Hadlow & Davis
[2020] FamCA 161
•19 March 2020
FAMILY COURT OF AUSTRALIA
| HADLOW & DAVIS | [2020] FamCA 161 |
| FAMILY LAW – CHILDREN – Parental Responsibility – Best interests of the child – Where the father seeks equal shared parental responsibility – Where the mother seeks sole parental responsibility –Where the mother has been making the decisions with respect to the major issues affecting the child – Where the father has been excluded from decisions – Where the parties’ communication has been limited and acrimonious – Orders FAMILY LAW – CHILDREN – With whom a child lives – Relocation – Best interests of the child – Where the mother seeks to relocate the child to the State of Queensland – Where the mother had previously unilaterally relocated the child to the State of Queensland – Where the court ordered the return of the child – Where the mother complied with the order to return the child but now seeks to relocate – Where the mother is unlikely to support the child maintaining a meaningful relationship with the father if permitted to relocate – Orders FAMILY LAW – CHILDREN – With whom a child lives and spends time – Where the father seeks the child live with him and spend time with the mother – Where the mother seeks the child live with her and spend time with the father – Where the child has been living with the mother and spending time with the father – Where the mother alleged the father sexually abused the child – Where the father denied the allegation – Where the allegations were not substantiated – Where the mother no longer relies upon the allegations – Where it is in the child’s best interests to remain in the primary care of the mother and spend reasonable time with the father – Orders |
| Evidence Act 1995 (Cth) s 135 Family Law Act 1975 (Cth) ss 60B, 60B(1), 60B(2), 60CA, 60CC, 60CC(2), 60CC(2A), 60CC(3), 69ZN, 69ZT Family Law Rules 2004 (Cth) r 15.13 |
| AMS v AIF (1999) 199 CLR 160 Blanding & Blanding [2016] FamCAFC 21 Godfrey & Sanders [2007] FamCA 102 Mazorski & Albright [2007] FamCA 520 Starr & Duggan [2009] FamCAFC 115 Zahawi & Rayne [2016] FamCAFC 90 |
| APPLICANT: | Mr Hadlow |
| RESPONDENT: | Ms Davis |
| FILE NUMBER: | ADC | 3076 | of | 2017 |
| DATE DELIVERED: | 19 March 2020 |
| PLACE DELIVERED: | Adelaide |
| PLACE HEARD: | Adelaide |
| JUDGMENT OF: | Berman J |
| HEARING DATE: | 11 - 15 November 2019 |
REPRESENTATION
| COUNSEL FOR THE APPLICANT: | Mr McQuade |
| SOLICITOR FOR THE APPLICANT: | Janson Lawyers |
| COUNSEL FOR THE RESPONDENT: | Ms Pyke QC |
| SOLICITOR FOR THE RESPONDENT: | Andersons Solicitors |
Orders
That all previous parenting orders be discharged.
That the parties have shared parental responsibility for Z born … 2016 (“the child”) EXCEPT that the mother shall have sole parental responsibility for any major issue affecting the child’s health PROVIDED that she shall use her best endeavours to reach agreement with the father but if unable to do so THEN the mother shall make the necessary decisions and advise the father as soon as is reasonably practicable thereafter.
That the child live with the mother and spend time with the father as follows:-
(a)From the date of these orders until 27 April 2021 each alternate weekend from 5.00 pm Friday until 6.00 pm Sunday and each Wednesday from 5.00 pm to 7.00 pm;
(b)From 27 April 2021:-
(i)Each alternate weekend from the conclusion of school on Friday to the commencement of school on the following Monday commencing 30 April 2021;
(ii)Each alternate Wednesday from the conclusion of school until 7.00 pm commencing 5 May 2021;
(iii)In odd numbered years for each of the short end of term holidays from 5.00 pm on the first Sunday until 5.00 pm on the following Saturday commencing 2021 and from 5.00 pm on the second Sunday until 5.00 pm on the following Saturday in even numbered years commencing 2022;
(c)In even numbered years for the long summer holiday period during the second week of the holiday period from 5.00 pm on the second Sunday until 5.00 pm on the following Saturday and during the fourth week of the holiday period from 5.00 pm on Sunday until 5.00 pm on the following Saturday;
(d)In odd numbered years for the long summer holiday period during the first week of the holiday period from 5.00 pm on the first Sunday until 5.00 pm on the following Saturday and during the third week of the holiday period from 5.00 pm on the third Sunday until 5.00 pm on the following Saturday;
(e)From 6.00 pm on Christmas Eve to 2.00 pm Christmas Day in 2020 and each alternate year thereafter and from 2.00 pm Christmas Day to 6.00 pm Boxing Day in 2021 and each alternate year thereafter PROVIDED that the child shall be with the mother from 2.00 pm Christmas Day to 6.00 pm Boxing Day in 2020 and each alternate year thereafter and from 6.00 pm Christmas Eve to 2.00 pm Christmas Day in 2021 and each alternate year thereafter.
(f)In the event that the father is not already spending time with the child pursuant to these orders as follows:-
(i)Easter Sunday from 9.30 am until 12.30 pm;
(ii)Father’s Day from 9.30 am until 5.00 pm;
(iii)The father’s birthday from 3.45 pm until 5.45 pm;
(iv)The child’s birthday from 3.45 pm until 5.45 pm;
(g)With the mother in the event that the mother is not already spending time with the child pursuant to these orders as follows:-
(i)Easter Sunday from 9.30 am until 12.30 pm;
(ii)Mother’s Day from 9.30 am until 5.00 pm;
(iii)The mother’s birthday from 3.45 pm until 5.45 pm;
(iv)The child’s birthday from 3.45 pm until 5.45 pm.
(h) At other times as may be agreed.
That the father’s time with the child pursuant to paragraph 3(a),(b)(i) and (ii) shall be suspended during all school holiday periods other than as provided for herein.
That handover that is not able to occur at the child’s school shall take place at the Subway Restaurant located at L Street, Suburb N in the State of South Australia or such other place as the parties may agree.
That the parties keep each other informed of their residential address in South Australia and shall advise the other of any change within seven (7) days.
That the parties will do all things necessary to authorise the school attended by the child to provide to each of the parties copies of school reports, notices and invitations normally provided by the school to parents, to include photograph ordering forms and the parties will make their own arrangements with respect to ordering and paying for any such photographs of the child.
That each party may liaise directly with the child’s school/kindergarten, sporting bodies and any other organisation in respect of any other extra-curricular activity in which the child engages in order to receive notices, information, newsletters about the child’s progress both in terms of the curricular and extra-curricular activities that the child engages in.
Each party shall keep the other informed of any changes to the child’s health while the child is in their separate care and as soon as practical notify the other parent of any medical emergency involving the child.
That the parties do authorise any doctor or other medical specialist upon whom the child attends to provide to each of them all information that they may request with respect of the child and copies of any reports arising at their own separate cost.
That the parties are hereby restrained and injunctions granted restraining them from:-
(a)Recording or allowing anyone to record handovers (excluding the handover location if the location has a CCTV security system);
(b)From physically disciplining or allowing any other person to physically discipline the child;
(c)Attending a medical facility where the child is present (in the event of a medical emergency) during times when the other party and/or the maternal and/or paternal family are present.
(d)From posting photos or videos of the child on social media or allowing another person to post photos or videos.
That the parties are to forthwith remove all photographs that have been posted on social media.
Note: The form of the order is subject to the entry of the order in the Court’s records.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Hadlow & Davis has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth)
| FAMILY COURT OF AUSTRALIA AT ADELAIDE |
FILE NUMBER: ADC 3076 of 2017
| Mr Hadlow |
Applicant
And
| Ms Davis |
Respondent
REASONS FOR JUDGMENT
INTRODUCTION
The proceedings between Mr Hadlow (“the father”) and Ms Davis (“the mother”) relate to the future parenting arrangements for the single child of their relationship namely, Z born … 2016 (“the child”).
The proceedings were listed for trial on 11 November 2019 and judgment was reserved on 15 November 2019.
By Amended Initiating Application filed 29 March 2019 the father seeks orders summarised as follows:-
(1)That the parties have equal shared parental responsibility for the child;
(2)That the child live with the father;
(3)That the child spend time with the mother as follows:-
(a)Each alternate weekend from 5.00 pm Friday to 6.00 pm Sunday and each intervening weekend from 2.00 pm Saturday to 5.00 pm Sunday;
(b)Each Wednesday from 5.00 pm to 7.00 pm;
(c)From 10.00 am to 5.00 pm on Mother’s Day provided that the time the child spends with the mother is suspended for the same period on Father’s Day;
(d)For the first half of each short end of school term holiday period;
(e)On a week about basis during the long Christmas school holiday period;
(f)For alternating periods on Christmas Eve, Christmas Day, Boxing Day and during the Easter period;
(g)From 3.00 pm to 7.00 pm on the child’s birthday;
(h)From 3.00 pm to 7.00 pm on the mother’s birthday.
By Amended Response to Initiating Application filed 7 November 2018 the mother seeks sole parental responsibility for the child and that the child live with her.
Relevant to the proceedings, the mother seeks that she be permitted to relocate the residence of the child to the State of Queensland.
The balance of the orders sought by the mother have been further refined and are to be understood by reference to the outline of case document of the mother.
The mother seeks orders summarised as follows:-
(1)That she have sole parental responsibility for the child;
(2)That the child shall live with her;
(3)That she be permitted to relocate the child’s residence to the State of Queensland as and from 10 January 2021;
(4)That from the date of the orders until 12 October 2020 the child shall spend time with the father as follows:-
(a)Each alternate weekend from 5.00 pm on Saturday to 5.00 pm on Sunday; and
(b)Each intervening Thursday from 10.30 am to 4.30 pm;
(5)That from 12 October 2020 (until the child’s departure from South Australia) the father shall spend time with the child as follows:-
(a)Each alternate weekend from 10.00 am on Saturday to 4.30 pm on Sunday; and
(b)Each intervening Thursday from 3.45 pm to 5.45 pm;
(6)That upon the relocation of the child to Queensland and commencing in 2021 the child shall spend time with the father in South Australia as follows:-
(a)In odd numbered years for the first half of the Queensland short end of term school holidays and for the first and third weeks of the Queensland long school holiday period;
(b)In even numbered years for the second week of the Queensland short end of term school holidays and for the second and fourth weeks of the Queensland long school holiday period;
(7)If leave is not given for the child to relocate to Queensland then the child spend time with the father as follows:-
(a)Commencing in 2021:-
(i)Each alternate weekend from 10.00 am on Saturday to 4.30 pm on Sunday; and
(ii)Each intervening Thursday from 3.45 pm to 5.45 pm;
(b)That from 12 October 2021 the father’s time is extended during school terms to 5.00 pm on Friday to 5.00 pm on Saturday;
(c)During school holidays:-
(i)In odd numbered years for the first half of the short end of term school holidays and for the first and third weeks of the Christmas long school holiday period;
(ii)In even numbered years for the second week of the short end of term school holidays and for the second and fourth weeks of the Christmas long school holiday period.
The mother seeks specific orders that the child spend time with each of the parties to coincide with Easter, Christmas Day, Father’s Day, Mother’s Day, the child’s birthday and each of the parties’ birthdays.
The mother seeks general orders as to the appropriate exchange of information between the parties pertaining to the child’s education, extracurricular activities and any relevant health considerations.
The father’s outline of case document confirms the orders sought by the father as set out in the Amended Initiating Application.
The proceedings were listed for trial in the Federal Circuit Court of Australia to commence on 28 November 2018.
By Application in a Case filed 14 November 2018, the father sought an extension of time to file his trial affidavit in circumstances where the mother had raised an allegation that the child was at risk of sexual abuse by the father.
On 22 November 2018 the trial listing was vacated, orders were made appointing an Independent Children’s Lawyer (“ICL”) and that pursuant to s 69ZW of the Family Law Act 1975 (Cth) (“the Act”) the Queensland Department of Child Safety Youth and Women and the Queensland Police Service provide the following documents and/or information:-
a)Copies of any notifications regarding abuse allegations arising or relating to the child;
b)Any assessment or investigations into such abuse allegations;
c)The outcome or findings of any such assessment and investigations; and
d)Copies of any reports received by the Department and Queensland Police Services in the course of investigating any such notifications.
On 17 December 2018 the proceedings were transferred to the Family Court of Australia.
The Court heard and determined separate Applications for Contravention brought by each of the parties. On 2 August 2019 orders were made that the child live with the mother and spend time with the father as follows:-
a)On Thursday 8, 15 and 22 August 2019 from 10.30 am to 4.30 pm;
b)On Saturday 3, 10, 17 and 24 August 2019 from 10.00 am to 4.30 pm;
c)Commencing 5 September 2019 and each alternate Thursday thereafter from 10.30 am to 4.30 pm;
d)Commencing 31 August 2019 and each alternate weekend thereafter from 5.00 pm Saturday to 5.00 pm Sunday.
Handover was to take place at the Subway Restaurant located on L Street, Suburb N unless otherwise agreed.
Following a consideration of the documents produced pursuant to s 69ZW of the Act, the parties agreed, without objection by the ICL, that there was no longer any utility in the continued involvement by the ICL and accordingly the order of appointment was discharged.
CHRONOLOGY
1976
The father is born (43)
1984
The mother is born (36)
2013
Birth of Y from the mother’s previous relationship
2012
Father separates from Ms B who shares the care of their four children with the father
2014
The parties meet
October 2014
Mother commences undergoing In-vitro Fertilisation (“IVF”) treatment
January 2015
The father spends significant time with the mother at her parents’ home
2016
Birth of the child (Z)
January 2017
Mother ceases overnight time with the father
June 2017
The mother travels to Queensland with Y, the child and the maternal grandmother
June 2017
The mother enrols Y in an early learning centre in Queensland
28/07/2017
The father files an Initiating Application seeking the return of the child into his care and extensive final parenting orders
26/09/2017
The Court orders that the mother return the child to reside in the Town C metropolitan area within 28 days, that the child live with the mother and spend time with the father on two occasions per week for two hours on each occasion
25/10/2017
The mother returns to Town C with the child, leaving Y in Queensland in the care of the maternal grandmother
17/11/ 2017
Father spends limited time with the child at a children’s cafe
24/11/2017
Orders provide for the child to spend time with the father each Wednesday between 4.30 pm and 6.30 pm and each Sunday between 9.30 am and 11.30 am
February 2018
Arrangements are made by the mother for Y to return to South Australia
17/12/2018
Proceedings are transferred to the Family Court of Australia
12/02/2019
Mother files Contravention Application
16/04/2019
Orders made by consent that the child’s time with the father pursuant to paragraph 2 of orders made 17 December 2018 do continue but under the supervision of the paternal grandfather
02/08/2019
Orders made increasing the time the child spends with the father and dispensing with the need for supervision
BACKGROUND
The father is 43 years of age and the mother is 36 years of age.
The father has four children from his earlier marriage to Ms B. They are aged 6, 11, 14 and 16. The father separated from Ms B in 2012 with an agreement that his four children spend significant and substantial time with him.
It does not appear that there is any conflict between the father and Ms B as to the future parenting arrangements for their children.
The mother has a child Y born … 2013. By consent order the mother has sole parental responsibility for Y, who lives with the mother and spends time with his father as agreed between the parties. Y has now commenced primary school education, however his future arrangements are dependent upon whether the mother is able to relocate with the child in these proceedings to Queensland.
Neither party appears to have re-partnered.
The mother is one of three children and has a close relationship with her parents.
It is uncontroversial that the maternal grandparents render considerable and ongoing financial, physical and emotional support to the mother and their grandchildren.
The mother has obtained university degrees and having an extensive career as a professional has established her own consulting business.
There is considerable flexibility in the mother’s working hours and whilst modest, her principal remuneration is derived from interstate clients predominantly based in Sydney and Brisbane.
The father has generally held part-time or full-time employment during the course of the relationship with the mother, but of recent date he has established his own business undertaking building services work, servicing the Town C metropolitan area. Similar to the mother, the father’s business affords him considerable flexibility in terms of his working hours.
The parties do not agree as to the date of the commencement of their relationship but it is beyond contention that they commenced a casual sexual relationship in December 2014. The relationship resulted in the birth of the child in April 2016.
A curious aspect pertaining to the birth of the child arises from the mother’s contention that the child’s conception was the result of a “surrogacy agreement” between the parties that had at its heart the following terms:-[1]
·That the child would live with the mother.
·That the father would treat the child equally to Y and that the children would refer to him by his first name and consider him to be a friend of the mother as opposed to the child’s father.
·That the father did not wish to have financial responsibility for the child and did not want to be considered as a liable parent for the purposes of Child Support Assessment.
·That the father would not be named on the child’s birth certificate.
·That the child would take the mother’s surname and not that of the father.
·That the mother would have sole responsibility for all short and long-term decisions affecting the child; and
·The child would not impact upon the time that the father spent with his other children.
[1] Affidavit of the mother filed 7 November 2018 at [122].
The description of the alleged agreement with the father is clearly a misnomer in circumstances where the child was conceived naturally.
The mother further contends that following conception she paid for an overseas trip for the father to reimburse him for his “services”.[2]
[2] Ibid at [125].
For his part, the father rejects any assertion of an “agreement” between the parties concerning the child’s conception. Prior to the birth of the child, the father lived with the mother at her parent’s home for about eight nights per fortnight but with some reduction leading up to the birth.
There appears to be some agreement between the parties that the father was prepared to undertake a parenting role for Y. He denies that he agreed or even that the parties had discussed his status to the children as being restricted to that of a “friend”.
By January 2017 the father was spending two nights per week with the mother with an additional six night period on holidays with the mother and the child. Thereafter, whilst the father spent frequent time with the child during the day, overnight time was not permitted.
The current conflict between the parties has its genesis in the mother relocating with the child and Y to Queensland on 6 June 2017. The mother has great affection for the children’s maternal great-grandfather who was hospitalised in Queensland. The maternal grandmother travelled to Queensland to assist her father and as a spur of the moment decision the mother and the children travelled with her.
It appears that the mother did not tell the father of her intention to permanently relocate to Queensland and the father contends that the mother’s interaction with him was very much to the effect that she intended to return with the children.
The father was not advised that the mother had enrolled Y at an early learning centre and the child at an independent school in Queensland.
The mother denies that she intended to mislead the father and whilst she intended to return to Town C on or before 21 June 2017, the deteriorating health of her grandfather and her mother’s decision to retire from her employment and relocate to Queensland to assist her parents, prompted the mother to remain. On 1 July 2017 the mother advised the father of her decision to relocate to Queensland.
In support of her decision, the mother considered that there were concerns regarding the poor relationship between the father and Y, limited employment opportunities in Town C and some concerns for her and the children’s safety from the father.
The father’s application seeking the return of the child to South Australia was successful. The trial Judge was not able to sanction the mother’s move to Queensland. His Honour considered that the child should spend time with the father and that the evidence to date supported a finding that the child had and should continue to experience a meaningful relationship with the father.[3]
[3] See Hadlow & Davis [2017] FCCA 2645
His Honour was not satisfied that there was any evidence presented as to family violence and considered that there were practical difficulties with the mother’s proposal to remain in Queensland with the child, which was likely to detrimentally impact on the opportunity of the child to have a relationship with the father.[4]
[4] See ibid.
By order dated 26 September 2017 the mother was required to return the child to reside in Town C metropolitan area within 28 days. The mother complied with the order, albeit returning with the child to reside in Town C one day late on 25 October 2017.
The parties attempted to reach agreement as to the time and circumstances by which the child would spend with the father.
For different reasons, the parties acknowledge that they were not able to successfully implement an arrangement for the child to spend time with the father. There were some occasions when the father did spend time with the child at a children’s café under supervision, however, it was not until the orders of 24 November 2017 that the father’s time with the child was regularised.
The interaction between the parties is redolent with mistrust. The parties commenced using a communication book in late November 2017. Each complain as to the manner of entries in the communication book. The mother considers that more detailed entries better serve the child’s interests, whereas the father considers the mother’s position to be both onerous and unnecessary.
Such is the level of mistrust between the parties that each have continued to make allegations as to the behaviour of the parties at handover. The mother alleges that the father behaves aggressively, whereas consequent upon his denial of aggressive conduct, the father commenced making video recordings of the parties interacting at handover.
DOCUMENTS RELIED UPON
The father relies upon the following documents:-
·Amended Initiating Application filed 29 March 2019
·Trial affidavit of the father filed 16 September 2019
·Trial affidavit of Ms B filed 13 September 2019
·Trial affidavit of paternal grandfather filed 13 September 2019
·Trial affidavit of paternal grandmother filed 21 November 2018
·Trial affidavit of Ms B filed 21 November 2018.
The mother relies upon the following documents:-
·Amended Response to Initiating Application filed 7 November 2018
·Trial affidavit of the mother filed 7 November 2018
·Trial affidavit of the maternal grandfather filed 7 November 2018
·Trial affidavit of the mother filed 5 July 2019
·Trial affidavit of maternal grandfather filed 5 July 2019
·Trial affidavit of maternal grandmother filed 5 July 2019.
The Court is also assisted by the trial affidavit of Ms P, Clinical Psychologist filed 1 November 2018, annexing a Family Assessment Report dated 12 July 2018.
As discussed, the Department for Child Protection provided documents pursuant to s 69ZW of the Act which were the subject of consideration by the parties and the Court (pursuant to s 69ZW(5) of the Act).
EVIDENCE
At the commencement of the trial, the Court highlighted the provisions of pt VII div 12A of the Act and in particular whether the Court should dispense with the provisions of s 69ZT and apply the excluded parts of the Evidence Act 1995 (Cth) (“the Evidence Act”).
Neither party spoke against the application of the provisions of s 69ZT of the Act.
I consider that the principles of s 69ZN of the Act be better served by receiving the evidence of each of the parties relied upon, but exercising my discretion under s 69ZT(3) of the Act as to the weight which should be given to evidence, particularly if it is contentious.
Each of the parties provided a notice of objections to affidavits of evidence and consideration was given to objections pursuant to r 15.13 of the Family Law Rules 2004 (Cth) (“Family Law Rules”) and s 135 of the Evidence Act.
The father
The father relies upon his trial affidavits and with leave supplemented his evidence in response to the allegation made by the mother that he had sexually abused Y.
The allegation is raised in the following paragraphs in the mother’s trial affidavit filed 7 November 2018:-
[92]In or around January 2017 Y told me that [the father] “touched my peewee”. I asked [the father] about this and he said that this was due to him drying Y after his bath. Believing this to be an honest mistake, I spoke to [the father] about being more careful when drying Y.
[98]On or around 7 May 2017 Y again told me that [the father] “touched my peewee”. I asked [the father] about this and again, [the father] stated that this was due to him drying down Y with a towel after a bath. As this was the second time Y had said this I spoke to my parents and we agreed that at least one of us would always be nearby when Y was being bathed by [the father].
The mother also alleges that the father had physically disciplined Y when he refused to urinate and in May 2017 locked the connecting door between the mother’s residence and her parent’s home.[5]
[5] See Affidavit of the mother filed 7 November 2018 at [95] – [97].
The mother was sufficiently concerned, that a psychologist was contacted to interview Y and better understand the issues between Y and the father.
The mother asserts that Y continued to raise allegations, such that she reported the incident to the Child Abuse Report Line (“CARL”) in September 2017. The mother claims that based on the advice from a counsellor from CARL she took Y to the police. The mother also claims that in November 2017, acting on the recommendations of a parenting course intake officer, she sent a message to the father’s former wife regarding Y’s disclosures.
The father denied that the mother had ever spoken to him concerning an allegation that he had inappropriately touched Y’s genitals.
In May 2017, whilst the mother was living with her parents the father was a regular visitor. The father denied that there had been any occasion when he was asked to leave the premises by the maternal grandparents.
If the mother had raised any concern with the police, the father denied that there had been any contact or communication with them.
The issue of child abuse re-emerged in March 2019 with the mother ceasing the child’s time with the father and filing a Notice of Child Abuse, Family Violence or Risk of Family Violence on 3 April 2019, alleging that:-
The child … told the mother on 16 March 2019 that [the father] had “… touched my vagina” while pulling down her nappy and demonstrating what had occurred.
The father denied any allegation of inappropriate touching of the child.
Following an investigation, the father received correspondence from the Department for Child Protection (“DCP”) dated 2 July 2019 confirming the allegations that had been raised in respect of the child and the father’s four children with his former partner Ms B. The letter confirmed that the allegations with respect of the child had not been substantiated and that there was no “likelihood of sexual harm” in respect of the older children.[6]
[6] Exhibit “5”
The mother relies upon her further trial affidavit filed 7 October 2019. Paragraph 4 of the affidavit sets out the paragraphs of the mother’s trial affidavits filed 7 November 2018 and 5 July 2019 which are no longer relied upon. They relate generally to the allegations made by the mother that the father had sexually abused Y, the father’s four older children and the child.
At the commencement of the proceedings the mother reinforced her position that she did not intend to present evidence in support of any allegation that the father was sexually abusive to any of the children. The father’s position is that the mother’s decision to not pursue the evidence is the inevitable result of there never having been any cogent evidence to support a concern by the mother and that her pursuit of the allegations was opportunistic.
The father acknowledged that in his Initiating Application filed 28 July 2017 he sought that the child live with him. The father was not able to explain the basis upon which he sought the final orders other than as a reaction to the mother retaining the child in Queensland. At the time of the application the child was 15 months of age. There had been no issues raised by the father prior to the mother’s departure to Queensland and the father conceded that the orders he seeks are those that will best ensure he is able to maintain a meaningful relationship with the child. His concerns as to the preparedness of the mother to facilitate his relationship with the child arises from his perception that the mother had restricted the time that Y spent with his father when it did not suit her to promote an ongoing relationship. He was concerned that if not challenged, the mother may well treat him in a similar fashion.
The father conceded that prior to the mother going to Queensland he was not agitating for anything different than what was occurring. His first preference was that his time with the child would be taken with the mother.
The father was then asked to consider that there is some uncertainty as to the intention of the amended final orders sought. The difficulty in comprehension arises where proposed order 1 refers to the parties having “shared care of the child”[7] and order 2 that the child live with the father, with order 3 setting out the time that the child would spend with the mother.[8]
[7] Amended Initiating Application of the father filed 29 March 2019.
[8] Ibid.
There is uncertainty as to whether the expression “shared care of the child” was intended to be synonymous with equal shared parental responsibility or was meant to refer to the extent of time that the child would spend in the care of each of the parties.
The father was not able to assist in the better understanding of the orders, however, it is likely that the difficulty emanates not from the father’s confusion, but rather the manner in which the orders were drafted.
Whatever might be the position of the father, he conceded that if the child was to come into his primary care it would need to be a gradual transition.
The import of the cross examination of the father was to highlight that the age of the child and that the child had been in the mother’s primary care since birth would of necessity present issues that the father had not properly considered.
His response was that he was the father of four other children and had been an effective parent for 16 years.
Whilst the father did not anticipate any significant problems, his evidence did not instil confidence that he had given proper consideration to the difficulties that the child may well experience, in particular in being separated from the mother. The father thought this could be ameliorated by spending time with the mother and being able to contact her by phone and other methods of regular communication.
The father had not considered the effect on the child of being separated from Y.
The father conceded that he had not spoken to the mother for two and a half years and there was no history of telephone communication. There had been some recent text messaging but this was the first time since late 2017. All of the communication had been undertaken by the communication book.
The current orders provide for the child to spend time with the father each alternate weekend from 5.00 pm Saturday to 5.00 pm Sunday and alternating Thursdays from 10.30am to 4.30 pm with handover to take place at the Subway Restaurant on L Street, Suburb N.
The father conceded that there were few, if any, current difficulties with the time that he currently spends with the child.
He acknowledged the recommendations of Ms P (psychologist) in the Family Assessment Report that there be a gradual increase in the child’s time with him, in particular to coincide with the child attaining four years of age.
When pressed, the father agreed that the basis for his application that the child reside in his primary care was predominantly consequent upon the mother’s allegations that he had abused the child, Y and his four older children.
Other than the mother’s allegations which she no longer relies upon, the father remains concerned at the tenor of correspondence emanating from the mother’s solicitors.
The father’s current work arrangements are flexible and total about 50 hours a fortnight.
The father did not see any difficulty with the supervision of the child in circumstances where she will start kindy in 2020 for about two and a half days per week.
The father does building services work. He has a contract and is confident that it is ongoing.
The father says that if his application does not meet with success and the child is not placed in his primary care then he would seek a week about shared care arrangement when the child starts school.
The father seeks that the parties have equal shared parental responsibility, whereas the mother seeks sole parental responsibility. It was put to the father that he and the mother have an almost total inability to communicate. The father’s position is that he is prepared to put the mother’s false allegations behind him and seek a better way forward.
The father considered the child to be very happy with a good relationship with her half siblings. He currently resides in a four bedroom home and concedes that his current Child Support payment is based on a modest income, which for the purposes of the assessment is $28,019. The amount of Child Support paid by the father to the mother is minimal.
The financial circumstances of each of the parties’ remains unclear, however, the most significant factor affecting the financial circumstances of each of the parties relates to their legal fees. By reference to a cost statement for the mother, her total legal fees are likely to exceed $373,557 and for the father in excess of $280,000.[9]
[9] Exhibit 12.
The financial predicament of the parties underpins the mother seeking to relocate to the eastern seaboard where she would have the advantage of being closer to her client base.
The father was referred to extracts in the communication book now marked as MFI “19” in the proceedings.
It is apparent that the various references contain assertions by each of the parties that the other is either unreasonable in their interaction with each other in the presence of the child at handover, or to highlight perceived inadequacies in the parenting by each of them in respect of the child.
The level of aggressive dissertation is highlighted by an entry on page 50 of the communication book from the paternal grandmother in the following terms:-
20/12I was at the handover on Sunday 17/12/2017 and [the father] did not speak to your father in an aggressive manner. He respectfully asked your father about medication for [the child]. Very little is said at handovers, except “Good Morning” or “See you nexttime”. Paternal Grandmother (grandma) signed 20/12/17
20/12 I have forwarded these outrageous allegations to my lawyer.
Neither party appeared satisfied with the manner and content of their separate entries in the communication book. Even the most cursory consideration of those parts of the communication book referred to in the evidence demonstrates that its utility is to provide the parties with a vehicle to criticise and accuse the other of poor or inadequate behaviour, either between each of them or involving the child.
It is difficult to determine whether the use by the parties of a communication book as an alternative to other forms and methods of communication is assisting the parties to put the needs of the child above their own internecine conflict.
The father was asked as to the circumstances of an entry made in the communication book on 21 February 2019, where the father focused on a pink bucket hat that he contends was with the child when she was returned to the care of the mother. The father asked that the hat be returned, however, in his entry of 23 February 2019 the father asserted that the pink bucket hat that was returned was a different hat. It appeared to be much smaller, was faded and had wear marks around the brim and was stained. The father insisted on the child returning to his care on the next occasion with the original larger sized hat.
This issue continued on 28 February 2019 and reached its highpoint with the continued accusation of the father that for reasons not immediately apparent, the mother refused to return the original bucket hat thereby prompting the father to advise the mother he would purchase a new hat.
The father’s evidence on this topic was unimpressive and it could not be said that by reference to the communication book entries, either of the parties could refrain from making accusations and assertions of poor parenting.
The level of dysfunction self-evident in the construct of the communication book is exemplified by the initial inability of the parties to reach agreement as to the child’s schooling. The mother was keen that the child attend an Early Learning Centre and provided an application form to be signed by the father. Whilst the period was short, there was no immediate response by the father and when a response was forthcoming it was after the close of enrolments.
The father’s position is that the mother had made a unilateral decision in the first place that the child would be schooled in the independent education system without asking for his comment or consent.
The parties ultimately resolved their differences and whilst there is now no need for the Court to determine aspects of the child’s future schooling, the inability of the parties to confer without animus and aggression is likely to be a factor to be considered in determining the issue of parental responsibility.
For the moment there is agreement as to the child’s education.
A source of ongoing conflict is the mother’s assertion, that at handover, the father or one of the father’s family members records and videos any interaction between the parties and/or the maternal and paternal grandparents who assist.
In his trial affidavit the father concedes that he recorded handovers to counter the mother’s assertion that he had adopted an aggressive stance towards her and her parents.
Apparently the paternal grandmother did the recording and it comprised of little more than a short film of the exchange at handover and an unsuccessful photo of the ground.
The father also installed a “Dash Cam” to again counter an accusation by the maternal grandfather that he had been seen driving in excess of the speed limit.
The mother alleges that the occasions during which the father caused vision to be recorded of the handover were more numerous than the father’s concession.
In evidence, the father revealed that a significant basis for his choice of handover location being a food outlet was that it had closed-circuit television (“CCTV”) installed, and as such, this would provide a measure of independent corroboration of any alleged poor conduct on either his or the mother’s part.
Exhibit “13” comprises a letter from the father’s solicitor to the mother’s solicitor dated 8 November 2019. It refers to the mother’s solicitor’s correspondence of 30 October 2019 concerning conflict that arises at handover.
The content of the letter paints a stark picture of the manifest mistrust between the parties which justified the parties and the child being subjected to surveillance at handover.
The relevant extracts from the letter are as follows:-
The entrance area to the restaurant where CCTV is comprehensively recording all that takes place requires the parties to enter via the arcade first. On the occasion complained of the father entered the restaurant and stood where he habitually does in full view of the cameras, in front of the Subway counter where he speaks to staff.
[The paternal grandfather] approached to around 4 metres but did not walk up to collect the child, instead turned and walked away to sit in an area not part of the restaurant. He spoke to the father as he approached but due to noise our client could not hear what was said. He apparently continued speaking as he walked away but with the [maternal grandfather’s] back turned it was not possible for the father to understand what was being said.
As the orders for handover are specific and are to occur at the Subway Restaurant which has the advantage of taking place under CCTV which you will recall was a solution to the parents independently filming handovers, the father intentionally has always gone to the restaurant section and handover has taken place there. It does not take place in a car park, or other parts of the general facility on his initiative.
The father was not able to understand that his perceived need for the interaction between the parties at handover to be the subject of surveillance and recording was counterproductive to any possible resumption of a cordial relationship between the parties.
The involvement of the paternal grandmother, specifically in recording comments in the communication book and assisting the father with the videoing of handover, is unhelpful.
Generally, the evidence of the father should be considered as reliable and I accept that to a significant degree his behaviour is in part to be understood as a vociferous denial of the allegations made by the mother that he had sexually abused Y, the subject child and his four older children.
It is reasonable to find that the mother’s allegations of sexual abuse by the father became a prime focus for him.
Dr R
Dr R practices from a medical clinic.
He saw the mother and child on 19 March 2019. His notes cover the visit by the mother and record that on 21 March 2019 he reported concerns to CARL.[10]
[10] Exhibit 14.
The following extract from the progress notes of 19 March 2019 is relevant:-[11]
Visits father twice a week since Nov 2017
Longer 6 hr visits started in Dec last year
Past few days nightmares - screaming
Increasing incidence of urinary incontinence and less inclined to urinate on request
After visit last Sat mother says [child] told her that her father touched her vagina with his finger and when asked by me today to demonstrate what he does she banged her hand on her vulval region
Vulva examined – no evidence of trauma or inflammation.
[11] Ibid.
The doctor considered that the notes were not a record of the consultation but rather expanded remarks after he had considered the consultation.
The progress notes of 20 March 2019 refer to the previous day and represent an afterthought by the doctor to expand upon the interaction with the mother and the child.[12]
[12] Ibid.
The doctor records that the mother asked the child, who was sitting on her lap, to tell the doctor how the father had touched her on her genitals. The child did not respond. The mother then left the room with the child for one minute and upon her return, and without invitation by the doctor, placed the child on the examination table “in supine position fully clothed including shoes”.[13]
[13] Ibid.
The child was again asked to explain what the father had done and whilst she did not give a verbal response she raised her right arm above shoulder height and with an open hand hit herself twice in the pubic region.[14]
[14] Ibid.
The mother then pulled down the child’s pants to expose the child’s vulva and again asked the child to show her where the father had touched her. There was no response from the child.[15]
[15] Ibid.
The doctor conducted a superficial examination of the child who resisted any physical touching of her genitals.[16]
[16] Ibid.
The doctor also recorded that the mother had previously made a notification to CARL who recorded that the allegations of sexual abuse may well be fabricated.[17]
[17] Ibid.
The mother’s queen’s counsel put to the doctor that he requested the mother to do what she could to persuade the child to demonstrate what had apparently happened to her. The mother asserted that she did not talk to the doctor about the child and it was the child who spontaneously said “[the father] does this to me”.
The doctor denied that he prompted the circumstances in which an examination of the child’s vulva took place.
I find that Dr R gave reliable evidence.
Ms B
Ms B is the ex-wife of the father and the mother of their four children.
Exhibit “15” comprises a letter from the mother to Ms B.
The correspondence was forwarded by Facebook messenger and was also hand delivered to Ms B’s home.
The contents of the correspondence is predicated upon an allegation made by the mother that the father had inappropriately touched Y.
The following extract highlights the mother’s assertion:-
I am very concerned about this as on 2 occasions earlier this year I had reason to talk to [the father] about inappropriate touching of my son after bathing and later also disclosed to both my father and I [the father] also used to touch him while he was sitting in the bath, resulting in my son eventually refusing to be left alone with [the father] and my banning [the father] from my home in May. Given my concerns soon after I went to Queensland I took my son to speak to a professional about his deteriorating relationship with [the father] and immediately following the session the professional pulled me aside and told me my son made some disclosures around touching my son in his genital area but that thankfully we stepped in before he believed any real psychological damage was done. [The father] was reported to the Department of Child Protection and soon after I received 2 follow up phone calls from the police who were investigating the matter but who noted given my son would not be exposed to [the father] again and I expected my daughter would be supervised around him I understand they have not taken the matter any further at this stage.[18]
[18] Exhibit 15.
The penultimate paragraph is also relevant:-
I understand your children have been spending several nights a fortnight alone with [the father] since your youngest was an infant. Have you had any cause for concern around matters of this nature with [the father] in the past? I was told this type of behaviour can be isolated to non-biological children and I am hoping for my daughter’s sake that this is the case.[19]
[19] Ibid.
Ms B filed an initial affidavit on 9 February 2018 denying that she made any observation that would corroborate or be consistent with the mother’s allegations.
Ms B was complimentary of the father and his engagement both with her in agreeing a shared care arrangement for their children and her observations of his interaction with them.
Ms B also reacted strongly to correspondence being left at her premises and requested that the mother cease any contact with her.
I find that the evidence of Ms B is reliable. She was unchallenged in cross examination.
Paternal grandmother
Following orders made 16 April 2019 both the paternal grandmother and the paternal grandfather supervised the father’s time with the child until the order for supervision was discharged in July 2019.
The paternal grandmother conceded that she had taken videos and photos on two occasions upon the request of the father.
The videos were unsuccessful due to a lack of technical knowledge.
From time to time the paternal grandmother read some of the entries in the communication book. She could not remember the circumstances by which the father proffered the book, but she agreed she had written entries in response to certain matters raised by the mother in order to reassure her that the child was properly supervised and that the father’s care was exemplary.
She agreed that the tenor of her written response was hostile.
The mother
In evidence, the mother looked at her Notices of Assessment for income tax for the financial years 2014 to 2018 inclusive.[20] The history of the mother’s taxable income is as follows:-
·Year ended 30 June 2014 $68,468
·Year ended 30 June 2015 $34,943
·Year ended 30 June 2016 $36,533
·Year ended 30 June 2017 $40,802
·Year ended 30 June 2018 $14,482
[20] Exhibit 16.
Exhibit “17” comprises offers of employment to the mother, dated 8 June 2010 and 20 August 2012, in her capacity as a management consultant.
Exhibit “18” comprises a letter of offer from a University offering enrolment in the Graduate Diploma.
The mother confirmed that the child is currently at an early learning centre and will not start year 1 until 2021. The mother receives a Government contribution of 85 percent of the current fees, however, this will cease when the child commences formal primary school education. The mother was hoping to send the child to a church school but without financial assistance this would not be possible.
The mother has a different gloss on the child’s interaction with Dr R. She confirmed that she took the child to the doctor, however, the child was scared and did not want to talk to him because he was a man. Having placed the child on the examination table, the mother pulled the child’s pants down whereupon the child slapped her genitals and then placed her finger into her labia.
In cross examination the mother was asked whether she considered that she had intentionally or unintentionally placed any obstacle in the path of the father having a meaningful relationship with the child. The mother did not concede that she had attempted to block or restrict the father’s time with the child, but that the child was very young and cautious.
The mother was asked to consider that the inevitable consequence of the mother’s unilateral relocation to Queensland with the child was to restrict the father’s ability to spend time with her. The mother recognised that the relationship would be different but considered that she would return to South Australia from time to time so that the child could see the father.
The mother agreed that there had not been any amendment to the child’s birth certificate to acknowledge the child’s father.
The mother also agreed that she was concerned to ensure that the child and Y spend as much time as was possible together and on the Saturday coincident to the trial the mother wanted to take the child to a foreign language class orientation program.
It was apparent that arrangements with respect to the child spending time with the father, other than as provided for by an order, was likely to be problematic and more often than not the parties lacked any ability to agree a variation.
The mother was steadfast in her support for the terms of the “surrogacy agreement” between the parties as providing the nature of the father’s relationship with the child and the extent to which they would interact. Whilst the agreement was not reduced to writing and subject of trenchant denial by the father, the mother contends that an essential term of the agreement was that the father was to be a best a friend to Y and the child.
The mother considers that the father had “donated sperm” notwithstanding that the child was the result of natural conception.
At the time of the mother’s relocation to Queensland, Y referred to the father as “Daddy” but for reasons that are not clear, the mother determined that in her home both Y and the child would refer to the father by his first name rather than “Dad” or “Daddy”.
The mother did not inform the father of her intention to move to Queensland and he was only informed by email message on 1 July 2017.
The mother obtained rental accommodation on 1 July 2017 and she agreed that it was only after she had secured accommodation and had put in place other arrangements that she told the father of her intentions to remain.
It was put to the mother that unless the father agreed to her terms the child would not spend time with the father.
On 17 September 2017 the father did agree to the mother’s terms.
The mother acknowledged that the father was consistently opposed to the requirement for supervision. She considered his opposition to be unreasonable and justified the need for supervision on the basis that the feedback from the maternal grandparents would be of assistance.
At one point the mother considered that the Children’s Café could be considered as an unsafe environment. However, she now resiles from that concern and considers that it was an appropriate venue for the child to spend time with the father.
The mother returned the child to South Australia in compliance with the orders of Judge Cole, albeit one day late. Only the mother and the child returned. Y remained living with the maternal grandmother in Queensland. It transpired that the child and Y were then separated for between four and five months.
The mother was questioned as to why she left Y in Queensland. She did not consider that the dispute would have any longevity and was hopeful that she could reach agreement with the father.
I find that the mother’s evidence concerning her decision to leave Y in Queensland with the maternal grandmother is without logic. The inevitable consequence of the mother’s actions is that Y was separated both from the child, but also from her. I do not suggest that Y did not have other than a strong relationship with the maternal grandmother but that is qualitatively different to the limited time that he spent with his mother and half sibling.
The mother agreed that she had not ever told the father the details of the address where Y and the child were living. Her explanation was a concern that the father would cause trouble.
The mother was asked to reflect upon the observations of the family consultant that when the child saw the father for the purpose of the family assessment she readily referred to him as “Daddy”.[21] The mother denied that there was any time prior to her relocation to Queensland that the child had called the father “Daddy”. The mother’s evidence was unconvincing.
[21] Family Assessment Report dated 12 July 2018 page 7 (annexed to Affidavit of Ms P filed 1 November 2018).
The mother confirmed that in her home the child calls the father by his first name, but does not deny that when with the father he is referred to as “Daddy”.
It is also not controversial that in Queensland the mother insisted that both children call the father by his first name.
In April 2018, the mother called a locum to attend at the home concerning an allegation that the child had a pain in her vulva or nappy region. The locum attended and the father became aware of his attendance. The mother refused to tell the father the circumstances of the locum’s attendance.
The mother was challenged to explain why she did not tell the father of the circumstances of the attendance by the locum. The mother’s explanation was that before she would reveal to the father the basis of the locum attendance she wanted to know how the father knew about the involvement of the locum.
The mother considered the extent of her confidence in the father’s ability to look after the child. After some reflection, the mother conceded that the father was able to care for the physical needs of the child but she had reservations as to his ability to provide for the child’s emotional wellbeing.
The mother provided an example that underpinned her concerns. She reported that the child returned from spending time with the father and reported that he had told her “he would throw money on the fire”.
The focus of the evidence returned to the manner in which the parties communicate via the communication book. The mother’s anxiety was such that, on occasion she did not believe the father’s stated claim that the child had eaten dinner. The mother frequently observed that the child appeared to be hungry.
Whilst the issue of the father feeding the child might seem a superficial complaint, the extent to which it impacts upon the parties relationship with each other is better understood by considering the mother’s belief that the father tries to feed the child, his attempts are met with resistance and so the father then lies in order to cover up the refusal.
The mother also identified a number of examples in the communication book of the father being critical of her parenting.
Noting that the parties were made aware that the Court would not trawl through the entirety of the communication book entries and would only consider those entries referred to in the evidence, it is a reasonable summary of the admissible entries that the parties’ relationship is entirely dysfunctional.
The mother remained trenchant in her view that before she moved to Queensland the father was not a significant person in the child’s life. It was important that the child know the father, but not in terms of a “parental relationship”.
The mother was asked to consider the relationship between Y and the child. Distinct from the father, the mother considered that Y was an important person in the child’s life, but did not agree that the temporary separation of Y and the child when the mother and the child returned to Town C could have been an explanation for the mother’s observations of the child’s unsettled behaviour during that period.
It was apparent from the mother’s evidence that she historically held a concern that the father may have acted inappropriately with the child. She agreed that when the locum doctor was called on 22 April 2018 she considered that the child’s purported genital soreness was part of her overall disturbed behaviour and was linked inextricably to the time that the child spent with the father.
Her conduct is also to be considered against the background of the father not accepting that the age of the child requires certain limitations on the extent to which she spends time with the father.
Handovers are still problematic and the parties have an inability to engage in any meaningful discussion or to attempt a resolution of parenting issues by consensus.
Given the terms and conditions of the separate proposals by the parties, they are not indicative of a consideration that either party presents as an unacceptable risk.
Wishes of the child
At the date of interview by the family consultant the child was two years of age.
A decision was made by the parties and/or their legal representatives that there would not be an updated family assessment undertaken.
In the absence of any assistance, I do not consider that there has been any evidence presented which would reflect any view or attitude expressed by the child.
The nature of the relationship of the child with the parties and others
The family consultant considered that the child’s primary attachment was with the mother. There was however an obvious relationship with the father.
I accept the evidence that the child has a close and loving relationship with the maternal grandmother. It is apparent from the mother’s domestic arrangements that there is significant dependence upon her parents both financially and for the provision of emotional and physical support. Whilst it was a curious and perplexing decision by the mother to leave Y in the primary care of the maternal grandmother in Queensland, it does demonstrate the extent to which the maternal grandmother has had an involvement in the ongoing care of the children.
There is no doubt that the child benefits from spending time with the father. It is reasonable to find that such are his attributes that once the heat of the litigation dissipates a more settled relationship will endure.
Subject to other considerations, I do not consider that the evidence would support a change in the child’s primary care to the father.
The child is settled in the mother’s home and to dramatically change the child’s living arrangements consistent with the father’s proposal would be a leap into the unknown.
The extent to which each of the child’s parents have fulfilled or failed to fulfil the parent’s obligation to maintain the child
The parties at present have similar financial circumstances. The mother has the financial assistance of her parents, but whether with their assistance or by reason of her own income, it is the mother that provides financially for the child. The father currently pays maintenance at the minimum level. The amount is derisory and could not be considered as at a meaningful level.
I do not make a finding that the father has deliberately undertaken a course of conduct designed to minimise his income and thereby the extent of any Child Support Assessment. It is sufficient that at present, the father’s ability to contribute is limited and no evidence has been presented which would suggest the father’s circumstances are likely to change in the future.
The inability of the father to provide financial support is but one of the factors that assists the Court in determining that the child should remain in the primary care of the mother.
The second aspect to the father’s impecuniosity is the extent to which he would be able to travel to Queensland and/or contribute to the cost of the child returning to Town C during school holidays. The mother’s proposal is to bear the significant cost of travel but I find that any additional travel is likely to be beyond the father’s financial capacity upon the evidence as presented.
I am cognisant of the mother’s claim that her employment prospects would be enhanced by being based on the east coast of Australia. I accept that the mother is a self-employed professional and that she has client contacts in Sydney.
The evidence that would enable an assessment to be made as to the value to the mother of her client contacts and whether her business would be enhanced by a relocation is lacking.
I am not satisfied that there is any evidence which would confirm the mother’s employment prospects are enhanced by living in Queensland.
The likely effect of any changes in the child’s circumstances
The principal concern of the mother is that a change of the child’s primary care to the father would be adverse to the child’s best interests.
The evidence supports a finding that the mother is well able to provide for the needs of the child. As discussed, she has the considerable support of her parents. In the Family Assessment Report, the father conceded that the mother was a good parent but maintained his concern the mother was not capable of supporting the child’s relationship with him.
The evidence of the father’s personal circumstances and his current and proposed domestic arrangements is scant. The father does rely on evidence from his former partner as to the relationship that he enjoys with his four older children. The father’s position is that he encourages each of his children to “develop their own self-esteem and show them ways that they can do the same with each other”.[31]
[31] Affidavit of the father filed 16 September 2019 at [186].
I accept that the father has completed a number of parenting courses that have as their focus child protection, first aid and harassment and discrimination in parenting. He also completed a First Aid Course and continues to attend upon a psychologist to address issues that were directed by the family consultant.
Little more is known of the father’s circumstances with a paucity of evidence that will enable the Court to better understand how the father would support the child during what is likely to be an anxious and possibly distressing transition from the mother’s primary care to the father.
The advantages to the mother’s proposal is that she would relocate with the child to Queensland and have the benefit of her extended family providing support. In addition, the mother considers that her employment prospects would likely be enhanced by proximity to the mother’s client base in Sydney thereby providing the mother with some better level of financial independence and security.
I do not consider that the evidence establishes the level of certainty that the mother’s parents will inevitably relocate to Queensland. Moreover, the only evidence concerning the mother’s employment potential if relocation was permitted is to be found in Exhibit “16” which comprises Australian Taxation Office Notices of Assessment for the financial years 2014 to 2018 inclusive. Those documents demonstrate that the mother’s income is modest, although it is noted that the Notices of Assessment do not assist in a better understanding of the manner in which the mother’s income is derived.
Exhibit “17” provides an unsigned offer of employment in Sydney with the prospect of a substantial base salary plus superannuation and other benefits. The employment offer is dated 8 June 2010. I accept that it provides some limited evidence of the mother’s potential for remuneration but is of no assistance in terms of any current available job prospect.
Exhibit “18” contains a letter of offer dated 14 May 2019 offering the mother an opportunity to study at a Queensland university in 2019 to attain a Graduate Diploma.
The letter of offer confirms that it is intended to be an online course. Again, I am satisfied that the mother has significant opportunity and capacity for employment. It is reasonable to assume that she may well consider the online course to further enhance her curriculum vitae.
The disadvantage that arises from the mother’s proposal is that the child would spend significantly less time with the father. As is apparent from the construct of the mother’s proposed orders, the father’s time with the child would predominantly be spent over school holidays. It is unlikely that the father would have any meaningful involvement in the child’s education, curricular or extra-curricular activities.
For his part, the father considers that if the child lives in his primary care then he will be able to support the child’s relationship with the mother as opposed to his concern that the mother would not support his relationship with the child.
The significant disadvantage is the uncertainty as to whether the child would easily or likely make the transition to the father’s care without there being a risk of psychological harm. The father’s relationship with the child is entirely appropriate, however as was considered by the family consultant, there may be some deficiency in the father considering that the orders he seeks must be age appropriate.
I must be guided by the child’s best interests and given the lack of evidence that supports the father’s contention that he would be able to provide for the child, I am concerned at his ability to ameliorate what would be an inexplicable situation for the child to comprehend namely, a change from the mother’s care to the father.
The evidence does not support the mother’s proposal involving a relocation to Queensland. It is reasonable to accept that the mother appears compliant with current orders. A party should not be given credit for complying with an order. They are required to do so because a court has determined that an interim order is in the best interests of a child or children.
The mother’s evidence concerning the inclusion in her trial material and evidence of allegations of sexual and physical abuse by the father was unconvincing. The concept that the father was “gaslighting” the mother by promoting false allegations of his own abuse of the child is both misguided and fanciful.
The relationship between the parties has been fractured from the commencement of the proceedings. It is the mother’s stated position that she considers the father’s role in the child’s life to be that of a “donor” and not a father. I reject the mother’s evidence that the parties entered into a contract-like arrangement. I prefer the evidence of the father, that following separation his involvement with the mother and the child was consistent with an acceptance by each of them of the importance of him taking on a parenting role.
The evidence from the DCP opining that the mother may well be fabricating allegations thereby indicating her inability to support the father’s relationship with the child is to be given some weight.
The parties are able to communicate via a communication book although in relation to a significant number of entries, they lost focus and perspective.
The mother’s mistrust of the father was clearly fuelled by his conduct at handover and an unrelenting propensity to record and video events.
The extent to which the father was prepared to take the matter is highlighted by his evidence that a handover venue was selected because of the ability to access CCTV.
In circumstances where I consider that the allegations of sexual and physical abuse promoted by the mother were without foundation, a begrudging acceptance that the father may have something to offer the child in his capacity as a parent and the palpable hostility between the parties, without evidence to the contrary I find that if the child was permitted to relocate to Queensland the mother is unlikely to support the child’s relationship with the father.
Each of the parties had an opportunity to present evidence that would assist the Court in determining the current state of the relationship. The absence of evidence requires the Court to take a cautious approach. I am not able to make a finding as to whether there would or would not be an insult to the child’s relationship with the father if the frequency of time spent was limited only to school holidays.
In the circumstances of this case the child’s interests are best served by remaining in the primary care of the mother but spending reasonable time with the father. The child is nearly four years of age. She will commence formal school education in 2021.
The mother proposes that if orders do not permit relocation then consideration needs to be given to the time that the child spends with the father.
The mother seeks that if there is no relocation then as and from 1 January 2021, the child shall spend time with the father from 10.00 am on Saturday until 4.30 pm on Sunday on each alternate weekend (with time extending from 12 October 2021 to 5.00 pm Friday until 5.00 pm on Sunday) and on the intervening Thursday from 3.45 pm until 5.45 pm with the period to be extended by the addition of extended time during school holidays.
The father seeks that if the child were to live with him she should spend time with the mother each alternate weekend from 5.00 pm on Friday to 6.00 pm on Sunday, in the intervening period from 2.00 pm Saturday to 5.00 pm Sunday and each Wednesday from 5.00 pm to 7.00pm. The father also offered half school holidays and time on special occasions.
I do not consider that the Court should embark upon a flight of fancy in respect of the orders that regulate the arrangements for the child to spend time with each of the parties. A court is able to exercise its discretion in terms of the reasonable parameters as are available from the evidence and in any event as may be reasonably foreshadowed by each of the parties.
The current order is that the child spends time with the father each alternate Thursday from 10.30 am to 4.30 pm and each alternate weekend from 5.00 pm Saturday to 5.00 pm Sunday.
I propose to extend the time on each alternate weekend from 5.00 pm Friday to 6.00 pm Sunday. When the child commences formal school education (anticipated to occur in 2021) the father’s time will be extended from after school on Friday to the commencement of school on the following Monday of each alternate weekend with a further period to occur each Wednesday from 5.00 pm to 7.00 pm.
The child’s time with the father will be extended to include half school holidays as and from the September/October 2021 school holidays.
Whilst acknowledging that the handover arrangements have been problematic, I propose to continue the current arrangement which would see handover taking place at the Subway Restaurant located at L Street, Suburb N in the State of South Australia or such other place as the parties may agree.
It is reasonable that the parties have a method of communicating with each other, particularly in circumstances where an emergency or some other urgent need to communicate may arise. The current use of the communication book is redolent with unnecessary and adverse remarks. It should not be a vehicle for the parties to vent their angst but rather should be a vehicle for necessary communication only.
I do not propose to order that the parties engage in a communication book and whilst they are urged to consider the various family communication apps that are available, ultimately it is a matter for them.
I propose to restrain each of the parties from recording or allowing any other person to record handovers and in particular it shall not be a requirement of a handover venue that it is equipped with CCTV.
I am uncertain as to the extent to which the parties and each of them have resorted to social media. The mother seeks an order that the parties remove all photographs that have been posted on social media. The mother’s position seems reasonable.
PARENTAL RESPONSIBILITY
Parental responsibility is to be informed by what is in the best interests of the child. To date, the mother has taken on the obligation for all decisions in respect of major issues affecting the child. The father has been excluded, however it may well be that the inability of the parties to engage in civil communication may in and of itself determine that where parties are unlikely to agree or reach consensus, one party will need to be invested with parental responsibility to ensure that the child is not adversely affected by the parties’ shortcomings.
At this stage the most significant issue that is likely to affect the child relates to her health. Whilst there is no suggestion that she has any adverse health considerations, the father recognises that the mother is exemplary in her care of the child’s physical needs and as such, I propose to order that the parties have shared parental responsibility save and except for issues relating to the child’s health.
The likely educational requirements of the child are as yet unknown and I do not consider that there is sufficient evidence that would enable the Court to consider what steps, if any, need to be taken to ensure the child’s education is appropriately catered for.
CONCLUSION
I make orders as appear at the commencement of these reasons.
I certify that the preceding three hundred and seventy five (375) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Berman delivered on 19 March 2020.
Associate:
Date: 19 March 2020
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