawyer
Prior to submissions, the Independent Children’s Lawyer (“ICL”) put forward a Minute of Order[7] which proposed sole parental responsibility and residence for the mother, time and communication with the father to start with weekends and one night midweek, progressing to five nights per fortnight when the child was school age.
BACKGROUND AND HISTORY
[7] Exhibit 27.
When the relationship began in mid-2015
The mother and her then seven year old daughter W had been living with the mother’s parents since that child’s birth in 2007. W has not had any relationship with her biological father.
When the mother decided to move in to live with the father, W remained living with the maternal grandparents.
Approximately two years later in August 2017 the mother collected W from school and moved her into the parties’ residence. The mother was by then pregnant with the subject child.
The Court infers from this evidence that the mother had, at that time, considered that she had a future with the father and wanted to join her family (herself and W) with his, in anticipation of the birth of their child. The Court concludes that whatever the behaviour of the father had been to that point, the mother wished to continue living with the father and believed that it was in her daughter W’s interest to do so too.
The action of the mother in removing W from the home of the maternal grandparents triggered a parenting application by them to the Federal Circuit Court (“FCC”) (as it was then known). The child returned to the maternal grandparents’ home to live until there was a resolution of the dispute between the mother and her parents. Thereafter the child W was moved back by the mother into the home of the parties, where she lived until the parties separated in mid-2019.
This evidence further confirms that the mother was satisfied that the best outcome for W was to live with herself and the father. Although the mother was highly critical and accusatory of the father in retrospect, she was, at least until after the child was born at the end of 2017, apparently content with her relationship with the father.
The older children of the father
The two older children of the father, V now aged (16) and Y (13) were aged almost 10 and seven years when the parties began living together in 2015.
The father had been separated from the mother of those children (Ms H) for about four years, since 2011. The father and Ms H had, with the benefit of a Family Report, settled on and implemented a week about shared care arrangement for their two children.
Ms H re-partnered in 2013 and went on to have three more children.
In about 2015 or 2016 when these parties were just starting out in their relationship the father’s son V resisted ongoing week about time with his mother and opted to live full-time with his father. V apparently did not enjoy a good relationship with his mother’s partner. Y maintained the week about arrangement.
The mother found V confronting and difficult to manage. He has Level Two Autism and other behavioural disorders. Although she attempted to organise therapeutic interventions for his benefit the mother did not discipline or manage V herself. Appropriately she left that to the father but, at least in her affidavit and perhaps at the time, she was critical of his methods.
The Court concludes that the father played roughly and used some physical force with V. The father slapped children and adults in fun, put a pillow on W’s face and sat on it although clearly not with full force, he “bit” the mother’s hands and the child’s.
Separation – 7 July 2019
In July 2019 the parties separated.
The trigger for the mother leaving, was she says, an argument over whether it was safe for the father to take the child to an area where he and V would be riding motor bikes. She described the parties physically struggling as the father attempted to take the child out of his high chair and the mother attempted to stop the father and to push him away. The mother alleges, and the father denies, that he grabbed her by the throat then pushed her backwards out of the way causing her to hit the kitchen bench.
The father alleges that he had offered to take the child with him when he went to watch V riding his motor bike, the mother having had disrupted sleep through the night. The mother had said “No you’re not taking X”.
Later as the father was due to leave with V the child caught sight of him and called out to him “Dad dad dad”. The father took the child out of his high chair and nursed him. The father alleges, and the mother denies, that the mother then launched herself at him and started punching him in the head over and over. He threw up his arm in defence to block the mother and protect the child.
On balance, the Court can conclude that there was a physical altercation in front of the child where each party struck the other, whether or not intentionally. The child cried as a result but was not hurt. There may have been a misunderstanding about intention. On either version of events the Court concludes that the father did not simply gratuitously attack the mother and also that the child was exposed to family violence.
The mother called police who came promptly. Police did not charge either party or initiate a protective order for either party.
The mother left the house that day with the child and W. She declined to tell the father where the child was. She was granted assistance from the Victims of Crime Assistance League and began consulting a psychologist, Ms J, in relation to consequences of domestic violence.
What the mother did not do on the day of separation was report to the police officer, who interviewed her alone, any past alleged wrongdoing by the father towards herself or the older children.
Proceedings commence October 2019
On 2 October 2019 the mother filed an Initiating Application in the FCC together with a Notice of Risk detailing allegations of many assaults on herself and the three children in the household, including the subject child.
On 18 November 2019 the father filed a Response proposing equal shared parental responsibility and week about shared care for the subject child.
November 2019 Orders – FCC
On 19 November 2019 interim orders were made that the child live with the mother and spend time with the father for no less than two hours per fortnight supervised by P Contact Centre.
March 2020 Orders – FCC
On 12 March 2020 orders were made for the father to spend time with the child on two days per week for three hours on each occasion.
Ms H intervenes
On that same day the father’s former partner Ms H, the mother of V and Y, filed a Response of her own proposing that her two children live with her, that she have sole parental responsibility and that they have no time and communication with the father.
Ms H also filed a Notice of Risk raising allegations of assaults by the father on the children and herself and some matters of alleged historical misconduct by the father.
Both the mother and Ms H instructed the same firm of solicitors to act for them. That fact gives some currency to the assertion of the father that the two women were acting in concert against his interests, rather than in the respective interests of the children of each of them.
By that date, Y had been living in a shared care arrangement between Ms H and the father for about eight years and V had lived in shared care for four years, then exclusively with the father for the past four years.
The files in respect of the two disputes were consolidated.
Orders by Consent June 2020 – FCC
On 1 June 2020 interim orders were made for parenting arrangements for V and Y. V to live with the father, Y to live with the mother and spend defined time with the father.
Within weeks the arrangement for Y broke down. Y moved to live with the father.
On 13 August 2020 there was an incident where the mother declined to make the subject child available to the father because she was unconvinced about the installation of the child car seat in his vehicle.
Orders 14 August 2020 – FCC
Interim orders were made in the FCC amongst others restraining Ms H from removing Y from the care of the father.
Father applies for residence – 24 November 2020
The father filed an Amended Response. He was now proposing for the first time that X live with him and that he have sole parental responsibility for the child.
Concern about possible sexual abuse – 9 February 2021
The mother raised allegations on behalf of the child that the father had during a three hour period on 9 February 2021 hurt the child by pulling his penis. The mother observed the child’s penis to be “very red and raw” after the time spent.
There was a conversation between the parents at changeover, after time spent, which was recorded by the father without the knowledge or consent of the mother. The recording[8] came into evidence in the trial over the opposition of the mother.[9] The conversation was the father telling the mother that he had seen something about the child’s penis “Ms Enys just quickly you need to start pulling his foreskin back to wash it”. The mother responded with an indignant rebuke to the father about not listening to her when she offered advice to him. The father remained calm in response but he had the advantage of knowing that the conversation was being recorded.
[8] Exhibit 4.
[9] Ex-tempore reasons delivered on 7/12/2021.
This was an opportunity lost to reach an understanding about what a little boy needed from both parents at that stage of his life right at that time.
The oral evidence of the mother was that she had been taught by her psychologist to “just agree with whatever he [the father] says and withdraw to keep X and I safe”. The mother went on to say by way of explanation for why she had not recalled the conversation, “I block out any interaction when Mr Glasson is in front of me.”
The mother took the child to the doctor on the following day. The doctor examined the child and made a report to the Department of Communities and Justice (“DCJ”).
Interview with child by police – 12 February 2021
Police made contact with the mother and on 12 February 2021 interviewed her and the child.
The mother reports that the child was too distressed to attend preschool, cried and generally lost confidence over the following days and weeks. During that time the mother made a statement to police and had a further visit from DCJ.
Application in a Case by Mother – 25 February 2021
The mother applied to have the proceedings urgently relisted. She sought orders for the suspension of time between X and the father and that there be no contact or communication between the child and the father pending further order.
Operative Orders suspended – 2 March 2021
On 2 March 2021 current orders for time were suspended by consent and without admissions.
Ms H attempts to discontinue – 20 April 2021
In April 2021 Ms H filed a Notice of Discontinuance.
Transfer of proceedings – 4 June 2021
On this day the proceedings were transferred from Division Two of this Court (the FCC) to Division One (formerly known as the Family Court of Australia).
The notations to the orders were as follows:
A.The Independent Children’s Lawyer informs the Court that in relation to the allegations against the Father with respect to the child, [X] born […] 2017, that JCPRP have completed their investigations, no charges have been laid but that the Father has been recorded as a person of interest pursuant to s 23(C) of The Children’s Care and Protection Act.
B.The Solicitor for the Father informs the Court that the child, [Y] born […] 2008 has not spent time with the Mother since 20 April 2021 and the Father seeks discharge of orders 3, 4 and 5 in respect of the Second Respondent’s Mother’s time with [Y] made on 14 August 2020. The Registrar is asked to give consideration to the discharge of those orders if it is the consent position of the remaining parties upon the Father filing an Affidavit updating the Court as to the current circumstances for [Y].
Notice of Discontinuance dismissed 6 July 2021
On 6 July 2021 the Notice of Discontinuance by Ms H was dismissed by the Court and the combined proceedings were allocated into the Magellan Protocol.
Magellan Report dated 3 August 2021
DCJ reported the following:[10]
On 8 March 2021 DCJ determined that [Mr Glasson] will continue to be identified as a Person of Interest (POI) on ChildStory and will not be recorded as a Person Causing Harm. It was noted the NSW Police elected not to proceed with criminal charges. There was a lack of context in [X]’s interview, due to his young age: he was not able to provide enough context during his interview to indicate what the intent of [Mr Glasson]’s touching may have been. Due to the limited information available, DCJ was unable to determine the reason for [Mr Glasson]’s actions and queries whether there may have been a non-sexual reason. It was noted that [Mr Glasson] declined to participate in formal discussions or home visits with DCJ caseworkers and as such, his perspective had not been heard. It was noted that [Mr Glasson] cares for his other children, including [V] who has special needs, and there had been no previous substantiated issues for [V] or [Y].
DCJ substantiated ‘Sexual abuse: suspicious indicators consistent with sexual abuse’ for [X] under section 23 of the Children and Young Persons (Care and Protection) Act 1998.
On 18 March 2021, DCJ closed [X]’s case with the rationale ‘Outcome of risk indicates no further intervention was required. Therefore criteria for statutory intervention has no longer been met’.
[10] Magellan Report dated 3/08/2021, page 12.
Orders between father and Ms H – 28 September 2021
On 28 September 2021 orders were made by consent of Ms H and the father about the two older children. In summary, the orders were for both children to live with the father, that the father have sole parental responsibility for them and that they spend time with Ms H at their own discretion.
Ms H was removed as a party to these proceedings. The two older children continue to live with the father.
The oral evidence of the mother at trial was that she has stepped back from her association with Ms H because she did not agree with the decision she had taken about her two children, reflected in the orders made by consent. This evidence gives currency to the notion of Ms H having worked in unison with the mother to assist her in these proceedings. When Ms H settled on the terms she did, the mother probably felt let down by her.
In December 2021 the trial of the dispute over the subject child alone, proceeded.
EVIDENCE
The documents relied on were as follows:
The Applicant Mother – Ms Enys
(a)Initiating Application filed 2/10/2019;
(b)Notice of Risk filed 2/10/2019;
(c)Affidavit of mother filed 18/11/2021;
The Respondent Father – Mr Glasson
(d)Further Amended Response to Initiating Application filed 17/11/2021;
(e)Affidavit of the father filed 17/11/2021;
(f)Affidavit of the father’s partner, Ms G, filed 17/11/2021;
(g)Affidavit of the paternal grandmother, Ms K, filed 17/11/2021;
(h)Affidavit of paternal great-grandmother, Ms B, filed 17/11/2021;
(i)Affidavit of director of Private Investigation Service, Mr L, filed 17/11/2021;
(j)Affidavit of private investigator, Ms M, filed 17/11/2021;
Reports
(k)Magellan Report dated 3/08/2021;
(l)Family Report by Dr N dated 14/12/2020;
(m)Child Dispute Conference Memorandum dated 25/02/2020.
THE LAW
The objects of the Family Law Act 1975 (Cth) (“the Act”) in relation to parenting orders are to ensure that:
(a)Children have the benefit of both of their parents having a meaningful involvement in their lives to the maximum extent consistent with their best interests;
(b)Children are protected from physical and psychological harm;
(c)Children receive adequate and proper parenting to help them achieve their full potential; and
(d)Parents fulfil their duties and meet their responsibilities concerning the care welfare and development of their children.
These are applications for parenting orders pursuant to s 64B(2) of the Act. In deciding whether to make a particular parenting order in relation to a child, a court must have regard to the best interests of the child as the paramount consideration. The way a court determines what is in a child’s best interests is by considering the matters set out in s 60CC(2) and (3) of the Act.
There is also a presumption when making a parenting order; that it is in the best interests of the child for the parents to have equal shared parental responsibility for the child. The presumption does not apply if children have been exposed to family violence and may be rebutted by evidence that equal sharing of parental responsibility would not be in the best interests of the child in question.
I have contemplated the issues of parental responsibility, residence, time to be spent and communication between child and parent as well as any other specific issues.
I have considered the mandatory factors and conclude that the following matters are relevant to the best interests of this child.
Parental Responsibility
Each party seeks an order for parental responsibility which excludes the other from decision making about the child.
The relationship between the parties is categorised by mistrust and anger. On the present state of the evidence there is no prospect of the parties conversing, consulting and compromising in order to make both long term and short term decisions in the best interests of the child. Both parties and the ICL agree that this is so.
One outcome is for one parent to have sole parental responsibility for all long term decision making, and keep the other parent formally advised. To do otherwise could create opportunities for prolonged disagreement and delays in the making of decisions with each parent blaming the other.
Nevertheless, to exclude one parent represents a loss for the child of input by both his parents into the big decisions about his life such as health, education and religious instruction.
There has been recommendations by the Expert for assessment of the child by a speech pathologist and with respect to the possibility of Autism. The mother has taken the child to a counsellor in the past. Either parent should be free to initiate assessments and arrange counselling subject to ensuring that the other parent has every opportunity to be involved.
The Court concludes that orders in respect of how those decisions can be taken and also for enrolment at school can be determined by the Court and that otherwise the mother shall have sole parental responsibility, keeping the father advised of decisions.
Primary Considerations
The benefit to the child of having a meaningful relationship with both of the child’s parents
The child has a meaningful relationship with both his parents. His mother was assessed to be his primary attachment figure[11] and he was assessed to have a positive relationship with the father, despite scant time spent together since separation.
The need to protect the child from physical or psychological harm or from being subjected or exposed to abuse or family violence
[11] Family Report dated 14/12/2020, para 444.
The case of the mother during the trial was that the child may have been sexually abused by the father on 9 February 2021. She was not sure.
DCJ had closed its investigation with substantiation, “Sexual abuse: suspicious indicators consistent with sexual abuse”.[12] The rhetorical question by DCJ “whether there may have been a non-sexual reason” (for alleged touching by the father) was prescient.[13]
[12] Children and Young Persons Care and Protection Act 1998, s 23.
[13] Magellan Report dated 3/08/2021, page 12.
The statements by the father to the mother on the relevant day,[14] together with the explanation given by the father in his affidavit, lead the Court to the conclusion that there was a non-sexual reason for the father to touch the child. The management of the child’s foreskin was the problem.
[14] Exhibit 5.
A failure to listen to each other, to communicate information and have it considered has resulted in an escalation of fear, anger and resentment in both parents. The father did attempt to tell the mother what he had observed about the child’s penis and what needed to happen. He got an angry retort so gave up. Later the mother thought the father might have assaulted the child. She thought about contacting him but feared an aggressive response. When an allegation was formally raised the father declined to make a statement to police. He had three children subject to Court proceedings at that time and was probably wary about saying anything.
The immediate result for the child was distress and disruption to his routines resulting from his interview by strangers, (however kind, skilled and professional), time with his father stopping and his mother in an obviously worried state.
Additional Considerations
Any views expressed by the child and any factors (such as the child’s maturity or level of understanding) that the Court thinks are relevant to the weight it should give to the child’s views
The child is now a four year old boy. His verbal expression is a bit limited and he does not easily make eye contact. He is a happy child.
He enjoys a close, affectionate, relationship with both parents. That was evident in December 2020 when his interactions with both parents were observed.
The Court Child Expert (“the Expert”) (formerly known as the Family Consultant) reported that he was reluctant to leave his mother and W to go to the father, “No stay here”.[15] Thereafter he was reluctant to leave the father to return to the mother, “I don’t want to go to Mum.”[16]
[15] Family Report dated 14/12/2020, para 282.
[16] Family Report dated 14/12/2020, para 291.
The child was then aged three years, too young to express any view about where he should live.
He was born into a family consisting of his parents, three half-siblings and himself. He regularly had time with paternal family members.
He was 18 months old when his parents separated and he moved with his mother and W to a different home. Although he is unlikely to remember an intact family he has certainly maintained all the relationships despite limitations on his time with his paternal family.
The nature of the relationship of the child with each of their parents and other persons (including any grandparent or other relative of the child)
In his mother’s home the child has his half-sister W (14) with whom he enjoys a good relationship despite the ten year age difference. They share maternal grandparents.
W likely did not enjoy the two year period (2017-2019) she had living in the father’s home. She reported to the Expert that the father was mean and physically rough with her and that he favoured V. She expressed a concern that the father might hurt X “just as he had hurt her”.[17] She also referred to the mother “telling her and the father off” for their behaviour.
[17] Family Report dated 14/12/2020, para 272.
A picture emerges of W, who had been an only child growing up with her mother, grandparents and no father, struggling to cope in a household which was boisterous, noisy, chaotic at times with her mother busy caring for a new baby. There is no evidence of anyone explaining to W that V was on the Autism Spectrum and had behavioural disorders which made him defiant and a challenge to manage even for his father at times.
In the household of the father, the child has half-siblings V (16) and Y (13). The child shares with them, paternal grandparents and a paternal great-grandmother who is very much involved as a helpful presence in the father’s household.
V was assessed by the Expert to be younger in his presentation than his stated years.[18] V reported to the Expert that he had a good relationship with the child. They kicked a ball together, watched movies and played with the child’s toys. V usually went along to contact visits between his father and the child.
[18] Family Report dated 14/12/2020, para 216.
Y was assessed by the Expert as an engaging child.[19] Unlike her elder brother her physical presentation was of being older than her years. Y reported a good relationship with the child but had not seen as much of him as her brother has.
[19] Family Report dated 14/12/2020, para 244.
Y relies on her father to keep her safe, this was in relation to the behaviour of her own mother’s partner. She reported the mother of the child “yelling and hitting the father” during their relationship and expressed a generally negative view of her.
A picture emerges of V being content in the father’s household and Y confident that she is always part of the father’s household but free to spend time with her own mother as she wishes.
Overall the subject child is a well-loved member of two extended families.
The father has a recent partner Ms G. She has two children from a prior relationship, boys aged 15 and 10 years. They spend regular time with their own father. Ms G has stepped back to allow maximum time for the father with the child at supervised visits. She expressed her support for the subject child being a member of the household. No criticism was raised about Ms G. She was not required for cross-examination.
The extent to which each of the child’s parents has taken or failed to take the opportunity to participate in making decisions, to spend time with the child and to communicate with the child
Although each of the parents had parental responsibility by law, the mother appeared to take the view that after separation it was a matter for her to make all the decisions about the child.
The father has at all times wished to participate in decision making and to spend time with the child.
Before there was an allegation of sexual abuse, the mother by her application was asking the Court to make orders which would exclude the father from the life of the child. The Expert expressed concern about the mother excluding the father from involvement in decision making for the child if equal shared parental responsibility is not ordered.[20] The Court shares that concern.
[20] Family Report dated 14/12/2020, para 448.
The mother has been accustomed to being a single parent, making all the decisions for her older child W throughout her life. The mother is not accustomed to asking the father’s opinion and sometimes deferring to it. The father has had a shared care arrangement with the mother of his two elder children for many years and has developed skills of consulting and compromise.
The likely effect of any changes in the child’s circumstances including the likely effect on the child of any separation from either of his or her parents, or any other child or other person
The Court was assisted by the evidence of the Expert. Her view was that if the alleged sexual abuse was not made out and the father was not found to represent a risk of harm to the child then there should be a return to pre-existing time for the father with the child.
The Expert was asked in cross-examination what should happen if the mother was found to have untruthfully concocted the allegation. The Expert was clear to say that she had been concerned that the mother was creating and amplifying issues but even so a change of residence was not recommended. “He [the child] would experience distress at the loss of his mother and shock at the reunion with his father.”
The Expert expressed her opinion that in those circumstances the father would need help from a psychologist to manage the child’s behaviours and distress.
The mother has now acknowledged the value of the relationship between the child and the father and also that the child is safe with the father. In these circumstances, a change of residence with its consequential emotional disruption is not appropriate.
The capacity of the child’s parents and any other person to provide for the needs of the child, including emotional and intellectual needs
Each parent has the capacity to meet the needs of the child. It is working together to meet his needs that is the problem for these parties.
The Court accepts the evidence of the mother that her psychologist taught her to agree with whatever the father said and withdraw to keep herself and the child safe. That may be suitable advice for situations involving immediate physical threat.
In the context of parental conversation such behaviour is problematic for effective parenting. By paying lip service to agreement, a false impression is created. It may be emotionally easier to treat the other parent as a wall of sound to be blocked out, but it can lead, as it did here, to frustration, misunderstanding and unnecessary intervention for the child.
In this case the parents argued, annoyed each other, and if the mother did hear what the father was telling her about the child, on her own evidence, she blocked it out of her mind.
When the child complained to his mother about pain and discomfort from “his penis being pulled” she did listen very carefully and immediately took steps to ensure his safety and welfare.
The Court concludes that the mother may or may not have connected the two events that day in terms of cause and effect. It is likely that the father believed she did connect them and that she was deliberately obstructing his time with the child for no good reason.
The child loves both parents. His emotional needs would be better met if the parents could devise a means of communicating which was satisfactory to them both. One method would be sending texts limited to provision of important information about the child, without criticism of the other parent or reference to past events.
If the child continues to observe his parents shouting arguing and storming off he too will learn that way of relating to others. Until the parents are confident of speaking to each other calmly they could consider asking third parties, known to the child, to effect changeovers (when they do not take place at school) to avoid the parents coming in contact.
The maturity, sex, lifestyle and background of the child and either of their parents and any other characteristics of the child that the court thinks are relevant
The child is a four year old boy. He was observed by the Expert[21] to have an expansive quantity of speech but did not participate in shared conversations with either parent. Instead he repeated back what was said to him.
[21] Family Report dated 14/12/2020, paras 199-212.
The Expert recommended[22] that the child have a full speech pathology assessment at three and a half years (he was then almost three) and consideration of paediatric assessment in a further 12 months (at four and a half years) to assess for Autism Spectrum Disorder.
[22] Family Report dated 14/12/2020, para 466.
In the event that the parents follow that recommendation it will be essential for both parents to be involved in the assessment to supply information about the child from the observation of each.
The child was able to repeat, without appearing to understand the meaning of the words, a rude and disparaging comment about both his half-brother V “he’s a real fat tunt (sic)” and his father “Daddy is a piece of sit (sic)”. The Expert’s remark that the words were “effortless and automatic” suggest that the child was familiar with the phrases and had said them before.
The mother advised the Expert that “she and her family never discuss the father or his family with X, unless X brings it up”.[23] The child is unlikely to have heard the comments which he repeated, in the household of the father. The mother must remove the child, for his own sake, from the presence of any person saying such things in the presence or hearing of the child.
Any family violence involving the child or a member of the child’s family, and if a family violence order applies, or has applied, to the child or a member of the child’s family – any relevant inferences that can be drawn from the order
[23] Family Report dated 14/12/2020, para 143.
A provisional Apprehended Domestic Violence Order was made on 12 February 2021. On 15 December 2021 the Court noted that the mother intended to join in an application to NSW Police to have that order withdrawn and discharged.
The Court is satisfied that the mother no longer felt the need for a protective order to be in place.
Any other fact or circumstance that the court thinks is relevant
The mother has cared for the child all his life. Other than the mother’s intransigent attitude to his involvement in the life of the child, the father makes no complaint about her parenting in terms of the care of the child.
Despite the past unwillingness of the mother to support the relationship of the child with the father, removal of the child into the care of the father would be an emotional loss and a big adjustment for this four year old child.
CONCLUSION
Orders are made with respect to two specific issues of parental responsibility. First, for the child’s health and any therapeutic treatment in a way that enables both parents to initiate and/or participate in decisions and assessments. Second, for enrolment of the child at school by the mother with a restraint thereafter on changing the child’s school without the father’s consent.
Those are the main issues for long term decisions. Otherwise, the mother is to have sole parental responsibility for any other long term issue arising with the obligation to keep the father advised.
Both parents will have parental responsibility for day to day decisions when the child is with that person.
There is an order for the child to live with the mother which represents continuation of what the child has always known.
Time for the father is progressive culminating in five nights per fortnight. The alternate proposal of the father that time with him would ultimately progress in 2024 to equal time week about, could create uncertainty for the child as to where his home was. Further, the level of communication between the parents is not sufficiently good to support the logistics (in terms of clothes, books, uniforms and notes) of a weekly turnaround for the child.
The parents had contemplated some time for each of them every year on Christmas Day, on the child’s birthday and on other special occasions. An order has been made of that type for Christmas Day 2022 since there is no provision for block holidays until 2023. The mother proposed midday start time and that time has been appointed rather than 2.00 pm to avoid the child being in the car at lunch time.
Presently, the communication between the parents is not sufficiently civil and the relationship insufficiently strong for frequent changeovers for special occasions. The child is unlikely to benefit from spending a few hours on Christmas Day or on his, or a parent’s birthday, with one parent, then a 40 minute car trip with the possibility of tensions at changeover before starting another Christmas or birthday celebration in the other household, then return.
Likewise, week about holidays over Christmas represents too many changeovers, and denies the child the opportunity to go away on longer holidays with each parent. The child will turn six shortly before the first time he spends three weeks as a block with the father in December 2023. By then he will have spent two years of regular substantial time and term holidays for one week blocks.
Given the strength of his relationship with the father now, after so little time spent with him, the child will be capable of being away from his mother for that period.
It is open to the parents to reach agreement otherwise than as set out in these orders, but if they do not reach agreement the orders apply.
There are restraints on conduct, some specific issues and a declaration of invalidity in respect of the provisional family violence order which the mother submits is no longer necessary for her protection.
The mother proposed an order with respect to the car seat used by the father. The order has not been made. That is not indicative of indifference by the Court to the obligation of drivers to use properly fitted age appropriate car seats to transport children. The evidence does not support a finding that the father has been negligent or even careless in that regard. He would be well advised to show the mother the seat and the details of the installer if the mother wishes to have that information.
Orders are made accordingly.
I certify that the preceding one hundred and forty-five (145) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Cleary. Associate:
Dated: 16 March 2022
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