Farrelly and Kaling
[2012] FMCAfam 210
•26 April 2012
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| FARRELLY & KALING | [2012] FMCAfam 210 |
| FAMILY LAW – Father’s Application to relocate 4 year old son to Sydney – father proposes mother travel from Cairns to Sydney 24 weeks a year – Australian/Japanese heritage – allegations by father that child’s Japanese mother sexually abused the child, locked the child in rooms and is ‘mad’ – no unacceptable risk found – father has groomed and cued child and recorded the child – 76 tape recordings made by the father – father has actively undermined the mother and attempted to create a false reality for the child – father engaging in campaign to undermine and demean mother to the child – his behaviour will destroy mother/child relationship – father’s relocation proposals entirely ill considered and impractical – father to have limited time with the child. |
| Family Law Act 1975, ss.65DAA (1), 65DAA (2), Part VII, 60cc |
| MRR v GR [2010] HCA 4 Mazorski & Albright [2007] FamCA 520 McCall and Clark (2009) FLC 93-405 U v U [2002] HCA 36 M & M (1988) FLC 91-979 (High Court) Briginshaw v Briginshaw (1938) 60 C.L.R 336 |
| Applicant: | MR FARRELLY |
| Respondent: | MS KALING |
| File Number: | CSC 355 of 2009 |
| Judgment of: | Willis FM |
| Hearing dates: | 3 May - 5 May 2011, 29-30 June 2011, 14-15 July 2011, 19-20 July 2011, 29 July 2011, 9 August 2011, 24 February 2012 |
| Dates of Last Submission: | 9 August 2011, 24 February 2012 |
| Delivered at: | Cairns |
| Delivered on: | 26 April 2012 |
REPRESENTATION
| Solicitors for the Applicant: | Self-represented |
| Counsel for the Respondent: | Ms Wilson (Ms Hartley, Solicitor on final day of trial) |
| Solicitors for the Respondent: | O'Reilly Stevens Bovey Lawyers |
| Counsel for the Independent Children’s Lawyer : | Mr Victoire |
| Independent Children’s Lawyer : | Ms Gray |
ORDERS
The Mother have sole parental responsibility for decisions in relation to the long-term care, welfare and development of the child X born (omitted) 2007 (“the child”) subject to the communication and notification of such decisions to the Father, including but not limited to:
(a)a child’s education (both current and future);
(b)child’s religious and cultural upbringing;
(c)a child’s health;
(d)a child’s name;
(e)changes to the child’s living arrangements that make it significantly more difficult for the child to spend time with the other parent.
The mother is to have sole responsibility for the day to day care, welfare and development of the child.
The Child is to live with the Mother.
The child will commence to live with the mother as and from the conclusion of school on Thursday 26 April 2012, with the mother to collect X from school. The father is restrained from attending the child’s school on 26 April 2012.
The Child spend time with the Father as follows:
(a)From after school Friday until commencement of school Monday (or Tuesday if Monday is a pupil free day) each alternate weekend, commencing Friday 4 May 2012.
(b)For the first half of the Easter, June/July and September/October Queensland Gazetted School holiday period in odd numbered years.
(c)For the second half of the Easter, June/July and September/October Queensland Gazetted School holiday period in even numbered years.
(i)To facilitate the Father’s holiday time with the Child pursuant to Order 5 (b) and (c) above, time commences as follows:
A.From immediately after school on the last day of Term until 3:00pm on the middle Saturday of the holiday period in odd numbered years;
B.From 3:00pm on the middle Saturday of the holiday period until the commencement of school in the new Term in even numbered years.
The child will spend time with the father for the Christmas school holidays for the year ending 2012 as follows:
(a)Commencing 9:00am Saturday 15 December 2012 and concluding at 5:00pm Saturday 22 December 2012;
(b)From 9:00am Saturday 5 January 2013 until 5:00pm Saturday 12 January 2013;
(c)From 9:00am Monday 14 January 2013 until 5:00pm Monday 21 January 2013;
(d)The child is to live with the mother for all other periods of the Christmas 2012/ January 2013 School holidays, including Christmas Eve, Christmas Day and Boxing Day.
The child will spend time with the father for the Christmas school holidays for the year ending 2013 and each year thereafter as follows:
(a)For the first half of the school holiday period, commencing on the first day after the break up of school in December 2013 and each alternate year thereafter, and the second half of the Christmas school holidays commencing in 2014 and each alternate year thereafter. The child is to live with the mother for all of the remaining Christmas school holiday period.
(i)To facilitate the Father’s holiday time with the Child pursuant to Order 7 (a) above, time commences as follows:
A.From immediately after school on the last day of Term until 3:00pm on the middle Saturday of the holiday period in odd numbered years;
B.From 3:00pm on the middle Saturday of the holiday period until the commencement of school in the new Term in even numbered years.
In the event that the father is working throughout the school holiday week when the child is otherwise spending time with him pursuant to these Orders, the father is to offer the mother the first opportunity to care for the Child during that period.
The Child’s time with the Father pursuant to Order 5(a) above is suspended during all school holiday periods and recommences as follows:
(a)The first Friday of the new school Term when the Father has spent time with the Child during the first half of the school holiday period;
(b)The second Friday of the new school Term when the Father has spent time with the Child during the second half of the school holiday period.
Notwithstanding Order 5, the Child will spend special days as follows:
(a)With the Mother on Mother’s Day from 9:00am to 5:00pm;
(b)With the Father on Father’s Day from 9:00am to 5:00pm;
(c)On the Child’s birthday with the parent with who he is not spending time with from 9:00am to 12 noon if a non school day or from 3:00pm to 6:00pm if a school day.
All changeovers that can not occur at the Child’s school will occur at the entrance to the Mother’s residential apartment block or driveway if the Mother moves into a house.
The Father is restrained from removing the child’s enrolment from any school as chosen by the Mother.
The Mother will inform the Father within 72 hours of any change to her residential address, her landline and/or mobile telephone number or the Child’s educational institution and as soon as possible of any major medical conditions.
The Father will inform the Mother within 72 hours of any change to his residential address, his landline and/or mobile telephone number and the father is to inform the mother in the event that he takes the child to any doctor during the time the child is in his care.
The Mother will authorise the Child’s school to provide the Father, at his own expense, with copies of the Child’s school reports and school photograph order forms.
The Father is permitted to attend all relevant school events/activities at which parents are usually permitted to attend, subject at all times to the discretion of the school authorities.
The Father is to have telephone contact with the Child on three occasions each fortnight when the Child is not in his care. If there is no agreement to the date and time of such calls, then specifically between 6:00pm and 6:30pm each Wednesday and Saturday in the first week and between 6:00pm and 6:30pm on Wednesday in the second week. The Mother is permitted to nominate alternate times in the event the Child is enrolled in any extra curricular activities at those times.
Restraints
The Father and/or his agents are restrained from recording conversations with either the Child or the Mother, whether the conversations are in person or conducted on a telephone or Skype facility.
Pursuant to s. 64 D (2) this Order may only be varied by subsequent Order of the Court.
Overseas travel
The Child be removed from the Airport Watch List and the Orders numbered 1, 2, 3, 4 and 6 dated 20 July 2009 be discharged.
The Registry Manager of the Cairns Registry of the Federal Magistrates Court of Australia is to return the Child’s Japanese passport to the Mother upon the Mother’s request.
The mother and father are to do all acts and things and sign all documents necessary to obtain an Australian Passport for the child. This passport is to issue notwithstanding that the father fails or refuses to sign the Application for a Passport. In the event that the father refuses or neglects to sign (within fourteen (14) days of a written request to do so) any document necessary to effect the terms of these orders, the Registrar of the Federal Magistrates Court of Australia is hereby appointed pursuant to section 106A of the Family Law Act 1975 to execute such documents on behalf of such party. Thereafter, the passport is to remain in the possession of the mother at all times.
This Order is notice to the Minister for Foreign Affairs/Approved Senior Officer that the mother has authority to do all acts and things necessary to renew the Child’s passport or obtain a supplementary passport for the Child, notwithstanding that the father has not signed the necessary documentation or provided written consent.
Subject to the Mother providing a written itinerary to the Father no less than 28 days prior to any proposed travel, the Mother is permitted to remove the Child from Australia to travel to Japan with the Child on one occasion each year for a period not exceeding four weeks. The Mother is authorised to suspend contact between the Father and the Child for all such holiday periods. The Mother is to provide make up time for lost weekends on her return, on weekends nominated by her to occur as early as possible after her return.
The Mother is to ensure that the Child has Skype and/or telephone contact with the Father no less than once each week for the period the Child is outside Australia.
An injunction issue restraining the Father from travelling to the same destination at the same time and date as the Mother and from approaching/contacting the Mother, the Child or the Mother’s family and friends in Japan during this time.
The father is restrained from removing the child from the Commonwealth of Australia.
Recovery Order
In the event that the Child is not returned to the Mother pursuant to these Orders, a Recovery Order will issue for the return of the Child. The Recovery Order is to lie in the Registry to be uplifted upon the Mother filing an Affidavit deposing to the failure of the Father to return the Child to her care pursuant to these Orders.
That a Recovery Order do issue authorising/directing the Marshal, all officers of the Australian Federal Police and all officers of the police forces of the States and Territories of the Commonwealth of Australia, with such assistance as may be required, and if necessary by force:
(a)To find and recover the child X born (omitted) 2007 and to deliver the said Child to the Mother at an address to be advised in the State of Queensland, or such other place as the Mother and the person effecting such recovery agree to be appropriate; and
(b)To stop and search any vehicle, vessel or aircraft and to enter and search any premises or place in which there is at any time reasonable cause to believe that the said Child may be found.
All Police Officers and agents referred to in this Order be at liberty to proceed on a facsimile copy of this Order.
In the event that the Recovery Order issues, the mother is to file and serve an Application and Affidavit material deposing to the circumstances of the withholding of the child and this matter will be relisted on short notice.
Other Orders
The Independent Children’s Lawyer is directed to provide a copy of this judgment to the Department of Child Safety and is granted leave to do so.
The Independent Children’s Lawyer be discharged.
All outstanding Applications be removed from the pending cases list.
NOTATION:
A.The Court notes that the Father and his agents have a history of making unsubstantiated and time wasting allegations to the Police and/or the Department of Child Safety in relation to the mother’s parenting.
IT IS NOTED that publication of this judgment under the pseudonym Farrelly & Kaling is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT CAIRNS |
CSC 355 of 2009
| MR FARRELLY |
Applicant
And
| MS KALING |
Respondent
REASONS FOR JUDGMENT
This is an application by the applicant father, Mr Farrelly, in relation to parenting orders for the child of his marriage X, born on (omitted) 2007 (“X”) to the mother, Ms Kaling, who is a Japanese national.
At the time of separation the parties had been living in Cairns for about six years. The father’s application is to relocate the child to live in Sydney with him where he will live with his own parents, and then, when he is able to do so, live independently somewhere near them. The mother is opposed to the relocation. She asks for an order that the child live primarily with her in Cairns. The father has indicated that he will not relocate without the child and the mother has indicated she will not move to Sydney.
The orders sought by the father have been a movable feast throughout this 12 ½ day trial. His final position appears to be that he will relocate X to Sydney to live with him, and that the mother is to spend up to 24 weeks a year with the child in Sydney. The father says he can afford to pay for three return trips for the mother to fly from Cairns to Sydney to spend time with the child in Sydney, and that she is to pay for the remainder of the trips herself and all of her accommodation. The father says she can stay at his parents’ home, though he understands that she does not wish to do so. The father’s desire to relocate to Sydney has waxed and waned prior to and during the 12 ½ days of this trial. If the father is not permitted to relocate with the child, he seeks orders that the mother have a reduction in time from the current week on/week off and spend each alternate weekend with the mother, and from 6:00pm Monday until 6:00pm Wednesday of the other week.
The father has been self-represented throughout the proceedings. This has significantly contributed to increasing the hearing time initially allocated in this Court.
Until the commencement of the trial, the father’s position was that the child should live primarily with him in Cairns on the basis that the mother is mentally unstable. He says she is continually screaming at the child, that she rings up the child and hangs up without warning, and that she is locking the child in a room regularly. At the commencement of the trial, the father raised for the first time sexual abuse allegations against the mother. The father alleged that the child told him that the mother is touching the child’s penis. He said that the child had been telling him this for some months prior to the trial. The father produced at the first day of the trial a CD containing a recording allegedly made by the paternal grandmother, Mrs Farrelly, in which the child whilst on speaker phone in the father’s home with the father present, told his grandmother over the phone that the mother keeps touching his “shmekel”. This is the term that the father says the child uses for penis. The father says that this is a term used in his family for a penis, and he believes it is a (omitted) term. The father says he is (omitted).
The mother denies all of the allegations in their entirety. The mother’s evidence is that the child has not ever used the term “shmekel” to describe his penis up until just prior to or at the time that the father reported the sexual abuse allegation to the Department of Child Safety. Her evidence is that the child refers to his penis using his Japanese language which is “chin chin.” The mother also denies that she has ever touched herself in a sexual way whilst the child is touching his penis as alleged by the father in further allegations made in January 2012 after the conclusion of the trial, and prior to this judgment being handed down. The evidence was re-opened to admit the fresh allegations. The mother denies absolutely that she touched the child’s genitals in a sexual manner at all. She says the only time she has touched the child’s penis or testicles is in the act of normal parenting, in washing and drying the child, or assisting the child with toilet requirements. The mother denies locking the child in rooms, being mad, hanging up the phone on the child or screaming at the child to vomit or feeding the child food to make him vomit as was alleged in January 2012.
After initially raising the sexual abuse allegations at the commencement of the trial, during the course of what became a part heard trial, the father made further allegations of sexual abuse. These are contained in an affidavit the father filed by leave on 30 June 2011 and also in tape recordings that the father made during the course of the trial in between part heard dates, some 58 recordings in all. In his affidavit filed on 30 June 2011, the father proceeded to allege that the child has made comments to the effect that the mother is now touching “his balls”, that the mother is full of hate, and other matters as set out in that affidavit, including that the mother and child lie in bed all day.
The history of this matter is set out in the Independent Children’s Lawyer’s summary of case. I adopt the chronology as set out by the Independent Children’s Lawyer and set out below the background of this matter.
Background
The parties commenced a relationship in September 1996. They met when the mother was on a working holiday in Australia. The parties married in Sydney on (omitted) 1999 and separated in June 2008 after a relationship of 12 years, 9 of which they lived together. The parties lived in Japan from 1999 until October 2005 at which time they returned to Australia. Whilst the parties were in Japan, the father (occupation omitted) at an (workplace omitted) and did some private tutoring of children and adults. The mother worked as a (occupation omitted).
In their five years in Japan, the mother says they were involved in many arguments; the father was generally very unhappy about living in Japan and made criticisms about Japanese food, Japanese architecture, and Japanese people. The father says he loved living in Japan and would like to return there and denies that he was ever unhappy in Japan. In 2005, the parties returned to Australia and together they purchased a unit in Cairns. The mother says that she returned to live in Australia because she considered that the father would be happier in Australia where he had his friends and things familiar to him, however, when the parties returned to Cairns and lived in Australia, the father was no happier.
The father has said that they had some difficult times in Japan and that the mother’s work as a (occupation omitted) was very stressful for her. The mother agrees that it was, however, she says that she managed to function well and that even though her work was stressful, she is quite capable of managing that stress. The parties’ relationship appears to have deteriorated further when the parties lived in Cairns and their disagreements resulted in the police being involved and attending at the parties’ home during some of their verbal arguments. In the context of these arguments, the mother has admitted that she said she wished she could go and live back in Japan with the child.
The parties moved into their unit in Cairns in November 2005. During 2006, the mother fell pregnant and X was born on (omitted) 2007.
Only a month later, the mother had contacted the Police to allege that the father was calling her “an idiot” and “disgusting” and that he would not let her breast feed the baby.
In October 2007, the mother told the father she wished to go back to Japan with the child. This resulted in the father contacting the Department of Child Safety to make a counter allegation that the mother was emotionally harming the child, that she yelled at him and to register his concern that the mother would leave Australia with the child and return to Japan[1]. Subsequently, there is a history of allegations made to the Department of Child Safety by the father against the mother which I will address elsewhere in these reasons. None of the allegations (approximately 10) made by the father against the mother has been substantiated, including the sexual abuse allegations.
[1] Exhibit M1.
The parties purchased their apartment in Cairns and this apartment was subsequently sold after separation. The proceeds of sale of some $144,000 were divided up solely by the father who allocated $40,000 to the mother and $104,000 to himself. It is the mother’s case that her own parents made a significant contribution to the cost of the apartment which ought to have resulted in her receiving the greater share of the net sale proceeds. The father denies that these contributions were made. He admits to having spent the bulk of the sale proceeds on his own discretionary expenses. He has retained the only remaining significant assets, being a Toyota (model omitted) and trailer, contrary to the Consent Orders made on 15 January 2010 wherein the father agreed to the sale of those vehicles and the payment of the proceeds to the wife within seven days. The father tells the Court that he, having agreed to the Consent Orders, now maintains a position that it’s not possible for him to sell the car as he needs it for his own purposes. The father estimates at least $50,000.00 of the $104,000.00 may have been spent on toys for the child.
In terms of each of the parties’ backgrounds, according to the father’s mother and paternal grandmother, Mrs Farrelly, the father left school prior to grade 10 and did not complete his grade 10 or senior schooling. His mother gave evidence that he wasn’t very interested in school, he had mucked around in primary school and that initially the school considered that there was a problem with the father. He was subsequently assessed by the Department of Education. Mrs Farrelly said that the assessment revealed that there were no issues of concern and subsequently extra coaching was organised for the father. Mrs Farrelly said that the father was not interested in school and has never been interested in school. She said at high school he fell in with the wrong crowd and did not complete his schooling.
The father gave evidence contrary to his own mother in relation to his own school experience. He states he did complete Grade 10 and that he did well at school. During the resumption of the trial in July 2011 after his mother had given her evidence and left Cairns, the father stated “I wasn’t doing very well at (omitted), so my parents took me out and they put me into (omitted) Public School, where I did extremely well. I came top of the class in everything, going from a private to a public. And then I went to a public high school, which was named (omitted) High School.”[2] The father’s evidence is therefore inconsistent with his mother’s evidence.
[2] Transcript 14 July 2011, page 17, line 45.
When the father left school, he worked in the (omitted) of a (omitted) and then in a variety of occupations, including working in (omitted). The father said he ran a (omitted) in Cairns and had an (omitted). The father said that he intended to set up a (omitted) business during the marriage; however the evidence is that apart from preparing brochures and spending money buying equipment, the father did not ever commence or work the business. The father seems to blame the mother for this.
The mother was born and raised in Japan. She completed her schooling in Japan and then completed her (qualifications omitted) at a (omitted) college. She practised in Japan as a (omitted). The mother has not yet been able to work in Australia as a (omitted) as she needs to improve her English to a standard acceptable to do exams.
The mother has taken on the role of full time mothering since X’s birth. Around mid 2010 about 2 years after separation the father obtained employment at a (omitted) and, it seems, attending to some (omitted). The father works five days per week and continues to work there as at the date of trial.
The mother has not re-partnered. The father however, post separation, was in another relationship for over 12 months with a (omitted) woman. The father says he and his then girlfriend spent a reasonable amount of the unit sale proceeds on entertaining and living expenses.
The parties have been separated since 6 June 2008, when X was 15 months old. X is now 4 years and 11 months. The parties have attempted to co-parent the child since separation; however there have been ongoing issues and disagreement since that time.
Whilst there were no Court orders made at separation, two days after their separation on 6 June 2008, the mother was presented with a statutory declaration prepared by the paternal grandmother, Mrs Farrelly. That document says that the child will live with each of the mother and father on a week on/week off basis. The mother who, as I have stated, is a Japanese national, speaks limited English. Mrs Farrelly explained to the mother that in Australia the general arrangement was that children were to live 50% with each of the mother and father. The mother says that she did not really know what to do when faced with the document, and the father and his mother telling her to sign it, so she signed the document, though she was uncertain about what she was signing and why she was signing it. The parties then commenced acting on that arrangement post separation
In April 2009 the mother through her solicitor requested consent to live in Japan with the child. On 9 June 2009 the father filed his first application in the Federal Magistrates Court, seeking only one order and that was for a Pace Alert. The mother responded on 15 July 2009 that the Application be dismissed. An Order was issued on 20 July 2009 restraining each of the parties from removing the child from Australia, a Pace Alert to issue, equal shared parental responsibility for the child and orders for the parties to file further material and applications in relation to the orders sought on a final basis, the appointment of an Independent Children’s Lawyer and the parties were directed to attend a Joint Child Dispute Conference in September 2009.
The father filed for divorce on 3 July 2009 and on 13 August 2009 the father filed an Amended Response that the child live with him for six nights per week from 9am Saturday until the following Friday at 9am and the child to live with the mother for 24 hours from Friday 9am until 9am Saturday. The father also requested he be permitted to relocate the child to Sydney and “to encourage the mother to also reside” in Sydney. In his Orders sought, the father included orders that:
“no hindrance is to be placed on either parent regardless of residence for visiting family members who are visiting from interstate or abroad;
The father encourage and welcome the mother to attend X’s weekly swimming lessons in the pool whilst the father is teaching the child to swim;
The father should wherever humanely (sic) possible assist and deliver or pick up X and/or his mother if she requests, only if long distances are a restraint for the mother. This should be worked out amicably between the two parents, taking into account petrol and public transportation (sic) expenses if the hardship need ever arises from either parent;
The father have full authority and responsibility in regards to the child’s place of day care/kindergarten and education;
The father be the main decision maker in relation to parenting decisions;
Health needs – that the father shall be the main decision maker for all doctors and specialist appointments and other medical practitioners and will advise the practitioner to have the results posted to the mother;
Important values and principles – that both parents pledge out loud the below values; to constantly reaffirm X’s ability and progress, to always support and be loyal to each other, to remember your values are uniquely yours and for both parents to reflect what we will pass onto our little X, to remember that X has a long life ahead and it is us as parents that will guide him, to remember to encourage love as it is so important for X’s security and for both parents to remember that being parents will connect us together forever, so we must have stability and control in our lives.”
The mother’s response on 2 September 2009 was that the parties have equal shared parental responsibility and continue with a week on/week off arrangement, special days and half the holidays. An order was sought to remove the child from the Airport Watch List, a self imposed restraint preventing the mother from obtaining a Japanese Passport for the child, that each of the parties together obtain an Australian Passport to be held by the father and the mother be permitted to travel with the child having first obtained the father’s prior written consent, including providing an itinerary, copy of a return air ticket and surety of $10,000 being placed into the father’s solicitor’s trust account.
The parties attended a Child Dispute Conference on 3 September 2009. The memorandum records that the parties were in dispute about the living arrangements for the child and “that the father indicated he would not pursue relocating to Sydney with the child if the mother did not agree. The mother noted she had no intention to relocate to Sydney. Consequently, the parties discussed their relevant proposals.” The mother wished to maintain the week on/week off arrangement stating that the child was quite happy with the arrangement which had been in place for some 12 months. The father proposed he have the child for six nights out of seven and the mother was to have 9am Friday to 9am Saturday. The father also indicated that he believed the child had become used to a week on/week off arrangement and if the parties could improve their communication, they may be able to find some common ground between them. A recommendation was made for an interpreter and the preparation of a Family Report.
Six days later, on 9 September 2009, the father filed a further Amended Application seeking orders for equal shared parental responsibility and a week on/week off arrangement, special days and other ancillary orders. Noticeably, the father no longer sought an order to relocate to Sydney nor was he restricting the child’s time with the mother to 24 hours per week. The issue of the mother’s overseas travel with the child remain unresolved.
Orders were made at the next mention on 14 September 2009 for the Independent Children’s Lawyer to organise a Family Report and for the parties to attend a further Child Dispute Conference on 9 December 2000. Other orders regarding property were also made which included the father providing to the wife bank statements for their joint bank account held at the ANZ bank in Sydney at defined periods. The parties were ordered to a Financial Conference on 8 December 2009. It became clear at this mention from what the father told the Court that the sale proceeds of the unit retained by the father had been fully expended by him on discretionary expenditures.
The parties’ divorce proceeded on 10 October 2009.
The matter was next mentioned on 2 November 2009 and at that time, orders were made that the child continue to live in a week about arrangement with changeovers on Friday and significantly, at order 3, that on each day the father is required to work whilst the child is living with the father (usually Monday to Friday) the father will deliver the child to the mother’s residence at 8:30am and collect the child from the mother’s residence at 6:00pm. Up to that point, the child had been attending (omitted) Day Care during the father’s week, with the mother sitting at home, being in a position to care for the child. At the instigation of the Independent Children’s Lawyer and following discussion and negotiation, interim orders were made that while the father works, he deliver the child to the mother’s residence during his work hours and that the communication between the parties about the child’s day to day care be by means of a communication book.
Further orders were made for disclosure by the father of his current bank accounts, credit card statements, the sale documents relating to the Subaru and the father’s Pay pal transactions shown on his bank accounts.
In April 2010, the father had made further allegations about the mother to the Department of Child Safety[3]. The father is noted as “continuing to notify the Department of every incident.” The Department notes “if reports continue it is likely a Child Protection Notification should be recorded on the basis of dysfunctional parents, with a risk of emotional harm with both parents as alleged persons.”[4]
[3] Exhibit M1 and see aid memoire
[4] Exhibit M2 – letter dated 8 November 2010, summary created 12 April 2010.
The matter was listed for a three day trial on 26 May 2010. At the time the trial was listed, it was anticipated that the trial would involve deciding the remaining parenting issues which included whether or not there would be an order for equal shared parental responsibility, the mother’s wish to travel to Japan regularly with the child in order for X to spend time with his Japanese grandparents and relatives and the remaining property issues. An interpreter was organised for the mother and the father was self represented.
The parties were ordered to file and serve any further amended Applications or Responses setting out specifically the orders sought and the matter was listed as a reserve trial in the week commencing 15 November 2010. The matter was not reached at that time and was subsequently relisted for hearing to commence on 3 May 2011.
First day of the hearing – 3 May 2011
On the first day of trial, Counsel for the mother advised that two business days prior to the commencement of the trial, a notification was made by the father to the Department of Child Safety alleging sexual abuse of the child by the mother. The child had been interviewed and the notification was recorded as being “unsubstantiated”. The mother received a letter from the Department of Child Safety dated 29 April 2011 which was annexed to an updating Affidavit.[5] Each of the parents was forwarded the same letter.[6] The letter confirms that the notification was unsubstantiated and the child is not in need of protection.
[5] Page 6 & 7, Transcript 3 May 2011.
[6] Page 6 & 7, Transcript 3 May 2011.
The father who was self represented relied upon a Case Outline prepared by himself of some 74 pages (not paginated). The father also sought to rely upon an Affidavit of the paternal grandmother, Mrs Farrelly filed on 27 April 2011. The father’s documents included a document entitled “Further Final Orders for all determined situations” which included his primary position of relocating to Sydney, an alternate position if the mother did not also relocate to Sydney, an order in the event that the mother relocated to Japan (which the father conceded was not an order sought by the mother) and also an order seeking to vary final consent property orders so as he did not have to pay the mother funds which the consent order provided for.[7]
[7] Transcript 3/05/2011, page 14, lines 10-14.
The father explained to the Court that his belief that the mother was sexually abusing the child was solely based on what he alleged the child was telling him, that is, that the mother plays with the child’s penis or “shmekel”. The father explained that “shmekel” is a (omitted) term for penis and that this is the expression used by the child to describe his own penis. The father stated that he had recorded the child talking to the paternal grandmother telling her that the mother played with his shmekel. The father indicated that his mother, Mrs Farrelly, had travelled from Sydney for the trial and that she was available to give evidence about a phone call she had with the child, during which the child told the grandmother that “Mummy plays with my shmekel.”
The father stated to the Court that:-
“…He has made statements that he has been sexually abused. You know, and this virtually starts, “Mummy”….
for the purpose of this Court, we call a penis a “shmekel,” okay? That is (omitted)
“Mummy said she has a shmekel under her hair. Mummy said she wants to be a boy. Daddy, mummy keeps touching my shmekel.”
Sorry, Your Honour.
“Daddy, mummy keeps pulling my shmekel.”
I asked, her I said, “X, please ask mummy to stop pulling your shmekel because you don’t like it.” And he says, “Daddy, daddy, I do, but she gets angry and keeps doing it.”[8]
[8] Transcript 3/05/2011, page 36, lines 10-15.
When the father was asked if he had put any of this in his Affidavit material he replied:-
“No, Your Honour, this is actually recent. And recently, when he spoke to my mother, he made this evident and we have recorded it. She was recording the telephone call and it is just a real shock. I mean, this is just totally unacceptable. I just can’t accept it and you know, I really don’t know if there is some sort of sexual abuse happening.”[9]
[9] Transcript 3/05/2012, page 36, lines 20-25.
The father stated that no Affidavit evidence had been prepared by him on this topic stating:-
“No Your Honour, because this just came up. It was too late. This only came up in the end of this month, the end of April.”
The father stated also that:
“It was on 23 April that X made his comments evident to my mother. Previously I had been ignoring it.”
As the father had not prepared Affidavit material relating to this issue the Court requested the father give his evidence in chief orally.[10] Counsel for the mother drew the Court’s attention to a vague, non-specific reference in the father’s 72 page case outline (which was actually a 37 page outline, parts of which were printed more than once and stapled together.)
[10] Transcript 3/05/2011, page 37, whole page.
The father’s case outline was filed on Friday 29 April 2011 (prior to the trial commencing on the following Tuesday, 3 May 2011). On page 29 of that document the father had written the following:-
“More recently, X has been making items evident to me that Ms Kaling may be sexually abusing X. I will leave my deposures (sic) for the Court for X’s safety as I do believe Ms Kaling would take these comments directly to X.”
Further reference to sexual abuse occurring is made on pages 29, 30 and 31 of the case outline (which was subsequently paginated). Those references are included in either the same or slightly different form at pages 32, 33 and 34 of the amended case outline of the father filed on 4 May 2011.
Recording of child’s conversation with Mrs Farrelly in the presence of the father - recorded by Mrs Farrelly and burnt onto a CD
The father, whilst walking to the witness box to give his evidence in chief about the alleged sexual abuse allegations, advised the Court that he also had a CD of the child X “making his comments to my mother”[11] that he wished to play.
[11] Page 43, Transcript 3/05/11, line 25-40.
The father stated that the CD came into existence on April 23 2011, that the CD was off his own mother’s computer and that his mother, Mrs Farrelly, had recorded “the telephone calls.” The father said that the conversation recorded took place on April 23, 6 days prior to filing his case outline.[12]
[12] Page 37, Transcript 3/05/11, lines 10-15.
In being taken through the specifics of the phone call, the father was not able to recall what day of the week that the call took place. The father said “I need to look at a calendar. The 23rd of April.” The father recalled that he had phoned his mother before the recorded phone call and that his mother told him that she would call him back. The father said that this occurred because, “It is much cheaper for my mother to call me. So I phoned her, she said she would call me back.” When asked if there was a purpose for the phone call the father replied, “No. Just to say hello to X.”[13]
[13] Transcript 3/05/11, page 56, line 10.
The father explained in his evidence that he did not have a memory of which day of the week the phone call which was recorded took place. The phone call had occurred ten days earlier. The father said “I just don’t remember, I have had so much going on.” The father agreed that he knew that his mother was going to ring and said “I think we called her beforehand on the mobile phone.” The father explained that he was in the immediate area of the telephone call, making himself a cup of tea, that he had placed the phone call on speaker phone and could hear it from where he was in the kitchen and that he wasn’t really listening that well. His memory was that his own mother might have asked something about “how is your mother, or how’s mummy” to which X replied that his mother was always angry and he then heard him talk about his shmekel. He recalled his own mother saying to X, words to the effect “you know she shouldn’t be doing that – she shouldn’t be touching your shmekel.”
The father agreed that when X was speaking to his grandmother that he was not at all distressed.[14] The father thought X was a little nervous because he had already told the father the day before that he didn’t like his grandmother and grandad. The father said his own mother asked to speak to him during the call, that he thinks he then took the phone off speaker phone and his mother said to him “Mr Farrelly, I am recording this.” He said his mother couldn’t believe what X had said that and that she had been recording the conversation. This is contrary to his mother’s evidence. Mrs Farrelly says she rang the father “possibly the next day, I am not sure.”[15]
[14] Transcript 3/05/11, page 59.
[15] Transcript 3/05/12, page 96, line 25.
When asked if he had any idea why his mother decided to tape that particular conversation, the father said “because she is aware that X says things about Ms Kaling and in order – it’s been very difficult situation between – for myself, personally, with this Court situation of proving things and so I felt like recording as has my mother – is the only way that things can be proven and substantiated for the safety of X.” The father confirmed that he himself records things from time to time, because he feels it’s important for X’s safety and ultimately “in Court, things need to be proven.”[16]
[16] Page 59, Transcript 3 May 2011, line 25.
The father said he had told his parents about the conversations he had been having with X, and he thought that occurred in March 2011. He said his mother replied “that it was all very odd.”
The father also indicated that as shown in his Case Outline, he had changed his position and now again sought orders that he be permitted to relocate to Sydney with the child. This was in contrast to the father’s earlier position of not wanting to relocate, a position the father had maintained since 9 September 2009, some 14 months earlier.
The father said he had informed the Department of Child Safety about his suspicions or concerns regarding the mother’s alleged sexual abuse of the child and that those allegations were being investigated. He later, only when asked, confirmed that he had also received the Department’s letter which the mother had annexed to her material, indicating that the Department’s enquiries were concluded and the allegations were unsubstantiated.
The father’s evidence was that his mother handed to him the CD she had burnt on Sunday 1 May 2011 when his mother arrived in Cairns from Sydney. He said “I only heard it last night”[17] being Monday night, 2 May 2011.
[17] Transcript 3/05/2011, page 88, line 30.
After giving his evidence the father was asked whether or not there was anything else he wanted to say about the alleged sexual abuse allegations. The father replied:-
Mr Farrelly: No, your Honour, no. Just I feel like there might be a pattern of intimidation being attempted and as it fails, new items come forward in the hope of actually intimidating more.
Her Honour: Just explain that a bit more?
Mr Farrelly: Okay, thanks. For example, if Ms Kaling displays a period of lateness when I deliver or collect X and it looks like it’s not affecting me and I maintain capability to wait or call or whatever, new items might come forward, whether that be in the communication book which Ms Kaling has held from me, I haven’t got copies of. More recently a PSP game. Now it’s become evident that Ms Kaling to X as well obviously does not like X's Property D toys being taken to Ms Kaling’s home, Property M home. They are his - as far as I’m concerned, they are his toys, I don’t discriminate between his two homes but Ms Kaling doesn’t like his toys going to his home. So in the communication book there was a PSP game console and X wanted to take it and I said to X, I said, “X, no mummy doesn’t like it”, you know, “its better you leave it here.” And she wrote in the communication book something negative about this so I told X not to take it. X said to me, “Daddy, daddy, mummy said she likes it, mummy said she likes it, I can take it.” So I took that in the context that day that Ms Kaling was actually quite in discussion with X about his PSP telling him that she like his PSP and she didn’t mind him taking it but when I said, no – do you understand what I am saying?
Her Honour: Not yet
Mr Farrelly: So it was almost as if she wanted X to think that I didn’t want X to take the PSP. Can you understand? Sort of a reverse sort of situation. This happens a lot with a lot of things.
Her Honour: Is that in any way related to what you believe to be sexual abuse?
Mr Farrelly: No, but I believe it might be. I believe the pattern of tricks and games or whatever you call it might be in line with other sort of items related to that.
Her Honour: Alright, is there anything else you want to say about anything to do with the alleged sexual abuse?
Mr Farrelly: No, Your Honour, except to say that I don’t know if it’s actually happening and I don’t know how to substantiate this, you know, except ---
An opportunity was provided for the mother to listen to the recording.[18] Mrs Farrelly who recorded the telephone conversation was in the precinct of the Court during the father’s evidence. On one occasion Mrs Farrelly was asked to leave the Court room having wandered into the court room prior to being called to give her evidence.
[18] Exhibit F2, Audio CD recording.
During the course of the day, I restrained the father from spending any time at all with his parents over the lunch hour. The father was advised “you are not to speak with them or have lunch with them” and the father replied, “Okay.” The Court had his mother, Mrs Farrelly, called into the Courtroom and it was explained to Mrs Farrelly that the father “Is not to speak with you or your husband while he is under oath in the witness box, do you understand?” Mrs Farrelly replied, “Yes”. It was also explained to Mrs Farrelly that the father would not be approaching her or her husband outside the courtroom and would not be having lunch or discussions with them. It was also explained that this restraint applied to her husband as well.[19] The father was also directed not to ring his mother or father during the luncheon break and the father indicated that he understood this.
[19] Transcript 3/05/2011, page 73, Lines 40-45 and Page 74, Line 0-20.
After the luncheon adjournment, when asked by the Court, the father indicated that he had spoken with his father during the luncheon adjournment. The father was questioned as to whether or not he was told not to talk to his father over the luncheon break. The father replied, “I am not sure if you did, Your Honour. I thought you said my mother.” The father said he spoke to his father during the lunch hour, but denied discussing the litigation.
The father’s inability to give short concise answers resulted in his evidence in chief taking much longer than would have otherwise been the case. The mother had to have an opportunity to hear the CD which Mrs Farrelly said she had made of the telephone call with X and the father. Time did not permit the evidence in chief from Mrs Farrelly to be taken in the first hearing days in May. I was not prepared to interpose the father’s mother in the midst of the father’s evidence, which is what would have had to occur if Mrs Farrelly’s evidence was taken in the May hearing days.
When the matter resumed in June 2011, the father sought to rely on further evidence of the child making allegations of the mother playing with his penis which were recorded between the conclusion of the first lot of hearing days in May 2011 and matter resuming in June 2011. There were 58 new recordings in all. As it was not therefore possible to conclude the hearing in the days allocated in June, further days were allocated in July/August 2011. The trial was therefore finally concluded after three separate lots of sitting days ending in August 2011.
However, whilst the decision was reserved, the mother lodged an urgent application in January 2012 as the father had decided to unilaterally suspend the mother’s time with the child and retain the child in his sole care. By the time the mother lodged her application, the father had held the child over for several weeks including over the entire Christmas Eve/Christmas Day/Boxing Day period. The father informed the mother that not only would the child now remain in his sole care, but also that he had decided which school the child would be attending (which was one of the issues argued at trial). The father told the mother he would not have a dialogue with her solicitor, only the mother or a third party.
A Recovery Order was made for the return of the child to the mother on the first day that the Cairns Registry re-opened after Christmas, namely 9 January 2012.
In his response the father sought leave to file another CD containing more tape recordings made by the father, mostly during the period he held the child over. The father said he had taped the child using an old recorder that he had. He said he then put the recordings onto a CD and erased the original recordings from the tape recorder. There were approximately18 further recordings. The parties were given an opportunity to re-open their cases based on the additional events which occurred over Christmas and January on a date allocated in February 2012. Each party cross examined the other.
The January 2012 allegations
The mother’s urgent application was filed and dealt with on the first day after the Christmas Court closure, on 9 January 2012.
At that time, the mother had not seen X for weeks, as the father had not returned the child to the mother at the conclusion of his week which was to occur on 23 December 2011. The mother gave evidence that she had been trying to contact the father without success to determine why he would not return the child. She had attempted to contact the child to speak to the child without success. The mother heard the father say to X upon her ringing “X, do you wish to speak to your mother?” and she could hear X’s response of “No, I don’t want to talk to Mummy.”[20] The mother says that the father would not tell her where the child was and that as she had an arrangement to look after the child whilst the father was at work, as set out in the current orders, and she knew the father was working, she was unsure as to the whereabouts of X during the day. The mother says that at a point the father offered her supervised day time. The father’s conduct was at odds entirely with the shared parenting arrangements embodied in the consent orders in place. The father had written to the mother and those letters were annexed to her Affidavit. The father essentially tells the mother that “I now place myself in a position to allow X to live with me on a full time basis.”[21]
[20] Paragraph 11, mother’s Affidavit 9 January 2012.
[21] Annexure RK2 to the mother’s Affidavit filed 9 January 2012.
The father’s letter continues “my reasons and mind are solid. They all pertain to disturbing items, words, situations, attempts and ultimately now X’s over explained and displayed feelings of extreme discomfort to see you.” The letter continues “I can also inform you that since proceedings ended, I have continued to monitor situations. These include X coming close to sustaining severe injury or worse, sexual items, words, physically abusive items, situations and conditions.”
The father’s correspondence to the mother was typed using various techniques to accentuate his evidence. At times bold type was used and sometimes bold type and underlining. In one paragraph the father stated (adopting his underling and bolding) “Ultimately, you have failed to coach X away from me, drawn him glued to me and achieved the grand status of making X as your only child scared of his mother.” The father pointed out that he took no responsibility for the mother’s actions and that “I do not seek further litigation against you, but agreement by way of negotiation through a “capable” third party.” The father says “It is X’s ultimate discomfort, feelings, words, descriptions and unilateral wants that have caused this situation.” The father says also that “my condition is stable, very busy, indeed overdrive with not an inch of support. Financial stress and a full focus on a life situation for myself and X. I find myself in the middle of a dark tunnel and I am looking at the light at the end. My responsibility and focus on X remains x-ray visioned with a rechargeable battery. My mindset and stability remains neutral, and stable, with fuel to keep me going.” The letter concludes “Please also note that I will not be responding to your legal persons, agents or colleagues. Any communication by them will be recognised by me as a manipulative attempt at legal gain. You have the choice of negotiation, please do not choose alienation or litigation. I will only respond to you as you are X’s mother and this is what is important”.
In another convoluted letter dated 1 January 2012, in which the father announced proposals to the mother entirely contrary to the current week on week off Consent Orders, the father says that the child only wants to see the mother sometimes, and only in the day time. He says X describes a lot of “forced vomiting” and “room lock ups” caused by the mother during the day. The father again suggests that he knows a good friend who can act as a witness and mediator to stabilise access arrangements between the mother and X. In the first letter, the father also makes reference to the fact that he intends to take the child to commence his schooling at (omitted) State School. As I have said, this announcement was made when the matter was before the Court awaiting a final decision. The father who lives in Property D wrote “X’s situation at Property D is stability, happiness and well being. He is very excited to be with me day and night. All is good. His 2012 schooling is all prepared at (omitted) and others in Sydney are on stand by to assist should relocation be approved.”[22]
[22] Annexure RK3 to the mother’s Affidavit filed 9 January 2012.
The father was given an opportunity to file his material in relation to the allegations of the mother which he filed on 2 February 2012. The mother’s Application in a Case sought for the current week on/week off arrangement to be suspended and for the father to be psychiatrically assessed and that he have no contact during the interim period. In this affidavit, some paragraphs contain what appear to be formulae accompanied by a commentary in brackets of what the father perceives to be an ongoing campaign by the mother. This is notwithstanding that it was his unilateral action in holding over the child for more than two weeks which led to the mother filing her urgent application.
Paragraph 18 of the father’s affidavit is a paragraph which makes reference to the mother’s “planned target” and other unusual concepts. Paragraph 18 reads as follows (adopting the father’s setting out):
18. The mother wrote on the 8th of December 2011 in the “communication book” pertaining to this occasion,
a. “I was late to deliver X yesterday when you came to pick up because X refused to go.”
·(The mother now wanted and planned target. An added “niggle”)
b.“I took a while to persuade him.”
·(The mother’s wanted target) Note: “Took a while” = her lateness reason + intimidation against me. See next line c.
c.“When we went to downstair you are not there.”
·(A “game”, a contradiction to lateness reasons at line b. Her original reason as stated on the telephone.)
d.“Unfortunately, X sometimes does that as you knew.”
·(Comes back to associate her mind wants with her intended target “You” lines a. and b. and attempts to bribe and/or display me as agreeing with her. Removes mention on sentence c.)
e.“We are going to have a look at (omitted) state school tomorrow.”
·The mother is fully aware of the (omitted) School situation and attempts a little “niggle” as the final.”[23]
[23] Father’s Affidavit filed 2 February 2012.
As it was apparent that each of the parties wished to have the evidence of the December events put before the Court, the parties were given an opportunity to re-open their cases and rely upon this additional evidence as part of their respective cases, cross examine each other and make any further submissions. Attached to the father’s Affidavit were two CD’s and a DVD. On the 2 CD’s the father informed the Court that he had recorded 18 different recordings of himself and X and a couple of recordings including the mother on a telephone call.
The father’s position as to why it was that he held the child over for weeks, (and I note here that the father would not accept that he held the child insisting instead that he simply “cared for the child”) was that four year old X did not wish to go back to his mother’s. The father refers to X’s “discomfort” at going back to the mother. The father says X told him that the mother makes him vomit and this was another reason he did not send the child back to the mother. The father alleged that whilst the child is at the mother’s the mother shouts at the child “vomit vomit” and he believes that the child then vomits.
The alleged forced vomiting is accompanied by allegations of the father that X says the mother makes him eat chocolate and margarine together and vegemite and strawberries together. The father appears to infer that this conduct of the mother’s is designed to make the child vomit.
The father also says the child continued to make statements about the mother touching his “shmekel” in line with the earlier evidence given during the trial. The father alleged further disclosures by the child to him, set out largely at paragraphs 79, 80, 81 and 82[24]:
“79. Furthermore, X now explains with clarity that the mother “Plays with his shmeckle”, (fondles his penis) “when she he lays on the bed with him and goes to sleep.” He explains his discomfort and explains asking her “not to, but she does it more.”
80. X now explains the mother “playing with hers and telling X to play with his at the same time.” X further explains, “Mummy said to touch Daddy’s shmeckle.” (see recordings).
81. X’s comments are disgusting in the extreme and something he is not capable of making up as fantasy. I do not care if it is happening, or if the mother is coaching him with intent for reverse legals. Either way is the worst of the worst. I do not have any doubt in my mind that what X is informing me off is the truth, the whole truth and nothing BUT the truth. His maturity is not capable of making such items with clarity up. I ask her Honour and the court to fully recognize this on this day, and to not afford a lingering of such items against my son any longer. I do not seek criminal prosecution against the mother, but rather parenting orders to be placed immediately which my application accounts for.
82. X has matured a great deal since the defended hearing ended, and his comments which pertain directly to sexual, mental and physical abuse are rife. His condition also proves it.”
[24] Father’s Affidavit filed 2 February 2012.
In the period that the father held the child over, the father says that four year old X did not want to talk to his mother and he suggested to the mother that she have only daytime contact. The father’s material at paragraph 91, sets out what the father says that the child has said. Paragraph 91 reads as follows:
“91. Further items X states:
a. Fondling X’s penis when she lies in bed with him whilst he goes to sleep.
b. Forced vomiting by locking him in rooms and screaming “VOMIT-VOMIT”
c. Coaching X that “everything is a secret”.
d. Forced vomiting by spreading “Margarine on chocolate,” “forcing X to eat it” and screaming “VOMIT-VOMIT.” X has also explained she does the same by putting “Vegemite on strawberries.” This was “new”.
e. Locking X in rooms in time with my collection, although not limited to, appearing late, and “Slapping his hands to make him cry”, then screaming, “Daddy and X are idiots.”
f. “Teaching” X “how to hurt Daddy” “Mummy says hit you with a hammer”
g. “Mummy says the Aborigines are going to bash you at (omitted) School”
h. “(omitted) said to feed you to the crocodiles” Note: mother’s friend. ((omitted’s) mother)
i. “Mummy is teaching me like a girl”
j. “Daddy is stupid” (constant) “Daddy is an idiot” (constant) “Daddy and X are stupid idiots” (constant)
k. The mother’s withheld for “evidence” “communication book input” stating “X is violent.” X is the extreme reverse of “violent” and is overly placid and lacks confidence. Ms E noted “He is a shy boy.” However, when she had viewed X with me after completing her “second” family report, she stated “he looks exactly like you.” X was giggling loudly during this time. X does fully resemble my nature and he is glued closed to me. He feels fully loved and secure with me. I make sure of that.
l. “Daddy stinks”
m. “Everything at Property D is stupid” (X also explains that the mother hates his Property D street clothes)
n. X also started to explain that the mother says, “Daddy and X are idiots and stupid.” “Mummy says I (X) stinks.” X then became paranoid that he did “stink” and occasionally if we were rushed for time and I didn’t want X to have a shower, he would overly insist stating “Mummy will say I stink.” We then had problems with his “t-shirts.” “I don’t want to wear this one because Mummy will get angry and hate it.”[25]
[25] Father’s Affidavit filed 2 February 2012.
In terms of the final orders sought, the father submitted that the final orders he sought remained unaltered, that is, that he be permitted to relocate to Sydney with the child.
Although the mother had sought orders for the father to be psychiatrically assessed in her application in a case, the position of the mother in terms of final orders sought remained unaltered and that is, that the child live with the mother in Cairns and spend each alternate weekend with the father.
At the conclusion of the February 2012 hearing, the father also tendered a DVD of what he described as “the Farrelly Family.” The DVD consists of a montage of photographs put together by the father primarily of X and his grandparents, X and his father and X and his cousins who once visited Cairns, together with captions such as “gotcha!” and background music using the theme song from the movie Titanic, “My heart will go on” sung by Celine Dion and other tracks. The DVD also contained photographs of birthday and Christmas cards the child had received over the years from various family members.
I have admitted into evidence the further material of each of the mother and father and provided an opportunity for the mother and father to ask questions of each other in relation to the new material.
Having listened to the recording on the two CD’s I am informed by the father that he really has no idea when he recorded most of the recordings, unless he looks at his own index. The father does not know the context of the recordings and says that he cannot recall the conversations that were leading up to the recordings. The father does not have the original recordings. He says he recorded the conversations on a small tape recorder available. He has destroyed the tapes, after transferring the recordings onto a CD.
The final day of that hearing was on Friday 24 February 2012.
The Law
This application is governed by the principles set out in Part VII of the Family Law Act 1975 (Cth) (“The Act”). In making parenting orders, the best interests of the child are the paramount consideration. The Act provides two primary considerations described by Justice Brown in Mazorski & Albright [2007] FamCA 520 as “twin pillars”. Her Honour stated: “The first is the importance to the children of having a meaningful relationship with both parents; the second is the need to protect children from physical and psychological harm. These are stressed in s 60B (1) which sets out the objects of the legislation relating to children and are reiterated as the primary considerations in s 60CC (1).’
When I determine the best interests of X, I will consider the additional considerations set out in s.60CC(3). I will consider and evaluate each of the parties proposals for care of X including the significance of the primary considerations in s.60CC (2) according to the legislative pathway. Reference will be made to the allocation of parental responsibility.
If an order for equal parental responsibility is to be made, section s.65DAA (1) of the Act is invoked. In MRR v GR [2010] HCA 4 3 March 2010 the High Court stated that ss.65DAA (1) (a) and (b) and 65DAA (2) (c) and (d) are expressed in imperative terms and oblige the Court to consider both the question of best interests and whether it is reasonably practicable that the child spend equal or if not equal, significant and substantial time with each parent. A determination as a question of fact that it is in the child’s best interests and reasonably practicable that equal time (or significant and substantial) be spent with each parent is a statutory condition which must be fulfilled before the Court has power to make a parenting order of that kind. It is only when both questions are answered in the affirmative that the Court may give consideration to making an Order for equal time, or if not equal significant and substantial time.
This matter involves allegations of abuse by the mother against the child, including sexual abuse. I have had regard to the authorities regarding unacceptable risk as referred to in cases such as the High Court case of M & M [1988] HCA 68; [1988] 166 CLR 69.
In M and M (1988)FLC 91-979 (High Court) their Honours Mason CJ, Brennan, Dawson, Toohey and Gaudron JJ considered the tests appropriate to define the magnitude of the risk which will justify a court in denying a parent access (now contact) to a child. The majority of the High Court concluded that “To achieve a proper balance the test is best expressed by saying that a court will not grant custody or access to a parent if that custody or access would expose the child to an unacceptable risk of sexual abuse.”
In the matter of M and M the trial judge was not satisfied, according to the civil onus as stated in Briginshaw v Briginshaw (1938) 60 C.L.R 336 at p. 363, that the father had abused the child and therefore did not make a positive finding. However, the trial judge was not satisfied that the husband had not abused the child and on that footing, His Honour was unable to exclude the possibility that he had had so abused the child. His Honour the trial judge said “Indeed, the aggregate effect of the evidence of the wife, Constable A and Miss F is such as to raise in my mind the possibility that the child has been sexually abused by the husband. His Honour concluded that there existed an unacceptable risk that the child would be exposed to sexual abuse if the husband were awarded custody or access. In order to eliminate the risk the child might be sexually abused, His Honour deprived the husband of access, including supervised access, which His Honour thought would not be of any benefit to the husband or child. The High Court dismissed the appeal by the father without criticism of the trial judge’s approach.
Their Honours rejected the approach suggested by the appellant at pp 77,080.
The factors mentioned in the Briginshaw test were stated by Dixon J. in Briginshaw v Briginshaw (1938) 60 C.L.R 336 at p. 362 who said
“The seriousness of an allegation made, the inherent unlikelihood of an occurrence of a given description, or the gravity of the consequences flowing from a particular finding are considerations which must affect the answer to the question whether the issue has been proved to the reasonable satisfaction of the tribunal. In such matters “reasonable satisfaction” should not be produced by inexact proofs, indefinite testimony, or indirect inferences.”
Section s 140 of the Commonwealth Evidence Act is derived from this decision. Dixon J concluded that inexact proofs, indefinite testimony, indirect inference or equivocal hypothesis will not do: Briginshaw at 362.
In M and M (supra) the appellant (whose argument was rejected) had urged the High Court to an approach which required identifying the allegation of sexual abuse as the paramount issue for determination by the Court. The Court stated that In proceedings under Pt. VII of the Act in relation to a child, the Court is enjoined to “regard the welfare of the child” as the paramount consideration” (sec. 60D). The paramountcy of this consideration in proceedings for custody or access is preserved by sec. 64(1). The consequences is that the ultimate and paramount issue to be decided in proceedings for custody of, or access to, a child is whether the making of the order sought is in the interests of the welfare of the child. The fact that the proceedings involve an allegation that the child has been sexually abused by the parent who seeks custody or access does not alter the paramount and ultimate issue which the Court has to determine, though the Court’s findings on the disputed allegation of sexual abuse will naturally have an important, perhaps a decisive, impact on the resolution of that issue.”[26]
[26] 77,080.
Their Honours continued “But it is a mistake to think that the Family Court is under the same duty to resolve in a definitive way the disputed allegation of sexual abuse as a court exercising criminal jurisdiction would be if it were trying the party for a criminal offence. Proceedings for custody or access are not disputes inter partes in the ordinary sense of that expression.
A little later in their judgment,[27] their Honours stated No doubt there will be some cases in which the Court is able to come to a positive finding that the allegation is well founded. In all but the most extraordinary cases, that finding will have a decisive impact on the order to be made respecting custody and access. There will be cases also in which the Court has no hesitation in rejecting the allegation as groundless.
[27] 77,081.
This matter involves an Application to relocate. I have had regard to the current Law on this topic, in particular McCall and Clark (2009) FLC 93-405 and U v U [2002] HCA 36.
I have had regard to the documents filed on behalf of each party, their respective case outlines, the exhibits and the closing submissions made on behalf of each party.
Evidence
Each of the parties gave evidence and was cross examined. Mrs Farrelly, the paternal grandmother gave evidence and was cross examined. A worker from the day care centre also gave evidence and was cross examined.
Ms E, Family Consultant, prepared two Family Reports and she was also cross examined.
I have had regard to all of the material, the oral evidence, the exhibits, case outlines and submissions of each of the parties.
A statement of fact in these reasons indicates a finding unless stated otherwise.
Witnesses
The Family Report Writer
Ms E prepared a Family Report in this matter filed on 9 February 2010 and an updated Family Report filed 17 February 2011.
All of the material filed by the parties was provided to Ms E along with the initial tape recording made in April 2011, and the further 58 recordings during the course of the trial. Ms E, like the Court, spent hours listening to the tape recordings.
As can be seen by her curriculum vitae Ms E is a very experienced Family Consultant and has worked with the Family Court and Federal Magistrates Court for over twenty years. Her evidence will be referred to comprehensively. Ms E gave her evidence in a most professional, experienced and considered manner. She is an impressive expert witness.
Having heard all of the new evidence introduced by the father during the trial, Ms E very clearly explained the basis of her concerns about the father’s conduct essentially alienating the child from the mother, and the type of harm that would likely occur. These tape recordings have provided for Ms E a solid basis for considering that the father is causing grave harm to the relationship between the child and his mother by continually engaging in a harmful and negative dialogue with the child about the mother. As events subsequently unfolded, even after Ms E had given her evidence as the likely outcome for X if the father’s behaviour continued, the father again engaged in the same behaviour after the trial had concluded. The evidence was re-opened prior to the final decision being handed down. The father at that time produced his own evidence of a further 18 tape recordings made in the December 2011 period, whilst this judgment was reserved. The final recordings were more of the same type of recordings all with the same sub text with discussions between himself and the child.
In the first Family Report filed 9 February 2010, Ms E made a recommendation that was couched in alternatives. If there was to be some basis to the father’s serious ongoing allegations about the mother, Ms E recommended that the child live with the father and spend time with the mother.
If there was no basis to the father’s allegations, (and Ms E observed that there was no evidence other than the father’s assertions) and adverse findings were made about his character and motive, then Ms E recommended that the child live with the mother and spend time with the father from Thursday to Monday each alternate week, and on every alternate Thursday night in the off week.
In the event that the father relocated to Sydney then Ms E recommended, for the reasons set out, that X should live with the mother and spend block holiday time during the school holidays with the father and the father to be responsible for all costs associated with travel to and from Sydney.
Ms E recommended a restraint be placed on either from making negative comments about the other, given that each parent was concerned that the other parent was attempting to estrange X.
At the time Ms E prepared the Family Report, the father had not raised the alleged sexual abuse allegations as this was raised on the first day of the trial. The recordings made during the trial also had not yet been made.
In the second Family Report filed 17 February 2011, Ms E made a recommendation the X live with the mother on a full time basis and that the mother have sole parental responsibility. Ms E recommended X spend each alternate weekend with the father from Thursday night until Monday morning and from Tuesday afternoon until Wednesday morning in the off week.
In the event the father relocated to Sydney, Ms E recommended that the father have every school holidays with X (excluding Christmas holidays which should be shared between the mother and father) and one long weekend with X in Sydney each school term. The father was to pay all costs of flights to and from Sydney.
Ms E was cross examined extensively over a long period. Ms E’s overwhelming impression was that X is triangulated in the conflict between his parents and that X is profoundly damaged by the conflict that is continuing between his parents. Ms E was extremely concerned at the father’s conduct in his sustained taping of the child and what was happening during that process. Her impression in the first Family Report was that X may have been alienated by a parent.
Having then heard the recordings provided by the father during the trial, Ms E was generally very alarmed by the tape recordings of the father. Ms E stated that the tapes illustrated that alienating behaviour on the part of the father was actually occurring. Ms E said that the father’s interaction with X is becoming quite toxic, the father has been making constant criticisms of the mother and the criticisms are escalating. Ms E was unsure if the father was doing this consciously or unconsciously. However, what she heard on the tapes was that X was starting to mirror his father’s intense dislike for the mother. She considered that X was being groomed. Ms E considered that the father was cueing the child and when he asks the questions as heard on the tapes, that the child knows what he has to say.
On recording number 52, Ms E noted the father reflects back to the things that the child did not in fact say. The child talks about a door being locked and the father proceeds to say that the child “was locked in mummy’s room.” When the child says “I cried” the father offers much sympathy in saying “poor bubba, are you Ok?” The child replied that he wanted to go back to Property D (the father’s home). The father replies “Poor bubba, you look very red in the face” and offers much sympathy. The father then continues “so as well as being locked in the room screaming, what else happened? Did she play anything?” The child says “no, she got angry”. The father says “oh, she gets angry all the time.” The father then adds in sympathy “you have had a hard one today, I know cooch, it’s a little bit hard for you isn’t it every day.” The father then says of the child’s time with him, “we’ll go and have some fun.” Ms E noted that this tape is fairly typical of the kinds of conversations that the father has recorded.
Ms E observes that the father is cueing the child to start talking about the mother by asking “what did you do today?” and that there is repeated questioning and probing. The father then is responsive to any negative comments. Wanting to please his father, X says negative things about the mother to the father at which point the father embellishes and repeats those things. The father has planted ideas into the child’s head, such as the mother screaming all the time and being angry all the time, even when X says no.
Ms E considers that the father is bringing the conversation with X back to a negative emotion by telling X that he looks sad and in making comments such as “you’ve had a hard one today” and in doing so, is reinforcing the negative. Ms E considers the father’s behaviour offers the child a clear prompt and cue. She says that at this age, children are cue dependent and that they are like sponges, looking to adults to cue them and help them understand what is around them. If parents constantly are negative and depressive, then that is the impression and influence that they have upon the children. Ms E says that at this age, children are mimicking and looking to the parent and responding very strongly to verbal and spoken, direct or non-verbal cues. X looks to his father, he enjoys his father’s attention and that the father is putting undue negativity on anything the child is saying, and it is entirely specific to the mother.
In relation to recording number 57 on 24 June 2011, Ms E notes that the child is again asked to say what happened today. The same themes are evident. The child replies “she locked me in, I wanted to go back to Property D, she wouldn’t let me go” and then there is a word said by the child, at which point the father replies “you felt like vomiting? You were coughing and crying were you today? Did she get angry?” The child replies that the mother got angry at his socks. The father then asks “did she like your golf set?” X replies “no.” The father encourages that topic by saying “why not?”
Parental Responsibility
In this matter, I consider that the presumption of equal shared parental responsibility is rebutted by the abuse of the child through the father’s alienating behaviour and long term consequences for X including a mental health illness and due to the father’s conduct in his dominating and controlling manner and his financial deprivation of the mother.
In any event, I will consider whether it is in the best interests of X to make an order for equal shared parental responsibility. The mother seeks an order for sole parental responsibility and so does the father.
The father as can be seen in his oral evidence and written material has an obtuse and convoluted manner of communication. It is not possible to quote all of the examples; however, the father’s material filed on 2 February 2012 is typical of the combination of his illogical and confused thinking, put into words.
The father has set out at paragraph 22 onwards what is supposed to be his own exchange with X on 16 December 2011. This evidence refers to the lead up of the father holding the child over. The passages continue for many paragraphs, however the following passages will be repeated as they appear in the Father’s affidavit by way of example. Paragraph 23 is X’s response to the father’s question “how was your week?”
“Not good” (Clear and concise response. Reverse of “good”, and an explanation that X is fully capable of understanding.
“Mummy just got angry all day” (Clear and capable) “Angry all day + regular = mental health issues.
“She make me do vomit again” (Clear and capable) “Make again” = issues = regular disturbance. VOMIT? = Extremely serious.
“She put vomit medicine”“Vomit + Medicine? (X is clearly explaining his discomfort)
“What is she doing?” (X is constantly seeking an answer from me as he has been for a long time including before separation). (So was our very smart cat who used to paw the mother when she was screaming)[82].
[82] Father’s Affidavit filed 2/2/12, paragraphs 23-27.
The affidavit continues on in this style. The suggestion that the child has been seeking answers from him since separation (when the child was 15 months old) defies logic as does the observation that the child acts in the same manner as “our very smart cat.”
When the father took the unexpected action of withholding the child for the mother for weeks at Christmas 2011/early 2012 he wrote to the mother eventually telling her what the position was going to be. The child was going to live with him, he had chosen the child’s school and he would not talk to the mother’s solicitor about this, only her. When asked why he included the words ‘without prejudice’ in his letter on 23 December 2011 the father replied “Your Honour, the reason I put that on was so the mother didn’t think it was some sort of legal motivation situation. You know, I kind of separate legals from reality of moral love….”[83].
[83] Transcript 24/02/2011, page 70, lines 40-45.
There were many occasions during this lengthy trial that the father gave incomprehensible answers. His mode of communication, his language, both written and spoken, together with his domineering and controlling personality in my view preclude any possibility of these two parents being able to make decisions jointly. Their communication difficulties are readily apparent as seen in a reading of the communication books. The father’s impractical approach and inability to communicate clearly and sensibly is a significant barrier to shared decision making, whether in regard to day to day matters or long term matters. The father has sent a myriad of letters and instructions to the mother in the past, as seen in his material, with pages and pages of advice and directions as to X’s care and arrangements. It seems to me that the parties get bogged down in this voluminous correspondence initiated by the father. The father does not have the ability to discuss matters with the mother rationally, he just insists on his ideas being implemented. This is again not conducive to being able to co-parent in a meaningful way.
As with his evidence in this case, he shifts from one position to another very quickly. He has done that in this matter with his application to relocate. Throughout this judgment I have made references to and given examples of the father’s evidence. It is evident to me that any form of Order that required the parties to make decisions jointly would be entirely unworkable. I am quite certain that the father holds the mother in contempt and he has a complete lack of respect for her as a human being and as X’s mother. His dominant personality coupled with his obvious intense dislike of the mother are insurmountable hurdles for any Orders in the future to provide for joint or equal decision making.
It is clear from these reasons that the mother has the capacity to make child focused decisions for X’s day to day care, his health and his ongoing issues such as education. I do not consider that the father’s thought processes or judgment will assist or add any value to decisions which need to be made regarding X’s parenting and to that end, I do not consider that it is in X’s best interests to have an Order made for equal shared parental responsibility for major long term issues or day to day issues.
Without repeating all of the s 60CC matters, but having regard to them as explained elsewhere in these reasons, and noting in particular the damaging behaviour that the father is engaged in towards X and his relationship with the mother, his lack of parental responsibility, his lack of capacity to parent, and his unwillingness to promote a relationship with the mother, and having considered these and other matters set out in these reasons, I am satisfied that it is not in X’s best interests for an Order to be made for equal shared parental responsibility.
I therefore intend to make an Order that the mother have sole responsibility for the major long term decisions regarding the child and also the day to day decisions regarding X. I have confidence in the mother that she will exercise this sole parental responsibility appropriately.
Passports and overseas travel
In April 2009, the mother had her solicitors forward to the father a letter requesting that he agree to the mother and X going to live in Japan. That was the catalyst for the father to file an Initiating Application in the Federal Magistrates Court on 9 June 2009 seeking that a PACE Alert be placed at the airport
The mother obtained a Japanese passport for the child on 24 June 2008 just after their separation. It is agreed that she did not tell the father she was doing this. The mother said she did not need the father’s permission to do this and that as her marriage had broken down and she was living in Australia without any support including from her husband, that she was hopeful of returning to Japan at some point. This was at a time when the mother and father were in high conflict.
I do not at face value accept that the fact that the mother organised this passport is evidence that the mother intended to flee the country and never return. What is relevant is that having the passport, the mother quite properly wrote to the father through a solicitor to see if he was agreeable for her to remove the child from Australia to travel to Japan. If the mother had wished to be dishonest, she had the opportunity to leave Australia with the child. She did not and has not ever done so.
The mother’s presentation in the witness box, over an extended period, satisfies me that she is a trustworthy and law abiding citizen.
I accept that her parents are aging and that there are health issues which make it too difficult for her father to travel. I accept that her parents are also law abiding citizens who have lived and worked in the same town, her father running a (omitted), for many years. I consider it is important for X to be able to have the opportunity of not only visiting his mother’s homeland, but also to be introduced to and spend time with his maternal grandparents. His exposure to the other side of his cultural heritage is in my view, most significant in X’s understanding his own Japanese culture. I am satisfied that the mother’s purpose of travel, namely her desire to return to Japan with X in order to have X meet his grandparents is entirely genuine and I accept the mother’s undertaking that she would always return to Australia.
I therefore intend to make an Order that the mother be permitted to remove X from Australia for the purpose of visiting Japan as per the Orders sought by the mother. The father seeks an order that she not be permitted to remove X from Australia, but that he be permitted to do so. Of the two parents, I have significant doubts that the father is trustworthy enough to remove the child from Australia as in my view he is determined to remove the mother from the child’s life.
I note that arrangements are in place for Japan to join the relevant Hague Convention in the near future. As to any security that the mother is required to put forward, the father through his own actions of spending the mother’s primary share of the property settlement on his own discretionary expenditure, has ensured that the mother is living in modest means and that she has no capital amount to put forward.
It would be a bizarre situation to prevent the mother from not travelling overseas on the basis that she could not put forward any security, when the father himself as removed the possibility of her doing so. He continues to do so by refusing to comply with the Order for sale of their vehicle and paying the mother the proceeds.
In any event, I am satisfied that the mother has made her home in Australia, that she is trustworthy and that she will, as stated under oath, return X to Australia following her trips. I do not consider that security is required and I am satisfied that whether or not Japan is in the Hague Convention, that the mother will comply with an Order of this Court.
Schooling
On the issue of the child’s schooling the father’s position during the trial was that X should attend (omitted) State School. The father had various reasons for preferring this school which arose from his inquiries and discussions with some school staff. The father concedes that X has settled into (omitted) school and made friends.
When the father chose (omitted) School, he knew that the mother had no way of getting X to and from that school. The school was outside the area where the parents live and geographically too far for the mother to walk to and from school. The father, who works five days a week, has a car which he bought with their joint funds. He agreed to Consent Orders at a conciliation conference and agreed to sell the car and pay the mother the proceeds of sale. He has spent much time in the trial telling the court that it is not possible to sell the vehicle, it is not worth anything and anyway he needs it. Given the dynamic between the mother and father and their impoverished communication, the father’s controlling manner and the other issues referred to in these reasons regarding the father’s capacity and conduct as a parent, I consider that it is in X’s best interests to attend a school that his mother is able to get him to and from and that the mother has an opportunity to engage in X’s school life and participate when opportunities arise for parents to do so. I do not accept that the father’s offer that he will do all of the drop offs and pick ups during the mother’s time is in X’s best interests. I consider that this is just another strategy by the father to have control over X and the mother and X’s schooling and all the social and educational activities that subsequently arise for the parents.
I therefore consider that X should attend (omitted) State School, the school at which he is currently enrolled. However, the decision of the choice of schools is a major long term issue and noting that I intend to make an order for the mother to have sole parental responsibility, that decision will be a matter solely for the mother.
Discussion
The Independent Children’s Lawyer in this matter, through her Counsel Mr Victoire urges me to make orders that X live with the mother and spend each alternate weekend with the father. The Independent Children’s Lawyer is most troubled by the father’s behaviour and conduct towards X as heard on the tapes and in his material.
I have considered the evidence of Ms E and accepted it. Her observations accord with my own. I have found the history of the father’s attitude to the mother and her parenting very troubling. The father has commenced his campaign against the mother shortly after X’s birth and continued right through this trial without any signs of abating.
I am satisfied that the father has embarked upon a campaign to remove the mother from X’s life, one way or another. The father has been unrelenting in his campaign against the mother since the birth of X when he expressed his disgust at the mother and wanted her to stop breast feeding X and which resulted in the mother leaving the home, trying to find assistance and ultimately being admitted to hospital hyperventilating and being distressed and going to a shelter. Since that time onwards, the father has attempted to control almost every aspect of X’s parenting in a micro managing and controlling style of parenting.
The father is very immature, his evidence is untruthful and he talks and thinks in an illogical fashion. Whilst I am satisfied that he loves the child, I am also of the view that the father is totally unaware of the serious harm he is causing to X when engaging in the ongoing dialogue about the mother, in creating a false reality and in undermining the mother and alienating X from her. The father’s sustained complaints to the Department are evidence of his commitment to continuing with the smear campaign against the mother. I consider his notification that X at age about 12 months was being fed mushy food by his mother and the situation required the intervention by the Department of Child Safety as one of the most vexatious and time wasting complaints I have encountered.
He has very limited capacity to parent and I am satisfied that he does not have the ability to exercise adequate parental responsibility in regard to the child. He lacks the maturity and experience to properly deal with a sick child, he is allowing X to dictate terms to him at only age 4, and he has been far too indulgent with X and his parenting style is that X’s every need must be met. He insists that he knows what is best for X and will not sensibly discuss parenting arrangements with the mother. I consider his parenting style will lead to significant difficulties with defiant behaviour by X, already demonstrated by X whilst in the father’s care, and which the father cannot deal with now. This situation is likely to become more significant in the long term for X. I note the mother’s evidence that X sometimes returns from the father’s house smelling like he needs a shower and the father’s evidence that he might not always have time to shower X. There is evidence of the father saying to X he was going to have a shower, with four year old X saying “I am not”. I have heard the father casually acquiesce to X saying that he does not want to go to his mother’s, allowing him instead to continue playing electronic games.
In terms of the sexual abuse allegation, I am satisfied noting the seriousness of the allegation, that the allegation is false. I am satisfied that the mother does not represent unacceptable risk to the child. I am quite satisfied that the mother is a responsible, capable parent with an inner strength which will assist her in her future parenting of X. The mother has the ability to provide for X’s emotional needs and physical needs.
Orders in the best interests of X
I have had regard to the competing proposals.
The father’s application is to relocate to Sydney with X and become his primary carer. The father submits that if the Court is not prepared to make Orders that he relocate X to Sydney, that he will not relocate and instead, he will remain living in Cairns. In that case, he seeks Orders that X live with him primarily in Cairns and spend limited time as set out in his documents with the mother.
Given the findings I have made in relation to the fathers’ allegations and all of matters canvassed in these reasons as to the father’s conduct towards X, and the relevant section 60CC matters, I consider that it is in X’s best interests to live primarily with the mother, whether she lives in Cairns or elsewhere. I have determined that the father’s proposal for the child to live with him primarily, whether in Cairns or Sydney is not in X’s best interests.
The evidence suggests also that it is in the best interests of X that he spend only limited time with the father.
I consider that the proposal put forward by the mother is line with X’s best interests.
Ms E gave evidence of the troubling behaviour by the father, the father has continued to engage in this behaviour and he has had and further dialogue with the child of a harmful nature, as evidenced on the recordings made by the father. The father has, as stated elsewhere, also unilaterally withheld the child from the mother for weeks, dictated the terms upon which she would see X, which was basically not at all. The father showed callous disregard for X’s emotional well being in withholding him from his mother and he showed an unpreparedness to operate within the Court system.
I am satisfied that one of the main reasons the father withheld the child in December 2011/January 2012 was as identified by him in his letters to the mother “to assume full control of X and to solely choose the school that X was to commence attendance at in January 2012.”
I consider that the father’s behaviour has shown an escalation of his controlling behaviour and that the 18 tapes were evidence of his continued inability to show any insight into the destructive nature of his ongoing discussions with X about his mother.
In the circumstances, I consider that the father’s time with X needs to be limited to protect X from the father’s likely alienating behaviour. To that end, I consider, having regard to the relevant s.60CC matters and all of the evidence that is before me, that it is in X’s best interests to spend time with the father from after school Friday each alternate weekend to the commencement of school on the following Monday.
In terms of holiday contact, I intend to order that X spend one half of each of the holidays with the father, however, I consider that a three week block with the father (over the Christmas 2012 holiday period) is not in the child’s best interests at this point and I intend to order that the child spend three separate weeks with the father and live with the mother in between. I note that the child spent the entirety of the Christmas holidays with the father in December 2011, from just prior to Christmas onwards. On the basis that the father has desisted from the behaviour identified in these reasons, I will order that he have one half of the holidays in a block period commencing in the Christmas school holidays in the year ending 2013 with the child.
The mother will be at liberty to travel to Japan for a period of up to one month each year, to that end she is authorised to suspend the father’s contact for the period that she is away and give the father at least 28 days notice of the impending travel. The mother is to provide an itinerary of her proposed travel to the father and ensure that X has Skype or telephone contact with the father no less than once each week he is out of Australia.
To enable the mother to travel, I intend to issue an order that the mother and father forthwith do all acts and things to sign an Australian passport application for X and that the passport issue even if the father refuses to sign the application.
In terms of the child’s schooling, the choice of schooling will be a decision made under the sole parental responsibility Order I intend to make. I note that the child is currently attending (omitted) State School and that the mother will solely make the decision about schooling along with other long term issues. I intend to make an order that the father be restrained from removing the child’s enrolment at any school chosen by the mother. The father will be permitted to obtain copies of reports newsletters at his own expense and attend at all school activities that parents are invited to attend.
I have decided in this matter that it is appropriate to make an Order providing that these Orders cannot be replaced by a later parenting plan as I am satisfied that there is a power imbalance between the father and the mother. I am also satisfied that in the past, the mother has had pressure placed upon her by the father and his mother to enter into arrangements with pressure to do so.
I intend to make an Order that a Recovery Order lie in the Registry to be uplifted in the event that the father unilaterally withholds this child contrary to the terms of the Orders the Court makes. The Recovery Order will be uplifted upon the mother filing an Affidavit deposing to the father’s failure or refusal to return the child pursuant to these Orders as he has done in the past.
Given the father’s propensity to make baseless allegations about the mother and waste the precious time of the Department of Child Safety, I intend to insert a notation on the face of these Orders to indicate to the Department and police in the future, that the father has a history of making unsubstantiated allegations and to treat any further allegations with caution. I intend to Order that the Independent Children’s Lawyer provide a copy of these reasons to the Department of Child Safety in the hope of preventing further vexatious time wasting complaints by the father or his agents.
I certify that the preceding three-hundred and ninety-nine (399) paragraphs are a true copy of the reasons for judgment of Willis FM
Date: 26 April 2012
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