Grover and Waltham
[2017] FCCA 1720
•27 July 2017
FEDERAL CIRCUIT COURT OF AUSTRALIA
| GROVER & WALTHAM | [2017] FCCA 1720 |
| Catchwords: FAMILY LAW – Parenting – competing live with – allegations of child sexual and physical abuse – unacceptable risk – where the mother seeks the child’s time with the father be supervised – where the child has been living with the father – where there is a history of substance abuse and mental health problems on the part of the mother. |
| Legislation: Family Law Act 1975 (Cth), ss.4AB, 60B, 60CA, 60CC, 61DA, 65D, 65DAA & 65DAB Evidence Act 1999 (Cth), s.140 |
| Cases cited: Briginshaw v. Briginshaw [1938] HCA 34; (1938) 60 CLR 336 Champness v Hanson (2009) FLC 93-407 |
| Applicant: | MR GROVER |
| Respondent: | MS WALTHAM |
| File Number: | NCC 1806 of 2012 |
| Judgment of: | Judge Harper |
| Hearing dates: | 3, 4 & 5 April 2017 |
| Date of Last Submission: | 5 April 2017 |
| Delivered at: | Sydney |
| Delivered on: | 27 July 2017 |
REPRESENTATION
| Counsel for the Applicant: | Ms Carr |
| Solicitors for the Applicant: | Friedlieb Byrne |
| Counsel for the Respondent: | Ms Freidlander |
| Solicitors for the Respondent: | Aston Legal |
| Counsel for the Independent Children's Lawyer: | Mr Moore |
| Solicitors for the Independent Children's Lawyer: | Legal Aid NSW Sydney Central Family Law |
THE COURT ORDERS THAT:
All previous parenting orders in relation to the child [X], born 2011, (“the child”) be and are hereby discharged.
By consent, the parties have equal shared parental responsibility for the child.
The child live with the father.
The child spend time with the mother as agreed between the parties and, failing agreement, as follows:
(a)In the event the mother remains living more than 50 kilometres from the father’s residence:
(i)During the first weekend of every month from 6.30pm on Friday until 3.30pm on Sunday. For the purposes of this order, changeover is to occur at (town omitted) McDonalds, or as otherwise agreed between the parties. In the event that the mother wishes to collect [X] from school on Friday at the conclusion of school, she is to give the father 48 hours’ written notice of her intention to do so.
(ii)During the third weekend of every month from 5.30pm Friday until 3.30pm Sunday. For the purposes of this order, changeover is to occur at (town omitted) McDonalds, or as otherwise agreed between the parties. In the event that the mother wishes to collect [X] from school on Friday at the conclusion of school, she is to give the father 48 hours’ written notice of her intention to do so.
(iii)During the school holidays at the conclusion of New South Wales School Terms 1, 2 and 3, such time commencing at 5.00pm on the first Saturday and concluding at 12 noon on the second Monday of that school holiday period. For the purposes of this order, the father will deliver the child to (town omitted) at the commencement of time, and collect the child from the McDonalds in (town omitted) at the conclusion of time.
(iv)During the school holidays at the conclusion of New South Wales School Term 4 for a total of four weeks as agreed between the parties or, failing agreement, in alternating fortnightly block periods. For the purposes of this order, the father will deliver the child to (town omitted) at the commencement of time and collect the child from the McDonalds in (town omitted) at the conclusion of time.
(b)In the event the mother relocates to within 50 kilometres of the father’s residence:
(i)Each alternate weekend from the conclusion of school on Friday until 5:00pm Sunday;
(ii)During school terms from the conclusion of school on Wednesday until the commencement of school on Thursday.
(iii)From half of each of the New South Wales school holiday periods as agreed between the parties, and failing agreement, for the first half in odd numbered years and for the second half in even numbered years;
(iv)For the purposes of orders (b)(i) – (iii) above, changeover is to occur at the father’s residence.
(c)Notwithstanding any other order, from 10.00am on Christmas Eve until 5.00pm on 27 December in even numbered years.
(d)Unless the child is already in the mother’s care:
(i)On Mothers’ Day as agreed between the parties or, failing agreement, from 10:30am until 4:30pm;
(ii)On the child’s birthday as agreed between the parties or, failing agreement, for a minimum of four hours as agreed between the parties, or failing agreement, from 2:30pm until 6:30pm on a weekend or 3pm until 7pm on a school day, which such time to occur in (town omitted).
Each parent be permitted to communicate with the child at any reasonable time while he is spending time with the other parent by way of telephone, email or Skype and the parent with whom the child is spending time shall facilitate such communication.
In the event that the child is too ill or unable to spend time with the mother for whatever reason in accordance with these orders, the father shall provide the mother with no less than 24 hours’ notice or as soon as practicable prior to the time the mother is to spend time with the child.
The father is to ensure that:
(a)The mother's address and telephone number are provided to any school which the child attends.
(b)The mother has a copy of any significant correspondence (not otherwise available on the school website), including but not limited to copies of any assessments, school reports and order forms for school photos.
(c)The father ensure the mother is advised of any significant issues or concerns in relation to the child’s progress at school as well as any achievements.
(d)The father is to ensure the mother has an opportunity to attend any parent/teacher interviews arranged to discuss the child’s progress.
(e)The mother may attend any school event in the nature of which parents are usually invited to attend, including but not limited to school assemblies, concerts, sports days and fundraising events.
These orders are authority for either parent to contact any school that the child shall attend in order to receive any information regarding the child’s extracurricular activities and school related events, including parent/teacher interviews, parent days, assemblies, concerts and like events to which parents are invited, and any other information with which parents are routinely provided.
The father is to keep the mother informed of any extra-curricular activities in which the child is enrolled.
Each parent shall keep the other informed of any significant issues relating to the health and general wellbeing of the child that arise while the child is in their care, and shall forthwith advise the other of any accident or significant illness affecting the child including providing details of treatment and attendance at doctors and hospitals.
The father is to keep the mother informed about any specialist or other appointments that the child attends (including but not limited to speech therapy) and is to advise her about the outcome of those appointments and any follow up treatment.
These orders are authority for either party to contact any health professional or other therapist that the child shall attend in order to receive any information regarding the child’s health, prognosis and progress and any other information with which parents are routinely provided.
Each parent be and is hereby restrained from subjecting the child to any form of striking or physical chastisement and to use their best endeavours to ensure that no other person does so.
The parties are to communicate with each other via text message or email, only for the purpose of making arrangements for the child to spend time with each parent and for sharing information about the child’s progress and development.
Neither parent is to denigrate the other parent in the hearing or presence of the child nor allow any other person to do so.
Each parent is to keep the other informed of their respective addresses and telephone numbers, including landline and mobile.
The mother be restrained from consuming alcohol or any illicit substance for the period 48 hours prior to the commencement of her time with the child until the end of her time with the child.
Interpretation
Where agreement between the parties is referred to in these orders, it is to be read as a reference to agreement in writing.
Application for Change of Name
In the event the father wishes to press an application for change of the child’s name:
(a)Within 28 days of the date of these orders he is to forward to my Chambers and serve on the mother and the Independent Children’s Lawyer a minute of the proposed orders sought and detailed written submissions in support;
(b)Within 21 days of the father carrying out order 19(a), the Independent Children’s Lawyer is to forward to my Chambers and serve on the mother and the father a minute of the proposed orders sought and detailed written submissions in support; and
(c)Within 21 days of the father carrying out order 19(a), the mother is to forward to my Chambers and serve on the father and the Independent Children’s Lawyer a minute of the proposed orders sought and detailed written submissions in support.
(d)Any party wishing to have time allocated for oral argument on any proposed orders as to change of name is to include such a request in their written submissions, otherwise the application will be dealt with on the papers in Chambers.
THE COURT NOTES THAT:
Should the mother choose to travel to (town omitted) at times other than those specified in this order, she shall give the father as much notice as practical and the father will facilitate additional time, with the precise arrangements to be agreed between the parties.
IT IS NOTED that publication of this judgment under the pseudonym Grover & Waltham is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
NCC 1806 of 2012
| MR GROVER |
Applicant
And
| MS WALTHAM |
Respondent
REASONS FOR JUDGMENT
Introduction
This is a parenting matter between the applicant father Mr Grover (“the father”) and the respondent mother Ms Waltham (“the mother”) in relation to the child of the relationship [X], born 2011 (“the child”).
The father filed his Initiating Application in these proceedings on 1 May 2013. The mother filed her Response in these proceedings on 6 May 2013.
At the final hearing Ms Carr appeared as counsel for the father, Ms Freidlander as counsel for the mother and Mr Moore as counsel for the Independent Children’s Lawyer.
Procedural History
The matter first came before the Court on 17 July 2012 before Federal Magistrate Myers (as he then was) in the Newcastle Registry of this Court. On that occasion orders were made by consent that the child live with the mother and spend time with the father two afternoons a week and overnight each alternate weekend. The mother was also restrained, by consent, from removing the child’s residence from the (omitted) Shire Area.
On 29 August 2012, Federal Magistrate Myers (as he then was) made final orders by consent. These provided for the parents to have equal shared parental responsibility for the child and for the child to live with the mother and spend time with the father in a number of different arrangements, dependent upon where the parties were living.
On 28 February 2013, the father filed a Contravention Application. This was listed before Federal Magistrate Sexton (as she then was). On this date the father’s Contravention Application was withdrawn and dismissed and leave was granted for him to make an oral application to vary the orders made on 29 August 2012. The parties were referred to a Child Dispute Conference on 22 May 2013 with Family Consultant Ms R.
The matter was next before the Court on 22 May 2013. On this date interim orders were made for the child to live with the mother and spend time with the father on some Sundays, as well as regular telephone time. An Independent Children’s Lawyer was appointed.
On 22 August 2013, a Family Report was ordered. This was prepared by Dr L and released to the parties on 6 March 2014.
On 6 March 2014, orders were made by consent increasing the time the father spent with the child and restrained the mother from removing the child from residing in the (omitted) Shire Area prior to the child commencing school.
During the period between 27 June 2014 and 27 February 2015 the parties attended a number of Legal Aid mediations.
On 27 February 2015 Her Honour Judge Sexton made interim orders that the child live with the father and spend supervised time with the mother. This was following the Court being informed that the mother was under a mental health care plan and that the Department of Family and Community Services (“the Department”) had placed certain conditions upon the mother.
On 1 June 2015 the Court suspended orders in relation to time the child was spending with the mother, noting that the Department were supervising contact between the child and the mother with the child’s older half-sibling each week. On this occasion the Court also noted that the mother planned to enter a residential rehabilitation programme and that the Independent Children’s Lawyer would give consideration to arranging a Legal Aid Conference in the adjourned period.
On 1 February 2016, the Court ordered a further Family Report be prepared in this matter. This was released to the parties on 5 September 2016.
On 1 March 2016, orders were made by consent that the child spend time with the mother every second weekend with this time to be supervised by certain members of the mother’s family during night time hours.
On 5 September 2016, orders were made for the mother to undergo uranalysis testing.
On 22 November 2016, interim orders were made for the child to spend overnight time with the mother unsupervised every second weekend.
On 21 December 2016, the parties attended a Legal Aid mediation. On 23 December 2016 extensive interim orders were made by consent concerning the time the mother was to spend with the child. The matter was listed into a callover before Her Honour on 10 February 2017. On this date the matter was listed for final hearing before me.
It can be seen from this recitation of the procedural history that as at the date of final hearing the child has lived with the father since February 2015 and spent time with the mother, some of which was supervised and some of which was suspended due to concerns about substance abuse by the mother.
Issues in dispute
At the start of the hearing the central question between the parties was who the child should live with. This question revolved around two issues:
a)The geographical distance between the parents as the father had relocated to (town omitted) in June 2015 and the mother relocated to (town omitted) on the New South Wales (region omitted) in August 2015;
b)The risk of harm to the child due to the mother’s mental health history and illicit drug use.
However, during the course of the hearing the mother raised allegations of physical and sexual abuse suffered by the child as perpetrated by the father. These allegations raised a question whether the child’s time with the father should be supervised, should they be sustained.
I note here that these latter issues involved a change of position by the mother during the hearing. Although the mother had made the same or similar allegations in the past, as at the commencement of the hearing she was not pressing for supervised time nor agitating any issue as to risks the child purportedly faced in the father’s household. It was under cross-examination on the second day of final hearing that these concerns re-emerged.
In closing submissions, the father also made application for an order to change the name of the child.
Proposals
As set out in his case outline filed 31 March 2017, the father sought the following orders:
1. That the parties have equal shared parental responsibility for the child, [X] born 2011.
2. That the parties are required to make all decisions about major long-term issues in relation to the child jointly.
3. That the parties are not required to consult the other when making decisions while the child is in their care under this order about issues that are not major long-term issues.
4. That the child live with the father.
5. That the mother spend time with the child at all times as may be agreed and failing agreement then as follows:
a) During the first weekend of each month from 5:30pm Friday to 3:30pm Sunday with changeover to occur at the park around the corner from the Police Station in (town omitted), or as otherwise agreed.
b) During the third weekend of each month from 6:30pm Friday to 3:30pm Sunday with changeover to occur at (town omitted) McDonalds, or as otherwise agreed.
c) During the school holidays at the conclusion of Terms 1, 2 and 3 for half the school holiday period, being the first half in odd years and the second half in even years.
d) During the school holidays at the conclusion of Term 4, for half of the school holiday period, being the first half in odd years and the second half in even years.
6. Should the mother not be able to attend any of the spend time with periods outlined in 5 a & b, she provide the father with at least 7 days notice of her inability to attend.
7. Should the mother choose to travel to (town omitted) at other times, she shall provide the father as much notice as practicable and the father will facilitate additional time, with precise arrangements to be agreed between the parties.
8. Each parent shall be permitted to communicate with [X] at any reasonable time while he is in the care of the other parent by way of telephone, email or Skype, and the parent with the care of [X] shall facilitate such communication.
Education
9. The father will ensure that:
i. The mother’s address and telephone number are provided to School B.
ii. The mother has a copy of any significant correspondence (not otherwise available on the school website), order forms for school photos and school reports.
iii. The mother is advised of any significant issues or concerns in relation to [X]’s progress at school.
iv. The mother is advised of [X]’s achievements at school (for example if he receives merit or behaviour awards).
v. The mother has an opportunity to attend parent/teacher interviews arranged to discuss [X]’s progress.
10. The mother may attend any school event in the nature of which parents are usually invited to attend, including but not limited to school assemblies, concerts, sports days and fundraising events.
Health and wellbeing
11. Each parent shall keep the other informed of any significant issues relating to the health and general wellbeing of [X], and shall forthwith advise the other of any accident or significant illness affecting [X] including providing details of treatment and attendance at doctors and hospitals.
12. The father will keep the mother informed about any specialist or other appointments that [X] attends (including but not limited to speech therapy), and will advise her about the outcome of those appointments and any follow up treatment.
13. The father shall keep the mother informed of any extra-curricular activities in which [X] is enrolled.
Other orders
14. That the parties will communicate with each other by text message or email, only for the purpose of making arrangements for [X] to spend time with each parent, and for sharing information about [X]’s progress and development.
15. That neither parent denigrate the other parent, to [X], nor allow any other person to do so.
16. That each parent keep the other informed of their respective addresses and telephone numbers, including landline and mobile.
17. The parties will refrain from using illicit substances whilst [X] is in their care.
As set out in the document forwarded to Chambers on 5 April 2017, the mother sought the following orders:
1. That the parties have equal shared parental responsibility for the care, welfare and development of the child, [X] born 2016, (hereafter referred to as "the child") including but not limited to matters in relation to:-
a) The school which the child shall attend;
b) The religious instruction and upbringing of the child; and
c) The medical treatment which the child shall receive.
2. That the child live with the Mother at her residence in (town omitted).
3. That for 3 months the child spend supervised time at a Contact Centre with the father two to three times a week in sessions lasting 2 hours each.
4. That the Contact centre records for observations of the child and the father be subpoenaed.
5. That after 3 months that the child spend time with the father supervised by the paternal grandfather at a location agreed between the father and the paternal grandfather.
6. That, as soon as practicable after the return of the subpoenaed documents from the Contact Centre, that a Hearing is held on the sole issue of whether the father should spend supervised or unsupervised time with the child.
7. If it is decided that the father should spend supervised time with the child then all time the father spends with the child in the following orders be supervised by the paternal grandfather. If it is decided that the father should spend unsupervised time with the child then all the time the father spends with the child in the following orders be unsupervised.
8. That from the date of commencement of these orders, the child spend time with the Father as follows:
d) During the first weekend of each month from 5:30pm Friday to 3:30pm on Sunday;
e) During the third weekend of each month from 5:30pm Friday to 3:30pm on Sunday;
f) For the first ten days of each of the NSW gazetted term school holiday as agreed between the parties, and failing agreement, for the first ten days in even numbered years and for the second ten days in odd numbered years with changeover to take place at (town omitted) McDonalds.
g) For two weeks at the start of the Christmas holidays and for two weeks at the end of the Christmas school holidays;
h) Notwithstanding any other order, from 9.00am on Christmas Eve until 5.00pm on 27 December in odd years. In even years the mother will spend from 9:00am on Christmas Eve until 27 December with the child in even years.
i) Any other times as agreed between the parties.
9. For the purpose of changeover:
a) For the implementation of Order 8 (a) and (b) changeover shall take place at the Paternal Grandfather’s residence at (town omitted) at the commencement of time and the mother’s residence at the conclusion of time.
10. In the event that the Father relocates to (town omitted) or within 50km of the Mother’s residence, the Father will spend time with the child as follows;
a) Each alternate weekend from the conclusion of school on Friday until 5:00pm Sunday;
b) In addition, during school terms from the conclusion of school on Wednesday until the commencement of school on Thursday.
c) From half of each of the NSW gazetted school holiday as agreed between the parties, and failing agreement, for the first half in even numbered years and for the second half in odd numbered years;
d) On Father’s Day from 10.30AM until 4.30PM unless the child is already in the Father’s care;
e) On Father’s Birthday from 10.30AM until 4.30PM unless the child is already in the Father’s care;
f) On the child’s birthday for a minimum of four (4) hours as agreed between the parties and in default of an agreement, from 2.30PM until 6.30PM if it is on a weekend or from 3:00pm until 7.00PM if it is on a school day;
g) From after school Easter Thursday until 5.00pm Easter Saturday in even years and from 5.00pm Easter Saturday until 5.00pm Easter Monday in odd years;
h) From 9.00am on Christmas Eve until 2.00pm Christmas Day in odd years and from 2:00pm Christmas day until 5:00pm Boxing day in even years.
i) At any other time as may be agreed between the parties.
11. For the purpose of the implementation of Order 10, unless stated otherwise, changeover shall take place at the Paternal Grandfather’s residence at (town omitted).
12.
a) Unless the child is already in his care, the Father shall have telephone time with the child as agreed between the parties. In default of an agreement, each Tuesday and Thursday between 6.00PM and 6.30PM and at any other time when the child expresses a wish to have such contact.
b) During the times the child is in the Father’s care, the Mother shall have telephone or skype contact with the child on each alternate day at a time agreed between the parties, in default of an agreement between 6:00pm and 6:30pm and at any other time when the child expresses a wish to have such contact.
13. For the purpose of Orders 12(a) and (b):
a) The Mother and the Father shall ensure that the children are available to talk to the other parent with privacy and without interference from any party;
b) The Mother and the Father shall ensure that the mobile telephone to be used is charged and turned on.
14. That the child be forthwith enrolled in School A Primary School and that each party do all things necessary and sign all required documents to give effect to this enrolment.
15. These orders are authority for either party to contact any school that the child shall attend in order to receive any information regarding the child’s extracurricular activities and school related events, including parent/ teacher interviews, parent days, assemblies, concerts and like events to which parents are invited, and any other information with which parents are routinely provided.
16. Both parties are permitted to attend the child’s extracurricular activities and school for all school related events, including parent/ teacher interviews, parent days, assemblies, concerts and like events to which parents are invited.
17. These orders are authority for either party to contact any health professional or other therapist that the child shall attend in order to receive any information regarding the child’s health, prognosis and progress and any other information with which parents are routinely provided
18. That in the event the child is too ill or unable to spend time with the Father in accordance with these orders for whatever reason, the Mother shall provide the Father with no less than twenty - four (24) hours’ notice or as soon as practicable prior to the time when the Father is to spend time with the child.
19. That in the event that the child is unable to spend time with the Father due to illness or for whatever reason, then the child shall spend make up time with the Father on another day or period that is no more than three (3) weeks from the day or period that he was to spend time with the Father in accordance with these orders.
20. That each party as soon as practicable, notify the other parent if the child is seriously ill, is to be admitted into hospital or any other serious issue associated with the child’s welfare and wellbeing at those times when the child is in the care of the other party, with a contact number for the professional who is dealing with or treating the child.
21. That in the event that the Father is unable to spend time with the child due to illness or any other reason, he shall ensure that he provides the Mother with no less than twenty four (24) hours’ notice, however in the case of a medical emergency notice shall be as immediate as possible.
22. Both parties acknowledge that they each have an equal right to participate in the decisions on the appropriate treatment to be administered to the child.
23. The parties shall keep one another informed of their residential addresses, email addresses, mobile, and notify the other party of any change to those details within forty eight (48) hours of such change occurring.
24. That each party be restrained from travelling with the child outside of Australia, unless the written consent is provided by the other party not less twenty-one (21) days prior to departure. The party travelling with the child must also provide:-
a) Details including travel destination and dates of travel, not less than twenty-one (21) days prior to the intended departure date;
b) A full itinerary including flight details, travel dates, accommodation details and suitable contact telephone number, as soon as bookings have been made and not later than twenty-one (21) days prior to the intended departure date
c) A copy of a return ticket for the child, not less than twenty-one (21) days prior to the intended departure date;
25. That neither party shall denigrate the other party or any future partner, family members or friends whilst in the presence or hearing of the child or allow, with their knowledge, a third party doing so.
26. That both parents shall endeavour to ensure that the Father is referred to as the child’s Father and the Mother is referred to as the child’s Mother.
In the Alternative
If the child is to live with the father at (town omitted)
27. That from the date of commencement of these orders, the child spend time with the Mother as follows:
d) During the first weekend of each month from 5:30pm Friday to 3:30pm on Sunday;
e) During the third weekend of each month from 5:30pm Friday to 3:30pm on Sunday;
f) For the first ten days of each of the NSW gazetted school holiday as agreed between the parties, and failing agreement, for the first ten days in odd numbered years and for the second ten days in even numbered years with changeover to take place at (town omitted) McDonalds.
g) For two weeks at the start of the Christmas holidays and for two weeks at the end of the Christmas school holidays;
h) Notwithstanding any other order, from 9.00am on Christmas Eve until 5.00pm on 27 December in even numbered years. In odd years the father will spend from 9:00am on Christmas Eve until 27 December with the child.
i) Any other times as agreed between the parties.
28. In the event that the Mother relocates to (town omitted) or within 50km of the Father’s residence, the Mother will spend time with the child as follows;
j) Each alternate weekend from the conclusion of school on Friday until 5:00pm Sunday;
k) In addition, during school terms from the conclusion of school on Wednesday until the commencement of school on Thursday.
l) From half of each of the NSW gazetted school holiday as agreed between the parties, and failing agreement, for the first half in odd numbered years and for the second half in even numbered years;
m) On Mother’s Day from 10.30AM until 4.30PM unless the child is already in the Mother’s care;
n) On Mother’s Birthday from 10.30AM until 4.30PM unless the child is already in the Mother’s care;
o) On the child’s birthday for a minimum of four (4) hours as agreed between the parties and in default of an agreement, from 2.30PM until 6.30PM if it is on a weekend or from 3:00pm until 7.00PM if it is on a school day;
p) From after school Easter Thursday until 5.00pm Easter Saturday in odd numbered years and from 5.00pm Easter Saturday until 5.00pm Easter Monday in even numbered years;
q) From 9.00am on Christmas Eve until 2.00pm Christmas Day in even numbered years and from 2:00pm Christmas day until 5:00pm Boxing day in odd numbered years.
r) At any other time as may be agreed between the parties.
29. For the purpose of the implementation of Order 28, unless stated otherwise, changeover shall take place at the Father’s residence at (town omitted).
30. That in the event the child is too ill or unable to spend time with the Mother in accordance with these orders for whatever reason, the Father shall provide the Mother with no less than twenty - four (24) hours’ notice or as soon as practicable prior to the time when the Mother is to spend time with the child.
31. That in the event that the Mother is unable to spend time with the child due to illness or any other reason, she shall ensure that she provides the Father with no less than twenty four (24) hours’ notice, however in the case of a medical emergency notice shall be as immediate as possible.
32. That in the event that the child is unable to spend time with the Mother due to illness or for whatever reason, then the child shall spend make up time with the Mother on another day or period that is no more than three (3) weeks from the day or period that he was to spend time with the Mother in accordance with these orders.
33. If the Father moves to within 120 kilometres of the Mother’s residence at (town omitted), the Mother will undertake not to move any further from the father’s residence in the future, without his written consent.
Remaining orders as per Orders 12, 13, 15, 16, 17, 20, 22, 23, 24, 25 and 26.
This proposal by the mother differed from the orders she sought at the commencement of the hearing. Her initial proposal sought orders that the child live with her and spend time with the father, but did not seek that time be supervised.
For completeness, I also note that by the close of submissions the mother put forward a further proposal to the effect that the child should live with her, spend supervised time with the father and the proceedings should be adjourned for a suitable period to enable to mother to be satisfied with the father’s care. Nothing in the evidence or the submissions supports such a course, nor suggests it would be in the child’s best interests. I do not propose to adjourn the final hearing.
As set out in the Minute of Order handed up during the course of the hearing, the Independent Children’s Lawyer sought the following orders:
Parental responsibility and live with
1. That all previous parenting orders in relation to the child [X] (born 2011) ("[X]) be and are hereby discharged.
2. That the parties have equal shared parental responsibility for [X].
3. That [X] live with his father.
Spend time with
4. Unless otherwise agreed by the parties, [X] will spend time with the mother as follows:
a.During the first weekend of every month from 5.30pm on Friday to 3.30pm on Sunday with changeover to occur at the park around the corner from the Police Station in (town omitted). In the event that the mother wishes to collect [X] from school on the Friday afternoon, she will give the father 48 hours written notice (by text or email) of her intention to do so.
b.During the third weekend of every month from 5.30pm Friday to 3.30pm Sunday with changeover to occur at (town omitted) McDonalds, or as otherwise agreed.
c.During the school holidays at the conclusion of Terms 1, 2 and 3 [X] will spend time with his mother as follows:
i. For the first half of the holidays, commencing at 5.00pm on Saturday until 12 noon the following Monday. The father will deliver [X] to (town omitted) at the commencement of time, and collect [X] from the McDonalds/(town omitted) Service Station in (town omitted) at the conclusion of time.
d.During the school holidays at the conclusion of Term 4 [X] will spend time with his mother as follows:
i. For a total of 4 weeks as agreed between the parties, or failing agreement in alternating fortnightly block periods. The father will deliver [X] to (town omitted) at the commencement of time, and collect [X] from the McDonalds/(town omitted) Service Station in (town omitted) at the conclusion of time.
5. Should the mother choose to travel to (town omitted) at other times, she shall give the father as much notice as practical and the father will facilitate additional time, with the precise arrangements to be agreed between the parties.
6. Each parent shall be permitted to communicate with [X] at any reasonable time while he is in the care of the other parent by way of telephone, email or Skype, and the parent with the care of [X] shall facilitate such communication.
Education
7. In the event that the father considers it necessary to change [X]'s school, he will consult with the mother about the reasons for the change and his proposal(s) for schooling, within one month of the proposed change.
8. That the father will ensure that:
a.The mother's address and telephone number are provided to any school which the child attends.
b.The mother has a copy of any significant correspondence (not otherwise available on the school website), including but not limited to copies of any assessments, school reports and order forms for school photos.
c.The mother is advised of any significant issues or concerns in relation to [X]'s progress at school.
d.The mother is advised of [X]'s achievements at school (for example if he receives merit or behaviour awards).
e.The mother has an opportunity to attend parent/teacher interviews arranged to discuss [X]'s progress.
9. The mother may attend any school event in the nature of which parents are usually invited to attend, including but not limited to school assemblies, concerts, sports days and fundraising events.
Health and wellbeing
10. Each parent shall keep the other informed of any significant issues relating to the health and general wellbeing of [X], and shall forthwith advise the other of any accident or significant illness affecting [X] including providing details of treatment and attendance at doctors and hospitals.
11. The father will keep the mother informed about any specialist or other appointments that [X] attends (including but not limited to speech therapy), and will advise her about the outcome of those appointments and any follow up treatment.
12. The father shall keep the mother informed of any extra-curricular activities in which [X] is enrolled.
Other orders
13. That each parent be and is hereby restrained from subjecting [X] to any form of striking or physical chastisement and to use their best endeavours to ensure that no other person does so.
14. That the parties will communicate with each other by text message or email, only for the purpose of making arrangements for [X] to spend time with each parent, and for sharing information about [X]'s progress and development.
15. That neither parent denigrate the other parent, to [X], nor allow any other person to do so.
16. That each parent keep the other informed of their respective addresses and telephone numbers, including landline and mobile.
Background
The relevant background facts in this matter are, as follows:
a)On 1977, the father was born. He is currently 40 years of age.
b)On 1989, the mother was born. She is currently 27 years of age.
c)On 2006, [A] (“[A]”) was born. She is currently 10 years of age. [A] is the child of the mother from a previous relationship and is the half-sister of the child the subject of these proceedings.
d)In 2010, the parties commenced a relationship whilst living in (town omitted).
e)In April 2010, the parties separated. After the parties separated the mother discovered she was pregnant and moved to (town omitted).
f)On 2010, the child [X] was born. He is currently 7 years of age.
g)In 2011, the parties resumed their relationship and commenced cohabitation in (town omitted).
h)In May 2012, the parties separated on a final basis. The mother moved to (town omitted) with the child and the father relocated to (town omitted).
i)On 22 August 2012, an Apprehended Violence Order was made against the father for the protection of the mother.
j)On 29 August 2012, final orders by consent were made.
k)On 28 February 2013, the father filed his Contravention Application.
l)On 26 June 2013, an Apprehended Violence Order was made against Ms V (the father’s then partner) for the protection of the mother.
m)In January 2014, the mother relocated with the child to (town omitted).
n)On 11 March 2014, the child was assessed by (omitted).
o)On 17 April 2014, the child attended the Child Development Assessment Clinic.
p)On 1 May 2014, the child was assessed by paediatrician Dr R.
q)On 2 June 2014, the parties attended the Keeping Kids in Mind Post-Separation parenting Course.
r)On 6 June 2014, the child attended (omitted), Occupational Therapy.
s)On 30 July 2014, the child attended a speech pathology assessment at (omitted) Speech Pathology with Ms R.
t)In December 2014, the mother’s then partner Mr C (“Mr C”) was charged with a domestic violence offence where the mother was the victim.
u)On 29 December 2014, Community Services received a report that the mother and her partner were using Methamphetamine and that the mother was the victim of domestic violence.
v)On 30 January 2015, the mother tested positive for amphetamine and methyl amphetamine.
w)On 2 February 2015, the mother tested positive for amphetamine and methyl amphetamine.
x)On 9 February 2015, the mother enters into a Temporary Care Agreement with Community Services for 3 months and the child and [A] commenced living with the maternal grandfather.
y)On 10 February 2015, the mother was admitted to the Mental Health Unit (town omitted).
z)On 13 February 2015, the child is placed in the care of the father.
aa)On 28 April 2015, the mother completed the ‘Keeping Children Safe’ parenting course.
bb)On 11 May 2015, [A] re-commenced living with the mother.
cc)On 13 May 2015, the mother tested positive for amphetamine and methyl amphetamine.
dd)On 18 May 2015, [A] was removed from the mother’s care by the Department and re-commenced to live with her maternal grandfather.
ee)On 20 May 2015, the mother is presented to (town omitted) Mental Health Facility following an attempted suicide.
ff)On 22 May 2015, orders were made in the Children’s Court of New South Wales in respect of [A] and parental responsibility was allocated to the Minister.
gg)In June 2015, the mother enrolled in a residential programme at the (omitted) and Alcohol Centre in (town omitted). She began spending time with the child supervised by the maternal grandparents.
hh)On 23 June 2015, the child and father moved to (town omitted).
ii)On 7 August 2015, the mother was discharged from the (omitted) and Alcohol Centre. She subsequently completed the relevant programme with that Centre.
jj)On 11 August 2015, the mother self-refers to (omitted) Care.
kk)On 26 August 2015, the mother makes a report to the Department’s Helpline.
ll)On 27 October 2015, the mother completed the Positive Lifestyle Programme.
mm)On 14 January 2016, [A] re-commenced living with her mother in (town omitted).
nn)On 1 March 2016, the child commenced spending supervised time with the mother for two overnights per fortnight supervised by the maternal grandfather and the maternal aunt.
oo)On 22 April 2016, [X] attended an initial assessment with a speech pathologist.
pp)On 23 April 2016, Community Services received a Risk of Significant Harm (“ROSH”) report and the child and father were interviewed separately.
qq)On 21 May 2016, the mother made a report to the Department’s Helpline. The mother and Ms S, the maternal aunt (“the maternal aunt”) stated that the child had disclosed that the father “touches my willy and it hurts me”.
rr)On 22 May 2016, a Provisional Order Apprehended Domestic Violence Order was made against the father for the protection of the child. The child remained in the mother’s care.
ss)On 24 May 2016, the child was interviewed at the maternal aunt’s home by Joint Investigation Response Team (“JIRT”) caseworkers.
tt)On 24 May 2016, the application regarding the Provisional Order Apprehended Domestic Violence Order was withdrawn by the police. On this date the child was returned to the father’s care.
uu)On 27 May 2016, the child was discharged from speech pathology as he achieved all age expected communication milestones.
vv)On 28 June 2016, the child is diagnosed with mild molluscum contagiosum.
ww)On 22 November 2016, the mother re-commenced spending unsupervised time with the child.
xx)In February 2017, the child commenced primary school at School A.
Evidence
The father relied on the following documents:
a)His Initiating Application filed 1 May 2013; and
b)His Affidavit sworn 8 February 2017 and filed 8 March 2017.
The father was cross-examined.
The mother relied on the following documents:
a)Her Response filed 6 May 2013;
b)Her Affidavit affirmed 16 March 2017 and filed 17 March 2017;
c)The Affidavit of Ms S sworn 22 June 2016 and filed 23 June 2016; and
d)The Affidavit of Ms K sworn 16 June 2016 and filed 22 June 2016.
The mother was cross-examined.
The Independent Children’s Lawyer relied upon the following documents, which were marked as Exhibits during the course of the proceedings:
a)The family report of Dr L (“Dr L”) dated 4 March 2014;
b)The family report of Dr L dated 1 September 2016; and
c)A tender bundle consisting of documents produced under subpoena.
The following documents were received into evidence by way of tender:
Exhibit Label
Document
Tendered by
ICL1
Tender bundle
35. ICL
36. ICL2
37. Speech Pathology Report for the child dated 31.5.16
ICL
38.
39. ICL3
40. USB
41. ICL
42. ICL4
Agreed summary of the mother’s evidence
43. ICL
A
Family Report of Dr L dated 4 March 2014
Court
B
Family Report of Dr L dated 1 September 2016
Court
Exhibit “ICL3” was a USB which held digital copies of a Police interview of the child conducted on 22 June 2016 and a phone video recording made by the mother on 2016. I will discuss this evidence in more detail later in these reasons.
Dr L viewed both films in the courtroom before giving oral evidence.
Expert evidence
The first family report, marked Exhibit “A”, was based, as described by Dr L, on the material filed by the parties as at 4 March 2014, the Child Dispute Conference Memorandum, some documents produced on subpoena and the interviews conducted, as set out at the commencement of her report. Dr L records her opinions formed as a result of conducting interviews with the parents, the mother’s partner, the paternal grandfather and observing the child with these adults.
The second family report, marked Exhibit “B”, was based, as described by Dr L, on updated material filed by the parties as at 1 September 2016, some documents produced on subpoena and the interviews conducted, as set out at the commencement of her report. Dr L records her opinions formed as a result of conducting further interviews with the parents, the paternal grandfather, and observing the child with these adults.
Dr L was cross-examined by all parties.
On 5 June 2017, the third day of hearing, Dr L gave additional evidence, commenting on Exhibit “ICL4”.
I will refer to Dr L’s evidence as necessary during the course of these reasons.
Family Report Recommendations
Dr L made recommendations in paragraphs [53]-[59] of her first report to the following effect:
a)That the parties do their utmost to continue work on improving their communication so that they can assume joint parental responsibility.
b)That the child live with the mother.
c)That the child commence spending time overnight on alternate weekends with the father initially for one evening per fortnight and incrementally increasing over a period of months and that the child spend time during the day on the other Saturdays and that the mother advises the father in writing if she would like the child for the weekend. It was also recommended that the child spend at least one afternoon during the week with the father and that, if this is not possible, he speak with the father via telephone.
d)That the parties keep each other informed of and be invited to participate in any developmental assessments of the child and that they relay any recommendations from those assessments to the other.
e)That once the child was of school age, it was recommended that he spend one half of school holidays including alternate Christmas with each parent.
f)That the child’s surname be hyphenated to include the names of both parents.
g)That the parents participate in a Parenting After Separation programme.
Dr L made recommendations in paragraphs [73]-[78] of her second report to the following effect:
a)That the parties do their utmost to continue work on improving their communication so that they can assume joint parental responsibility.
b)That the existing parenting arrangements at that time continue until the final hearing. If the child was to spend time with the mother in (town omitted), this might be reserved to school holidays.
c)That the child’s final living arrangements be subject to judicial decision and contingent on where each of the parties are living and the status of the mother’s mental health and drug use, and her capacity to sustain the progress she has thus far made in respect of family violence.
d)That neither party nor their respective significant others involve the child in any denigrating behaviour.
e)That the parties keep each other informed of and be invited to participate in any developmental assessments, educational or medical interventions of the child and that they relay any recommendations to the other.
f)That the mother give consideration to the impact on the child of making allegations of abuse that are unfounded.
Dr L did not alter these recommendations in her oral evidence.
The father
The father was cross-examined. It was submitted on behalf of the mother that the father’s evidence was “facile and glib”, and that he was “extraordinarily cocky” for someone giving evidence in family law proceedings. I accept there was some attempt by the father to sanitise his past behaviour in his Affidavit evidence. In particular, his affidavit was couched in terms designed to obscure a Final Apprehended Violence Order dated 22 August 2012. In cross-examination some answers appeared glib but his credibility was not put in serious issue. He was candid against his own interest at times. For example, he volunteered in cross-examination that he was responsible for some 40 calls to the mother on an occasion in June 2013 which the mother believed were made by his then girlfriend[1].
[1] Referred to in the mother’s affidavit affirmed 19 March 2017, paragraph12.
Overall I found the father to be a satisfactory witness with reasonable insight into the best interests of the child.
The father was asked in cross-examination whether he would discuss and consult with the mother concerning future decisions about the health and education of the child. He stated that he would. He agreed that the only way the mother could spend more time with the child would be if the father moved closer to (town omitted). He stated that he wanted to remain living in (town omitted) for financial reasons.
The mother
The mother was cross-examined. Whilst giving evidence, she had a tendency to not engage with the questions and avoided answers that might paint her in a poor light.
The evidence demonstrates that the mother has shown serious errors of judgment in the recent past, and a degree of emotional instability and fragility. Several salient examples will suffice. After the violent incident on 17 December 2015, the mother told Police her partner at that time had not hit her, and attended court on 14 January 2015 to support the dropping of an Apprehended Violence Order against him (Exhibit “ICL1”, p 213). However, in cross-examination she conceded she had in fact been assaulted by her former partner at that time. The Department Contact Record dated 19 January 2015 noted: “There are also concerns the mother wants to stay with her partner and that she is not placing the children’s needs ahead of her own”. (Exhibit “ICL1”, p 101). In the Report in support of the Application Initiating Care proceedings in respect of [A] it was noted that the mother failed to attend a urinalysis on 23 January 2016 (Exhibit “ICL1”, p 214).
As noted above, on 9 February 2015 [A] commenced living with the maternal grandfather. Despite undertaking rehabilitation and achieving case plan goals to allow [A] to be restored to her care on 11 May 2015, it transpired that the mother used methamphetamines on 8 & 10 May 2015, that is the day before [A] was to be returned to her care (see Exhibit “ICL1”, p 218-9).
The mother was discharged for inappropriate conduct from the (omitted) Drug and Alcohol Centre, although she maintained this was unfair and subsequently received a Certificate of Completion (Exhibit “ICL1”, p 228-232; Annexure B to her Affidavit affirmed 16 March 2017). However, this series of events were not mentioned in her Affidavit.
Nonetheless, it is to her credit that she openly recognised her past mistakes and errors of judgment. She has clearly made great efforts to extract herself from the vortex of drug addiction and substance abuse by engaging successfully with a number of rehabilitation programmes. The father agreed that the mother had “turned the corner” in her struggle with substance abuse. I accept the mother has avoided abusive and destructive relationships since 2015. She is to be commended for these efforts. They have enabled her to bring her life into order and focus on parenting her children.
However, the mother also demonstrated both a consistent refusal to accept that the professional authorities properly investigated her situation and a belief that the same authorities were untrustworthy and regularly recorded incorrect information about serious issues. For example, she told Dr L that officers from the Department had deceived her (Exhibit “B”, p.31). She also asserted that the officers who interviewed [A] after the incident on 17 December 2014 wrote down incorrect information, when they recorded that the child and [A] witnessed the incident (Exhibit “ICL1”, pp 68-70).
The mother, in her oral evidence, continued her refusal to accept that the professional authorities had properly investigated allegations against the father. Under questioning by counsel for the Independent Children’s Lawyer she repeated a range of allegations against the father, many of which had already been the subject of earlier investigation, and at the commencement of the hearing were not pressed by her.
I will deal with these allegations later in these reasons.
Overall I found the mother an unsatisfactory witness, with limitations to her insight into the best interests of the child. She exhibited a tendency to confuse her own emotional well-being with the well-being of the child.
The Child
The child is currently 6 years of age.
He attends School B.
The evidence shows the child is presently healthy and developing within the normal range for his age. He consulted an Occupational Therapist in 2014 at the instigation of the mother and received some testing for speech pathologies in 2016 at the instigation of the father. Exhibit “ICL2” is a Discharge Report from the (town omitted) Community Health Centre dated 31 May 2016. The Report records a range of tests undertaken during three speech pathology therapy sessions during April and May 2016. The report writer concludes by saying “I am happy to discharge [the child] from Speech Pathology as he has achieved all age expected communication milestones”.
A report dated 12 October 2016 from (omitted) Preschool in (town omitted)[2] shows he meets all the criteria “to say he is ‘ready for school’”. The report finishes by stating:
[X] has managed the friendships he has made all year and with his father, Mr Grover, is part of a supportive network of families that will all start kindergarten together. Starting kindergarten can be an overwhelming experience, but as [X] is already part of the School B school community. I feel he will experience a positive and smooth transition to kindergarten with peers and teachers. He is already familiar with.
[2] Annexure D to the father’s Affidavit filed 8 March 2017.
The father gave uncontested evidence that “[X] is well settled at school and the teachers are happy with his progress. [X] has a lot of friends at school…He has not missed a day of school since starting”[3] and “[X] transitioned into school this year very well. I have never had any problems getting [X] to schools; he is always excited to go. He has not missed a day of school” and “I talk to [X]’s teachers and the principal regularly and they keep me updated with [X]’s progress. There have never been any concerns about [X] at school and all comments have been positive”[4].
[3] Affidavit filed 8 March 2017, paragraph 10.
[4] Affidavit filed 8 March 2017, paragraphs 46 and 47.
The child also attends (hobby omitted) lessons each Tuesday afternoon after school which commenced in January 2017. It appears that whilst the father is primarily responsible for taking the child (hobby omitted) the mother has been involved as well. The child is enrolled in (hobby omitted) with the (omitted) Club. The father gave uncontested evidence that the child often has friends over after school to play and that his friends live close to the father’s home. The father also gave evidence that he catches the school bus home with this child on Wednesday afternoons. It is clear that the father is closely involved in the child’s life and child’s daily routine[5].
[5] Affidavit filed 8 March 2017, paragraphs 52-57
Relevant Law
The Approach in Goode & Goode
The Full Court of the Family Court of Australia in Goode & Goode [2006] FamCA 1346 set out a number of procedural steps to be followed on an interim application, which are also a useful guide to approaching the resolution of the issues at a final hearing, namely:
(a) Identifying the competing proposals of the parties;
(b) Identifying the issues in dispute;
(c) Identifying any agreed or uncontested relevant facts;
(d) considering the matters in s.60CC that are relevant and, if possible, making findings about them (in interim proceedings there may be little uncontested evidence to enable more than a limited consideration of these matters to take place);
(e) deciding whether the presumption in s.61DA that equal shared parental responsibility is in the best interests of the child applies or does not apply because there are reasonable grounds to believe there has been abuse of the child or family violence or, in an interim matter, the Court does not consider it appropriate to apply the presumption;
(f) if the presumption does apply, deciding whether it is rebutted because application of it would not be in the child’s best interests;
(g) if the presumption applies and is not rebutted, considering making an order that the child spend equal time with the parents unless it is contrary to the child’s best interests as a result of consideration of one or more of the matters in s.60CC, or impracticable;
(h) if equal time is found not to be in the child’s best interests, considering making an order that the child spend substantial and significant time as defined in s.65DAA(3) with the parents, unless contrary to the child’s best interests as a result of consideration of one or more of the matters in s.60CC, or impracticable;
(i) if neither equal time nor substantial and significant time is considered to be in the best interests of the child, then making such orders in the discretion of the Court that are in the best interests of the child, as a result of consideration of one or more of the matters in s.60CC;
(j) if the presumption is not applied or is rebutted, then making such order as is in the best interests of the child, as a result of consideration of one or more of the matters in s.60CC; and
(k) even then the Court may need to consider equal time or substantial and significant time, especially if one of the parties has sought it or, even if neither has sought it, if the Court considers after affording procedural fairness to the parties it to be in the best interests of the child.
Legislative framework
Section 65D(1) of the Family Law Act 1975 (Cth) (“the Act”) provides that this Court may make such parenting orders as it thinks proper, subject to the provisions of ss.61DA & 65DAB of the Act.[6]
[6] There is no relevant parenting plan so s 65DAB of the Act does not apply.
Section 61DA of the Act requires the Court, when making any parenting order in respect of a child, to apply a presumption that it is in the best interests of a child for a child’s parents to have equal shared parental responsibility for the child.
The presumption, however, does not apply if there are reasonable grounds for the Court to believe that the child concerned has been subject to abuse or family violence (s.61DA(2) of the Act) or in the case of an interim hearing the Court considers it inappropriate (s.61DA(3) of the Act). The presumption may be applied but be rebutted by evidence which satisfies the Court that it would not be in the best interests of the child for his or her parents to have such equal shared parental responsibility (s.61DA(4) of the Act).
Best interests of the child
The best interests of the child are the paramount consideration (s.60CA of the Act).
It is convenient to consider the best interests of the child at this point. Findings and conclusions concerning the best interests of the child will be important in considering the application of the presumption of equal shared responsibility and thus the potential trigger of s.65DAA of the Act. In addition, as the decision in Goode & Goode (supra) makes clear that even if the presumption is not applied or is rebutted, then the Court makes such orders as it deems are in the best interests of the child, as a result of consideration of one or more of the factors set out in s.60CC of the Act.
The best interests of a child are to be determined by an examination of the considerations as set out in s.60CC of the Act. These are to be considered, weighed and applied against the facts of each case within the ambit of the objects and their underlying principles as set out in s.60B of the Act.
The underlying principles set out in s.60B of the Act are as follows:
(1) The “objects”…are to ensure that the best interests of children are met by:
(a) ensuring that children have the benefit of both of their parents having a meaningful involvement in their lives, to the maximum extent consistent with the best interests of the child; and
(b) protecting children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence; and
(c) ensuring that children receive adequate and proper parenting to help them achieve their full potential; and
(d) ensuring that parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of their children.
(2) The “principles” … are … :
(a) Children have the right to know and be cared for by both their parents, regardless of whether their parents are married, separated, have never been married or have never lived together; and
(b) Children have a right to spend time on a regular basis with, and communicate on a regular basis with, both their parents and other people significant to their care, welfare and development (such as grandparents and other relatives); and
(c) Parents jointly share duties and responsibilities concerning the care, welfare and development of their children; and
(d) Parents should agree about the future parenting of their children; and
(e) Children have a right to enjoy their culture (including a right to enjoy the culture with other people who share that culture).
(3) For the purposes of subparagraph (2)(e), an Aboriginal child's or Torres Strait Islander child's right to enjoy his or her Aboriginal or Torres Strait Islander culture includes the right:
(a) to maintain a connection with that culture; and
(b) to have the support, opportunity and encouragement necessary:
(i) to explore the full extent of that culture, consistent with the child's age and developmental level and the child's views; and
(ii) to develop a positive appreciation of that culture.
(4) An additional object of this Part is to give effect to the Convention on the Rights of the Child done at New York on 20 November 1989.
Primary considerations
In order to determine the child’s best interests, the Court must first have regard to the “primary considerations” under s.60CC(2) of the Act 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.
In applying these considerations the Court is to give greater weight to the consideration in paragraph 2(b) (see s.60CC(2A) of the Act).
The benefit to the child of having a meaningful relationship with both of the child's parents
As to s.60CC(2)(a), the Full Court of the Family Court of Australia in Sigley v Evor (2011) 44 Fam LR 239 endorsed a number of earlier judicial statements of interpretation:
a)A “meaningful relationship” as one which is “important, significant and valuable to the child”: (citing Mazorski v Albright [2007] FamCA 520 and McCall v Clark (2009) FLC 93-405); and
b)A “prospective approach” is the preferred approach to s.60CC(2)(a) requiring the Court to “consider and weigh the evidence at the date of the hearing and determine how, if it is in a child’s best interests, orders can be framed to ensure the particular child has a meaningful relationship with both parents”: McCall (supra) at [118]-[119];
c)Depending on the factual circumstances “the present relationship approach” may be relevant, requiring the Court the examine the evidence “of the nature of the child’s relationship at the date of the hearing, to make findings based on that evidence, which finding will be reflected in the orders ultimately made”; however, it is not the preferred approach since s.60CC(3)(b) of the Act requires a Court to explore existing relationships between a child and the child’s parents and other persons, and application of the present relationship approach would limit a court making appropriate orders in circumstances where a significant relationship had not been established between a child and a parent at the date of trial: McCall (supra) at [118]-[119];
d)The legislation aspires to promote a meaningful relationship, not an optimal relationship, (M v S (2007) FLC 93-313 per Dessau J; Godfrey v Sanders (2007) FamCA 102 per Kay J and Chamness v Hanson (2009) FLC 93-407 per the Full Court); and
e)A “meaningful relationship” is a legal construct, not a psychological one, and it is for the Court, not an expert, to determine what constitutes a meaningful relationship: at [136] following Chamness (supra) at [191].
The “meaningful relationship” consideration in s.60CC(2)(a) of the Act supports the position that as much time as possible with both parents is in the child’s best interests.
I am satisfied the child presently has a meaningful relationship with both his parents. As Dr L said in her first report, they have both gone to extraordinary lengths to stay in the child’s life. I accept that as far as possible orders, of this Court should enable those relationships to continue and grow.
The proposed orders provide a framework which will maintain the meaningful relationship the child has with both parents.
I give weight to this factor.
The need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.
As to s.60CC(2)(b) of the Act, the terms “abuse” (see s.4) and “family violence” (see s.4AB(1)) are defined in the Act as follows:
abuse, in relation to a child, means:
(a) an assault, including a sexual assault, of the child; or
(b) a person (the first person) involving the child in a sexual activity with the first person or another person in which the child is used, directly or indirectly, as a sexual object by the first person or the other person, and where there is unequal power in the relationship between the child and the first person; or
(c) causing the child to suffer serious psychological harm, including (but not limited to) when that harm is caused by the child being subjected to, or exposed to, family violence; or
(d) serious neglect of the child.
family violence means violent, threatening or other behaviour by a person that coerces or controls a member of the person’s family (the family member), or causes the family member to be fearful.
Section 4AB(2) of the Act provides examples of behaviour that may constitute family violence which include but are not limited to:
(a) an assault; or
(b) a sexual assault or other sexually abusive behaviour; or
(c) stalking; or
(d) repeated derogatory taunts; or
(e) intentionally damaging or destroying property; or
(f) intentionally causing death or injury to an animal; or
(g) unreasonably denying the family member the financial autonomy that he or she would otherwise have had; or
(h) unreasonably withholding financial support needed to meet the reasonable living expenses of the family member, or his or her child, at a time when the family member is entirely or predominantly dependent on the person for financial support; or
(i) preventing the family member from making or keeping connections with his or her family, friends or culture; or
(j) unlawfully depriving the family member, or any member of the family member’s family, of his or her liberty.
A child is exposed to family violence if the child sees or hears family violence or otherwise experiences the effects of family violence (see s.4AB(3)). The Act provides in s.4AB(4) examples of situations that may constitute a child being exposed to family violence which include but are not limited to the child:
(a) overhearing threats of death or personal injury by a member of the child’s family towards another member of the child’s family; or
(b) seeing or hearing an assault of a member of the child’s family by another member of the child’s family; or
(c) comforting or providing assistance to a member of the child’s family who has been assaulted by another member of the child’s family; or
(d) cleaning up a site after a member of the child’s family has intentionally damaged property of another member of the child’s family; or
(e) being present when police or ambulance officers attend an incident involving the assault of a member of the child’s family by another member of the child’s family.
As already noted in these reasons, the final hearing progressed in an unusual way, with the mother disavowing allegations of abuse or supervised time at the commencement, and then raising allegations again, or afresh, under questioning by the Independent Children’s Lawyer. Submissions were made by the mother about unacceptable risk in the father’s care. The father was cross-examined about a range of matters, including attitude to the mother, controlling behaviour, unilateral decision making, the child’s special needs and the practicalities of travel. No cross-examination of the father was directed to allegations of physical or sexual abuse by him. Further, as counsel for the Independent Children’s Lawyer pointed out, despite the apparent longevity of the allegations, at no time during the proceedings, commenced in 2012, had the mother sought supervised time with the father until late in the final hearing.
Nonetheless it is incumbent upon the Court to consider the allegations and evaluate the level of risk to the child, if any, in the father’s care.
Allegations of physical abuse
The incident in June 2012
It is common ground that an incident took place at the mother’s residence in June 2012. According to the father, the background to the incident was the relocation by the mother from (town omitted) to (town omitted) after separation.
The father’s evidence concerning this incident was, as follows:
Ms Waltham did not tell me about her plans to relocate. I recall finding out her plans from the day care centre. When picking up [X] one day in June, the coordinator said to me words to the effect of “We are sorry to see [X] leave”. I asked her what she was talking about and she then told me she heard [X] was moving to (town omitted).
When I returned [X] to Ms Waltham that night, Ms Waltham confirmed she was moving after I questioned her about what I had heard. She said to me “there is nothing you can do about it.” I said “you can’t go, he is my son”. Shen then said “he is not your son anyway” and slammed to door on me. I was absolutely dumbfounded and in shock she was taking [X] away from me.
Out of a minute of anger I punched the door, there was a small glass panel and it smashed. I was chocked as my actions as I have never been a violent person; I was just overcome with emotion. It was completely out of character. I called the landlord straight away to tell them what I had done and called (omitted) to fix it straight away. I did not want the argument to escalate further so I left. The police later spoke to me about this incident but nothing further eventuated from this incident.
The mother’s evidence was, as follows:
When Mr Grover attended my residence, I spoke to him in detail about my plans to move to (town omitted). I informed him that I had lost my job and accordingly I was considering moving to (town omitted) with family as living expenses were too high to retain my residence at the time.
I deny saying any of these words to Mr Grover (referring to the evidence of the father as to this incident, as set out above).
This incident occurred in front of the children, the shattered glass hit both me and [X]. In contrast to Mr Grover’s affidavit there was an AVO initiated as a result, which was finalised at (omitted) Local Court. Annexed hereto and marked “A” is a copy of the AVO.
Contrary to the father’s evidence that “nothing further eventuated from this incident”, there is annexed to the mother’s affidavit, the terms of a Final Apprehended Violence Order dated 22 August 2012. The order was specified to remain in force for a period of 12 months. Accordingly, it was spent at the time of hearing.
I do not ignore this evidence, or the father’s attempt to gloss over it in his Affidavit. However, the violence was not directed at the child. It was some years ago and appears to be an incident borne of specific circumstances, rather than evidence of a tendency to violence, and needs to be seen in light of the subsequent years of healthy interaction between the father and the child. There is no evidence of antisocial behaviour or drug use by the father.
I give little weight to this incident. No party gave it any specific emphasis in argument.
Evidence of the maternal grandmother
The mother relied upon an Affidavit sworn by the maternal grandmother Ms K (“the maternal grandmother”). In her Affidavit the maternal grandmother gave evidence that on 3 October 2015, while she was present when the mother and [A] were spending time with the child, the child said words to the effect that somebody kept hurting him. The maternal grandmother went on to give evidence that when she asked the child who was hurting him he began shaking and quivering and then made punching actions and stated: “he punches me in the head”.
The maternal grandmother goes on to say that she told the child that he had to tell her who was hurting him, so that he could be kept safe, and that no one is allowed to punch him. The child then put his head down, and stated: “my dad. I don’t want to tell on my dad”. The child, she said, was withdrawn, appeared frightened, and would not discuss this further. Afterwards the maternal grandmother rang the Department’s hotline and reported her concerns.
A record of this contact appears in Exhibit “ICL1” at pp 248-51. The notes taken by the Department state that the previous report on 17 January 2015 records the child disclosed the father “punched him in the face all night” and on another occasion he had disclosed “daddy choked me”.
I observe that the report on 17 January 2015 was made a short time after a violent incident on 17 December 2014 between the mother and her then partner Mr C. The incident involved the mother being strangled, placed in a headlock and punched by Mr C, who was subsequently arrested, convicted and incarcerated. The Department’s notes of an interview with [A] (see Exhibit “ICL1” at p 68) record that the child witnessed the incident.
In her Affidavit, the maternal grandmother also made allegations that the father was verbally abusive towards her, by interrupting phone calls and exchanging terse text messages.
At paragraph 21 of her affidavit the maternal grandmother states:
I have also witnessed on a few occasions, [X] telling his mother he wants to come home, and that he is scared of his dad. These are not just words. When he makes these reports he is shaking, his mouth quivering, and he becomes withdrawn. I have seen dramatic changes in [X]’s behaviour since being in the care of his father. For example he has become much more difficult to control, and disobedient. On occasions he becomes very withdrawn, and sometimes becomes engaged in a fantasy world, of super heroes and violent fictional characters. Ms Waltham and I have told him before that [X] is clearly watching violent movies and spends time playing or watching violent computer games, as he acts out the scenes from these experiences.
The maternal grandmother was not cross-examined. The allegations in her Affidavit had only peripheral relevance at the commencement of the trial, bearing in mind that the mother was not at that point seeking findings as to any risk of harm to the child due to family violence perpetrated by the father nor did she seek that any time with him be supervised. The evidence was said to be relevant only to support a submission that earlier concerns of the mother about the father were reasonably held even if no incidents of violence actually took place. The mother in closing argument relied on the evidence as uncontested but did not contend that I should find the father had perpetrated physical violence, only that concerns of the mother were reasonably held.
Although maternal grandmother’s evidence was not challenged, its probative value remains marginal. Apart from the specific date given in paragraph 3 of the maternal grandmother’s Affidavit, the evidence is given at a level of generality, which makes it unpersuasive. The statements of the child made on 3 October 2015 about being “punched in the head” seem to be a repetition of statements to the same or very similar effect in January 2015. They were already known to the Department and had been made in close proximity to the violence of Mr C witnessed by the child. It was not put to the father that he had punched the child in the head or perpetrated any other violence on him.
Taking the maternal grandmother’s evidence as a whole there appears to be a possibility that it is tainted by a partisan animosity towards the father, borne partly from the maternal grandmother’s belief that the father harbours a personal grudge against her. The observations she makes about the child’s behaviour in paragraph 21, even if true, are not connected in any meaningful way with any demonstrated conduct of the father and therefore the assertions that the father was somehow responsible amount to little more than speculation.
The alleged gas bottle incident
On 18 April 2016 the father sent the mother a photo of a red mark on the child’s forehead, and asked how the child got it. The parents sent text messages to each other, both stating they were unaware of the cause of the red mark. According to the COPS record of the father dated 23 April 2016 (see Exhibit “ICL1”, p 25) the mother became suspicious, believing the injury looked like a burn and requested the police do a welfare check on the child. On same day the father took the child for a medical examination at the (name omitted) Medical Centre in (town omitted), where a doctor examined the red mark and concluded it was likely to be ringworm (see Exhibit “ICL1”, p 417). At 21.44 that night the Police attended the father’s residence and the father communicated to the Police the ringworm diagnosis. The father did not convey this information back to the mother (see Exhibit “ICL1”, p 25).
The child was interviewed by JIRT at (omitted) Police Station on 23 April 2016 concerning allegations that the father had thrown a gas bottle at the child which produced the red mark injury on child’s forehead. The interview was filmed and a copy of the interview was tendered as part of Exhibit “ICL3”. In the interview the child alleged the father had thrown a gas bottle at him which exploded.
The COPS record states: “[the child] was unable to particularise further details about what happened. He did not disclose any fears of his dad”. (Exhibit “ICL1”, p 25).
I accept that no incident with a gas bottle took place, as alleged by the child or at all. I accept the “red mark” which seems to have generated this story was always ringworm. I note that neither parent makes any mention of it in their Affidavits.
The father denies the allegations of physical abuse.[7] None of the allegations were put to him in cross-examination.
[7] Affidavit filed 8 March 2017, paragraph 40.
I find that none of the allegations of physical abuse have been substantiated.
Allegations of sexual abuse
The mother made allegations of sexual abuse against the father in the past. The mother relied on Affidavits in which allegations were made by herself and the maternal aunt. These allegations were not pressed at the start of the hearing however, the mother’s video recording of her interviewing the child was tendered as evidence in the hearing, as part of Exhibit “ICL3”. The allegations were then resurrected by the mother under questioning from the Independent Children’s Lawyer. Allegations first appear in May 2016. I have considered the evidence. No purpose is served by trawling, in these reasons, through every piece of evidence relating to these allegations. I will discuss the salient points in what follows.
Contact with the Department
In the contact record of the Department dated 15 May 2016 reference is made to sexualised behaviour by the child. The identity of the reporter on that occasion is redacted. The report indicates that the reporter stated the child was “going to put toys in his cousin’s bottom” and that the “reporter states that the counsellor said this comes out of abnormal range of normal child sexualised behaviours.” Later in the report it is noted “[The child] is exhibiting behaviour such as pushing cups and cones into another child’s bottom in an attempt to stick them up her bottom. [The child] also asked his mother to stick her tongue out and swirl it around his tongue.”[8]
[8] Exhibit “ICL1”, from p 339
Material from the Department records that “[the child] disclosed his father touched him “on my willy” (meaning penis). Sexually abusive context has been established in terms of [the child] saying the touching is occurring in his own bedroom, that it “hurts” and has happened “lots of times.” The report concludes the by saying “AH CW’s advised the home was clean and tidy and the father presented well with no AOD concerns. Child is due to return to father tomorrow and AH CW’s will contact mother via phone advising her she must comply with the current FLC arrangements and return the child tomorrow to the father. No allegations confirmed.” [9]
[9] Exhibit “ICL1”, p 340-2
On 23 May 2016, an SDM safety assessment was undertaken by the Department. On the first page of the safety assessment decision report states “No concerns have been identified by the staff in relation to [the child’s] attendance, presentation, behaviour, or functioning (in addition to his speech delay). Staff report that [the father] is attentive to [the child’s] needs.” In relation to physical harm the report concludes that “there are no concerns in relation to [the child’s] physical safety in his father’s care.” In relation to the possibility of sexual abuse by the father, the report states that the child was asked series of general questions in relation to his experience of care with his parents and states “he did not raise any concerns or make any disclosures of harm at this time”. The report goes on to note that “[the child] was then asked if he knew why he was being spoken to, and he said, ‘yes. Cos dad touched my willy’”. The child was asked to provide further details about this stated “daddy checks my hair for eggs. He checks my mouth check my teeth are clean. He checks my willy and bum to make sure they are clean”. On this occasion, the child reported he had gone to the toilet outside on the grass and his dad had checked his penis and bottom to make sure they were clean, as he had previously soiled himself in a similar situation. The child was then asked series of direct questions about his father touching his penis and he confirmed that this was the only time his father had touched his penis. The child did not make any disclosures of sexual harm by his father. The report concluded that this allegation has not been substantiated[10].
[10] Exhibit “ICL1”, from p 368.
I am satisfied on the evidence that the mother also has a capacity to provide for the needs of the child. This is subject to the considerations and evidence which I have discussed above, indicating that the mother has a highly anxious disposition, a predisposition to confuse outcomes which would satisfy her needs as a parent with what is in the best interests of the child, and a wider family culture which reinforces adverse views of the father.
I am mindful of authorities dealing with the effect of orders on the primary carer’s mental wellbeing, where such effect may adversely impact on parenting capacity (see Russell & Close [1993] FCA (Unreported, Fogarty, Baker and Lindenmayer JJ, 25 June 1993) and In the marriage of A (1998) 22 Fam LR 756). However, in my view these are not applicable on the facts of this case.
Exhibit “B” at paragraph 39 records that the mother is struggling not having the child in her care. However, the child has been in the primary care of the father since February 2016, and the mother has shown, to her credit, improvement in her coping strategies and that problems with her substance abuse have improved during that time. The placement of the child in the care of the father does not appear to have had any adverse impact on the mother’s ability to care for the child.
Moreover, the evidence of Dr L, and the mother herself in the witness box, demonstrate she has a highly anxious and somewhat fragile disposition. There is acute dissonance between the perceptions of the mother about abuse in the father’s care and the absence of any substantiation by investigating authorities. As Dr L observed, a parent’s own experience of abuse, which the mother suffered, can result in hypervigilance and overprotectiveness. This of itself may not be healthy for the child, and could lead to significant regression in his behaviour.
I give weight to this consideration.
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 mother lives close to her extended family in the (town omitted) area. They, therefore, provide a network of support and family that the child has access to when he is spending time with the mother.
However, although the presence of the mother’s extended family in close proximity to her residence can well be understood as a support to the mother, for the reasons already given above, I have concerns that the mother’s extended family plays a role in undermining the meaningful relationship the child has with the father.
I give weight to this factor
(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.
As already noted earlier in these reasons, the child no longer needs speech therapy and is operating in the normal range for his age. The child is settled at school and attends regularly. The father gives evidence that the child has secured a scholarship through the Smith Family Learning For Life programme, which provides $400.00 per year if an attendance rate of 98% is maintained. The evidence of the father of the child’s engagement with school activities, friends and extracurricular activities show the child is doing well in his current environment at (town omitted).
I give weight to this factor.
(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;
This consideration is not relevant to the facts of this case.
the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child's parents;
I accept the father has remained actively involved in the life of the child, and is a stable and attentive parent, involved in the child’s school activities and community, and daily routine. That said, his tendency to limit the flow of information about the child to the mother may have contributed to the acrimony between the parents (Exhibit “B”, paragraph 64).
The problems of the mother with substance abuse have been detailed earlier in these reasons. They inevitably lead to the conclusion that at times the mother has demonstrated an unsatisfactory attitude to her responsibilities of parenthood.
However, I am satisfied that the mother is now committed to parenthood and has worked hard in recent years to overcome her addictive behaviours. I accept she has maintained a strong desire to remain part of the child’s life. I am satisfied she takes the responsibilities of parenthood seriously.
There is reason to think the mother’s attitude to parenting confuses her attitude towards the father with the best interests of the child. The allegations of abuse, discussed above, suggest this. I also do not lose sight of the evaluation of Dr L in her second Report at paragraphs 59, 60 and 61 which was, as follows:
Notwithstanding any drug and alcohol use or family violence, this assessment raises concerns about Ms Waltham’s past capacity to provide stability and security for her children over a period of time. Her ability to sustain stable living arrangements seems to have been fraught and driven by her meeting her own needs. Additionally, she has followed either her partners or now her mother at (town omitted) with little regard to the de-stabilising effects these moves might have had on her children. This includes the disruption to the continuity of the children being settled in school and in a community as well as their sustaining a relationship with their fathers. She indicated that she has no plans to move and said she is settled in the (town omitted) area, although her history probably casts some doubt on her capacity to sustain this position if her options change, in particular, if she forms a new relationship.
Ms Waltham’s desire to have [X] returned to her care is couched very much from the perspective of her needs and those of [A]. She says she cannot conceive an outcome where the children are not reunited in her care. Similarly, she attributes the behavioural difficulties [A] is manifesting onto grief over the loss of her brother and the effects of Mr Grover’s parenting. She shows limited insight into the impact some of the other experiences [A] has had in her life. For [A], these include trauma arising from exposure to family violence, the emotional unavailability of her mother during the period when Ms Waltham was using drugs and being removed from her mother’s care.
It is concerning that when the last report was prepared, Ms Waltham spoke in glowing terms of Mr Grover as a parent and seemingly felt some threat that he would be assessed as the better live with parent. She has since revised her opinion about him and, from 2014, there have been a number of notifications to F.A.C.S. that [X] has been subject to physical, emotional and sexual abuse in his father’s household. She is supported by her mother and aunt in portraying Mr Grover as a violent man who is abusive to [X] and who does not facilitate [X]’s relationships and contact with the maternal family to the extent he should. If Ms Waltham’s allegations about Mr Grover’s parenting behaviour are correct, there would be indications that [X] is at some risk in his care. If her allegations are not founded and are an attempt to strengthen her case in the dispute, they demonstrate poor insight on her part into the damaging effect on [X] of being subjected to unnecessary investigations by the police, J.I.R.T and F.A.C.S. which is tantamount to systems abuse. The investigations have not confirmed that [X] is at any risk in his father’s care. Notifications of this nature, especially if they are unfounded, do little to foster the trust between parents and the sharing of child related information which Ms Waltham asserts she is presently being denied by Mr Grover.
I refer also to what has been said above in relation to s.60CC(3)(f).
I give weight to this factor.
(j) any family violence involving the child or a member of the child's family;
I have nothing further to add beyond the discussion above in connection with s.60CC(2)(b)
(k) if a family violence order applies, or has applied, (be it final, interim, contested or consented to) to the child or a member of the child’s family-any relevant inferences that can be drawn from the order, taking into account the following:
(i) the nature of the order;
(ii) the circumstances in which the order was made;
(iii) any evidence admitted in proceedings for the order;
(iv) any findings made by the court in, or in proceedings for, the order;
(v) any other relevant matter;
I have nothing to add under this subheading to what was said in relation to s.60CC(2)(b) of the Act above, other than noting that the Final Apprehended Violence Order against the father for the protection of the mother has long since expired.
(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
In the circumstances of this case, it is in my view preferable to make an order that would be least likely to lead to the institution of further proceedings in relation to the child. The proposed orders provide a clear and stable framework within which the best interests of the child can be supported by both parents, bearing in mind the limitations imposed by geographical distance. The orders should enable to mother (and her extended family) to remain involved in major decision making and to maintain their relationship with the child and over time let go of unhealthy attitudes towards the father.
(m) any other fact or circumstance that the court thinks is relevant
I have nothing to add under this factor.
Parental Responsibility
The Full Court of the Family Court of Australia’s decision in Goode & Goode (supra), and s.61C of the Act, together make clear that, unless displaced by Court order, the parties’ parental responsibility may be exercised either jointly or severally.
I note that all parties sought an order for equal shared parental responsibility.
In Exhibit “B”, paragraph 54, Dr L noted:
Throughout 2014, when both parties resided in the (region omitted), the parties co-parented well. They attended appointments for [the child] together and mention is made in the affidavit material they were even able to share [the child’s] third birthday in the presence of each other and family members.
The evidence satisfies me that despite acrimonious existing between parents and some more widespread animosity towards the father held by members of the mother’s extended family, the parties have shown an ability to co-operate and co-parent well in the past. Orders can be made which should facilitate ongoing cooperation.
I will make an order for equal shared parental responsibility, noting this was sought by both the parties and the Independent Children’s Lawyer in their respective proposals.
Equal time, substantial and significant time
An order will be made for equal shared parental responsibility. Consequently, s.65DAA(1) of the Act applies and I am required to turn my mind to whether the child spending equal time with each of the parents would be in the best interests of the child and would be reasonably practicable.
Given the geographical distance between the parties and the age of the child, I find that it is not reasonably practicable that the child spend equal time with each parent. In light of the discussion above, nor am I satisfied that an equal time arrangement would be in the child’s best interests.
As no order shall be made for equal time, s.65DAA(2) of the Act requires me to consider whether the child spending substantial and significant time with each of the parents would be in the best interests of the child and whether such an order would be reasonably practicable.
If the mother continues to reside at (town omitted), an order for the mother to spend significant and substantial time could not be said to be reasonably practicable. However, the proposed orders will make provision for substantial and significant time in the event the mother moves to (town omitted), in accordance with her alternative final orders.
Live with
Having weighed all considerations discussed above, I am satisfied the child should continue to live with the father.
I also bear in mind that in her second report, Dr L made the following observations at paragraph 70:
A return of [X] to his mother would interrupt the stability [X] will have known, for a significant part of his life, arising from his father being his primary care giver. His involvement in a community where he is attending pre-school and next year will commence school will be disrupted. A change in [X]’s living arrangements, therefore, could augur poorly for him especially if the time he spends with his father is seriously curtailed. However, this option would mean [X] is returned to the parent who was his primary care giver for the first four years of his life and being reunited with his sister. There is a close bond between [A] and [X] although this needs to be only one of the considerations for the Court. It is somewhat concerning that there are indications that [A] may have even assumed a mothering role for [X] at times. It is not uncommon for older siblings to take on this role in family situations where there are concerns such as Ms Waltham experienced. While Ms Waltham now presents as having achieved an equilibrium in her life, her perceptions of [X] as a troubled child are perturbing and it would be essential that some parent/child attachment therapy be considered to address any anxieties that exist in that relationship. Indeed this might be helpful even if [X] was not returned to Ms Waltham’s care. In addition, Ms Waltham’s capacity to provide stability for [X] should her life circumstances change again, is unknown.
In light of my reasons and conclusions in relation to the statutory considerations, I do not propose to make an order which would undermine the present stability in the life of the child by causing him to be uprooted from his school and community in (town omitted). The expert evidence is clear in not favouring any change of residence and supports the view such a change could be very detrimental to the child. These considerations are not outweighed by any benefits the child may receive living with his sister and close to the maternal extended family. The proposed orders include an order that the child will live with the father.
Supervised time
During the course of the hearing and in the making of final submissions the proposal for supervision of the child’s time with the mother was raised by the father, although with no great conviction. The basis for such supervision was, broadly speaking, the proclivity of the mother to perceive in the behaviours of the child abuse of the child by the father. I have already discussed this question at length earlier in these reasons.
The mother’s primary position was that time with the father should be supervised, on the basis of risk of abuse.
The basis for a supervision order was described by Carmody J 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 e.g., limited day time only supervised at a contact centre or by a designated person.
I have dealt with the mother’s allegations above and concluded they are not made out, thereby removing any basis for concluding there is an unacceptable risk of emotional and psychological harm to the child in his father’s care. There is no reason to order time with the father to be supervised.
I am also not satisfied that any time with the mother should be supervised. Although the mother and some members of her extended family have been too prepared in the past to impute inappropriate conduct to the father from normal behaviour of the child, I do not think supervision is an appropriate response to such a minimal risk factor. The mother has shown a capacity to learn from past mistakes and a capacity for change and overall does not present an unacceptable risk of emotional and psychological harm. Support for a meaningful parent/child relationship between child and mother is in the best interests of the child. There are no risk factors which warrant the imposition of supervision in my view.
Restraints
In light of the way the final hearing progressed, the father sought a restraint on the mother interviewing the child about any future disclosures he may make and do all in her power to make sure that no other person does so. I am not satisfied such an order is necessary or in the best interests of the child.
Parenting therapy
In closing argument, the father also sought an order that the mother undertake personal therapy with Dr A or such expert as may be recommended by Dr L. I do not propose to make such an order. In support of such an order the father pointed to her attitude to both the father and the outcome of investigations by authorities, which failed to find evidence of abuse. Despite such considerations, as these reasons demonstrate, the mother has taken responsibility for herself and improved her situation in the last 18 months. I am not satisfied she should be compelled by an order of this Court to undertake therapy which she may well decide to undertake herself.
Change of name
During the course of final submissions the father sought an additional order in the following terms:
That the mother and the father do all things necessary to amend the child surname from Waltham to Waltham-Grover.
The mother resisted any such order being made.
As counsel for the Independent Children’s Lawyer submitted, an order seeking a change of name is a parenting order (Reynolds v Sherman [2016] FamCAFC 178). He also referred me to a decision of Justice Brereton in Director-General, Department of community services v D and Ors [2007] NSWSC 762 at [258] and [259] where His Honour considered some relevant authorities and asserted they establish that:
The welfare of the child is paramount consideration, and that the court should have regard to the short and long term effects of any change in the child surname, any embarrassment likely to be experienced by the child if his or her name were different from that of the parent with whom the child resides; any confusion of identity which may arise for the child if his or her name is changed not changed, the effect which change in surname may have on the relationship between the child and the parent whose name the child bore during the marriage; and the effect of frequent random changes of name. Further considerations include the advantages in the short and long term of the name remaining unchanged, and the degree of identification that child has with the various parties.
Counsel for the Independent Children’s Lawyer also submitted that as change of name was not an issue raised to be dealt with at the commencement of the hearing, the Court should not make any order in respect of change of name or express any preliminary view, but rather allow the parties an opportunity to consider the application and determine whether some form of consensus can be reached.
Having reflected upon the matter, although it may be undesirable for the parties to be involved in additional argumentation, the issue is a narrow one, and can probably be dealt with in chambers by written submissions. I accept the submission of the Independent Children’s Lawyer in relation to change of name and will not make any order or express any view about it at this stage. I will, however, make directions for the submission of further material regarding this limited issue.
Conclusion
In summary, I accept there are some factors as considered above which would support an order be made that the child live with the mother. The considerations supporting such an order include the more extensive contact the child would have with the mother and her extended family and the time spent by the child with [A]. However, for the reasons already given, the child’s involvement with the mother’s extended family may also have detrimental aspects, principally by exposure to an entrenched adverse perception of the father and a willingness to embrace unsubstantiated allegations of abuse against him.
On the other hand, the child has been overall progressing well while living with the father. The expert evidence was very clear that a sudden change of arrangement to live with the mother could be devastating for the child at this stage of his development. The child is presently well settled at school in (town omitted) with friends and community. Consequently and in light of the primary and additional considerations as discussed above, I am not satisfied that an order should be made of the child to live with the mother and spend time with the father, nor that the father’s time with the child should be supervised. I am fortified in this conclusion, bearing in mind the problems the mother has experienced in the past with substance abuse, her generally anxious demeanour and the evident lack of stability in her past. I say this, bearing in mind the task before the Court is to achieve an outcome which is in the best interests of the child, not to punish or reward either parent for past mistakes or present improvements in capacity or lifestyle. Orders can be also made which will allow the child to spend time with and maintain a relationship with [A].
I note that the Independent Children’s Lawyer submitted I should decide only the major issues between the parties and leave it to them to sort out the details of implementation. However, I have decided to make detailed orders. The orders provide scope for the parties to adjust the orders themselves by agreement in writing at any time.
Having considered the matters referred to above, and having given such matters the weight referred to and for the reasons set out herein, I am of the view that the orders as set out at the commencement of these reasons are in the best interests of the child and, accordingly, will so order.
I certify that the preceding two hundred and thirty-six (236) paragraphs are a true copy of the reasons for judgment of Judge Harper
Date: 27 July 2017
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