Finiotis and Finiotis
[2010] FMCAfam 1
•28 January 2010
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| FINIOTIS & FINIOTIS | [2010] FMCAfam 1 |
| FAMILY LAW – CHILDREN – Parenting – which parent child should live with – allegations by father of family violence in mother's home – allegations by mother against father of psychiatric illness – father declining to attend court expert (psychiatrist) for mental health assessment – father calling own expert evidence about his mental health from psychologist – father limiting information on which his psychologist formed opinions – father's psychologist changing opinions about father's mental health after additional information provided to him – weight to be attached to evidence of father's psychologist – appropriate findings as to father’s mental health – high conflict between parents – effect on child – reconciling risk to child of continuation of exposure to father’s involving child in parental conflict with risk to child of significantly reducing his time with the father. |
| Family Law Act 1975, ss.4(1), (1AB), (1AC), 60B, 60CA, 60CC, 61DA, 65DAA, 65DAB, 65Y Evidence Act 1995, s.140 Australian Passports Act 2005, s.11 |
| Jones & Dunkel (1959) 101 CLR 298 P & P [2005] FamCA 1032, (2005) FLC 93-239, sub nom. P & P, (2005) 34 Fam LR 340 |
| Applicant: | MR FINIOTIS |
| Respondent: | MS FINIOTIS |
| File Number: | PAC1187 of 2007 |
| Judgment of: | Halligan FM |
| Hearing dates: | 23, 24, 25 March 2009, 16 April 2009, 15, 16, 17 September 2009, 1, 2, 6, 7, 23, 27, 28 October, 10, 11, 13, 30 November 2009 |
| Date of Last Submission: | 30 November 2009 |
| Delivered at: | Parramatta |
| Delivered on: | 28 January 2010 |
REPRESENTATION
| Counsel for the Applicant: | Father In Person |
| Counsel for the Respondent: | Mr Thornburgh up to 16 April 2009 Mr Cook from 15 September 2009 |
| Solicitors for the Respondent: | Legal Aid Commission of NSW Campbelltown |
| Counsel for the Independent Child’s Lawyer: | Ms Clifford |
| Solicitors for the Independent Child’s Lawyer: | Tiyce & Partners Lawyers |
ORDERS
All prior parenting orders in relation to the child [X] born [in] 2001 (the child) are discharged.
The mother shall have sole parental responsibility for the child.
The child shall live with the mother.
The child shall spend time with the father:
(a)During school terms, and commencing on the first weekend of each school term except when the father spends time with the child for the second half of the Christmas school holidays, when it shall recommence on the second weekend of the following school term, each alternate weekend from after school Friday to before school Monday, or before school Tuesday if the Monday is a public holiday, the father to collect the child from and deliver the child to his school at the commencement and conclusion of his time;
(b)From after school on the last day of Terms 1, 2 and 3 each year until 3pm on the Saturday of the following week, the father to collect the child from school at the commencement of his time and to deliver the child to the mother at the [C] Contact Service at [P] at the conclusion of his time;
(c)In the Christmas school holidays, from after school on the last day for pupil attendance at school in Term 4 in 2010 and in each alternate year thereafter, until 12 midday on 6 January the following year, the father to collect the child from school at the commencement of his time and to deliver the child to the mother at the [C] Contact Service at the conclusion of his time;
(d)In the Christmas school holidays, from 12 midday on 6 January 2012 and in each alternate year thereafter until 12 midday on the day before the commencement of Term 1, the father to collect the child from and return the child to the mother at the [C] Contact Service at the commencement and conclusion of his time;
(e)If Father’s Day falls on a weekend on which the child is not otherwise spending time with the father, from after school Friday to before school Monday that weekend, the father to collect the child from and deliver the child to his school at the commencement and conclusion of his time.
If the child is otherwise to spend time with the father on the Mother’s Day weekend, the father’s time on that weekend is suspended.
If the [C] Contact Service is not available for any reason on any occasion for changeover under these orders, then changeover shall occur at such McDonald’s Restaurant as the parties may agree, and failing agreement, at McDonald’s Restaurant, [address omitted].
Each parent shall, within 7 days, arrange the earliest available intake interview with the [C] Contact Service and shall attend and participate in that interview, and shall do all things and sign all documents necessary to apply to use the facilities of the [C] Contact Service for the purposes of this order, and each parent shall comply with any service agreement entered into with the Service and shall comply with all requests and direction of staff or workers at the Centre.
Each of the parents shall meet half of any cost for the use of the facilities of the [C] Contact Service for the purposes of these orders.
Each of the parents shall be responsible for confirming with the [C] Contact Service its days and hours of operation.
The parent with the care of the child shall take the child to any soccer game or soccer practice for him that is scheduled during the time the child is with that parent, and the other parent shall not attend that game or practice.
The mother shall do all things necessary to ensure Mr T does not attend any soccer game or soccer practice for the child that is scheduled when the child is spending time with the father.
The mother shall, within 7 days, contact the [K] Health Service and do all things necessary to arrange for the child and the mother to attend upon a family and child psychologist for the purpose of the psychologist:
(a)assessing and monitoring the ability of the child and of the mother to cope with the family arrangements;
(b)assessing and monitoring the impact on the child of the parental conflict, of the mother’s behaviour, of the father’s behaviour and of Mr T’s behaviour;
(c)assessing and monitoring the child’s welfare and development;
(d)assessing and monitoring the mothers management of the child’s behaviour, the father’s behaviour and Mr T’s behaviour;
(e)if assessed by the psychologist as appropriate, assisting the mother in her management of the child’s behaviour, the father’s behaviour and Mr T’s behaviour;
(f)assessing and monitoring any other issue affecting the child and/or affecting the mother arising from her relationships with the child, the father or Mr T.
The mother shall arrange four further appointments with a child and family psychologist with or through the [K] Health Service, or such other number of appointments, if any, as recommended by the psychologist consulted pursuant to order (12), at such intervals as recommended by that psychologist.
On the completion of any further appointments under order (13), the mother shall:
(a)do all things necessary as soon as possible to obtain from her doctor a referral for the child and herself to a private psychologist specialising in child and family therapy;
(b)promptly arrange and attend appointments for the child and herself with that psychologist;
(c)provide the psychologist with a copy of these orders and with any report provided by the psychologist consulted under orders (12) and (13);
(d)seek such therapy for herself and the child as the psychologist considers appropriate in relation to the matters referred to in order (12);
(e)attend upon, and cause the child to attend upon, the psychologist at such intervals as the psychologist recommends and for so long as the psychologist recommends.
The mother shall use her best endeavours to cause Mr T to participate in any of the processes referred to in orders (12) and (14) if the relevant psychologist so requests or recommends.
The psychologists consulted in accordance with these orders may invite the father to participate in their interventions.
The mother shall provide the father in writing within 7 days after the first session for the child with each psychologist consulted under these orders of the name and contact details of that psychologist.
The father shall not take the child to any psychologist, psychiatrist or counsellor.
Both parents shall inform the other parent promptly of the name and contact details of any doctor, dentist, psychiatrist, psychologist, counsellor or other health professional to whom they take the child and shall authorise that health professional to discuss his or her treatment of the child with the other parent.
The child is permitted to travel from Australia with the mother or the father subject to the following conditions:
(a)The parent proposing to travel shall provide to the other parent:
(i)Written notice of the proposed travel not less than 60 days before departure, including details of-
A.The purpose of the travel;
B.The approximate dates of travel;
C.Destinations;
D.The means of travel; and
E.Accommodation arrangements;
(ii)A copy of the following not less than 14 days before departure:
A.Travel itinerary;
B.Contact numbers for the child while travelling;
C.The return ticket for the child.
(b)The child shall not be absent from Australia for longer than 4 weeks on any occasion of international travel;
(c)Each parent may take the child overseas no more than once every two years;
(d)The parent travelling overseas with the child shall cause the child to speak to the other parent by phone at least once every 7 days the child is overseas.
The mother shall meet the cost of obtaining the child’s passport.
The father shall meet the cost of renewing the child’s passport on the first occasion and each alternate occasion thereafter, and the mother shall meet the cost of renewing the child’s passport on each other occasion.
The mother shall retain possession of the child’s passport, except when required by the father for the purpose of travelling overseas with the child.
On receiving notice of intended overseas travel from the father under order (20)(a)(i), the mother shall deliver the child’s passport to the father within 14 days thereafter.
The father shall deliver the child’s passport to the mother within
14 days after the child’s return to Australia or, if the proposed travel is cancelled, within 14 days after the cancellation.
The mother is restrained from:
(a)physically chastising the child and from permitting any other person to do so; and
(b)ridiculing the child and from permitting any other person to do so.
The mother shall do all things to seek to ensure Mr T is not present at or within 500 metres of the location of any changeover of the child between her and the father.
Each parent is restrained from denigrating the other parent or members of the other parent’s family or household to or in the presence or hearing of the child, and from allowing the child to remain in the presence of any person doing so.
The parents shall communicate with each other about matters concerning the child by letter, email and text message, and may not communicate with each other by voice phone call except in case of a medical emergency concerning the child.
Both parents are entitle to approach and speak to the child’s school concerning the child, including to arrange to receive school reports, newsletters, school photo order forms, and to attend events and on occasions when parents are invited to attend the school or school activities, whether at the school premises or elsewhere.
IT IS NOTED that publication of this judgment under the pseudonym Finiotis & Finiotis is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT PARRAMATTA |
PAC1187 of 2007
| MR FINIOTIS |
Applicant
And
| MS FINIOTIS |
Respondent
REASONS FOR JUDGMENT
Introduction
These are parenting proceedings under the Family Law Act 1975 relating to an eight year old child, [X]. [X]’s father is the applicant, his mother is the respondent.
The father, who conducted his case without legal representation, sought orders that the child live with him, and that the mother spend time with the child each alternate weekend from 5pm Friday to 6pm Sunday, for half of all school holidays, for eight hours on the mother’s birthday and Mother's Day, and for six hours on the child’s birthday, Christmas Day and Easter Day. He also sought injunctive orders to restrain the mother’s partner and all members of the mother’s partner’s family, and his friends and associates coming into contact with the child and to restrain the mother from physically chastising or hitting the child and from ridiculing or criticising the child, and from permitting any other person to do so. He sought to restrain the mother from taking the child from Australia or applying for a passport for the child without the consent of the father or the paternal grandparents.
The mother sought orders that she have sole parental responsibility for the child, that the child live with her, that the father spend time with the child during school terms each week from after school Monday until before school Tuesday and otherwise as agreed, and that the father communicate with the child by telephone each Friday between 4pm and 5pm. The mother sought an order restraining the father entering or coming within 100 metres of her place of residence, the child’s school, or any sports complex or ground that the child may be attending, without the mother’s prior written consent. The mother also sought injunctive orders restraining both parents from making critical or derogatory remarks about the other in the child’s presence or hearing, and that the parties communicate only by text message and email. An order to permit the mother to apply for a passport for the child was not pressed because, it was said, of the sole parental responsibility order that the mother sought.
The Independent Child’s Lawyer proposed orders that the mother have sole parental responsibility for the child, that the child live with the mother, and that the father spend time with the child during school term each alternate week from after school Friday to before school Monday, or Tuesday if Monday is a public holiday, and for half of all school holidays, provided that the child spend Father's Day with the father and Mother's Day with the mother. The Independent Child’s Lawyer also proposed that the parent with care of the child at the time ensure he attends soccer or soccer training and that the parent without the care of the child at the time not attend the activity. The Independent Child’s Lawyer proposed orders for the mother and child to engage with a family and child psychologist, inter alia, to monitor the child’s and the mother's coping with the parenting arrangements, the effects on the child of the parental conflict and of each parent’s behaviour, the effect on the child of the behaviour of the mother's partner, and to assist the mother in the management of the behaviour of the child, the father and her partner.
Although it was an issue adverted to in the parties’ evidence in chief, the mother did not seek an order permitting her to take the child to the Philippines to visit her family there in the Amended Response relied upon. However, the Independent Child’s Lawyer proposed an order permitting each parent, subject to specified conditions, to take the child overseas for up to four weeks at a time not more than once every two years. The mother agreed with the orders proposed by the Independent Child’s Lawyer except for the restriction on the trips being no more than once every two years. She sought that no restriction be placed on the frequency of travel.
The Independent Child’s Lawyer proposed injunctive orders restraining the mother from physically chastising the child or permitting any other person to do so, and from ridiculing the child or permitting any other person to do so, and requiring the mother to ensure she is the only person in her household to discipline the child. The Independent Child’s Lawyer sought orders that the mother ensure her partner is not present at changeovers and remains at least 500 metres away from the changeover location while changeover is occurring. The Independent Child’s Lawyer also proposed a mutual non-denigration order against the parents and that they use a communication book.
Background
The father was born in Australia [in] 1963 and is 46. The mother was born in the Philippines [in] 1970 and is 39. The parents married [in] 1999 in the Philippines, finally separated in Australia in late April 2005, and were divorced in September 2007. [X] was born [in] 2001 and is the parent’s only child together. The mother first came to Australia shortly after the parties married and has lived here ever since apart from a short period living in the Philippines when the parents and the child left Australia for a period, to which I will refer later.
The father has another son who is over 18 and lives in Queensland with the paternal grandparents.
The mother has re-partnered. She commenced to cohabit with Mr T in April 2008. Mr T was born [in] 1968, and is now 41. The mother and Mr T have a child, [Y], born [in] 2008.
On 15 August 2005, parenting orders were made by consent providing for [X] to live with the mother and spend time with the father. Once the child commenced “primary school” the father's time was to increase from 8 hours each Saturday to alternate weekends during school terms from after school Friday to 4pm Sunday, or 5pm Monday if a public holiday, each other week during school terms from Thursday after school until Friday before school, and for half of all school holidays, with specific provisions for Christmas, the child’s birthday, Father's Day and Mother's Day. Changeovers that did not occur at school were to occur at a designated suburban Hungry Jacks outlet.
There was a dispute about the interpretation of these orders when [X] commenced school, the father taking the view that Kindergarten was not part of “primary school” under the orders, but was part of infant’s school, the mother taking the view that Kindergarten was caught by the expression “primary school” in the orders. The rather strange situation arose where the mother interpreted the orders as giving the father more time than under his interpretation of them, and each parent insisted on his or her interpretation prevailing, this despite the father wanting to spend as much time as possible with his son and despite the father's complaints in the current proceedings about the limited amount of time he is allowed to spend with the child under these orders, and despite the mother stating before me that at the time she believed the child should be spending less time with the father, not more. The father instituted contravention proceedings which resolved on the basis that the parties agreed that primary school under the orders would commence from Kindergarten. However, this is a telling illustration of the difficulties endemic in the parenting arrangements for this child, and of the dysfunctional and conflictual relationship that exists between these parents.
On 6 June 2008, the court made an interim order by consent restraining both parents from taking the child to any counsellor or similar person without the consent of the Independent Child’s Lawyer and the other parent.
On 17 September 2009, the court made interim orders by consent restraining the mother from physically chastising the child or permitting any other person to do so, and from criticising or ridiculing the child and from permitting any other person to do so. The orders further required the mother to ensure that she is the only person in her household to discipline the child, that the child is not left unsupervised with Mr T, and that Mr T not be present at changeovers and that she request him to remain at least 500 metres away from the changeover location while changeovers are occurring.
Credit of witnesses
The father relied on affidavit evidence sworn by himself, his mother and a report of Mr C, a clinical psychologist, which became Exhibit B. The father, his mother and Mr C were cross-examined.
The mother relied on affidavits of herself and Mr T. Both were cross-examined.
There were two court experts, Dr Greenfield, the Family Consultant who prepared the Family Report which is Exhibit A, and Dr Rikard-Bell, a family, child and adult psychiatrist, who was appointed as a Court Expert, and whose report was Exhibit C. Both were cross-examined.
I am satisfied no issues of credit arose with any of the three expert witnesses. While the paternal grandmother gave incorrect evidence as to the authorship of a document, she was cross-examined by phone and did not have the document in front of her, and I am satisfied she became innocently confused in giving that evidence. I am satisfied no issue arose about her credit.
In relation to both parents and Mr T, while various aspects of the evidence of each was in my view unsatisfactory, I am not satisfied the credit of any of them was so compromised that I should not accept their evidence generally unless independently corroborated. On different issues, I have been satisfied one or other of the parties or Mr T should not be believed, or should be preferred over the contrary evidence. In each case I have indicated my reasons for so finding when dealing with the particular factual matter.
Child’s care arrangements since 2005 orders
The care arrangements for [X] since separation seem to have been in accordance with the 2005 orders, subject to the delayed commencement of the father’s overnight time with the child, which arose in the following circumstances.
The mother advised the father by email that as the child was to commence school, he would commence collecting the child from school on the first Thursday of term and return him to school on the following morning. She included in her email the name of the school and the time school commenced and finished. The father responded by email dated 24 January 2007:
Due to the fact that I may soon leave Sydney, it would not be fair to [X] if I started to have him sleep over Thursday to Friday morn, Best leave it Saturday only. Ile Hook this up with the Family court ASAP.
There was no mention in this email of a belief that under the 2005 orders the Saturdays should continue because the child would not be commencing primary school. On the contrary, the inference from this email is that the father accepted that his overnight time was to commence in 2007 under the 2005 orders.
The mother subsequently advised the father that she had spoken to both NSW Education Department officers and a solicitor who both stated that the child was attending primary school. The mother indicated she would consider the father's suggestion of having the child on Saturdays only until he left New South Wales provided he gave her a specific departure date. However, she indicated she was not prepared to surrender any part of the weekends that under the 2005 orders the child was to spend with her once he commenced primary school. The father’s response was to indicate he would take the matter to court and to criticise the mother for not allowing him to see the child. This seems a bizarre response when it was the father who proposed that he see the child less than provided for in the 2005 orders, and the mother's position was that the father should be seeing the child more than the father said he wanted. It typifies the father’s tendency to be critical of the mother regardless of the circumstances, and an incapacity for any sort of critical self-analysis.
As mentioned, the father then, on 5 March 2007, filed a Contravention Application alleging the mother was contravening the 2005 orders for not making the child available on Saturdays only. The mother was represented by the Legal Aid Commission of NSW. When the mother's solicitor invited the father to attend a mediation to attempt to resolve the dispute, the father declined stating that he had NSW Supreme Court action pending against the Federal Government and ASIO concerning “the systematic persecution of myself encompassing former wife and child”, and he did “not intend to have any involvement with any Government Department as I am fully aware of the very high levels of corruption within this current state and federal governments and I am a victim of this corruption” (sic). He indicated that he wished his Saturday only time to continue until the child commenced “grade 3”. There was no mention of any intention to leave NSW.
The father's Contravention Application was dismissed on 17 September 2007, the parties agreeing, with encouragement from me, that the provisions of the 2005 orders contingent on the child having commenced primary school were then in operation. The father thereafter commenced spending overnight time with his son, at least eight months later than he could have.
The mother has worked part time five days a week until she commenced maternity leave in about November 2008. The child was placed in child care when the mother was working from the age of two years and seven months. She worked from 10am to 5.30pm between May 2005 and August 2006. Her hours of work at other times are not disclosed.
Child abuse and family violence allegations against the mother and her partner
Soccer field incident (24 May 2008)
It was the father's case that on Saturday 24 May 2008 Mr T violently assaulted him at the child’s soccer field. He said he was punched to the ground, receiving a number of blows.
There is no issue that Mr T punched the father once with a closed fist on this occasion causing the father to fall to the ground, and that the child was present and was significantly affected by the incident. There is an issue whether it was an unprovoked attack on the father by Mr T or whether Mr T retaliated after first being struck by the father.
The father's evidence
The father gave no evidence in chief about what he said occurred at the soccer field. He relied on a medical certificate from his general practitioner dated 11 September 2008, addressed “To whom it may concern”, stating that the father attended the medical practice on
24 May 2008 giving a history of being punched three times on the left side of his face by the mother's partner. The certificate states that on examination he had tenderness and swelling on the left side of his face and jaw, he declined an X-ray, and the diagnosis was soft tissue injury to the left side of his face, treated with cold pack and analgesics.
While noting that the father remained very distressed about the incident at the soccer fields, the Family Consultant, Dr Greenfield, did not in her report indicate that the father had given her an account of the incident. She did include an account Mr T gave her.
The father was cross-examined about the incident. He said that after he arrived at the soccer venue with the child, he heard someone calling out and running up behind him. He said he did not know who it was until he turned around. He said that the person was holding something at face height and was “ranting”. He said he accepted now that Mr T was holding the child’s soccer jersey, but maintained that he was ranting and screaming. The father said that when Mr T came up behind him, he turned and put his right arm up at head height. He said his action was a karate block for a blow. The father denied elbowing Mr T in the face. He said he did not know if Mr T suffered a bleeding nose. He denied putting up his arm could have contributed to what occurred in any way. He said he was not aware any part of his body came into contact with Mr T before or after Mr T punched him.
Mr T’s evidence
Mr T said that he saw the father arrive with the child ten minutes after the child’s soccer game started. He said he grabbed the child’s jersey and walked after the father and son calling out the boy’s name. This is consistent with the police record of what the father said at the time (as to which, see below) but inconsistent with the father's evidence in cross-examination that Mr T approached him “ranting and screaming”.
Mr T said that when he got to the father and the child, he handed the child his jersey and said “Here’s your jersey. You’re on this field”. In cross-examination Mr T said he did not hand the child his jersey, but attempted to do so, and his affidavit evidence saying he handed the child his jersey was incorrect. He said the father said “Get away from me and my son”, and then elbowed him to the right side of his face, forcing his head back. He then hit the father with a closed fist, and the father fell to the ground. Mr T said the father was not bleeding. He said as he walked back towards the mother a woman handed him a tissue, at which point he noticed his nose was bleeding. Mr T later went to the police station to report what happened, where he spoke to the officers who had attended the soccer venue in answer to a call from the father. He said one of the officers said to him “Originally (the father) said he did not hit you but we spoke to independent witnesses and they said that he did – but it was not clear from what they said whether it was accidental”.
Mr T said he regretted his actions, particularly in front of the child. He said that the following day he spoke to the child and emphasised that it was up to the child to choose whether he wanted Mr T to come to his future soccer games, and that if he did not want him to, it would not “change our friendship”. The boy then said he did not want Mr T to come to his games. Subsequently, Mr T did not attend the child’s soccer games.
In her report, Dr Greenfield said Mr T told her he was running after the child and his father to give the child his soccer jersey, and that the father seemed to overreact to his approach and, in hindsight, must have panicked. He is recorded as saying that in an urgent tone the father told him to go away and as he swung around he hit Mr T in the face with his elbow. Mr T is recorded as indicating he then understood this may have been an accident because of the father's panic. He said he instinctively punched the father in the face, something he later regretted. This version of the event, in effect providing an exculpatory narrative about the father's action, was not repeated in Mr T’s later primary affidavit or in his evidence in cross-examination.
In cross-examination, Mr T was adamant he only struck the father once, he denied that the father put his arm up to protect himself and said the father swung his elbow hitting him in the face while saying “Get away from me and my son”. Mr T said he reacted by hitting the father as he honestly believed he was going to be hit repeatedly. He said he approached the father from the rear calling out the child’s name. This is consistent with what the police record indicates the father reported at the time.
In cross-examination the father put to Mr T an incident at the soccer fields on 12 April 2008, six weeks before the violent incident on
24 May 2008. Mr T said he approached the father and from a distance of several metres he introduced himself. Mr T said the father abused him and walked away quickly, saying “Get away from me. I’m not here to talk to you. I’m here to watch my son play soccer”. Mr T denied the proposition put to him by the father that the father “dropped down on one knee to avoid an altercation”. He denied the suggestion he had a hand out in front of the father's face, saying he had his hand out at elbow level offering to shake hands, and when the father made it plain he wanted Mr T to go away, he did.
The father himself gave no evidence of an incident such as he put to Mr T. Such an incident would be relevant to the father's version of the incident in May 2008, as it would justify the father's defensive response to Mr T’s approach and his suggestion he feared being struck by Mr T, and indicate a malign intent by Mr T towards him prior to the soccer field incident. The father’s failure to give evidence of this incident raises an inference adverse to the father, that is, that his evidence of this incident would not have advanced his case. In the circumstances, I accept the evidence of Mr T, it being unchallenged, and find the incident on 12 April 2008 occurred as he described, and could have given the father no reason to be concerned for his own safety in encountering Mr T subsequently, up to the incident on 24 May 2008. There is no other evidence to explain why the father would have been fearful of Mr T before the incident on 24 May 2008.
The mother's evidence
The mother was otherwise preoccupied assisting the child’s team when the incident occurred between the father and Mr T and did not witness it. She did however notice the father and child arrive late and start walking to the wrong field. The mother said that Mr T took the child’s jersey and went after the father and the child calling the child’s name. She said that when she next looked in the direction of the father and
Mr T, the father was on the ground and Mr T was walking towards her holding his nose.
Police record of incident
The Police record of this incident was tendered in evidence as part of Exhibit V. It records that the father and child arrived late for the child’s soccer match, and that Mr T approached the father and child from behind waving the child’s soccer jersey. It records that the father initially advised police that he was unsure what was being waved behind him and his instinctive reaction was to reach out for the object as it was being waved near the child. He later stated that Mr T ran up behind him and the child saying “[X], jersey, jersey”. The police narrative states that as a result of reaching for the jersey the father's elbow connected with Mr T’s nose, and Mr T reacted in self defence by punching the father, knocking him to the ground. The narrative states that at no stage did the father tell police his elbow made contact with Mr T. No criminal charges or other police action ensued.
Findings
There are inconsistencies in the father's version of events recorded by the police and in his evidence in cross-examination, in particular his acknowledgment to the police that Mr T approached him calling the boy’s name and saying “jersey”, while asserting in cross-examination that Mr T approached him “ranting”. There is an inconsistency in the version recorded in the police file that the father put his arm up to reach for the object in Mr T’s hand and his evidence in cross-examination that he put his arm up in a karate move to block a blow. There is also an inconsistency between the history recorded in the doctor’s letter and the father's representation of the incident repeatedly during his cross-examination of witnesses, namely as to the number of punches, and whether he was rendered unconscious. The father's highly emotive and dramatic description of this event is consistent with his description of a number of events he raised in this case. He clearly displayed a tendency to exaggerate and dramatise events in broad and general terms, and often failed to provide specific objective fact evidence. As mentioned, the only version of this event he gave in his evidence was in cross-examination.
Mr T’s evidence also contains some inconsistencies, including whether he actually handed the child his jersey or was merely attempting to do so, and the presentation of the incident in his evidence in chief and in cross-examination in a way that suggested the father was the deliberate aggressor, while conceding to Dr Greenfield that it may have been accidental.
In my view the critical issue is whether or not the father’s arm made contact with Mr T’s face before Mr T struck the father, and of this I am satisfied. While the father denied it, both in evidence before me and to the police at the time, the mother said Mr T walked away after the incident holding his nose, consistent with Mr T’s evidence of being struck in the nose, and the police record of the incident confirms the fact. The fact the father reacted defensively, raising his arm up in a blocking action, in my view lends credence to the evidence that part of his arm made contact with Mr T’s face first.
Having considered all the evidence, I am not satisfied this was an unprovoked attack on the father by Mr T. I am not satisfied that Mr T struck the father more than once. I am satisfied that the father's arm first struck Mr T in the face, albeit it is more likely than not that it was not intentional, and that in consequence Mr T punched the father in the head knocking him to the ground. I am satisfied that this was a traumatic experience for the child, and that both the father and Mr T bear equal responsibility for the trauma then suffered by the child.
I am not satisfied on the evidence that the father had any reason at the time of this incident to be fearful for his or the child’s safety from Mr T and the father's physically defensive reaction to a person approaching him from behind calling his child’s name and saying “jersey” when the child was attending to play a soccer game was totally unjustified and unreasonable. I am also satisfied that Mr T’s violent reaction in the child’s presence to being struck was totally unjustified and unreasonable. Mr T could just as easily have withdrawn from the situation as violently escalate it. The reactions of both men are telling in light of other issues about their characters and propensities raised by other evidence.
Family violence is defined in the Family Law Act 1975 as:
family violence means conduct, whether actual or threatened, by a person towards, or towards the property of, a member of the person’s family that causes that or any other member of the person’s family reasonably to fear for, or reasonably to be apprehensive about, his or her personal wellbeing or safety.
Note: A person reasonably fears for, or reasonably is apprehensive about, his or her personal wellbeing or safety in particular circumstances if a reasonable person in those circumstances would fear for, or be apprehensive about, his or her personal wellbeing or safety. (s.4(1)).
Section 4(1AB) indicates when a person is to be regarded as a member of another person’s family for the purposes of this definition, and includes persons who are or have been married or in a de facto relationship. It also provides that persons who are or have been relatives are members of each other’s families, and s.4(1AC) defines relatives for this purpose rendering a natural parent or a present or former step-parent of a child a member of that child’s family.
I am satisfied this was an incident of family violence. At the time, the child was a member of both the father's and Mr T’s families for the purposes of the definition. There is no issue the child was traumatised by witnessing this violence. I am satisfied he would reasonably have been fearful for his safety and wellbeing and the safety and wellbeing of both the father and Mr T when each struck the other. In this incident, each of the men has exposed the child to family violence by the violence he has visited on the other.
The Family Law Act defines child abuse as follows:
abuse, in relation to a child, means:
(a) an assault, including a sexual assault, of the child which is an offence under a law, written or unwritten, in force in the State or Territory in which the act constituting the assault occurs; or
(b) a person involving the child in a sexual activity with that person or another person in which the child is used, directly or indirectly, as a sexual object by the first‑mentioned person or the other person, and where there is unequal power in the relationship between the child and the first‑mentioned person. (s.4(1)).
This incident did not involve child abuse, despite the father's assertions to the contrary. However, I am satisfied it was psychologically harmful, and hence abusive of the child in that sense, to expose him to the violence each man perpetrated on the other.
Incidents between the mother and her partner in 2008
Department of Community Services file
On 15 September 2009, I granted leave to inspect a Department of Community Services (DoCS) file produced to the court in answer to a subpoena issued by the Independent Child's Lawyer.
Exhibit P, tendered on 17 September 2009, encompasses sections of Part 2 of the DoCS file inter alia relating to issues between the mother and Mr T which disclose that the mother reported the following to Health Service workers, DoCS officers or counsellors:
a)Just before finding out she was pregnant to Mr T, the mother intended ending the relationship with Mr T as their relationship had not been going well for some time.
b)In late August 2008, in the absence of the child, Mr T struck the mother with his crutch causing bruising.
c)Mr T disciplined the child inappropriately and the mother had barred him from smacking the child.
d)Mr T was controlling and jealous, inclined to follow her, demanded to know her whereabouts and discouraged contact with friends, was verbally abusive, had exploited her financially and on occasions had threatened to take custody of their baby after the birth, the same type of behaviour that she had accused the father of.
e)Mr T had “short patience” and “short temper”.
f)The mother attempted to leave Mr T on 16 November 2008 but returned when the child [X] became too distressed.
g)In late 2008 the mother did not expect her relationship with Mr T to last in the longer term.
h)When DoCS contacted the mother shortly before the birth of the baby in late 2008 following a risk of harm report to DoCS from a Health Service worker the mother was seeing, the mother was anxious to ensure Mr T did not know she was speaking to DoCS because Mr T would be “difficult” about her seeing other people especially helping professionals like counsellors, and she thought he would be particularly hostile towards DoCS being involved. However, Mr T did subsequently participate in a DoCS voluntary interview.
i)After the birth of the mother's second child by caesarean section [in] 2008, Mr T repeated threats made before the baby’s birth to take the newborn baby away from the mother because he could not cope with the unresolved court proceedings concerning the mother's first child, and had given her until Christmas to settle the matter. The mother was fearful Mr T would carry out his threats to remove the baby.
j)
Two days after release from hospital with the new baby, the mother reported to DoCS that things were quite positive with
Mr T and did not mention his threat while she was in hospital to remove the baby from her.
k)Mr T’s antagonism towards the mother and her first child was exacerbated by these court proceedings and he felt the father was interfering in his life.
l)Mr T suggested to the mother that she let the father have custody of the child the subject of these proceedings.
m)Mr T claimed the Baby Bonus and Family Tax Benefit for the new baby in his own name and the mother believed he would not let her have access to it.
Neither the mother nor Mr T in their primary affidavits filed on 4 March 2009 made any mention of any difficulties in their relationship. Nor did they mention any difficulties in their relationship to Dr Rikard-Bell. After the subpoenaed DoCS records were inspected, they both filed supplementary affidavits on 25 September 2009 addressing the issues raised in the DoCS file.
The mother's evidence
In the mother’s second affidavit, she said that in August 2008 Mr T tore his Achilles tendon and was housebound for six or seven weeks. The mother was then six months pregnant, and it was just prior to the date originally fixed for the final hearing of this matter. That hearing was postponed when the Independent Child’s Lawyer applied successfully for the appointment of a Court Expert.
The mother said that at around this time she and Mr T began to argue over the stress of the litigation, the mother's pregnancy, the pressure of the father, managing the child’s behaviour which the mother and Mr T believed was being caused by the father, the illness of the mother's father, the mother's frustration at not being able to take the child to see her father before he died, and money problems caused by Mr T’s inability to work while incapacitated. The mother said their arguments were “verbal, never in front of little [X], mostly late at night in the bedroom and would occur rarely”. She said she and Mr T had numerous verbal arguments from September to December 2008.
The mother said that during a verbal argument on 19 September 2008, which the mother said was “not heated” and which occurred while the child was at school, she got upset at something Mr T said to her and stopped talking to him and turned her back on him. She said that she then felt a “nudge” on her left shoulder with one of Mr T’s crutches. She said it hurt and was done with “some force”. She yelled at him and left the room, upset and crying at Mr T’s actions. The mother then sought to phone a counsellor, and after trying unsuccessfully to contact one service, contacted another, Ms P, through a social worker at the hospital, and made an appointment to see her.
The mother said that while she and Mr T subsequently “made up” after this incident, she did not tell him about her appointment to speak to
Ms P because she said she wanted to speak to someone confidentially. She said she was frightened Mr T might stop her seeing the counsellor if he knew, because she said the father had done so in the past. The mother gave no evidence of any occasion when the father had stopped her seeing a counsellor.
After her visit to Ms P, the mother was contacted by a DoCS officer. It was then arranged for Mr T to speak to Mr S, to which Mr T agreed, “but he made it clear he did not want to get involved with DOC’s (sic)”. She said Mr T met with Mr S and told him he did not want to get involved.
The mother said this was around the time of “the appeal”, an apparent reference to the father's appeal against the order appointing a Court Expert, Dr Rikard-Bell, although that Appeal was not heard until
12 February 2009. The mother said that under the stresses she and
Mr T were then facing, Mr T said that if Court did not finish soon he intended taking their baby with him, as he was not going to expose the baby to the father. The mother was still in hospital after having given birth to Mr T’s child when he made this threat to her. The mother said she understood Mr T’s concerns, and she shared his concerns at exposing her children to the ongoing litigation and the father's behaviour.
The mother said that the incident with the “nudge” from Mr T’s crutch was the only incident involving anything “physical” in their arguments. She said the arguments stopped after the child was born and Mr T returned to work. She said they now have an occasional argument but “very rarely like most couples”. She said they are not heated and are resolved by talking to each other. The mother also said that Mr T’s mother helped with the new baby, staying with them in December 2008 and January 2009. She said since then their relationship has been “good”.
The mother said that after discussing their differences, she could “understand why he was checking up on me now and that I should not have been so suspicious”. She said Mr T does not tell her who she can and cannot see. She said she thinks she was over suspicious because she was pregnant and because of her experiences with the father. She said Mr T allows her to speak to and see her friends as she wishes.
The mother said Mr T meets most of the child’s financial needs, as the father “only pays the minimal amount of child support”. She said she believed Mr T and the child have a “close” relationship, and that Mr T never physically punished the child.
In cross-examination, the mother denied there was any risk of harm to the child from any of the incidents between her and Mr T. She said the child did not see or hear any of them. She gave vague and inconsistent answers when asked how often she and Mr T were arguing when Mr T was housebound with his torn Achilles tendon. The mother said the child would not have seen the impact of the disharmony between her and Mr T, such as her crying, as he was at school. The mother conceded that the arguments between her and Mr T became serious and regular, to the point that she contacted DoCS. Nonetheless, she still maintained that they did not affect the child.
The mother said that during arguments with Mr T, she became scared of him, and if the child had been aware of the arguments he would have been scared of him too.
When parts of the DoCS file were put to the mother in cross-examination, she:
a)Denied telling the DoCS officer that Mr T struck her with his crutch causing bruising, but could not remember whether she told the DoCS officer she suffered bruising;
b)Denied telling the DoCS officer that Mr T disciplined [X] inappropriately or that she had barred Mr T from smacking the child;
c)Admitted saying Mr T was jealous of her and was checking up on her all the time;
d)Admitted saying she did not think the relationship with Mr T would last, as that was how she then felt;
e)Admitted saying she had problems with the father, and that he was very controlling and paranoid; and
f)Admitted saying Mr T has little patience and a short temper.
After first parrying the question, the mother then admitted in cross-examination that Mr T has trouble controlling his temper when frustrated. She at first denied he had been verbally abusive of the child, but when taken to the incident when Mr T referred to the child as a “fucken girl”, dealt with later in these reasons, admitted that he had been, but on one occasion only.
Mr T’s evidence
In his primary affidavit filed on 4 March 2009, Mr T said “Since September 2008, there have been no major incidents that have occurred between the father, (the mother), (the child) or I”.
In his supplementary affidavit sworn on 25 September 2009, Mr T said he “snapped” his Achilles tendon in late June 2008, requiring surgery. He was required to stay home and rest for 12 weeks. He said he started reading the court documents in relation to this case as he was bored. He said he and the mother had not talked about matters that occurred before the commencement of their relationship. He said he was feeling depressed about his injury, the court case, money, the child’s behaviour and his inability to help the mother in her pregnancy.
Mr T gave evidence consistent with the mother’s about feeling frustrated, beginning to argue with the mother, he said “over just about everything”, and that he was difficult to live with. He too denied that they ever argued in front of the child. He said that during an argument he “pushed” the mother with his crutch when she would not answer him, and that it hurt the mother who started to cry and left the room.
Mr T said that the period from June 2008 until he returned to work in late September 2008 was the worst part of his life. He said after he returned to work, he and the mother continued to argue but not as frequently. He admitted saying to her during one of these arguments that he was going to take the baby away from her because he did not want the baby exposed to the “poor behaviour” of the father and at times the child [X].
Mr T also referred to an incident that occurred when the mother was in hospital after having given birth to [Y]. The person the mother had arranged to collect the child was unable to do so but failed to tell the mother. He was unable to do so “because of the orders”. The mother was crying and he became frustrated and “said things to her that I deeply regret”. He said he could not remember “the whole of the conversation” because he was so upset and frustrated. He did not say he could not remember any of the conversation. Mr T’s partial failure of recollection cannot explain his failure to give any evidence about the things he said that he regretted. In cross-examination he said that on this occasion he threatened to remove the baby from the mother's care. He admitted he made a similar threat earlier.
Mr T said that towards the end of the mother's pregnancy with [Y] he tended to ring the mother frequently out of concern for her welfare, noting he was a first time father. He denied ever attempting to restrict the mother's movements or who she could see. He said he may have been “a little over the top” while he was incapacitated with his Achilles tendon injury, and he had apologised to the mother for this.
Mr T said that at September 2009 the child’s behaviour continued to be a problem, with the child continuing to be disobedient and defiant, saying “Dad told me that I don’t have to do that. You can’t make me do that”. Mr T said at this time, being September 2009, that he continued to get frustrated but not as frequently.
In cross-examination, when asked why he disclosed the incidents of conflict between him and the mother in his second affidavit but not in his first, Mr T said that after the interim orders were made on
17 September 2009 that among other things required the mother not to leave the child with him unsupervised, he thought it best if he told the truth about what happened around these incidents. Mr T said he was unaware of any subpoena to DoCS, and his disclosure was solely because of the interim orders of 17 September 2009. However, those interim orders were made on the initiative of the Independent Child's Lawyer based on the content of the DoCS records about the issues between the mother and Mr T that neither had previously disclosed. It is thus splitting hairs to suggest the supplementary affidavits were the result of the interim orders but not of the DoCS material, whether or not Mr T was aware of the content of the DoCS file.
Mr T said that the incidents had nothing to do with the child, even though they involved him, because he was not present during any of them.
Mr T said the incident involving him pushing the mother with his crutch came after he had got up to the child at night to give him medicine and the child came home from his next visit with the father and said the mother did not love him anymore, she loved the new baby, and said that the father had taught him how to open child proof medicine, noting the child was then only six.
Mr T said that in August and September 2008 he was a difficult person to live with, and the impact of his behaviour on the mother was severe as she was working, pregnant, caring for the child and living with someone who was difficult to live with. However, Mr T said it had no impact on the child that he could see.
Mr T said that his description of his behaviour at this time in his supplementary affidavit as being “a little over the top” was a reference to him not wanting the mother to leave the house, for which he said he later apologised to the mother many times after she explained to him how it made her feel.
Since that two month period when he was on crutches, Mr T said the arguments have decreased, and since about October 2008 they had argued about four or five times.
Findings
I was troubled by the mother's denials about some of the matters recorded in the DoCS file. It is difficult to understand why there would be a record of the mother complaining, for example, of Mr T’s discipline of the child and saying she had banned him smacking the child if she had not raised some issue concerning Mr T’s discipline of the child. However, Mr T was not cross-examined about this issue.
The relevance of these matters is whether or not the child has been abused or exposed to family violence between Mr T and the mother, and if so whether there is a risk of repetition in the future.
Based on the definition of family violence previously set out, I am satisfied the incident when Mr T pushed the mother with his crutch was an incident of family violence, as it reasonably caused the mother to be fearful of Mr T. That fear was clearly in relation to her personal wellbeing or safety. I am also satisfied that Mr T’s threats to take the newborn baby away from the mother amounted to family violence, as they may reasonably induce in the mother fear for the wellbeing of the baby, who from birth was a member of their family. The evidence is insufficient to support a finding that any other argument between the mother and Mr T amounted to family violence.
Having regard to the definition of child abuse previously set out, I am not satisfied any of these matters involved child abuse.
Despite the protestations of both the mother and Mr T that their arguments did not affect the child because none of them occurred in his presence, I am satisfied that the family violence incidents had a significant potential to adversely affect the child, through their impact on the mother, his primary carer. That neither the mother nor Mr T were able or willing to acknowledge this fact is of concern.
Incident between Mr T and his sister and mother (January 2009)
In January 2009 an altercation occurred between Mr T and his mother and sister who were staying with the mother and Mr T at the time of the new baby’s christening. The incident occurred in the evening of the Christening Day, the day before they were to return home.
Mr T’s evidence
The child’s paternal grandmother rang to speak to the child at around 10pm. Mr T answered the phone and on learning who was calling and why, put the child on the phone. When the mother asked him who was on the phone he told her. The mother then spoke to the paternal grandmother and the child “went off to bed crying”. Mr T did not know why. In cross-examination he said he only found out later that the child went to bed crying. Despite Mr T asking his mother not to go in to the child, because of his concerns about the father “grilling” the child and what he would make of it, she nonetheless did so. When she came out of the child’s room, a heated discussion ensued between Mr T and his mother, because, according to Mr T, “my mother did not understand the dynamics and complexity of the current litigation”.
The father then arranged to drive a friend home. The mother, his friend and the two children were in the car when the mother told him his mother and sister were going to leave and asked him to tell them to wait until they returned when they could talk about it. Mr T went back inside “and attempted to make them stay”. While he and his mother were arguing, his sister entered the room and a heated argument occurred between the father and his sister during which she grabbed his shirt and he pushed her away, resulting in her falling and hitting the lounge, “and she got a bad eye”. Mr T denied hitting his sister, but conceded that the allegation against him was that he punched her.
It was not until six months later that Mr T was interviewed by the police over this incident. He was charged with assaulting his sister in August 2009. He pleaded guilty to the charge and was placed on a good behaviour bond.
Mother’s evidence
The mother said she was waiting outside with the children and the father's friend at the car when the altercation occurred between Mr T and his sister. She at first said they were all waiting in the car, but then said the children were in the car and she was not. The mother said she heard Mr T’s sister screaming, but denied the children could hear as they were in the car with the doors closed. This is exactly what the father said of an incident at changeover on 29 July 2006 when he loudly abused and denigrated the mother. The mother maintained in relation to that incident that the child would have heard what the father said.
Findings
I am satisfied this was an incident of family violence as defined in the Family Law Act by Mr T on both his mother and sister. I note that both Mr T’s mother and sister are members of his family under s.4(1AC) for the purposes of s.4(1AB). His mother and sister left the home of Mr T and the mother immediately after the incident, late at night. I infer both were fearful for their wellbeing in light of the argument the father had with his mother about her comforting a crying child and the assault by him on his sister in his mother's presence. I am satisfied their fear was reasonable.
It is unnecessary to resolve the issue of whether or not Mr T punched his sister to make this finding. I note Mr T’s confirmation that his sister suffered a “bad eye”. This is more readily reconciled with being punched than with simply being pushed and falling over a lounge. The police record of the incident also indicates an allegation the sister was punched. Nonetheless, bearing in mind the seriousness of the issue and having regard to s.140 of the Evidence Act 1995, and in particular s.140(2)(c), I am not satisfied that he punched her because:
a)Mr T denied punching his sister;
b)There was no other witness of the incident called to give evidence;
c)The only contradiction of Mr T’s evidence was in the police record, and the source of that information was not made available for cross-examination;
d)Mr T’s credit as a witness generally was not successfully challenged, although there are aspects of his evidence that I consider unsatisfactory;
e)I am not satisfied that Mr T’s credit in relation to this incident was successfully challenged; and
f)The assault charge to which Mr T pleaded guilty is consistent with Mr T’s version of the event, although it is not inconsistent with the sister being punched.
I am not satisfied the incident between Mr T and his mother and sister involved any child abuse. While the child could have heard the altercation, there is no clear evidence that he did. Hence, I am unable to find this incident caused the child psychological harm, but I am satisfied it was potentially psychologically harmful to the child.
Changeover on 8 June 2009
The father's evidence
The father said that on 8 June 2009 (a public holiday Monday), the child told him Mr T “threatened” the child, saying “everyone’s going to fucking get it” because they had been late returning the child to the mother on the previous contact weekend, which would have been the weekend of 22 – 24 May 2009. He said he replied to the child that
Mr T was not allowed to use such filthy language around children, or anyone.
The father's evidence in chief was that they had been ten minutes late. In cross-examination, the father said he questioned the boy about the statement and the child said it was because they had been 15 minutes late attending the changeover point. The father volunteered that they had in fact been closer to 20 minutes late.
The father said that on the same day, 8 June 2009, Mr T attended changeover when he returned the child to the mother. He asserted that Mr T “chased” the father's car “in pursuit” with the child and the mother with him.
In cross-examination, the father said when he arrived at the changeover point to return the child to the mother, about 11 minutes late, he pulled in front of the car containing the mother and Mr T and when the child changed cars, he looked back in annoyance at seeing Mr T, he and
Mr T looked at each other, then he drove off.
The father agreed that the street where changeover was affected was a one way street, and in order to leave the changeover point both cars had to travel in the same direction. However, he denied what occurred involved two cars of necessity driving in the same direction to leave the changeover point, and insisted it was a “pursuit” of his car by
Mr T.
The mother's evidence
The mother said that since the soccer field incident Mr T had not attended at contact changeovers except on one occasion, 8 June 2009, a long weekend. She said it was raining. Mr T dropped the mother off at the changeover point at about 4.50pm. He came back at around 5.20pm, the father not having arrived to return the child. She then waited in Mr T’s car until the father arrived with the child at around 5.30pm. The mother said the father pulled alongside their car, then moved forward in the one way street and stopped. She said she and
Mr T waited until the father moved because it was a one way street and no other car could pass. She said when they got onto the main road, the father pulled alongside their car and “started swearing at me” before driving off. She did not say what the father said. Mr T corroborated this evidence. He too did not give evidence of the “offensive language” the father used when the father pulled along side his car after leaving the one way street.
When the child returned to her on this occasion the mother said, in cross-examination, that she asked why the child was late again and the child responded that it was because of his father. The mother said she responded that the child should ask his father to leave earlier. This was clearly inappropriate, as it made the child responsible for things over which he had no control, and directly involved the child in an aspect of actual or potential parental conflict. The mother’s assertion that it was up to the child to sort it out so that the child knows it is his father who is making a mistake, because the child believes his father never makes a mistake, displays a degree of transference of the mother's hostility towards the father onto the child because the mother perceives the child to be defending or excusing the father. The mother on the one hand professed to understand that this involved placing parental responsibilities on the child’s shoulders, but insisted on defending her actions by reference to having the child realise his father was not as perfect as the child thought he was. Her statement that she would do it differently in future was not at all convincing in light of the mother's continued defence of her actions by reference to the child having to understand his father was in the wrong.
Mr T’s evidence
In cross-examination Mr T denied saying in the child’s presence “everyone’s going to fucking get it” when the father returned the child late to the mother. He said he had only ever used the “f” word once when the child was present, namely in a dinner time incident in July 2009, dealt with later. He said he was present at only one changeover, being the changeover on the long weekend in June 2009. Mr T said that the father was always late, he had spoken to the mother about it but not in the child’s presence, and had told the mother it was a power play.
Findings
I am not satisfied the evidence is sufficient to prove the father's allegation that Mr T said in the child’s presence “everyone’s going to fucking get it” because the father returned the child late. The source of the father’s information is the child, who cannot be cross-examined. Mr T denied making the statement and was cross examined. I am not satisfied his credit was successfully challenged in relation to his evidence on this issue.
Nor am I satisfied that Mr T chased the father in his car after changeover on 8 June 2009. The father conceded it was a one way street and that his car at changeover was ahead of Mr T’s. In those circumstances, it is obvious that Mr T would have to follow the father’s car to leave the one way street. The father gave no evidence of Mr T continuing to follow his car once out of the one way street in any way that could be described as a pursuit or chase. I am satisfied this is another example of the father’s tendency to interpret everything the mother and Mr T do, including innocent actions, malignly. It is indicative of the level of animosity and distrust between the father on the one hand and the mother and Mr T on the other.
Hence I am not satisfied these matters establish either family violence or child abuse.
Meal time incidents in early 2008 and July 2009
The father's evidence
The father said that he collected the child from school on Friday 3 July 2009. The child was subdued and made no response when he asked what was wrong and how he got a scratch on his hand. The father said the child was distressed, angry and reluctant to tell him what happened. He said the boy demonstrated anger by raising his voice and kicking the glove box in the father's car. The child refused to explain why he was behaving this way. The following day, on the way home from an outing, when the father asked the child if he would try corn on the cob for dinner the child again displayed anger, raising his voice, kicking the glove box and hitting the door. The father said after they got home, the child told him of an incident on 2 July 2009 at the mother’s home.
The father said the child told him that the previous Thursday, namely on 2 July 2009, the child had a dispute with his mother and Mr T over not wanting to eat his dinner. He said the mother threw the child’s toys out in the street, Mr T “violently grabbed” the child and “screamed questions” at the child. The father said the child indicated he was terrified of Mr T’s expression and demeanour. He said the child could not remember the questions Mr T “screamed” at him.
According to the father's relating of what the child told him, Mr T then took the child’s dinner away, and sent the boy to his bedroom. He said that as the child was walking away, according to the child Mr T called out to the child “you’re a fucking girl mate”.
The father said the child told him he was howling and crying in his room when the mother came in and hit the child with a slipper. Despite the child saying he was hit with a slipper, the father nonetheless said he believed it was a thong, perhaps a leather thong. He gave no reason for doubting the child’s own statement that he was hit with the mother's slipper. He said that after the mother hit the boy four or five times, the child tried to stop the mother hitting him by holding the mother's hand. He said the mother then pinched the child’s hand “with her fingers and thumb nails”. He said this broke the skin and drew blood. He said the mother left the child in his room, and the child told him he felt like he was in hell.
The father said the child broke down when telling him of this incident. He said he hugged and comforted the child and told him “it was an act of child abuse and we had to report it”. He said the child responded “I didn’t tell you Dad because I didn’t know it was child abuse, and it’s been happening all my life, with Mum”. The father gave no evidence of ever observing the mother mistreat the child in any way during their cohabitation, or of the child ever having reported being hit by the mother previously.
When the child made the disclosure, the father told the child “we have to write this down and do something about this, mate”. He said that the discussion and note taking about the incident took about 30 or 35 minutes.
The father said that on 5 July 2009 he reported the matter to DoCS and to the police. He said the police came to his home and photographed “the child’s hand wound”. Also on 5 July 2009, he took the child to his doctor, Dr G, who spoke to the child in the father's presence. On 8 July 2009 Dr G provided a letter addressed “To Whom It May Concern” stating that on 5 July he had seen the child who gave a history that on the preceding Thursday the mother’s partner grabbed his left arm and yelled at him, using foul language, and his mother hit him three or four times and pinched his hand, resulting in an abrasion that did not require treatment. The father said his doctor recommended psychological help for the child in relation to the incident. The doctor made no mention of this in his letter of 8 July 2009.
The father denied in cross-examination having told the child if he did not want to eat his food he did not have to.
The father said the child returned to the mother without difficulty at the end of his time with the father, he having told the child it would now be OK, and the child could ring the father at any time.
The father said that since the child’s disclosures in early July 2009, the child has passed to and fro under the parenting orders, but he asserted there had been further concerning behaviours. He said the child was overly aggressive, and when the child is verbally disciplined by the father when they are close to each other the child flinches in fear, as if fearful of being struck. The father did not mention this in his evidence in chief.
The mother's evidence
The mother said that on 2 July 2009, the child came home very happy having won a race at school. He was excited all afternoon. At dinner time, he refused to eat what the mother had prepared. Over the next hour the mother said she attempted to “negotiate and encourage” the child to eat his dinner without success. The mother threatened to put his toys in the garage, to which the child responded that he did not care and would get them later. The mother then threatened to throw the boy’s toys out in the street. She then took all the child’s toys and put them in the garage, and then led the child by the hand to his bedroom. While she was doing this the mother said Mr T began to swear and said “fucken girl”. The mother said she placed the child in his room, went and spoke to Mr T about his behaviour, for which she said he apologised to her and said he would apologise to the child “when he calmed down”. The mother said she then returned to the boy’s bedroom because he was slamming doors, kicking walls and throwing things around. When the child ignored the mother's direction to stop, the mother smacked him with her slipper on his leg. The child grabbed the mother's hand and when she pulled her hand away from the child’s she scratched the child’s hand.
The mother said she returned to the boy’s bedroom five minutes later and he had calmed down. She said she explained to him why she had smacked him and why his toys were in the garage. She left the room and she said Mr T later apologised to the child. The mother said the child went to bed well settled.
The mother said in cross-examination that she was present when Mr T apologised to the child for calling him a girl and swearing. She said Mr T told the child his behaviour was “too pushy” and that he will not stop until he has pushed the boundaries of everyone else’s patience. The mother agreed that in being told this the child was in effect told his behaviour caused Mr T to abuse him, but she did not correct the message. In fact, her evidence is that she reinforced it – she said she told the child that if he had just eaten his dinner it would not have happened.
The mother said that Mr T’s reaction to the child on this occasion was a result of his frustration with the child. She said his frustration was in not being able to convey effectively to the child that he had to eat his dinner. She said Mr T tried to convey to the child that he had to eat his dinner by asking him to do so and indicating he should do what he was being asked. This was the first time the mother indicated Mr T was involved in trying to get the child to eat his dinner on this occasion. The mother could give no explanation why she omitted this from her evidence in chief.
The mother admitted she could have dealt with this incident differently by simply sending the child to his room. She said since this incident the child usually eats his dinner with encouragement, although very recently the issue had recurred. She said the child refused to eat his meat as it was too tough, and she gave him different meat that he ate.
In cross-examination by the father, the mother denied that Mr T said to the child “You are a fucking little girl”, and insisted he said “fucken girl”. Given the evidence of the mother and Mr T that this was a comment directed at the child, and hence the words “You are a” were clearly implicit in the statement, the only issue can be whether Mr T used the adjective “little”. In my view, such an issue is irrelevant in light of the admission by Mr T and the mother as to what Mr T called the boy.
The mother denied throwing the child’s toys out of the window. However, she admitted that as at 2 October 2009, the child’s toys taken during this incident had not been returned to him. The mother said this was because their removal had had a positive effect on the child, in that he now read more, and he had not asked for any of his toys back. While the mother denied that all of the removed toys had been purchased by the father, she said a good number of them had been.
The mother said she hit the boy with her slipper once only, and denied hitting him three or four times as Dr G recorded the child reporting to him. The mother said the child grabbed her right hand, the one holding the slipper, but denied he did so as she attempted to hit him again. She denied pinching the child’s hand, explaining the scratch to the child’s hand as the result of her taking his hand away from her right hand with her left hand, during which the boy was scratched. This is inconsistent with her evidence in chief, when she said the child’s hand was scratched when she pulled her hand away from his.
When cross-examined about what was inappropriate in Mr T’s behaviour towards the child in this incident, the mother at first said the only thing inappropriate was swearing at the child. When pressed about calling the child a girl, she said that also was inappropriate but there was nothing else inappropriate in Mr T’s behaviour towards the child. When questioned about Mr T raising his voice to the child on this occasion, she conceded that too was inappropriate. The mother's evidence on this point was troubling, indicating either a failure to appreciate what is appropriate and what is inappropriate in disciplining the child, or a lack of candour on matters that may not be to her advantage in the case.
The mother denied in cross-examination by the father having made the child sit on a bar stool until 11pm or 12am because he would not eat his dinner. She said she had made him sit on the stool for up to an hour, after which, if the child would still not eat his meal, she would send him to his room. She said that for about three months in early 2008, about three times a week the child would refuse to eat the dinner she prepared for him even after being made to sit on the stool for up to an hour, and she would send him to bed. The result was that about three times a week for those three months, the child would have nothing to eat from about 4pm or 4.30pm, when he would have a snack after school, until breakfast the following morning at about 8am, a period of about 15½ hours. The mother said these incidents became less frequent when the child became more interested in his dinner. She agreed that this was “probably” an excessive amount of time for the child to go without food, but believed it was a suitable form of punishment. The mother said she tried giving the child something the child liked for dinner, but said when he got used to it he stopped eating it, and would not eat what he had previously liked, so she decided to simply require him to eat the healthy meals she prepared. The mother said he would eat neither what she prepared nor what he had previously liked.
I note the mother's evidence of having seen a psychologist to assist in managing the child in the early part of 2008, that is, at about the time of the meal time difficulties.
The mother said the child always whinged about what was on the dinner table saying his father told him he does not have to eat his dinner if he does not want to. She said the father's influence on the child had caused conflicts over her dinner table, and that the incident of the child being called a girl by Mr T and her hitting the child and scratching his hand arose from the child refusing to eat his dinner.
The father said he had a close and loving relationship with the child, as did the paternal grandmother. He said the child had a close relationship with other extended family on his side subject to them living in Queensland. When asked if there was any doubt in his mind that the child loved his mother, the father paused for a significant period before saying that the child was saying things to him that concerned him, then said he leant more towards loving his mother, maybe 70%, but he could not be sure. The father accepted that the child had a good relationship with the mother’s new baby, talking about the baby to him occasionally.
The mother said the child loves his father and enjoys spending time with him. She said there is a good relationship between Mr T and the child [X], they interact affectionately, and it was Mr T who suggested the child play soccer.
Mr T said he had a good relationship with the child. He said that he sparked the child’s interest in soccer and bought him boots and other soccer gear. He said that after the birth of his and the mother’s child in late 2008, he took a bigger role in the child’s care, attending to his day to day needs when the mother was occupied with the baby. He said he taught the child how to ride a bicycle.
I am satisfied that the child has a close relationship with both his parents. I have concerns that the father’s criticisms of the mother to the child and encouraging him to follow what the father believes is appropriate in the mother’s household has caused conflict between the mother and the child, and between Mr T and the child, and that the father has thus damaged the relationship between the mother and child. I am satisfied that the mother lacks effective child behaviour management skills and that this has exacerbated the adverse impact of the father’s influence on the child on the mother/son relationship.
I am satisfied the child has a good relationship with Mr T. I am satisfied the child is not fearful of him, as the father asserted. I am satisfied the child has a good relationship with both his brothers, [Z] and [Y], and with the paternal grandparents.
(c) The willingness and ability of each of the child’s parents to facilitate, and encourage, a close and continuing relationship between the child and the other parent
Sections 60CC(4) and (4A) are particularly relevant to this consideration.
I am satisfied that the level of animosity and suspiciousness of each parent for the other has resulted in both of them saying and doing things that have been harmful to the relationship between the child and the other parent, but I am satisfied that the father has more persistently and consistently undermined the mother’s position to the child. I am satisfied that this has contributed to the child’s defiant and oppositional behaviour with the mother, but is not the sole cause of it. I am satisfied that there is a likelihood of the father continuing to criticise the mother and the parenting decisions she makes to the child and encourage the child to defy the mother if she does things he does not agree with, and that this poses a very significant risk to the child’s relationship with the mother.
The father did not dispute the mother’s evidence of the child’s statements about not belonging to the mother’s new family and being a Finiotis and a member of the Finiotis family when the mother was pregnant with [Y]. I am satisfied that the father made comments to the child about the child’s place in the mother’s family with Mr T when the mother became pregnant with [Y] that caused the child confusion and distress, and that damaged the child’s relationship with the mother and Mr T, and potentially with [Y].
I am satisfied that the father has conveyed to the child his extremely negative view of Mr T. When it was put to the father that he would not present Mr T positively to the child, the father said he will tell the child about the dangers from anyone. The father expressed a very negative view of Mr T, saying he believed him to be someone who was potentially very dangerous and explosive. This, I am satisfied, is a gross exaggeration that is not supported by the objective evidence. He relied very heavily for his opinion of Mr T on the soccer filed incident in May 2008, and I have found that in fact the father struck the first blow, albeit unintentionally, on this occasion.
Both parents said they have been at pains to impress on the child that the other parent is not always right. Occurring in the context of the parental conflict, I am satisfied both have done this in a way that was damaging to the child’s relationship with the other parent.
The evidence does not satisfy me that the mother has regularly prevented reasonable telephone contact between the father and the child, as the father alleged. I am satisfied that there have been occasions when both parents have not made the child reasonably available for phone communication with the other parent during their block holiday time with the child.
Dr Rikard-Bell formed the view that Mr T wanted to support a relationship between the child and his father and that he would like to have a cooperative arrangement. I accept that this is Mr T’s preference, but I am also satisfied that he has become integrally enmeshed in the parental conflict, and the father’s views of him satisfy me there is no reasonable prospect of a cooperative parenting arrangement, even though it would greatly benefit the child.
I am satisfied that the more exposure the child has to the father, the greater will be the father’s adverse influence on the child in challenging the mother’s parenting decisions and practices in her home and in presenting Mr T to the child as a danger to him. I am satisfied that the mother’s negative portrayal of the father to the child and attempts to impress on the child that the father is not always right have been more in reaction to the father’s pervasive negative influence in her household through his influence on the child.
(d) The likely effect of any changes in the child’s circumstances, including the likely effect on the child of any separation from either of his or her parents or any other child, or other person (including any grandparent or other relative of the child), with whom he or she has been living
I am satisfied that a significant reduction in the father’s time with the child, such as the mother seeks, would distress the child. He has a close relationship with his father, and significantly reducing his time with the father will, I am satisfied, jeopardise the child’s relationship with the mother, as he may blame the mother for the loss. On the other hand, such a reduction of the child’s time with the father would reduce the opportunity for the father to negatively influence the child against the mother, but conversely may increase the father’s concern for the child with the mother and thus intensify the father’s questioning of the child and adverse influence on the child while the child is with him.
I am satisfied that reversing the child’s primary care, as the father proposes, will increase the child’s exposure to the father’s negative and destructive attitudes towards the mother and Mr T and will increase the threat to the child’s relationship with his mother. On the other hand, less exposure to the mother may reduce the level of the father’s concern about the child with the mother and hence the frequency and/or intensity of the father’s questioning of the child and adverse influence on him. I am concerned that the father’s proposals are quite vague and unclear as to how far from the mother the child might be if living with the father, and whether the effect of living with the father may be to significantly reduce the frequency of the child’s contact with the mother, perhaps to only school holidays. I am satisfied such a reduction would significantly impair the child’s ability to continue a meaningful relationship with the mother, and to benefit from it. It is also unclear on the father’s proposals whether the child would need to change schools or not, the father giving conflicting evidence about this. However, if the father in fact intends moving with the child to country NSW or to Queensland, it is clear a change of school would be necessary. If living in Queensland, the child may have more frequent contact with his brother [Z] and the paternal grandparents, but that is far from certain because of the uncertainty as to where in Queensland the father may intend to live, if he in fact did move there.
If the father’s mid week and weekend time with the child is aggregated so that the child sees his father once a fortnight from after school Friday to before school Monday, or Tuesday if the Monday is a public holiday, with school holiday time as at present, as proposed by the Independent Child’s Lawyer, the child’s total time with the father would not be reduced but the need for the parents to have direct contact with each other would be significantly reduced thus reducing the risk of exposure of the child to family violence by the father and reducing the risk of exposure to open displays of animosity and hostility between the parents. The child would continue to be exposed to the negative influence of each parent against the other, of which as I say I am satisfied the father’s is the more serious. The child, I am satisfied would continue to be able to develop the meaningful relationships he has been able to develop with both parents under the 2005 orders, and to benefit from those relationships.
(e) The practical difficulty and expense of the child spending time with and communicating with a parent and whether that difficulty or expense will substantially affect the child’s right to maintain personal relations and direct contact with both parents on a regular basis
There is no practical difficulty or expense in the child spending time or communicating with either parent under the mother’s proposals or the Independent Child’s Lawyer’s proposals. However, there may be significant practical difficulty and expense in the mother spending time with the child if as the father suggested he and the child live in country NSW or in Queensland. While the father proposed that he be responsible for all travel and cost of delivering the child to and collecting the child from the mother for her school holiday time if he and the child lived in Queensland, there was no indication whether he then would propose any other time with the mother, and if so where that time should be spent and hence whether there would be any practical difficulty or expense in the mother exercising that time with the child. If he and the child lived in country NSW, there may be significant practical difficulty and expense in the mother and child spending time together, but the vagueness of the father’s proposals means this cannot be properly assessed.
(f) The capacity of each of the child’s parents and any other person (including any grandparent or other relative of the child) to provide for the needs of the child, including emotional and intellectual needs
In the opinion of Dr Rikard-Bell, the child appeared to be developing well in the mother’s care. He formed the view that she had “good insight into [X]’s needs and was caring for him very well”. He formed the view that “she was a capable caring parent and that he was safe and well managed with her”. Dr Rikard-Bell formed the view that
Mr T was “a capable parent and … had a great deal to offer (the child)”. Dr Rikard-Bell was unable to assess the father’s parenting capacity “except to say that (the child) wants to see him and he recognises him as an important person in his life”.
I am satisfied that generally the mother is capable of understanding and meeting the child’s needs, including his emotional and intellectual needs. I am satisfied that the mother would benefit from some appropriate assistance and guidance in parenting techniques, particularly in managing the child’s at times defiant and oppositional behaviour. She needs to understand that even if the child’s behavioural issues are the result of adverse influence from the father, to address the child’s behaviour in a confrontational way, or worse still by trying to make the child realise his father is wrong, simply makes the child a victim of the parental conflict and further embroils him in it. I am satisfied that at times the mother has not met the child’s emotional needs by involving him in the parental conflict, for example by attempting to make the child responsible for his father returning him late to the mother.
I am satisfied that the father is unable to separate the child’s needs from his own, and hence his ability to meet the child’s emotional needs is limited. The father cannot understand that the child could have a positive relationship with the mother and Mr T when his relationship with them is so hostile and negative. I am satisfied that the father has projected onto the child his own negative views of the mother and Mr T, and has thus denied the child the right to freely exercise a positive relationship with them. This fails to meet the child’s emotional needs at a most fundamental level. I am satisfied the father can meet the child’s intellectual needs.
I am satisfied Mr T is generally able to assist the mother meet the child’s needs. This however is subject to his having exposed the child in the past to his family violence, and his verbal abuse and denigration of the child in the meal time incident in July 2009. Mr T in this has shown an inability to recognise the child’s emotional needs in the situation and meet them. In apologising for his behaviour during the meal time incident in July 2009 I am satisfied Mr T in effect blamed the child for his behaviour, which was most inappropriate and again compromised the child’s emotional needs. Subject to the efficacy of the anger management counselling he is presently having, and of any parenting programs or courses in which he may participate in the future, I am satisfied there is a continuing risk that Mr T may similarly compromise the child’s emotional wellbeing in the future. I am satisfied that guarded optimism is warranted that Mr T may successfully address his anger management and parenting issues that have caused him to compromise the child’s emotional welfare in the past, thus reducing the risk of any repetition in the future.
(g) The maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the child and of either of the child’s parents, and any other characteristics of the child that the court thinks are relevant
I have already referred to the child’s age and the adverse influence on him of the parents, especially the father, in dealing with his views. I am satisfied that the child feels burdened by his exposure to the parental conflict, and that both parents are responsible for this, albeit I am satisfied the father bears the greater responsibility for this.
I am satisfied that while the evidence does not prove the father has a mental disorder, the evidence satisfies me that he may have a mental disorder. However, I am satisfied that the risk of harm to the child from exposure to the manifestations of any mental disorder the father may have is relatively minor, and is completely overshadowed by the serious adverse impact on the child of exposure to and involvement in the parental conflict.
(h) If the child is an Aboriginal child or a Torres Strait Islander child, the child’s right to enjoy his or her Aboriginal or Torres Strait Islander culture (including the right to enjoy that culture with other people who share that culture) and the likely impact any proposed parenting order under this Part will have on that right
This consideration is not relevant.
The attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child’s parents
Sections 60CC(4) and (4A) are particularly relevant to this consideration.
My observations in relation to paragraphs (c) and (f) of s.60CC(3) are relevant to this consideration and I will not repeat them. In my view both parents, but the father in particular, have on occasions shown themselves wanting in relation to their responsibilities to the child as his parents. They have a responsibility to not just permit, but to foster and encourage, a close and continuing relationship between the child and the other parent, but both parents have criticised the other parent to the child, the father has encouraged him to defy his mother, and they both have directly involved him in the parental conflict, creating a division of loyalties for the child between his parents, both of whom he loves. This is the more troubling in relation to the father, because he has an unshakeable belief that what he has done is right and proper, and part of his responsibility to protect his son. The prospect of any amelioration in the father’s behaviour in the future is therefore bleak.
(j) Any family violence involving the child or a member of the child’s family
I have dealt with this issue earlier in my judgment.
(k) Any family violence order that applies to the child or a member of the child’s family, if the order is a final order or the making of the order was contested by a person
This consideration is not relevant, there being no current AVO’s. I have earlier related the AVO history.
(l) Whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to the child
I am not satisfied any particular order is less likely than any other to lead to further litigation. However, a cessation of litigation and of the involvement of the child in the parental conflict, and the development of a non-conflictual, if not co-operative, relationship between the parents is what would most promote this child’s interests.
The paternal grandmother expressed concern that the dispute between the parents and the whole court process was affecting the child, and bearing in mind the impact of the parental conflict on the child, she would like it to end. She said the child was far too young for a lot of what had gone on. I entirely agree with these views.
(m) Any other fact or circumstance that the court thinks is relevant
There are no other relevant matters not already canvassed in my judgment.
Decision
My comments in relation to the effect of change on the child indicate there are significant adverse consequences for the child’s interests from the proposals of both the mother and the father. These adverse consequences in my view far outweigh the benefits of those proposals. I need not repeat those matters.
Parental responsibility
I note that my findings as to family violence mean that the rebuttable presumption for equal shared responsibility does not apply (s.61DA(2)). In any event, I am satisfied that the parents cannot communicate and are unable to negotiate on any matter concerning the child. I am therefore satisfied that it would not be in the child’s best interests for the parents to have equal shared parental responsibility.
In my view, the parent with whom the child primarily lives should have sole parental responsibility for the child.
The parent the child should live with
I am satisfied it is in the child’s best interests to continue to live primarily with the mother. She has demonstrated an ability to meet the child’s needs, subject to the reservations previously mentioned. Despite her inappropriate negative comments about the father to the child and her role in involving the child in the parental conflict, I am satisfied she will facilitate the child’s continuing relationship with the father.
I am satisfied that it would not be in the child’s best interests to live with the father because of the risk to a continuation of the child’s relationship with the mother arising both from the uncertainty as to the time the child could realistically spend with the mother under his proposals, and from the father’s portrayal to the child of a negative attitude to the mother and his encouragement of the child to defy the mother’s direction. I am also satisfied that the father is far less able than the mother to appreciate and meet the child’s emotional needs.
The time the child should spend with the father
I am satisfied that the Independent Child’s Lawyer’s proposals to aggregate the father’s non-holiday time with the child to once a fortnight is in the child’s best interests. As the child is now older, he does not need such frequent involvement with a parent to maintain and develop his relationship with the parent. Thus the reduction in frequency of involvement with the father from weekly to fortnightly will not in my view impair the child’s relationship with the father or its future development. The move to fortnightly time during school terms from after school Friday to before school Monday, or Tuesday if the Monday is a public holiday, will reduce the need for the parents to have direct contact for the child to pass between them and thus reduce the child’s exposure to the parental conflict and animosity and reduce the risk of exposure to any further family violence by the father on the mother. It will eliminate the mid week overnight visit that the child seemed to find unsatisfying, describing it as little more than a sleepover.
The continuation of the same time in aggregate as the child now spends with the father will leave the child exposed to a continuation of the negative influence of the father and thus expose the child to a risk that his relationship with his mother will be further harmed. However, the child loves his father and wishes to continue to spend time with him. I am satisfied that there is also a risk to the child’s relationship with the mother from significantly curtailing the child’s time with the father.
While the Independent Child’s Lawyer proposed to term the time with the father as “live with” time, I am satisfied that it is more appropriately termed “spend time with” time.
Overseas travel
The father sought to restrain the mother taking the child overseas without his consent.
The mother clearly wishes to visit her family in the Philippines with the child, hopefully in October 2010. Her Amended Application sought permission to apply for a passport for the child without the father’s consent but did not seek permission for the child to leave Australia. However, she did not press for the order for a passport, her counsel suggesting she did not need to do so if she had sole parental responsibility for the child.
Under section 11, Australian Passports Act 2005, the consent of a parent with parental responsibility for a child is required for a passport to issue for that child unless a court has permitted the child to travel overseas. The definition of “parental responsibility” in s.11(5) of the Australian Passports Act gives that term a wider meaning than under the Family Law Act, to include an order that a person spend time with a child. Under s.65Y, Family Law Act, even if the mother held a passport for the child, she would not be able to take the child out of Australia without the father’s consent if an order existed that the child spend time with him, unless a court had ordered otherwise. Thus if an order is made giving the mother sole parental responsibility for the child but providing that the child spend time with the father, as the mother proposes, then absent either the father’s consent or a court order permitting overseas travel the mother can neither successfully apply for a passport for the child nor take the child out of the country.
The Independent Child’s Lawyer sought orders permitting both parents to take the child overseas subject to specific conditions.
In the circumstances, where the issue of overseas travel has been clearly raised and dealt with on the evidence, I am satisfied there would be no denial of procedural fairness to the father if I deal with both his application to restrain the mother taking the child out of the country without his consent and the Independent Child’s Lawyer’s application, indicated in the Minute of Orders sought submitted on the final day of the hearing, permitting both parents to take the child overseas subject to conditions.
The father expressed concern that the mother would not return to Australia if permitted to take the child to the Philippines. As the Philippines is not a party to the Hague Convention on the Civil Aspects of International Child Abduction, he was concerned that it may be extremely difficult to secure the child’s return to Australia if the mother did not return him voluntarily.
Dr Greenfield said that while she did not talk to the boy about overseas travel, she supported the child going to the Philippines to make connections with his extended maternal family. She said making connections with both sides of his extended family was very important to the child’s identity. I accept that this is so, but if the mother takes the child to the Philippines and does not return, the child may be denied an opportunity to have any connection with his father and his paternal extended family.
I am satisfied the mother taking the child to meet his extended maternal family in the Philippines is in the child’s best interests, provided there is no significant risk the mother will not return.
I am satisfied there is little risk the mother will not return if permitted to take the child to the Philippines. She is well settled in Australia, as is the child, and the mother has employment and friends here. She is in a relationship with a man with no connection with the Philippines other than through his relationship with her, he is well settled in Australia and they have a child. I take into account the evidence suggesting the relationship between the mother and Mr T was under serious threat, and that the mother considered leaving Mr T in 2008 and then did not consider the relationship would last. However, assuming that relationship broke down, the mother could not take [Y] out of the country without Mr T’s consent, and I am satisfied it is highly unlikely that the mother would leave Australia permanently with only one of her two children.
I am therefore satisfied that the orders proposed by the Independent Child’s Lawyer for overseas travel by the child with both parents are in the child’s best interests.
Other orders sought by the Independent Child's Lawyer
The mother said in cross-examination that she did not oppose orders restraining her from physically chastising the child or permitting any other person to do so, from criticising or ridiculing the child or permitting any other person to do so, and requiring her to ensure Mr T does not attend at or come within 500 metres of changeover locations while changeover is occurring. I will therefore make these orders.
However, the mother said she opposed any order requiring her to ensure she is the only person in her household to discipline the child because she said Mr T would have a role in disciplining the child. She agreed Mr T had inappropriately disciplined the child in the past, she said on two or three occasions.
While I accept there is some risk of a repetition of inappropriate disciplining of the child by Mr T absent the order the Independent Child’s Lawyer seeks, I am concerned it may make the management of the mother’s household unworkable. If she wished to go out without the child, while she could leave the child with Mr T, he would not be able to discipline the child. This is simply not how families work. If there are orders in place seeking to prevent the mother or anyone else physically disciplining the child and from criticising or ridiculing the child, which was the form of inappropriate “discipline” of the child by Mr T in the past, then in my view the issue has been addressed, and no further restrictions on the mother’s ability to manage her household and her children should be placed on her. To do so in my view would not be in the child’s best interests.
I am satisfied that the orders proposed by the Independent Child’s Lawyer to implement Dr Greenfield’s recommendation for monitoring how the child is dealing with the parenting arrangements and the influences of the adults are in the child’s best interests. Orders to that effect should be made, but making the number and frequency of sessions ultimately subject to the recommendations of the psychologists the mother consults. The parenting orders will expose the child to the ongoing parental conflict and the negative influences of both parents, the child has been burdened by this and has been displaying troubling behaviour that may be a sign of the emotional stress he is under, and the child has been exposed to violence between the father and Mr T and by the father on the mother. In these circumstances it is appropriate that the child be afforded some professional assistance to deal with the effects of these negative experiences.
I am not satisfied the order the father sought permitting him to “seek an expert independent (non court appointed) children’s psychologist to treat the child for the traumas suffered” should be made. The father cannot be relied on to inform a psychologist of all relevant information to the psychologist’s task, as evidenced by his failure to provide Mr C with crucial information, and his repeated objection to experts forming opinions based on that information, even though the CMC letter accurately reflected his beliefs.
In relation to the order proposed by the Independent Child’s Lawyer for a communication book, I have some concerns that it may simply be another means by which the father can seek to instruct and harass the mother about her parenting. This behaviour has been very destructive in the past, and has created or contributed to considerable tension in the mother’s household, both between her and the child and between her and Mr T. If the continuation of this behaviour were to be facilitated by a court ordered communication book, it would not be in the child’s best interests. In those circumstances, I am not satisfied this order should be made.
The Independent Child’s Lawyer proposed that the parent with whom the child was be required to take the child to his soccer games and practices that fell during the time the chid was with that parent, and that the other parent not attend such games and practices, and that the mother ensure Mr T does not attend the child’s games and practices that occur during the father’s time with the child. I am satisfied such an order is necessary, to ensure the child is enabled to continue his participation in a game he enjoys, to prevent this continuing to be a battlefront in the parental conflict, and to ensure the child is not exposed to parental conflict or animosity or any repeat of the violence between the father and Mr T.
Other orders sought by the father
The father sought an order restraining Mr T and adult members of his family and his friends and associates from coming into contact with the child. There is no evidence that any member of Mr T’s family or any of his friends or associates poses any risk to the child.
As to Mr T, I am satisfied he has a good relationship with the child. I am satisfied the child is not fearful of him. I am not satisfied Mr T regularly abuses and threatens the child as the father alleged. I am satisfied that Mr T has exposed the child to family violence against the father, in retaliation to the father hitting him, and that his family violence on the mother harmed the child even though the child was not present. I am satisfied Mr T’s family violence to his mother and sister more likely than not affected the child. I am satisfied Mr T verbally abused and denigrated the child in the meal time incident in July 2009. I am satisfied Mr T is taking steps to address his anger management issues.
Mr T and the mother are in a relationship and have a child. It is simply not realistic to believe that the child can live with the mother and not come into contact with Mr T.
I am not satisfied Mr T poses such a risk to the child as to warrant the order the father seeks. I am satisfied that the orders proposed by the Independent Child’s Lawyer in relation to physical discipline of the child and criticism and ridicule of the child afford the child adequate protection.
Other orders sought by the mother
The mother sought an order to restrain the father from approaching her home and the child’s school, sporting venues, etc. I am not satisfied such an order is warranted, or in the child’s best interests. I am satisfied that the child will benefit from the father’s attendance at his sporting activities and at events at his school to which parents are invited. There is no evidence of the father having attended at the mother’s home since the 2005 orders were made.
The mother sought an order that the parents communicate by text message and email, and only communicate by phone in an emergency. Having regard to the level of parental hostility and conflict, and the father’s propensity to criticise the mother and seek to direct her in her parenting of the child, I am satisfied this order is appropriate.
Conclusion
I will therefore make orders to the effect of those sought by the Independent Child’s Lawyer, apart from the order for the communication book and the order that the mother alone in her household discipline the child. I will make the order sought by the mother for the parents to communicate by mail, text message and email, and by voice phone call only in an emergency.
Therefore, I make the Orders as set out at the commencement of this decision.
I certify that the preceding five hundred and sixty-six (566) paragraphs are a true copy of the reasons for judgment of Halligan FM
Associate: A. Morris
Date: 28 January 2010
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