Flamel and Seto
[2009] FMCAfam 895
•25 August 2009
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| FLAMEL & SETO | [2009] FMCAfam 895 |
| FAMILY LAW – Parenting – child spending time with. |
| Family Law Act 1975 (Cth) ss.60CC, 61C, 65DAA, 65DAC, 65DAE |
| Elspeth & Peter [2006] FamCA 1385 Goode & Goode [2006] FamCA 1346 Hall & Hall (1979) FLC 90-713 M & K[2007] FMCAfam 26 Murphy & Murphy [2007] FamCA 795 Newlands & Newlands [2007] FamCA 168 P & P [2006] FMCA Fam 518 Sieling & Sieling (1979) FLC 90-627 |
| Applicant: | MR FLAMEL |
| Respondent: | MS SETO |
| File Number: | SYM8710 of 2006 |
| Judgment of: | Kemp FM |
| Hearing dates: | 1 & 2 September 2008, 20 & 21 April, 28 May & 4 June 2009 |
| Date of Last Submission: | 4 June 2009 |
| Delivered at: | Sydney |
| Delivered on: | 25 August 2009 |
REPRESENTATION
| Counsel for the Applicant: | Ms Clifton |
| Solicitors for the Applicant: | David Cohen Solicitor |
| Counsel for the Respondent: | Mr Greenaway |
| Solicitors for the Respondent: | Helen Webber Solicitor |
| Solicitors for the Independent Children’s Lawyer: | Mr Sperling |
THE COURT ORDERS IN ADDITION TO THOSE ORDERS MADE ON 28 MAY 2009 IN A DOCUMENT TITLED MINUTE OF AGREED ORDERS DATED 20 APRIL 2009
By consent, that the mother and father notify the other not later than
7 days PRIOR to any change to their address, landline telephone number, mobile telephone number, email address, facsimile number or postal address including the details of such new address or number, save in respect of the mother moving to a residence provided by [S] Womens’ Housing Incorporated or other support housing provided by them.
Changeover
By consent, For changeover that occurs on a day or at a time when the child is not attending school, unless the parents otherwise agree in writing (including SMS text messages) changeover of [X] shall take place in the forecourt outside Woolworths in [omitted] Shopping Centre
Live with
That [X] live with the father as follows:
23.1 for the period from the date of these orders until 27 May 2010 when [X] will have attained the age of six (6) years of age:
23.1.1Each second Saturday commencing the first Saturday after the making of these orders from 9.00am to 5.00pm Saturday but extending to 6.00pm during periods when daylight saving is in force.
23.1.2 Each second Sunday commencing the second Sunday after the making of these orders from 9.00am to 5.00pm but extending to 6.00pm during periods when daylight saving is in force.
23.1.3 commencing the first Wednesday after 2 September 2009 that occurs during a NSW school term and thereafter each Wednesday during a NSW school term from after school until 6.00 pm PROVIDED THAT such time extend to 7.00 pm Wednesday when daylight saving is in force AND that such time be suspended during each NSW school holiday period and to recommence on the first Wednesday after the recommencement of school in each term.
23.1.4 from 9.00 am to 5.00 pm on Father’s Day 2009;
23.1.5 from 10.00 am until 6.00 pm on Christmas Day 2009 (Friday 25 December 2009)
23.1.6 from 10.00 am until 6.00 pm on Boxing Day 2009 (Saturday 26 December 2009) PROVIDED that if [X] was due to live with the Father on 27 December 2009 that time be suspended.
23.1.7 On Wednesday 26 May 2010 from after school until 6.00 pm
23.2From 27 May 2010, when [X] will have attained the age of six (6) years, until 27 May 2011:
23.2.1Each second Saturday commencing the first Saturday after the making of these orders from 9.00am to 6.00pm Saturday but extending to 7.00pm during periods when daylight saving is in force.
23.2.2 Each second Sunday commencing the first Sunday after the making of these orders from 9.00 am to 6.00 pm but extending to 7.00 pm during periods when daylight saving is in force.
23.2.3 commencing the first Wednesday after 26 May 2010 that occurs during a NSW school term and thereafter each Wednesday during a NSW school term from after school until 6.00 pm PROVIDED THAT such time extend to 7.00 pm Wednesday when daylight saving is in force AND that such time be suspended during each NSW school holiday period and to recommence on the first Wednesday after the recommencement of school in each term.
23.2.4 On Thursday 1 July 2010 (the Father’s Birthday) from after school until 6.00 pm
23.2.5 from 9.00 am to 6.00 pm on Father’s Day 2010 ;
23.2.6 from 10.00 am until 6.00pm on Christmas Day 2010 (Saturday 25 December 2010)
23.2.7 from 10.00 am until 6pm on Boxing Day 2010 (Sunday 26 December 2010)
23.2.8 On Thursday 26 May 2011 from after school until 6.00 pm
23.3From Saturday 28 May 2011 until the end of term 4 in 2011:
23.3.1Each alternate weekend from 9.00 am on Saturday until 6.00 pm on Sunday commencing Saturday
28 May 2011.
23.3.2commencing the first Wednesday after 26 May 2011, that occurs during a NSW school term then each Wednesday from after school until 6.00 pm PROVIDED THAT such time extend to 7.00 pm Wednesday when daylight saving is in force AND that such time be suspended during each NSW school holiday period and to recommence on the first Wednesday after the recommencement of school in each term.
23.3.3On Friday 1 July 2011 (the Father’s Birthday) from after school until 6.00pm.
23.3.4From Saturday 3 September 2011 the period in 23.3.1 be extended to each alternate weekend from 9.00 am on Saturday until 9.00 am on Monday or if Monday is a pupil free day until the time when school starts on the next school day.
23.4During the Christmas School holidays in 2011 as follows:
23.4.1from 10.00 am until 6.00 pm on Christmas Day 2011 (Sunday 25 December 2011)
23.4.2from 10.00 am until 6.00 pm on Boxing Day 2011 (Monday 26 December 2011)
23.4.3for seven days commencing from 12 noon
31 December 2011 and ending at 12 noon on
7 January 2012.
23.4.4for seven days commencing from 12 noon
14 January 2012 and ending at 12 noon on
21 January 2012.
23.5From the commencement of Term 1 of the 2012 School year and during each school term thereafter as follows:
23.5.1during school terms from after school on Friday until before school on Monday each alternate weekend commencing the first Friday after the commencement of term and thereafter commencing the first weekend of each subsequent term PROVIDED however that if Monday is a pupil free day or a public holiday then the time be extended to before school on Tuesday.
23.5.2commencing the first Wednesday during each NSW school term from after school until 6.00 pm PROVIDED THAT such time extend to 7.00 pm Wednesday when daylight saving is in force AND that such time be suspended during each NSW school holiday period and to recommence on the first Wednesday after the recommencement of school in each term.
23.5.3If [X] is otherwise living with the Mother on the weekend which includes Father’s Day, [X] spend time with the Father from after school Friday until the commencement of school on Monday of that weekend.
23.5.4If [X] is otherwise living with the Father on the weekend which includes Mothers Day the time that [X] is with the Father that weekend be suspended for that weekend.
23.5.5On 1 July 2012 (the Father’s Birthday) and each year thereafter from after school until 6.00 pm provided that if it is not a school day then from 11am to 3.00pm on that day.
23.5.6On 26 May 2012 and each year thereafter from after school until 6.00pm provided that if it is not a school day then from 11am to 3.00pm on that day AND THAT if [X] is otherwise living with her father on 26 May pursuant to these orders then [X] is to spend time with her Mother from after school until 6.00 pm and if it is not a school day then from 11am to 3.00pm on that day
23.6From the commencement of the first school holiday period in March/April 2012 and during each school holiday period thereafter as follows:
23.6.1during mid year school holidays being holidays at the end of terms 1, 2, and 3 for all years ending in an even number from the conclusion of school on the last day of NSW school terms 1, 2, and 3 until 5pm on the Saturday of the middle weekend of that holiday period.
23.6.2during mid year school holidays being holidays at the end of terms 1, 2, and 3 for all years ending in an odd number from 9am on the Sunday of the middle weekend of the holiday period until the first day when children attend school following commencement of the next school term
23.6.3During the Christmas school holidays in all years where the holidays commence in a year ending in an even number from 9.00 am on the first Saturday of the holidays until 12 noon on the third Wednesday of the holiday period.
23.6.4During the Christmas school holidays in all years where the holidays commence in a year ending in an odd number from 12 noon on the third Wednesday of the holiday period until 6.00 pm on the last Sunday of the holiday period.
23.7Such alternate and other times as agreed between the mother and father in writing (including SMS text messages)
23.8In respect of the father’s time in orders 23.3.2 and 23.5.2 that time may be extended at the election of the father as communicated in writing to the mother 7 days prior to the proposed extension to prior to school on the Thursday morning with the father to deliver [X] to school on that day.
That [X] otherwise live with the mother.
Other Communication
That when [X] is not otherwise with the father, then [X] communicate with the Father by telephone each Wednesday evening pursuant to these orders at times agreed and failing agreement between the hours of 6.30 pm and 7.00pm, such telephone communication to be facilitated by the Mother ensuring that [X] call on a landline number and that such phone number is to be provided by the Father.
That during any holiday period when [X] is with either parent then each parent ensure that [X] communicate with the other parent by telephone each Wednesday evening at times agreed and failing agreement between the hours of 6.30 pm and 7.00 pm AND in addition such other times being at any reasonable time that [X] may wish to telephone the other parent during such period.
That each of the Mother and Father do all reasonable acts and things to encourage [X] to communicate with the other parent by telephone.
The appointment of the Independent Children’s lawyer is hereby discharged, save with respect to any application as to costs.
All outstanding applications (save as to costs) otherwise be dismissed.
All exhibits tendered in these proceedings, be returned at the expiration of 1 calendar month unless an appeal is lodged.
The solicitor who issued any subpoena collect the subpoenaed material produced and return it to the owner in 14 days.
The matter be removed from the list of cases awaiting finalisation.
Pursuant to section 65DA(2) of the Family Law Act 1975, the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders are included in these orders.
IT IS NOTED that publication of this judgment under the pseudonym Flamel & Seto is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYM8710 of 2006
| MR FLAMEL |
Applicant
And
| MS SETO |
Respondent
REASONS FOR JUDGMENT
Introduction
By application filed on 22 December 2006, the applicant father seeks certain final parenting orders in respect of the child of the relationship, namely [X], born in 2004 (“[X]”), being 5 years of age at the time of the last hearing date, as follows:
(1)That [X] live with the father;
(2)That the mother spend time with [X] as follows:
(a)Each alternate weekend from 9 am on Saturday until 5 pm on Sunday;
(b)For half of each school holiday period;
(c)Such other period as the parties may agree.
The father's orders sought in his application were subsequently amended in his case summary provided to the Court on the first morning of the hearing. The father sought an order that the parties have equal shared parental responsibility for [X], that [X] live with the mother and spend time with the father as follows:
a)Each alternate week from after school Friday till before school on Monday morning;
b)In the intervening week from 5 pm on Saturday till before school on Monday morning;
c)Every Wednesday from after school until 8 pm;
d)Communication by telephone every afternoon the child is not spending time with the father;
e)For half of the New South Wales public school holidays as agreed to by the parties or failing agreement, the first half of each school holidays;
f)From 9 am Christmas Eve until 6 pm Boxing Day each year;
g)On the child's birthday from 2 pm till 6 pm;
h)On Father's Day from 9 am till 5 pm. (time spent with the father shall be suspended on the weekend of Mother's Day);
i)For the purposes of the changeover the father to collect the child from school or on a non school day from the mother's residence.
The father sought certain other parenting orders as set out in his case outline document.
The respondent mother in her response filed on 13 April 2007, sought her own final parenting orders as follows:
(1)That [X] live with the mother;
(2)That the father spend time with and communicate with [X] as follows:
(a)Each Saturday from 9.30 am until 12.30 pm such time to be spent at and be supervised by the Interrelate Children's Contact Service located in [R] ("The Contact Centre");
(b)Each alternate Sunday from 2 pm until 4 pm, such time to be spent at and be supervised by the Interrelate Children's Contact Service located in [R].
(c)That the father pay all reasonable fees for the supervision to be provided by Interrelate Children's Contact Service located in [R];
(d)That the mother or responsible adult known to the child deliver the child to the contact centre and collect the child from the contact centre at a time specified by the contact centre;
(e)That the father not attend the contact centre or its vicinity before the time contact is to commence and to leave the contact centre and the vicinity promptly at the conclusion of contact.
When the matter first came before the Court on the return of the father's application on 16 February 2007, the Court made by consent the following orders:-
(1)That [X] live with the mother;
(2)That the father spend time with [X] as follows:
(a)Each Saturday and Sunday from 9 am until 3 pm each day commencing Saturday 23 December 2006;
(b)That the father will ensure that the father's parents shall supervise the time spent by the father with the child during those periods;
(c)That the child shall be delivered to and collected from [R] Railway Station by the father in the company of either or both of the father's parents;
(d)That the father have telephone contact with the child by arrangement with the mother.
The Court noted that the father agreed without admission to the requirement of supervision for the purpose of the interim consent orders only. The Court was provided with the consent of the father's parents to act as supervisors.
The proceedings were adjourned to 5 March 2007 and the parties were directed to attend a child dispute conference on 28 February 2007. On 5 March 2007, the matter came before His Honour Altobelli FM who made interim orders to the following effect:-
(1)That the child, [X], is to spend time with the father as follows:
(a)On the weekends of 10 and 11 March and 17 and 18 March 2007 in accordance with the consent orders made 23 January 2007;
(b)Each Saturday between 9 am and 5.30 pm with changeover to occur at Interrelate Children's Contact Centre at [R];
(c)
Commencing on the weekend of 24 and 25 March, and each alternate weekend thereafter, also on Sundays between
12 pm and 5.30 pm with the mother to deliver the child or cause to be delivered to the father at [R] Railway Station, the father to return the child to Interrelate Children's Contact Centre at [R];
(d)At all other times as the parents agree.
The matter was then adjourned to 23 April 2007 at 9.30 am for interim hearing. The Court noted that the father did not concede or admit the need for supervision or the use of a Contact Centre, and similarly the mother did not agree to the father spending unsupervised time with the child.
On 23 April 2007, the matter came before Altobelli FM where further orders were made including the appointment of an Independent Children's Lawyer, to provide representation for [X]. Both parties were restrained from:
a)Speaking or permitting any other person to speak to or about the other parent or their family in a negative, offensive or unpleasant fashion in the child's hearing;
b)Discussing any proceedings between the parents in the presence or hearing of the child, or permitting any other person to do so;
c)Exposing the child to any age inappropriate material in any form;
d)Physically punishing the child.
The matter was then adjourned to a hearing on 19 July 2007 with appropriate directions being made.
On 6 July 2007, the matter came before Altobelli FM where the hearing dates were vacated and the matter was set for a two-day hearing on
8 November 2007. A further order was made restraining the parties from removing or attempting to remove [X] from the Commonwealth of Australia, and an airport watch list order was made. A family report was also ordered. Further, the Court discharged order 1 of the interim orders made on 5 March 2007 and made a further order that [X] spend time with the father as follows:
(1)Commencing on Saturday 7 July 2007 from 9am until 5.30pm every Saturday with changeover to occur at Interrelate Children's Contact Centre at [R], and commencing on Sunday 15 July 2007, every second Sunday from between 12 pm and 5.30 pm with the mother to deliver the child or cause to be delivered to the father at [R] Railway Station, the father to return the child to Interrelate Children's Contact Centre at [R], and that for the purpose of all periods, it be in the company of either or both of the father's parents or such other person nominated by the father and agreed by the mother and the Independent Children's Lawyer.
(2)For the purposes of [X] spending time with the father, [X] was to be at all times supervised by the father's parents or either of them or such other person nominated by the father and agreed by the mother and the Independent Children's Lawyer. In the event that the father's parents were unable to supervise during any period, then [X] was to spend time with her father supervised at Interrelate Children's Contact Centre at [R], at such dates and times and for such periods as they may have available.
Further, consequential orders were made to effect the relevant supervision. A further order was made that the mother and father be restrained from discussing with the child or in the presence or hearing of the child, any issue relating to the mother's and father's care of the child, including but not limited to nappy changes other than with the Court expert. Further, the mother was restrained from referring to any other person apart from the father as [X]'s father or "Daddy", including the person Mr J. A further order was made that the mother and father not live with the child outside the Sydney metropolitan area or remove [X] from the Commonwealth of Australia. Further, for the purposes of the father communicating with the mother, such communication was to be by text to the mother's mobile phone number. It was again noted that the father did not concede or admit the need for supervision or the use of a Contact Centre.
On 30 October 2007, the proceedings came before me, where the Court made orders on the application of the father that the hearing dates listed for 8 and 9 November 2007 be vacated. On that occasion, the Court noted that the applicant father, who had been legally represented, did not have legal representation and was making application for Legal Aid.
On 8 November 2007, the Court listed the matter for final hearing on
2 and 3 June 2008. Directions were made for the preparation of the matter for hearing.
Dr R had provided a psychiatric report dated 5 September 2007, on the request of the Independent Children's Lawyer, for the purpose of assessing issues relating to the Court's orders made on 6 July 2007. That report, which has subsequently become Exhibit “ICL1”, was authorised to be released to the Joint Investigative Response Team (“JIRT”) by order of 8 April 2008. The Court was informed that JIRT was carrying out an investigation which was unlikely to be concluded by the time of the hearing dates of 2 and 3 June 2008.
On 27 May 2008, the hearing dates of 2 and 3 June 2008 were vacated and the matter was further listed for final hearing on 1 and 2 September 2008.
On 1 September 2008, the hearing commenced before me with the father appearing on his own behalf. Mr Greenaway of Counsel appeared for the mother and Mr Sperling appeared on behalf of the Independent Children’s Lawyer. The proceedings continued on 2 September 2008. During that hearing, Ms R gave oral evidence referable to her report, being Exhibit “ICL1”. As a consequence, the parties agreed to obtain a further report from Dr R and for the said doctor to attend upon the child for six periods for the purposes of preparing a report inquiring into and reporting upon matters relating to her welfare. The Court also directed that in addition to the attendances referred to, the mother and father and any other witnesses that Dr R considered relevant, attend with the child on Dr R at such date and times as nominated by her. The proceedings were then adjourned to 17 November 2008 for mention and orders were made that the mother and father be restrained from taking [X] to any psychologist/psychiatrist (other than Dr R), social worker or counsellor, without the written consent of the other parent and the written consent of the Independent Children's Lawyer. A further order was made restraining the mother and father from speaking or permitting any other person to speak to or about the other parent or their family in a negative or offensive or unpleasant fashion, in the child's presence or hearing, discussing any Court proceedings between the parents in the presence or hearing or the child or permitting any other person to do so, exposing the child to any age inappropriate material in any form, and physically chastising the child. Again these orders were made by consent and without admission by both the father and the mother.
On 17 November 2008, the proceedings were adjourned for a final hearing on 20 and 21 April 2009.
The updated report of Dr R was released to the parties' legal representatives on or about 16 April 2009. At the commencement of the hearing on 20 April 2009, the Court further authorised the release of the said report to the parties.
On the hearing, the father was then represented by Ms Clifton of Counsel. Mr Greenaway of Counsel continued to represent the mother and Mr Sperling appeared again on behalf of the Independent Children’s Lawyer. The second report of Dr R became Exhibit “ICL2”.
The Court was informed that Dr R would be available on the second day of the hearing at 2.15pm to give evidence. The parties indicated that they had reached some agreement referable to issues such as the parents having equal shared parental responsibility and that the child would live with the mother and spend time with the father. Various other orders were agreed to and those draft orders were recorded in a document prepared by the Independent Children's Lawyer and by consent, the Court made orders in accordance with that document. Those orders were made on 20 April 2009 and were to the following effect:-
(1)That the father and the mother have equal shared parental responsibility of the child of the relationship, [X].
(2)That the mother and father be restrained from denigrating or causing or knowingly allowing any other person to denigrate the other party or any member of the other party’s family (including their partners) to [X] or within [X]’s presence or within [X]’s hearing and that both the mother and father as far as possible do all acts and things necessary to prevent any other person or persons from denigrating the other party to or in the presence or hearing of [X], such order to include denigration by verbal, written or electronic means including email and SMS.
School
(3)That each of the mother and the father forthwith authorise any school that [X] may attend to provide to both the mother and to the father:-
3.1 Copies of all reports of [X];
3.2Newsletters and announcements of all school/day care activities or other material pertaining to the education of [X] PROVIDED THAT
3.2.1 In the event that [X] brings notes home from school with her during any period when [X] is living with a parent, that parent shall provide a copy of the note from the school to the other parent within 24 hours of receipt by that parent (which includes forwarding such material by email), together with written information about what that parent with whom [X] is then living have done relating to the note (if anything).
3.2.2 If the material pertaining to the education of [X] is not available in writing then each parent shall provide written particulars (which includes by email) of such reports and / or activities to the other parent within 24 hours of such particulars being received from the school.
(4)That each of the mother and the father shall authorise staff members at any school [X] may attend to discuss [X]’s progress with each parent.
(5)That the father and mother may attend events to which parents are invited to attend such as a special day, prize day, school sports carnivals and parent teacher interviews.
(6)That within 14 days of these orders, the mother confirm in writing to the father and the Independent Children's Lawyer that she has done all things necessary for her to comply with the above orders, and provide copies of any written material provided to or from [X]’s school confirming this.
Medical
(7)That during any period during [which] [X] is with the father, in the event that [X] is hospitalised or receives medical attention, the father shall notify the mother as soon as practicable (and in any event within two (2) hours) after his first contact with either the medical practitioner, medical centre or hospital, and also provide the mother with details including the details of the illness, injury, treating doctor and the prognosis and treatment of [X].
(8)That during any period during which [X] is with the mother, in the event that [X] is hospitalised or receives medical attention, the mother shall notify the father as soon as practicable (and in any event within two (2) hours) after her first contact with either the medical practitioner, medical centre or hospital, and also provide the other parent with details including the details of the illness, injury, treating doctor and the prognosis and treatment of [X].
(9)That the father shall ensure the mother is kept informed as soon as is reasonably practicable of:-
9.1any medical problems or illness suffered by [X] while in the care of the Father;
9.2any medication that has been prescribed for [X] or over-the-counter medication to [X] while in the care of the father.
(10)That the mother shall ensure the father is kept informed as soon as is reasonably practicable of:-
10.1 any medical problems or illness suffered by [X] while in the care of the mother;
10.2any medication that has been prescribed for [X] or over-the-counter medication to [X] while in the care of the mother.
(11)That the mother and father consult in relation to the attendance of [X] on any medical specialist for [X] (such medical specialist include any specialist medical practitioner; dentist, orthodontist, speech pathologist, occupational therapist or other therapist (hereafter referred to as “consultant”) provided further that:
11.1 In the event that [X] is referred to such consultant the parent who made the referral shall inform the other in writing as soon as practicable of any such specialist medical appointment;
11.2 That each parent shall do all acts and things to ensure that the other parent is provided with copies of any test results, letters, referrals that he or she has received from and by any such consultant within 24 hours of receipt of such material by that parent;
11.3That each parent be permitted to attend upon such appointments, such attendance or attendances to be at the sole discretion of any such consultant and such attendance may be in person or by telephone or other electronic device;
11.4That the parent who makes the initial appointment shall within 24 hours after the initial appointment is made and prior to the first appointment advise the other parent and authorise the consultant to discuss any matters with the other parent.
(12)The mother and father each are restrained from submitting [X] to any psychiatric, psychological or related medical examination without the written consent of the other parent or Order of a Court.
(13)That the mother and father each be restrained from discussing these proceedings with [X], within her presence or within her hearing and ensure as far as possible that no other person other than professionals discusses these proceedings with [X] within her presence or within her hearing.
(14)That the mother and father each be restrained from showing [X] any of the affidavits, applications or reports prepared for the purpose of these proceedings and each be restrained from showing [X] any material annexed or exhibited to such documents.
(15)The mother and father are each restrained from exposing the child to any age inappropriate material in any form.
(16)The mother and father are each restrained from physically punishing the child.
(17)The mother be and is hereby restrained from referring to any other person apart from the father Mr Flamel as [X]’s father or “Daddy” including the person Mr J.
(18)That the mother and father not live with [X] outside the Sydney metropolitan Area or remove [X] from the Commonwealth of Australia without the written consent of the other parent or Order of the Court.
(19)That the mother and father by themselves, their servants or their agents are hereby restrained from removing or attempting to remove [X] from the Commonwealth of Australia without the written consent of the other parent or Order of the Court.
(20)The Commissioner of Australian Federal Police and the Secretary of the Minister of Immigration take all necessary steps to immediately place the said child’s name [on] the airport Watch list, also known as the PACE Alert System at all points of arrival and departure in the Commonwealth of Australia. The Australian Federal Police maintain an airport Watch of the said child on all flights leaving any international airport in the states and territories of the Commonwealth of Australia.
NOTATION
It is noted that Order 19 and 20 were orders made in interim proceedings in this matter on 6 July 2007 in the Federal Magistrates Court in Sydney.
On 20 April 2009, the father expressed concern that Dr R had not interviewed him when preparing her second report, save by way of a telephone call. As the proceedings were to be adjourned for further hearing, it was agreed that Dr R would confer with the father and prepare a short report. This the Doctor did on 13 May 2009 and her further report dated 14 May 2009 which was prepared following her meeting with the father became Exhibit “ICL2A”.
The hearing of the matter continued on 28 May 2009. On that day, the evidence was concluded and the matter was adjourned to a date to be advised for submissions. The Court noted that it did not, at that stage, make the draft order which was to be order 21 as follows:
21.That the Mother and Father notify the other not later than
7 days PRIOR to any change to their address, landline telephone number, mobile telephone number, email address, facsimile number or postal address including the details of such new address or number.Final submissions concluded on 4 June 2009, and the Independent Children’s Lawyer submitted a final proposed minute of order, which was made Exhibit “ICL6”. The Independent Children’s Lawyer proposed that the orders as sought were to ensure that [X]’s relationship with the father continues and is strengthened. The proposed time periods provided for regular and ongoing time for the father to spend with the child that was gradually increasing. Counsel for the mother, Mr Greenaway, agreed to orders being made in accordance with that document (including the break in the holiday time in clauses 1.4.3 and 1.4.4 to two periods of 7 days, rather than one period of 14 days), save for a proposed amendment to paragraph 1.7 to the effect that ‘in writing’ also includes SMS text messages, and a proposed amendment to paragraph 3 to the effect that the words ‘as the parents otherwise agree’ is followed by the words ‘in writing’ (including SMS text messages). The Court noted that Mr Sperling conceded those amendments as proposed by Mr Greenaway. Further, the father, mother and Independent Children’s Lawyer consented to an order in terms of order 21 (set out in paragraph 18 above) with the addition of the following words “save in respect of the mother moving to a residence provided by [S] Women’s Housing Incorporated or other support housing provided by them”. The Court will so order.
The additional orders now sought by the Independent Children’s Lawyer and agreed to by the mother were to the following effect:
(1)That [X] live with the father as follows:
1.1.for the period from the date of these orders until 27 May 2010 when [X] will have attained the age of six (6) years of age:
1.1.1Each second Saturday commencing the first Saturday after the making of these orders from 9.00 am to 5.00 pm Saturday but extending to 6.00 pm during periods when daylight saving is in force.
1.1.2 Each second Sunday commencing the second Sunday after the making of these orders from 9.00 am to 5.00 pm but extending to 6.00 pm during periods when daylight saving is in force.
1.1.3 on Wednesday 1 July 2009 (the fathers Birthday) from after school until 5.00pm
[1.1.4] from 9.00 am to 5.00 pm on Fathers Day 2009 ;
1.1.5 from 10.00 am until 6.00 pm on Christmas Day 2009 (Friday 25 December 2009)
1.1.6 from 10.00 am until 6.00 pm on Boxing Day 2009 (Saturday 26 December 2009) PROVIDED that if [X] was due to live with the Father on 27 December 2009 that time be suspended.
1.1.7 On Wednesday 26 May 2010 from after school until 6.00 pm
1.2.From 27 May 2010 when [X] will have attained the age of six (6) years until 27 May 2011:
1.2.1Each second Saturday commencing the first Saturday after the making of these orders from 9.00 am to 6.00 pm Saturday but extending to 7.00 pm during periods when daylight saving is in force.
1.2.2 Each second Sunday commencing the first Sunday after the making of these orders from 9.00 am to 6.00 pm but extending to 7.00 pm during periods when daylight saving is in force.
1.2.3 commencing the first Wednesday after 26 May 2010 that occurs during a NSW school term and each Wednesday during a NSW school term from after school until 6.00 pm PROVIDED THAT such time extend to 7.00 pm Wednesday when daylight saving is in force AND that such time to be suspended during each NSW school holiday period and to recommence on the first Wednesday after the recommencement of school in each term.
1.2.4 On Thursday 1 July 2010 (the Fathers Birthday) from after school until 6.00 pm
1.2.5 from 9.00 am to 6.00 pm on Fathers Day 2010 ;
1.2.6 from 10.00 am until 6.00pm on Christmas Day 2010 (Saturday 25 December 2010)
1.2.7 from 10.00 am until 6pm on Boxing Day 2010 (Sunday 26 December 2010)
1.2.8 On Thursday 26 May 2011 from after school until 6.00 pm
1.3From Saturday 28 May 2011 until the end of term 4 in 2011:
1.3.1Each alternate weekend from 9.00 am on Saturday until 6.00 pm on Sunday commencing Saturday 28 May 2011.
1.3.2commencing the first Wednesday after 26 May 2011 that occurs during a NSW school term then each Wednesday from after school until 6.00 pm PROVIDED THAT such time extend to 7.00 pm Wednesday when daylight saving is in force AND that such time to be suspended during each NSW school holiday period and to recommence on the first Wednesday after the recommencement of school in each term.
1.3.4On Friday 1 July 2011 (the Fathers Birthday) from after school until 6.00pm.
1.3.5From Saturday 3 September 2011 the period in 1.3.1 be extended to each alternate weekend from 9.00 am on Saturday until 9.00 am on Monday or if Monday is a pupil free day until the time when school starts on the next school day.
1.4During the Christmas School holidays in 2011 as follows:
1.4.1from 10.00 am until 6.00 pm on Christmas Day 2011 (Sunday 25 December 2011)
1.4.2from 10.00 am until 6.00 pm on Boxing Day 2011 (Monday 26 December 2011)
1.4.3for seven days commencing from 12 noon 31 December 2011 and ending at 12 noon on 7 January 2012.
1.4.4for seven days commencing from 12 noon 14 January 2012 and ending at 12 noon on 21 December 2012.
1.5From the commencement of Term 1 of the 2012 School year and during each school term thereafter as follows:
1.5.1during school terms from after school on Friday until before school on Monday each alternate weekend commencing the first Friday after the commencement of term and thereafter commencing the first weekend of each subsequent term PROVIDED however that if Monday is a pupil free day or a public holiday then the time be extended to before school on Tuesday.
1.5.2commencing the first Wednesday during each NSW school term from after school until 6.00 pm PROVIDED THAT such time extend to 7.00 pm Wednesday when daylight saving is in force AND that such time to be suspended during each NSW school holiday period and to recommence on the first Wednesday after the recommencement of school in each term.
1.5.3If [X] is otherwise living with the Mother on the weekend which includes Fathers Day [X] spend time with the Father from after school Friday until the commencement of school on Monday of that weekend.
1.5.4If [X] is otherwise living with the Father on the weekend which includes Mothers Day the time that [X] is with the Father that weekend be suspended for that weekend.
1.5.5On 1 July 2012 and each year thereafter from after school until 6.00 pm provided that if it is not a school day then from 11am to 3.00pm on that day.
1.5.6On 26 May 2012 and each year thereafter from after school until 6.00pm provided that if it is not a school day then from 11am to 3.00pm on that day AND THAT if [X] is otherwise living with her father on 26 May pursuant to these orders then [X] is to spend time with her Mother from after school until 6.00 pm and if it is not a school day then from 11am to 3.00pm on that day
1.6From the commence of the first school holiday period in March / April 2012 and during each school holiday period thereafter as follows:
1.6.1during mid year school holidays being holidays at the end of terms 1, 2, and 3 for all years ending in an even number from the conclusion of school on the last day of NSW school terms 1, 2, and 3 until 5pm on the Saturday of the middle weekend of that holiday period.
1.6.2during mid year school holidays being holidays at the end of terms 1, 2, and 3 for all years ending in an odd number from 9am on the Sunday of the middle weekend of the holiday period until the first day when children attend school following commencement of the next school term
1.6.3During the Christmas school holidays in all years where the holidays commence in a year ending in an even number from 9.00 am on the first Saturday of the holidays until 12 noon on the third Wednesday of the holiday period.
1.6.4During the Christmas school holidays in all years where the holidays commence in a year ending in an odd number from 12 noon on the third Wednesday of the holiday period until 6.00 pm on the last Sunday of the holiday period.
1.7Such alternate and other times as agreed between the Mother and Father in writing (including SMS text messages)
(2)That [X] otherwise live with the Mother.
Changeover
(3)For changeover that occurs on a day or at a time when the child is not attending school, unless the parents otherwise agree in writing (including SMS text messages) changeover of [X] shall take place in the forecourt outside Woolworths in [omitted] Shopping Centre
Other Communication
(4)That when [X] is not otherwise with the Father, then [X] communicate with the Father by telephone each Wednesday evening pursuant to these orders at times agreed and failing agreement between the hours of 6.30 pm and 7.00pm, such telephone communication to be facilitated by the Mother ensuring that [X] call on a landline number and that such phone number is to be provided by the Father.
(5)That during any holiday period when [X] is with either parent then each parent ensure that [X] communicate with the other parent by telephone each Wednesday evening at times agreed and failing agreement between the hours of 6.30 pm and 7.00 pm AND in addition such other times being at any reasonable time that [X] may wish to telephone the other parent during such period.
(6)That each of the Mother and Father do all reasonable acts and things to encourage [X] to communicate with the other parent by telephone.
As a result of the mother’s position concerning the proposed minute sought by the Independent Children’s Lawyer, the Court will not set out the mother’s proposal in Exhibit “1” save orders 9 & 10 in that document which the mother seeks in addition as follows:
9. The father be restrained from approaching the mother other than change of care or otherwise pursuant to orders made herein.
10. The father be restrained from communicating with the mother except for the purpose of the orders herein.
The father and the mother both agreed to the changeover order provided in order 3 of the Independent Children’s Lawyer’s proposal. That order will be made by consent.
The father relied on:-
a)His affidavit sworn 20 April 2007 but limited to paragraphs 34, 41 and 62 including the documents attached to that affidavit and referred to in and following paragraph 62;
b)His affidavit sworn 13 August 2008 (which attached as Annexure A an affidavit sworn 30 April 2008) the Court has given no weight to Annexure M which is a CD of conversations, which was not played in open Court, is of very poor recording quality, no written transcript was provided and there was no examination of the parties relevant to it;
c)His affidavit sworn 1 April 2009;
d)The affidavit of Ms M sworn 25 March 2009;
e)The affidavit of Mr Flamel sworn 30 March 2009, being the father's father, the paternal grandfather;
The mother relied on:-
a)Her affidavit affirmed on 18 August 2008;
b)Her affidavit affirmed on 1 April 2009.
The following documents were placed into evidence as follows:-
EXHIBIT
DESCRIPTION
TENDERED BY
ICL1
First report of Dr R dated 1 September 2007
ICL
ICL2
Second report of Dr R dated 13 April 2009
ICL
ICL2A
Third report of Dr R dated 14 May 2009
ICL
ICL3
Letter from Independent Children’s Lawyer to Dr R dated 10 February 2009
ICL
ICL4
Letter from Independent Children’s Lawyer to Dr R dated 31 March 2009
ICL
ICL5
Minute of agreed orders dated 20 April 2009
ICL
ICL6
Proposed orders of Independent Children’s Lawyer
ICL
A
Father’s summary of argument and proposed orders
Father
B
Copy subpoena to NSW Police and copy documents produced under COPS event reference E33032512
Father
C
NSW Health screening for domestic violence
Father
D
NSW Health assessment sheet dated 22 May 2006
Father
E
St George Hospital and Community Health Service Report to the Department of Immigration regarding the mother
Father
1
Mother’s proposed minute of order
Father
Proposals
The parties and the Independent Children's Lawyer seek the various competing orders set out above.
Factual matters
There appear to be a number of relevant uncontested facts as follows:-
a)The father was born in 1958 in Fiji, and is currently 51 years of age.
b)
The mother was born in 1968, in Thailand, and is currently
40 years of age.
c)The father has two children from a former marriage, being [Y], born in 1989, currently aged 19/20 years and [Z], born in 1991, currently aged 17/18 years.
d)The parties commenced cohabitation in 2002.
e)The mother came to Australia on 7 January 2003 and has resided in Australia since that date.
f)The parties lived in a granny flat for three weeks, then a caravan for about two weeks in October/November 2003 and then moved into a rental property in Property K in November 2003, and lived together in a de facto relationship.
g)The child [X] was born on 26 May 2004, and is currently five years of age.
h)The parties separated on 22 September 2006.
i)The father commenced these proceedings on 22 December 2006.
j)The father says that he had no contact with the child in the period 22 September 2006 to 28 January 2007.
k)On 14 May 2007, an application for an interim Apprehended Violence Order by the mother for [X] and herself was dismissed.
l)On 6 July 2007, a Notice of Risk of Abuse was filed by the father. The Notice of Risk of Abuse alleged the mother was “teaching the child to say “Daddy teach her, [the child], to open her legs wide when she has her nappy changed…, is teaching the child, words, “Daddy taking camera in my jim” (the Thai word for vagina) and has “recruited” a support worker from DOCS to attend at her home to interview the child about nappy changes”.
m)On 4 February 2008, the mother alleged that [X] was posing in a provocative way and said, “Daddy tell me how to play this game with Daddy and he used his phone to take a picture”. The mother also alleged that [X] had sought to kiss her hard on her lips.
n)On 8 February 2008, the mother alleged the child talked about fun and games with the father, and the mother said, “Can you show me what you play with your Dad and Mummy can play with you.” The mother alleged the child kissed her on parts of her body. The mother alleged that [X] picked up a plastic knife from her toy picnic set, put the knife near her bum and said, “My Dad tried to play with my bum hole.” The mother asked whether it was inside the bum or “jim” and the child responded, “Inside jim and it had bleeding like.” The mother inquired whether the child was hurt and the child said, “Yes Mum”. Later in that conversation, the mother alleged the child said, “My Dad teach me how to suck. He take camera. He use phone Mummy.” These were the bases upon which the matter was reported to JIRT.
o)On 24 July 2008, the JIRT investigation revealed that the allegations set out in paragraph “m” above were not substantiated.
p)[X] has exhibited certain sexualised behaviour both to the father and to the mother.
q)[X] commenced at [C] Public School (kindergarten) in 2009 and attends there five days a week.
Background
Both parties provided an extensive history of their relationship including matters relating to their sexual relations. From the father’s perspective he saw his relationship with the mother as being an ongoing and permanent one and for which he had been prepared to cut connections with his first family. His relationship with the mother having commenced when he was still married. The father’s marriage broke down and he commenced thereafter to live with the mother. The mother’s relationship had been complicated by issues concerning her then employment, her migration status and her financial concerns. The father was described by Dr R as not being particularly emotionally intuitive. No doubt the parties relationship was also complicated by the mother’s English language difficulties which would have also been a matter of concern for her. The mother’s involvement in a sexual relationship with the father appears to have been accepted by the father notwithstanding the mother may have had reservations concerning it and indeed those reservations may never have been clearly articulated to the father, in any event. All of these matters support the expert’s views as articulated below that both the father and the mother are vulnerable persons who have been caught up in a web of allegations and counter allegations, fuelled to some extent by the involvement of external forces (Ms H of [S] DV Counselling Service, Ms S of [E] Women’s Refuge, Mr B of DOCS), whether well meaning or not, which have exposed [X] to ongoing parental dispute.
As the proceedings have developed many of the factual allegations made in the parties affidavits which have been disputed and the subject of further counter allegations are no longer relevant for determination by this Court. Accordingly, the Court has restricted itself to the factual matters relevant to the determination of the outstanding issues between the parties.
Expert evidence
The reports of Dr R provide:
a)[X] was a developmentally age appropriate child who was attached to both parents. She appeared confident and sociable.
b)It was apparent that [X] had been taught some protective behaviour fuelled by her mother’s anxiety which appear to have sensitised her to her father changing her nappy.
c)No conclusions about any inappropriate behaviour by the father could be drawn from her assessment.
d)The mother presented as insecure and anxious about various uncertainties in her life including her migrant status, notwithstanding the father’s evidence that he had, at all times, been supportive of the mother’s application for permanent residence and her ferar of losing her own relationship with [X], because of [X]’s relationship with the father.
e)The father presented as a committed and caring parent who expressed anxieties as a result of the sexual abuse allegations made against him.
f)The father blamed the mother for “taking two families off me” or as he explained “I have lost both my families due to [the] actions of the mother” as the basis for him leaving his first family was the promise of the mother for a long term relationship. Dr R commenting that his response failed to take any responsibility for his own contribution to that situation.
g)[X] presented as somewhat anxious to separate from the mother.
h)That some of [X]’s behaviour including her “bum-bum” dancing were in fact age appropriate actions for the child (noting the child sought to describe this activity as a secret as she knew the mother disapproved of it) and her holding her feet and opening her legs wide during nappy changes was simply a new skill learnt.
i)That overnight contact is likely to increase the mother’s anxiety perhaps to the detriment of her parenting. Dr R agreed that [X] was very anxious about toileting matters with the father and that such anxiety largely came from the mother’s own anxiety.
Dr R makes the following recommendations in her report:-
a)The child have unsupervised day only time with the father increasing to a frequency which allows a meaningful relationship to develop, that is, at least weekly time together.
b)Overnight time is not recommended till [X] is at least 7 years old.
The Court has quoted extensively from Dr R’s reports as set out above. Dr R was orally examined and her evidence was entirely consistent with the terms of her written report. Her oral evidence was to the following effect:-
a)She was concerned that [X] needed some time during which there would be some containment in relation to the parties’ fears and anxieties, to enable [X] and the mother to relax their anxieties over this period.
b)That overnight time with the father should not commence until [X] turns 7 years of age.
c)That time (other than overnight time) with the father is to be unsupervised and expanded in a graduated way so as to ensure maintenance of the child’s ongoing relationship with the father.
d)The containment referred to in paragraph a) above would also benefit both the father and the mother as a buffer to prevent the potential for ongoing allegations between them.
e)The period of containment would enable both the father and the mother to feel secure. Dr R observed the father to become increasingly upset at the time of his interview on 13 May 2009, prompting her to suggest that he see his GP about getting some support for himself.
f)The period of containment will potentially allow the child to relax her own anxieties.
g)At the age of 7, the child would be of sufficient age and maturity to, at that time, articulate any concerns to either parent. Exhibit B being the JIRT investigation report in August 2008 noted that [X] was not then of sufficient maturity to understand truth and lies for the purposes of the interview then conducted.
Counsel for the father did not seek to attack the underlying factual assumptions upon which Dr R’s report was based but argued that the outcome of her recommendations was not consistent with the legislative scheme for equal or substantial and significant time.
Ms Clifton, did however, obtain from Dr R an agreement that it was possible that Mr J (the mother’s then current boyfriend) might be involved as far as the mother’s allegations are concerned and that the mother was being encouraged by overzealous social workers and further, that perhaps the mother should have counselling, although not with Ms H, who Dr R considered may have exacerbated problems between the parties.
The Court accepts and gives significant weight to the expert’s recommendations. This is so, notwithstanding that the father did not accept Dr R as an expert, even though he accepted her qualifications as to such expertise. Indeed, there was no other evidence before the Court as to when the father’s overnight time should begin. The Court has had regard to the general observations set out by the Full Court of the Family Court in Hall & Hall (1979) FLC 90-713 at p.78,819 to 78,820.
Presumption of equal shared parental responsibility
As the Full Court in Goode & Goode [2006] FamCA 1346 states, unless displaced by court order, the parties parental responsibility may be exercised either jointly or severally. See s.61C of the Family Law Act1975 (“the Act”). The effect of an order for equal shared parental responsibility, is to require the parents not to reach a joint decision but to consult one another and make a genuine effort to reach agreement about major long-term issues in relation to the child (s.65DAC of the Act). This consultation is not required to be face to face and may still occur in circumstances where the parties are in high conflict provided there is a willingness and an ability to communicate.
The phrase “major long-term issues” is defined in s.4(1) of the Act, as follows:
major long-term issues, in relation to a child, means issues about the care, welfare and development of the child of a long-term nature and includes (but is not limited to) issues of that nature about:
(a) the child’s education (both current and future); and
(b) the child’s religious and cultural upbringing; and
(c) the child’s health; and
(d) the child’s name; and
(e) changes to the child’s living arrangements that make it significantly more difficult for the child to spend time with a parent.
To avoid doubt, a decision by a parent of a child to form a relationship with a new partner is not, of itself, a major long‑term issue in relation to the child. However, the decision will involve a major long‑term issue if, for example, the relationship with the new partner involves the parent moving to another area and the move will make it significantly more difficult for the child to spend time with the other parent. [Original emphasis]
If the issue is not a “major long-term issue” then consultation is unnecessary and parents may act unilaterally (s.65DAE of the Act).
Some aspects of parental responsibility may be allocated to one parent to exercise, but if this is done, the other aspects of parental responsibility may be exercised jointly or independently, and the way in which it is exercised should be provided for in any orders. See Newlands & Newlands [2007] FamCA 168.
Parental Responsibility
The Court ordered on 20 April 2009 that the parties have equal shared parental responsibility for [X], which is as the parties consented to.
Further, under s.60CC(5) of the Act, the Court is not required to have regard to any or all of the matters set out in sub-section (2) or (3), when the Court is considering whether to make an order with the consent of all of the parties to the proceedings.
Time to spend
The making of an order for equal shared parental responsibility is, however, not of itself determinative of the amount of time that this child is to spend with her parents, but goes to the parent’s decision making responsibilities. It does, however, trigger the operation of s.65DAA (1) of the Act.
If the presumption is applied, certain matters follow by virtue of s.65DAA of the Act and the Court must positively consider whether orders should be made which result in the child concerned spending either “equal time” or “substantial and significant time” or some other time with both her parents.
Substantial and significant time is defined in s.65DAA(3) of the Act as:
a)the time the child spends with the parent includes both:
(i) days that fall on weekends and holidays; and
(ii) days that do not fall on weekends or holidays; and
b)the time the child spends with the parent allows the parent to be involved in:
(i) the child's daily routine; and
(ii) occasions and events that are of particular significance to the child; and
c)the time the child spends with the parent allows the child to be involved in occasions and events that are of special significance to the parent.
To determine what time orders should be made, the Court must look to the best interests of the child and whether the actual spending of such time is reasonably practicable.
Supervised time
The basis for a supervision order was described by Carmody J at paragraph 58 in Murphy & Murphy [2007] FamCA 795 as follows:
“Time with a dangerous or deficient parent may have to be regulated by the court for the child’s own protection but only to the extent necessary to avert or manage perceived risks while at the same time supporting worthwhile parent-child relationships. This may involve reducing the amount or nominating the place of contact eg, limited day time only supervised at a contact centre or by a designated person.”
In 1988, the Family Law Council, Report on Child Sexual Abuse (1988) pp.63-64 (as referred to in Murphy & Murphy [2007] FamCA 795) suggested a list of possible reasons why supervision might be ordered:
a)the court is satisfied that abuse has occurred but because of the relationship between the child and the abusive parent is such that continued contact ought to be allowed in circumstances that will prevent a repeat of the abuse;
b)whether or not the court is satisfied about abuse there has been such disruption to the relationship that supervision is necessary to assist its re-establishment;
c)the custodial parent who made and believes the allegation despite a court’s finding to the contrary needs some appeasement and reassurance that the child is not being sent to further abuse while on access;
d)supervision may provide the opportunity for a relationship to continue or resume after a period of suspension if the child wishes it and if that is seen as beneficial for the child;
e)the court should retain its discretion to order supervised access as a compromise when it considers there to be no ongoing risk;
f)supervised time can provide a means for reconciling differences which would not be possible if there was no contact at all.
The mother no longer seeks supervision. The father says it was never warranted. The father no longer seeks that the child reside with him. Dr R’s evidence was that the question of how the father treated the mother during their relationship, was relevant to the question of residency. The fact that certain questions were put to Ms M about conversations she had with the mother and that on Ms M’s evidence these occurred after separation when the mother had complained to her that the father had insisted upon having sex with her whether she wanted it or not, does not take the matter anywhere, when the father was not cross-examined on those matters. There has been no cross-examination of the father as to any issues concerning alleged abuse, either of the child or of the mother, and in light of his denials, the Court is satisfied that this child is not at risk in his care.
The time issue comes down to the father spending overnight time with the child. The mother has changed her position to adopt the recommendations of Dr R. The mother’s original position was that [X] should spend overnight time with the father when she was otherwise ready to do so. The mother did not articulate a time for that, save she did not believe that at 7 years, [X] would be ready. The mother, however, in cross-examination reluctantly and fearfully agreed with
Dr R that overnight time should commence when [X] turns 7 years of age.
The father sought immediate overnight time. He submitted that there was no issue as to the practicality of such time occurring and that, accordingly, the Court’s consideration must go to the best interests of [X].
The Independent Children’s Lawyer’s proposal sees the father spending overnight time with the child coinciding with her seventh birthday when she would be in grade 2 at school. The Independent Children’s Lawyer’s proposal provides for [X] spending unsupervised time with the father every weekend, alternating between Saturday and Sunday, until [X] turns 6 years of age when, thereafter, the time is extended and changes to every second Saturday and every second Sunday but occurring on the same weekend together with mid week time after school on Wednesday. When the child turns 7 years the implementation of overnight time commences initially on alternate weekends for the first 3 months such overnight time being limited to Saturday night and thereafter overnight time being expanded to Saturday and Sunday nights.
The father submitted that the mother’s orders and those of the Independent Children’s Lawyer fell far short of the legislative intent in that they did not include week days so as to involve the father in the child’s daily routine and provided effectively 8 hours a week alternating on a Saturday and a Sunday. The father was looking at the immediate effect of the orders rather than the result of the orders at the time the child turns 7 years of age. The orders, at that time, certainly provide for substantial and significant time.
Primary considerations
In order to determine the child’s best interests, the Court must have regard to the “primary considerations” under s.60CC(2) which are:
a)the benefit to the child of having a meaningful relationship with both of the child's parents; and
b)the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.
The Court cannot order that the parties and the children have a meaningful relationship. In M & K[2007] FMCAfam 26 [at para.44], Altobelli FM quoted from Professor Parkinson’s article “Decision-making about the best interests of the child: the impact of the two tiers” (2006) 20 AJFL 179 as follows:
“…courts cannot by order, create meaningful relationships between parents and children; they can only create or maintain the circumstances that make meaningful relationships possible. In an individual case, the evidence may indicate that the child will not in fact benefit from such a relationship with both parents, or that such a benefit is incapable of realisation in the circumstances of the case”.
In P & P [2006] FMCA Fam 518 [at para.256-258], Brown FM gave consideration to the word meaningful:
“…the use of the word "meaningful" by the legislature is interesting. The ordinary definition of "meaning" and "meaningful", when it is attached to an idea or some object, is denoting of the significance or importance of that idea or object. It seems clear that the court is only to consider whether a relationship is "meaningful", to the child concerned, after it has assessed the benefit or advantage such a relationship will bestow on the child concerned. Accordingly, it seems clear that the legislature intends the court to consider the significance of the child concerned having a relationship with both his or her parents in a positive or beneficial sense”.
The need for the meaningful relationship must be balanced against the need to protect the child from physical or psychological abuse or exposure to family violence, which is itself defined in s.4(1) of the Act as:
“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.”
The considerations listed in s.60CC(2), do not inevitably outweigh the other considerations, but the Court must give some weight to be attached to the term “primary”. See Elspeth & Peter [2006] FamCA 1385.
In this regard:
a)The primary consideration referred to in s.60CC(2)(a) is supportive of the position that, subject to the issue of overnight time, as much time as possible with both parents is in the child’s best interests. The Court accepts that the child has a meaningful relationship with both parents.
b)The primary consideration referred to in s.60CC(2)(b) is not now relevant. The father having made a number of reports to the Department of Community Services Helpline including in relation to the mother’s physical chastisement of the child and his observations of bruising to the child. The parties have now agreed to injunctions in relation to that issue.
The Court accepts the Independent Children’s Lawyer submissions that the facts reveal two vulnerable parents both struggling with their own issues including the level of their own security in their feelings about themselves and each other. Because of this level of insecurity, the Court accepts that [X] needs a period of containment.
Additional considerations
The Court must have regard to each of the ‘additional considerations’ under s.60CC(3) of the Act separately, which are set out below:
(a) any views expressed by the child and any factors (such as the child's maturity or level of understanding) that the court thinks are relevant to the weight it should give to the child's views;
Considering [X]’s views, notwithstanding that she was bright and assertive, the Court simply notes given her age, maturation level and temperament, that her opinion was not sought nor expected.
(b) the nature of the relationship of the child with: (i) each of the child's parents; and (ii) other persons (including any grandparent or other relative of the child);
The mother’s anxiety concerning the father spending overnight time needs to be dealt with in such a way that it does not potentially become destructive of her relationship with the child and her own ability to parent.
The father’s evidence was that the mother’s anxiety, if it existed at all, was an issue for her alone. The Court does not accept that position. Further, notwithstanding that, the father has been able to develop a close relationship with [X] and that would not have been possible without the efforts of both parents.
The father’s evidence was, further, that Ms M supported the position that he was patient with [X] and interacted well with her. Further, the paternal grandfather’s evidence was that the father was totally committed to [X] and her needs and that he had never seen the father act inappropriately with [X].
On the mother’s own evidence, the child enjoys seeing her father and is happy after returning from spending time with him.
Dr R’s evidence was that [X]’s parents and grandparents were important to her.
(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;
The father’s evidence was that the mother, if she was fabricating her allegations and/or coaching the child, was putting her own needs before [X]’s. The father asserted that the mother’s allegations of sexual abuse and violence against him assisted her to expedite her permanent residence application (which was granted in September 2007) and to separate from him so as to start a new life in Australia.
The mother and father have both involved the child in questioning her about the various allegations made each against the other. The father has suggested to [X] on a number of occasions, as conceded by him, that she could live with or stay with him. The father further said that when the child did not respond to his questions he believed it was because the mother had coached her not to do so. The father says that [X] admitted that her avoidance of nudity with him is as a result of learned behaviour from the mother. The father did not, however, see that as a protection for the child but rather as a limit on his rights of interaction with the child. Nothing was put to the mother that she had sought to exclude the father in this way.
Both parties appeared to see sexual issues in what may be regarded, and confirmed by Dr R, as relatively innocuous child age appropriate behaviour. The father reporting to DOCS that the mother had permitted her boyfriend, described as “Uncle J”, being “Mr J” to bathe with [X]. The father asserting that she permitted a stranger to do that. The mother’s evidence was that she no longer lives with Mr J.
(d) the likely effect of any changes in the child's circumstances, including the likely effect on the child of any separation from: (i) either of his or her parents; or (ii) any other child, or other person (including any grandparent or other relative of the child), with whom he or she has been living;
The child is enthused and happy at school.
The paternal grandfather’s evidence was that he is currently in remission from a diagnosed lymphoma. The paternal grandfather has taken a role in supervising time between the father and the child. While his affidavit was somewhat critical of the mother, his answers to questions in cross-examination to a large extent clarified the bald statements made in the written document. The paternal grandfather was an impressive witness. He further stated that overnight time could be spent with the father at his house. The paternal grandfather’s eldest granddaughter had also spent time with [X] at his home. The paternal grandparents reside in Nowra.
(e) the practical difficulty and expense of a 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;
The Court finds that there are no relevant matters under this factor.
(f) the capacity of: (i) each of the child's parents; and (ii) 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;
The father’s evidence was that he had previously raised two children ([Z] 18 years and [Y] 20 years) and felt familiar with all the aspects and responsibilities of caring for children. This did not appear to accept the unique features of [X]’s current circumstances and the parenting regime with the mother. The Court gives this some weight.
The Court is concerned that the father does not appreciate that [X] will benefit by a regime which provides for the father to spend overnight time in accordance with the mother’s acceptance of the recommendations of Dr R, even though those recommendations would advance the timetable for such overnight time from that which the mother herself, otherwise, thought appropriate. The Court gives this consideration some weight. The father appears to see the issue as either making him or the mother happy and punishing the other parent. Again, as he said “Truthfully, Sir, I have had my rights as a father taken away for two-and-a-half years. Somehow I’d like some of them given back to me...”. It is clearly not a matter of rights for the father, but what is, ultimately, in [X]’s best interests.
The Court, nevertheless, accepts that both parents have the relevant capacity to provide for [X].
(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.
There are no other matters relevant to the Court’s determination with respect to the child under this factor, save that the Court acknowledges the mother’s Thai background and the issues associated with the mother obtaining her own migration status independent of that of the father. The evidence did not indicate any issue or problem from the father’s perspective in, otherwise, ensuring that [X] has the ability and the potential to benefit from her Thai heritage.
(h) if the child is an Aboriginal child or a Torres Strait Islander child: (i) 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 (ii) the likely impact any proposed parenting order under this Part will have on that right;
These factors do not apply to this child.
the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child's parents;
The father’s evidence was that he believed the mother’s actions had denied him the opportunity to have control and exert influence over [X], when he perceived the mother had more time to do that.
Both parties expressed little trust in the other’s ability to care for [X]. The Court is of the view that each parent has that ability.
Nevertheless, the father acknowledged that the mother was a good mother and he believed she looked after [X].
The father submits that the mother has coached [X]. This is referred to in Exhibit B in the COPS report which records:
“Despite the [mother] obviously coaching the [subject child] as to what to tell JIRT officers”
After [X] left the interview room with the mother and the child then returned to the interview room and said “I can talk to you again, and tell you what daddy does”.
(j) any family violence involving the child or a member of the child's family;
The mother completed a screening for domestic violence in 2006 which confirmed that she had not been hit, slapped or hurt in other ways by the father and that she was not frightened by the father.
The mother is reported to have smashed a glass, pushed the child away and hit her. Dr R viewed that conduct as not inconsistent with the mother being a competent and caring parent but being a “discreet set of behaviours not uncommon in depressed and stressed mothers”. These were not seen as ongoing in nature.
(k) any family violence order that applies to the child or a member of the child's family, if: (i) the order is a final order; or (ii) the making of the order was contested by a person;
The mother sought an Apprehended Violence Order against the father but did not continue with the application and it was dismissed by the Court, without any orders being made.
(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
Dr R’s evidence as to [X]’s disclosures concerning being hit on the behind (“bum bum”) are of concern. [X] initially blamed the mother and then, denying it, and blamed the father. [X] then elevated its description to “red and bleeding” however, at no stage did the child appear troubled or upset. The Court infers from that, that this child has been involved in each of the parent’s concerns about the other parent and has to some extent reflected what that parent worried about the other. Dr R stated:-
“So, the advantages for [X] of having those positive experiences with her dad would be undermined by the experience of having a mother who’s anxious, vigilant and thereby not being able to fully endorse the child seeing her dad, and I think for a child like [X] who has already experienced enough. …she’s already experienced a mother and father in conflict. Certainly a mother who’s depressed and irritable and not parenting as well as she could, and then for the next two years she’s experienced parents who are in conflict over other matters. This child hasn’t had any period of her life yet where she has a mother and a father who are functioning reasonably well, and parenting - trusting each other enough to allow, you know for mum to trust dad enough to allow [X] in his care, and for dad to trust mum enough to say [X] is safe in mum’s care. I think this child has suspicions in both sets of parents. Both sets of parents have got a position to defend right now, and of course there’s the history with that, and it’s a long history, and it’s a history that takes up the whole of [X]’s life. So, yes, it would be great if mum could say yes I feel totally comfortable, I really support [X] going off and your Honour feels, yes, [X] is perfectly safe, and mum accepts that, then I’d say go for it, let’s do it tomorrow. But I don’t see that happening like that, I really believe that the mother is still very anxious about it. The father, I think, is still very angry. He’s got his point he wants to prove and that’s fair enough. If he’s totally innocent of everything that’s been alleged about him then why wouldn’t he want to have his good name, his good parenting name, his good personal name restored? But both parents seem to be quite aroused and that will influence how they are with [X], and [X] I think I saw a child who wasn’t able to just quietly play and let’s play pretends in the family doll house, and so forth. Her parents are quite a contentious issue for her.”
“…I really would like this child to experience some normality. She’s had a good start at school. More time with dad when mum feels confident and everything goes away before you again increase the anti and start the overnight contact.”
The evidence given by Dr R above was further amplified by her on
28 May 2009 when she stated:
“…this situation needs to get some closure I think so that everybody can settle down into a routine and particularly that [X] can get into a routine where she feels secure…”
Further Dr R stated:
“…it is a difficult situation with both parents… being vulnerable people and both… needing emotional containment so that the child is protected from the parental anxieties and just get on with her own development”.
The mother submitted that this factor was supportive of the orders being made as sought by her and the Independent Children’s Lawyer.
The Court is of the view that the ordering of a regime for the child whereby both parents can see a timetable for the resolution of overnight time as recommended by the Independent Children’s Lawyer and adopted by the mother is the one least likely to lead to the institution of further proceedings and the Court gives this factor and the views of Dr R as set out above substantial weight.
(m) any other fact or circumstance that the court thinks is relevant
There are no other facts or circumstances relevant under this factor.
Matters in ss.60CC(4) & (4A):
The Court must, without limiting its consideration of the factors in s.60CC(3)(c) and (i) of the Act, consider the extent to which each of the child's parents has fulfilled, or failed to fulfil, his or her responsibilities as a parent (and in the case where the child’s parents have separated, having regard to the events and circumstances since separation) and in particular the Court must consider the matters set out below:
(a) [The extent to which each of the child’s parents] has taken, or failed to take, the opportunity: (i) to participate in making decisions about major long-term issues in relation to the child; and (ii) to spend time with the child; and (iii) to communicate with the child; and
(b) [The extent to which each of the child’s parents] has facilitated, or failed to facilitate, the other parent: (i) participating in making decisions about major long-term issues in relation to the child; and (ii) spending time with the child; and (iii) communicating with the child; and
(c) [The extent to which each of the child’s parents] has fulfilled, or failed to fulfil, the parent’s obligation to maintain the child.
Given the mother’s evidence concerning her appreciation of the concerns that she said she had regarding the father’s spending time and her own fears, this meant that the father has not had the time nor been given the opportunity, he says, he sought to develop his time and communication with [X].
The father’s evidence was that the mother’s attitude and her own appreciation were matters that she had to principally deal with herself and as such, could not be maintained as blocks to his ongoing relationship with [X].
The critical issue is the identification of the needs of [X] to be given the time for her to develop her relationship with the father in a way which gives her the opportunity to feel secure, understanding that her current level of insecurity is a product of her parent’s competing views, rightly or wrongly held, but, nevertheless, strongly maintained and which have fuelled these proceedings and which need to be put behind them in the interests of [X]’s future.
The Court finds that both parties have to a large extent fulfilled their obligations to maintain the child.
Reasonably practicability of ‘spending time’
The Court in determining the reasonable practicability of the child spending time with the parents pursuant to s.65DAA(1) of the Act, must have regard to the matters set out in s.65DAA(5). No matters were put to the Court referrable to this and the Court accepts the father’s submission that there are no relevant practical difficulties which should impact on the Court’s decision.
Conclusion
Time
Ms Clifton submitted that the father has already had his time with the child supervised for some 2 years which she said did not seem to abate the mother’s anxiety. Ms Clifton submits that it is not just to restrict the father from spending significant time with the child because the mother is anxious. She further supports this argument on the basis that she asserts the mother’s anxiety has been fabricated. In support of the fabrication argument, Ms Clifton submits that Exhibit B confirms that the mother has coached the child and further, that her allegation concerning a camera incident appeared to have occurred at a similar time to her hearing another woman providing a similar story. Further, the evidence of Ms M indicated that prior to separation, the mother referred to the father as being a “good man”. It is reported in Dr R’s report that the mother said to Dr R that she did not say that, her solicitor said that, and she did not understand it. However, under cross-examination, the mother admitted that she did say and believed, at that time, that the father was a good man. Apart from the camera incident, the mother in cross-examination conceded that the reason for her anxiety was due to the child walking in on the father taking shower with the door open and the inappropriate kissing incident.
Notwithstanding Ms Clifton’s assertion that there was some acknowledged history of the mother’s depression (indeed the mother acknowledged that she had threatened to kill [X] when she was in a state of depression but that she had not done so because she was a Buddhist) and that the mother would smack [X] and then feel remorse and further that if her allegations were fabricated that this may have a negative impact on the child, it was no part of the father’s case, as advanced at final hearing, that the child would not, otherwise, live with the mother.
Further, even if the mother’s anxiety as found by Dr R had been fabricated, there was no doubt that [X]’s behaviour and anxiety were the matters upon which Dr R concentrated in her recommendation for a period of containment.
The issue of fabrication by the mother and justice to the father, are not the critical issues before the Court. It is the best interests of [X] that are critical. Findings referrable to the mother’s or the father’s conduct, in light of Dr R’s reports, do not assist the Court in determining the best interests of [X]. The Court accepts Dr R’s recommendation that a period of containment, given [X]’s age and current maturation level, prior to the father spending overnight time, is in [X]’s best interests.
However, the issue of overnight time would not impact on the child spending Wednesday after school time with the father in accordance with the Independent Children’s Lawyer’s proposal but at a much earlier date than proposed by the Independent Children’s Lawyer. There is nothing in the evidence of Dr R to counsel against that time at this stage of the child’s life; indeed she is supportive of it, and while the father seeks it from after school to 8pm, the Court is of the view given the child’s age, that the return time proposed by the Independent Children’s Lawyer is appropriate in all the circumstances. Accordingly, the Court will provide for the implementation of order 1.2.3 in paragraph 20 above, as and from the first Wednesday after 2 September 2009.
Further, while the father did not specifically seek overnight time mid-week (his evidence was that ideally he would like to spend as much time with [X] as possible), the Court is of the view that if he elected to have that time, it should be ordered as it is important for him to take a role in the child’s educative process and being able to complete homework with the child and to return the child to the school goes someway towards this end. Accordingly the Court proposes a further order to the following effect:
In respect of the father’s time in orders 23.3.2 and 23.5.2 that time may be extended at the election of the father as communicated in writing to the mother 7 days prior to the proposed extension to prior to school on the Thursday morning with the father to deliver [X] to school on that day.
This will become order 23.8.
Other parenting matters
Restraints & injunctions
The mother seeks an injunction restraining the father in accordance with paragraph 21 above. Mr Greenaway submits that such orders would be appropriate as they would be orders least likely to lead to the institution of further proceedings between the parties. Ms Clifton submits that the father’s concern with these additional orders is that they are similar to an Apprehended Violence Order, and that the father may inadvertently be in breach of that order through, for example, passing by the mother on the street or attending a school event for the child at which the mother is also present.
The Independent Children’s Lawyer does not seek to be heard with respect to this issue.
The Court would not impose a restraint without clear evidence as to why the restraint should be imposed. The injunctive power is a discretionary one, “not to be exercised lightly” see the Full Court in Sieling & Sieling (1979) FLC 90-627 (at page 78,264).
In the circumstances, the Court is of the view that there is insufficient evidence before it to ground an injunction as there is no material which would show that the father would seek to act in the way or manner sought to be restrained. The father’s evidence was that he would respect the mother’s wishes that there be no face to face contact and he accepted that the mother no longer wished to have a relationship with him.
The Court is satisfied, on balance, that the orders set out at the commencement of this judgment are in the child’s best interests and, accordingly, will so order.
I certify that the preceding one hundred and five (105) paragraphs are a true copy of the reasons for judgment of Kemp FM
Associate: Joanne Balson
Date: 25 August 2009
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