Hammond and Hammond
[2010] FamCA 778
•3 MAY 2010
FAMILY COURT OF AUSTRALIA
| HAMMOND & HAMMOND | [2010] FamCA 778 |
| FAMILY LAW – CHILDREN – Parenting and time spent with issues – unfounded sexual abuse allegations – poor level of communication between parents – past conflict and apprehended violence orders – contravention orders – delay in hearing of proceedings – equal shared parental responsibility – child to live with mother and spend substantial and significant time with father – orders that are reasonably practicable – best interests of child – schooling and other issues – assessment of witnesses – standard of proof |
| Family Law Act 1975 (Cth) – ss 60C, 60CA, 60CC(2), 60CC(3), 60CC(4), 65DA |
| APPLICANT: | MS HAMMOND |
| RESPONDENT: | MR HAMMOND |
| INDEPENDENT CHILDREN’S LAWYER: |
| FILE NUMBER: | PAC | 1867 | of | 2008 |
| DATE DELIVERED: | 3 MAY 2010 |
| PLACE DELIVERED: | SYDNEY |
| PLACE HEARD: | SYDNEY |
| JUDGMENT OF: | YOUNG J |
| HEARING DATE: | 6, 7, 8 AND 9 APRIL 2010 |
REPRESENTATION
| COUNSEL FOR THE APPLICANT: | MS FRIEDLANDER |
| SOLICITOR FOR THE APPLICANT: | BENETATOS WHITE |
| COUNSEL FOR THE RESPONDENT: | MR KENNY |
| SOLICITOR FOR THE RESPONDENT: | LAMROCKS |
| COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: | MS SHEA |
| SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: | LEGAL AID NEW SOUTH WALES |
Orders
IT IS ORDERED:
THAT all previous orders of the Court including cost reserved orders be discharged.
THAT the mother and father have the equal shared parental responsibility for the child A born … April 2005 (“the child”).
THAT the child live with the mother.
THAT the child spend time with the father as follows:
(a)on each alternate weekend from after pre-school or school on the Friday, commencing 23 April 2010, and until the commencement of pre-school or school on the following Monday morning, save when that Monday is a public holiday and then until the Tuesday morning;
(b)in each other week from after pre-school or school commencing on Thursday 15 April 2010 and until 9.00 a.m. the following Saturday morning;
(c)subject to the further specific orders hereunder for one half of the December / January school holidays, but for periods of no more than seven (7) consecutive nights, unless otherwise agreed in writing;
(d)for one half of the New South Wales gazetted school holidays and being for the first half in even numbered calendar years from 2012 and each alternate year thereafter and otherwise for the second half thereof in alternate years commencing 2011;
(e)at such other times, if any, as the parties may agree upon in writing.
THAT for the following special occasion days the child spend time with each of her parents as follows:
(a)from 2011 on her birthday the child spend time with the parent with whom she has not spent that day from 4.00 p.m. to 6.00 p.m. if that birthday occurs on a school day, or otherwise, if a non-school day, from 2.00 p.m. to 5.00 p.m.;
(b)on the mother’s birthday, and if the child is with her father on that day then she spend time with her from 4.00 p.m. to 7.00 p.m. on a school day or otherwise on a non-school day between 2.00 p.m. and 5.00 p.m.;
(c)on the father’s birthday and if the child is with her mother on that day he spend time with her from 4.00 p.m. to 7.00 p.m. on a school day or otherwise on a non-school day from 2.00 p.m. to 5.00 p.m.;
(d)on the child’s birthday 2010 from 4.00 p.m. to 2.00 p.m. the following day with the father and with him to collect and return the child to and from the front gate of her mother’s home;
(e)with her father from 3.00 p.m. on 24 December until 3.00 p.m. on Christmas Day commencing 2010 and each alternate year thereafter;
(f)with her father from 3.00 p.m. on Christmas Day until 6.00 p.m. on 26 December in 2011 and each alternate year thereafter;
(g)with her mother from 3.00 p.m. on 24 December until 3.00 p.m. on Christmas Day commencing 2011 and each alternate years thereafter
(f)with her mother from 3.00 p.m. on Christmas Day until 6.00 p.m. on 26 December in 2010 and each alternate year thereafter;
(e)on Father’s Day the child is to be her father from 9.00 a.m. on the Saturday immediately preceding Father’s Day until 4.00 p.m. on that day in each year and the mother’s time with the child is suspended during that period;
(f)on Mother’s Day the child is to be with her mother from 9.00 a.m. on the Saturday immediately preceding Mother’s Day until 4.00 p.m. on Mother’s Day in each year and the father’s time with the child is suspended during that period.
THAT the child attend S Primary School from the commencement of the school year 2011 and for the balance of this calendar year remain in attendance at the M Pre-School.
THAT changeover of the child be effected at either of:
(a) her pre-school in this calendar year; or
(b)at S Primary School from the commencement of the school year in 2011 on school days; or
(c)at all other times when the child is not at pre-school or school then the mother deliver or cause the child to be delivered to the front gate of the father’s home at the commencement of his time with her and at the conclusion of such times the father then deliver or cause the child to be returned to the front gate of her mother’s home.
THAT the mother is restrained from permitting the child, P, to be present at any changeover of A without the prior knowledge and consent of the father.
THAT the mother and father are to keep each other informed of their current residential address and contact telephone number(s) and any change in such contact information is to be forthwith notified to the other party.
THAT the mother and father are to facilitate the child having telephone communication on no less than one (1) occasion in each week between the hours of 6.00 p.m. and 7.00 p.m. such telephone call to be initiated by the parent who then does not have the child in their care (and to occur the father on each Wednesday and with the mother on each Friday).
THAT the mother and father are to forthwith notify and keep the other fully informed of any medical emergency or accident which may occur to the child whilst she is in their care.
THAT the child is, save in any emergency, to attend upon a medical practitioner within the B Medical Family Practice and these Orders are to constitute an ongoing authority for each parent to reasonably request and obtain information and treatment reports from any medical practitioner on issues concerning the child.
THAT these Orders are to constitute an authority binding upon each of the mother and father to authorise any primary or secondary school which the child may attend to provide to both parents copies of all formal school reports, notices and newsletters (in accordance with the policy of such school) and in such regard the parents are each authorised, subject to school policy, to attend any school or parent interview or other meeting concerning the welfare or education of the child.
THAT the mother and father are each restrained from denigrating the other parent in the presence or hearing of the child and they must each take all reasonable and proper steps to ensure that no other member of their family or other person denigrates the other parent or extended family in the presence or hearing of the child.
THAT the mother and father are each restrained from changing their permanent residential address to be more than fifty (50) kilometres from the child’s school without the prior written consent of the other, or order of the Court first obtained.
THAT the paternal grandparents be forthwith released from their updated undertakings given to the Court (Judicial Registrar Johnston) on 28 September 2009.
Pursuant to s 62B and s 65DA, the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders, and details of who can assist parties to adjust to and comply with an order, are set out in the document entitled Fact Sheet a copy of which is annexed to these orders.
THAT all extant applications, both interim and final, are otherwise dismissed and the proceedings be removed from the list of cases pending hearing.
THAT there be no order as to costs of or incidental to these proceedings.
IT IS CERTIFIED:
THAT pursuant to Rule 19.50 of the Family Law Rules this matter reasonably required the attendance of Counsel for each of the mother and father and solicitor appearing as Counsel for the Independent Children’s Lawyer.
IT IS NOTED:
A.THAT with the agreement of the legal practitioners for the mother and father and the Independent Children’s Lawyer these Orders have been pronounced and made available to all parties at the conclusion of the hearing and without reasons for judgment which will be prepared and delivered as soon as practicable but at a date and time hereafter.
IT IS NOTED that publication of this judgment under the pseudonym Hammond & Hammond is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth)
| FAMILY COURT OF AUSTRALIA AT SYDNEY |
FILE NUMBER: PAC 1867 of 2008
| MS HAMMOND |
Applicant
And
| MR HAMMOND |
Respondent
And
INDEPENDENT CHILDREN’S LAWYER
REASONS FOR JUDGMENT
ISSUE
The mother and father (“the parents”) are in dispute and the Court must therefore decide parenting, living arrangements and other consequential orders that are in the best interests of their only child, A born in April 2005 (“the child”). The parents have very different backgrounds, personalities and child-raising standards and this case has been made more difficult and prolonged by the mother’s sexual abuse allegations and the subsequent and substantial court delay in listing and hearing the matter.
PRONOUNCEMENT OF COURT ORDERS
At the conclusion of evidence and final submissions I raised with the solicitors and counsel appearing for all parties the issue of whether I should then pronounce the order that I had concluded was in the best interests of the child, but without the reasons for judgment which would be delivered at a later date. I raised this issue as it was a matter of common agreement that the father should commence overnight fortnightly and holiday periods with the child, unsupervised, and if the current orders were to continue until judgment and pronouncement of orders there would be a further ongoing period when the child would be disadvantaged without extended time spent with her father. All parties agreed and I therefore considered, evaluated and determined the specific orders that were in the best interests of the child and delivered those orders forthwith upon the conclusion of this hearing. The orders contained a notation that these reasons for judgment would be delivered as soon as practicable.
APPLICATION / ORDERS SOUGHT
Mother
The mother is the applicant and commenced her court proceedings on 18 April 2008. She caused to be filed an Amended Initiating Application on 12 June of that year and subsequently filed a further amended Initiating Application on 19 March 2010 and that is the document upon which her case was opened in these proceedings. On the primary child issues before the Court she then sought orders for the parents to share equal parental responsibility for the child but for their daughter to live with her and spend time with the father on three overnight stays in each fortnight, other special occasions and one half of school holidays from the child’s commencement at school next year.
Subsequently and during the proceedings the mother instructed her Counsel to offer an extension of the overnight stays, initially to four occasions and ultimately to five occasions in each fortnight.
At the conclusion of hearing and in her final address Counsel for the mother submitted proposed minutes of orders on an equal shared parental responsibility basis with the child to live with the mother and spend five overnight occasions each fortnight, together with half of school holidays and other special occasions with the father.
Counsel for the mother submitted a further ancillary order in her final address which she sought to argue should be made by the Court and that was in the following terms:
“That no member of the paternal family is to conduct any inspection of the Child’s genital area. In the event that the Child displays any symptoms of genital irritation the Father will contact the Mother who will make an appointment with the Child’s doctor. In the event that the Child is prescribed with any topical medication to be applied to the Child’s genital region she will be handed the medication and instructed how to apply it herself”.
I did not accept the request of counsel for leave to address the court upon this additional order which, by the end of the proceedings, I had clearly concluded was both too late in the making and more particularly not supported by the evidence. I did not call upon counsel and solicitor for the other parties to address this issue which I record within the history of applications merely as a matter of procedure.
Father
The father’s Response was filed on 26 June 2008 and thereafter he filed an Amended Response and subsequently a further Amended Response on 8 March 2010 which identified the particular orders sought and upon which his case was conducted. In summary he sought that the parents have equal shared responsibility for the child but that she live with him and spend time with the mother during preschool and school terms on five overnight occasions in each fortnight and for half of school holidays and other special occasions.
Subsequently, and in the course of the hearing the father instructed his Counsel to conduct his case on the basis of a division of fortnightly time as to eight nights with the father and six nights with the mother together with half of the school holiday periods and other special occasions.
The father sought in paragraph 13 of that document a restraining order upon the mother from any use of illicit drugs during time spent with the child but such an order was not pursued in the hearing.
As the hearing proceeded the parties were largely able to agree on the various ancillary orders as to changeover, schooling and education issues and other injunctive orders and these matters were engrossed in draft orders by the solicitor appearing for the Independent Children’s Lawyer and, subject to minor amendments upon which submissions were received, final orders are now made by the Court. I determined not to make such ancillary orders by consent but rather for all orders to have been made by the Court as I did somewhat vary the draft of these consequential orders.
Independent Children’s Lawyer
The solicitor for the Independent Children’s Lawyer had not filed prior to hearing a document identifying the orders sought. Ms Shea, when requested by me to do so and with the qualification of some flexibility to amend subject to the evidence that was given in the proceedings, identified at the outset of the hearing that an equal shared parental responsibility order was appropriate and that, on a fortnightly basis, the child should live with her mother on eight occasions and otherwise live or spend time with the father on the remaining six nights in each fortnight together with one half of holidays and on other occasions.
At the conclusion of the hearing, and in her submissions Ms Shea submitted in writing more defined proposed orders that were considered appropriate by the Independent Children’s Lawyer and they largely reflected her opening with the child living with the mother on a eight night and the father the remaining six nights of a fortnightly period and other holiday and special occasion orders as were and have been always largely agreed between all parties.
AFFIDAVITS
Mother
The mother relied upon the following affidavits and documents which I have read, considered and evaluated:
§her initiating application filed 18 April 2008;
§her further affidavit and annexures thereto filed 22 July 2008;
§her trial affidavit and annexures thereto filed 15 March 2010;
§her financial statement filed 22 July 2008;
§the affidavit of her father, the maternal grandfather, filed 19 March 2010;
§the affidavit of Ms L filed by leave during these proceedings;
§her parenting questionnaire filed 19 January 2010;
§her case outline filed at the commencement of the proceedings.
Father
The father relied upon the following affidavits and documents which I have read, considered and evaluated:
§his affidavit and all annexures thereto as filed on 8 March 2010;
§his financial statement filed 26 June 2008;
§the affidavit of his mother filed 8 March 2010;
§his parenting questionnaire filed 8 March 2010;
§his case outline document filed 31 March 2010.
Independent Children’s Lawyer
The Independent Children’s Lawyer relied upon the following affidavits and documents which I have read, considered and evaluated:
§the affidavit of the single expert witness and accompanying report of Dr W;
§the case outline document filed 29 March 2010.
BACKGROUND FACTS
The mother and father have known each other from their days at secondary school and were then in a relationship for a period of approximately one year. Subsequently they again met and commenced a relationship in July 2001 and from late in that year lived together as a de facto couple. They married in November 2004 and separation occurred in April of 2008.
The father has a child from a previous relationship, P, born in May 2001 and he lives with his mother and spends time on alternate weekends and each Thursday with the father. The mother has also developed and maintained a close relationship with P and they spend time together on a casual basis. The mother has a continuing friendship with P’s mother, from whom the father is and remains somewhat estranged.
A was born in April 2005 and therefore is 5 years of age at the conclusion of this hearing.
The father is self-employed, on a sessional basis, with schools in his local area and, in the past, has had casual weekend and afterhours employment in performing at live functions.
The mother is sales agent now working two days in each week for a local agency close to her home in S.
The father identified what he said were close extended family, his sister and her two children, though they were not called to give evidence in the proceedings and only his mother filed an affidavit which I have read and considered.
The mother was adopted at a young age and had spent some time in foster care. She had been reunited with her biological mother who was in the Court throughout the proceedings to provide moral support to her daughter. I accept that she has a close and loving relationship with her known parents and, of importance, they have a close and very caring and supportive relationship of the child who stays overnight in their home on each Monday and at other times over past years. Her adoptive father had filed an affidavit on her behalf as to largely past events and though he was not required for cross-examined I have read and considered the contents of his affidavit.
The child is presently attending pre-school, now on three days in each week and will commence her schooling next year.
PREVIOUS COURT ORDERS
The first of the interim orders pronounced in this Court was made by consent before a Registrar in the Parramatta Court on 29 April 2008. Those orders were expressed to operate until 30 June of that year and, in summary, provided for:
§the parties to have equal shared parental responsibility for the child;
§for the child to live with each of her mother and father on six nights in each fortnight and with the maternal grandparents on the remaining two nights of each such period;
§on a without prejudice basis there were mutual orders for the parties to restrict their consumption of alcohol and non-prescription drugs when the child was in their care and for each of them to refrain from making critical comments of the other in the presence or hearing of the child.
On 30 June 2008 the matter was listed before Judicial Registrar Johnston and further orders were made by consent and undertakings were given on the basis that the matter be again listed on 4 August 2008. Those orders were, in summary, as follows:
§an Independent Children’s Lawyer was appointed in the proceedings;
§the previous court orders had concluded as at this hearing date and orders were then made for the child to live with the mother and spend time with the father on each Sunday and Monday for a six-hour period between 10.00am and 4.00pm and such time to be supervised pursuant to undertakings provided to the Court by his parents;
§those undertakings were that the child’s paternal grandparents would at all times ensure that:
1. At all times that [the child] spent with the father, one of his parents would be present so as to ensure that [the child] is not alone with her father;
2. [The child] shall sleep in a single bed in a bedroom occupied by their daughter and grandson;
3. [The child] will be bathed and toileted and have her nappy changed (or put on/removed) by one of us and not the father;
4. Any medication that [the child] needs to be applied to her vulva will be applied by the grandmother.
§additionally the order of the Judicial Registrar noted that “there are allegations of possible sexual abuse”.
The matter returned in the Parramatta Registry of the Court on 4 August 2008 before Registrar Bartlett and by consent and pending further order, and in summary, the orders then agreed to were as follows:
§that the child live with the mother;
§that the child spend time with her father on each Sunday and Monday between the hours of 10.00am and 4.00pm and on a supervised basis;
§changeover was to occur at the designated play area within the foyer of P building and third parties are not to be present at changeover but to remain outside in the car park;
§additional orders provided the father with each Tuesday for that same six-hour period during school holidays;
§the use of a communication book was commenced with the parties to communicate all concerning aspects of the child’s day-to-day routine;
§there was some consequential makeup orders for the father as to past time lost with the child;
§it was recorded in the orders that the time spent with and supervision orders were pronounced on a without prejudice basis;
§there were further and continuing injunctive and restrictive use orders.
Not part of these proceedings but as a fact disclosed to the Court was that the parties resolved by way of final orders pursuant to s.79 of the Family Law Act 1975 property division, albeit that there was a very modest sum which comprised the net available pool of assets.
The final interim hearing in this court was of the father’s contravention application which came before Judicial Registrar Johnston on 28 September 2009 and where, by consent, the mother admitted breaching without reasonable excuse the prior order of the Court providing for the father to spend time with the child on a Sunday(s) and in that regard makeup time was ordered on two further days, subject to ongoing supervision and changeover conditions.
The balance of that contravention application was otherwise withdrawn and dismissed.
Of significance the past undertakings given by the father’s parents were modified as to clause 4 thereof by the addition of the words “and only if recommended by the mother in writing, or by a general practitioner”.
An unfortunate aspect of that order is recorded in paragraph [4] thereof where the parties were given leave to approach the Associate to Justice Flohm to enquire about how to progress these proceedings to hearing. That Court delay, though perhaps somewhat understandable, has had a marked impact upon the parenting issues and the time that the father could have spent with his daughter on an unsupervised and therefore more casual, extensive and rewarding basis.
APPREHENDED VIOLENCE ORDERS (AVO)
In the circumstances surrounding the separation which occurred on 11 April 2008, and which I have hereafter considered at some length, the mother was charged with an assault upon the father and the police sought a provisional AVO on an ex parte basis. That was granted and restrained the mother from assaulting, molesting, harassing or otherwise interfering with the father or from engaging in any conduct that might intimidate him.
The police listed the AVO and an assault charge for hearing at the Local Court on 15 April 2008 and the provisional AVO was confirmed on an ongoing interim basis with the additional order that the mother was not to go within 200 metres of the premises at which the father worked or resided. The return date of that interim AVO was then fixed for 27 May 2008 at which time it was further extended until 28 July.
The mother filed an application for an AVO on 9 July 2008, allegedly seeking protection from the father and the return date of that matter was consolidated with the outstanding application of the father and the extant assault charge laid against the mother by the police over the events allegedly occurring at separation.
The mother gave evidence in support of her application but her request for an AVO was refused and seemingly there was an extension of the father’s AVO, initially until 11 September 2008 and subsequently that was withdrawn by the father on 30 October 2008 upon appropriate undertakings being given to the Court by both parents.
I have carefully read and considered the affidavit material and annexures supporting the pronouncement of the AVO’s and all of the further affidavit material supporting the case for the initial obtaining, by the police, of such an order. Both the grounds for the order and the necessity thereof are somewhat uncertain and upon an assessment of all of the evidence and my observations of both parents within the courtroom over the days of the hearing, I have concluded not to make any finding of family violence within the ambit of sub-paragraph (j) and (k) of the additional considerations set forth in s.60CC(3) of the Family Law Act 1975 (Cth) (“Act”). Indeed I am further supported in that outcome by the fact that counsel and solicitor appearing for all parties either did not address upon those additional considerations or specifically excluded them from requirement of the Court to consider and evaluate all such relevant considerations.
CONTRAVENTION HEARING
For completeness of the overview of all previous court hearings and issues I record that the contravention application of the father was listed before Judicial Registrar Johnston on 28 September 2009 and by consent the mother acknowledged a breach of the then current orders and offered no reasonable excuse therefore. I have read and well-understand the orders of the Court and the undertakings given to the Court by that day by the paternal grandparents.
I accord considerable importance to the acceptance by the mother of the breach of the court order and the related denial of time that she imposed upon the child and her father between 21 July 2009 and 4 October 2009 (inclusive). The mother’s actions did not foster the best interests of the child and were intertwined with the further allegation of sexual abuse which I have elsewhere considered at some length.
OBSERVATION OF WITNESSES
I have had what I consider to be in this case the very real benefit of observing the mother and father in giving their evidence on oath and in the courtroom, their demeanour, behaviour and character and also when they were cross‑examined. That observation of the parties and also of each of their witnesses has been of very real assistance in formulating appropriate orders. Those observations are acutely available to a trial judge and the legal authority for such a position is that part of the Judgment of Kirby J in Minagall v Ayres (1966) SASR 151 at 154 per Hogarth J; see also Government Insurance Office of New South Wales v Bailey (1992) 27 NSWLR 304 at P313:
“By conventional theory, the observations made by a trial judge of the appearance and demeanor of a witness giving evidence are not only available to be used in the determination of a dispute but amount to important ingredients of the decision-making process. They normally provide the primary decision-maker a distinct advance which controls, and even limits, the exercise by the appellate court of its statutory functions in an appeal by way of re-hearing: see Owners of Steamship Honestroom v Owners of Steamship Sagaporack [1927] AC 37 at 47; Jones v Hyde (1989) 63 ALJR 349 at 351; 85 ALR 23 at 27; Abalos v Australian Postal Commission (1990) 171 CLR 167 at 178ff.”.
I have had the significant benefit of hearing all of the evidence in its entirety, of reading carefully all of the affidavits, the annexures to the affidavits and the other exhibits in the proceedings. I have reflected upon and have weighed all parts of the individual testimony against the balance of all evidence prior to delivering these reasons for judgment. I stress that, in this case, my court observations of the parties were of very real benefit and importance.
The unique role and observations of a trial Judge have been highlighted by the House of Lords, Appellate Committee, in the case of In re J (a child) (FC), judgment delivered 16 June 2005 and I refer to this opinion to support my observations in this case.
In paragraph 4 and paragraphs 10-12 (inclusive) of the Judgment of Baroness Hale of Richmond the role of the trial Judge in the evaluation of oral evidence was considered and it was there stated that:
“10. The Court of Appeal appears to have intervened on the basis, first, that the judge’s conclusion on the risk was not justified by the evidence and second, that he had given it too much weight in his overall conclusion. Yet the assessment of the risk depended entirely on the judge’s evaluation of the father’s present intentions and likely future behaviour and its impact upon the child. There was objective evidence of the risk in the fact that the father had made the allegations in writing and then withdrawn them when he saw that they were damaging rather than helping his case. Whether he might do so again depended crucially on the judge’s evaluation of his oral evidence. The judge was the only person who could do this. He concluded that, while the father was sincere in his current intention not to raise such allegations again, there was a serious risk that if disputes arose in future, as they might easily do, he would resurrect them. These were findings of credibility and primary fact with which, for all the reasons explained by Lord Hoffmann in Piglowska v Piglowski [1999] 1 WLR 1360, at pp 1372-3, an appeal court is not entitled to interfere”.
STANDARD OF PROOF
The appropriate standard of proof that I have applied is the civil standard, namely the balance of probabilities. The more serious the matter or allegation was, or its importance in this case, the more strictly I have examined the level of proof required and that was more particularly so in respect of some of the more controversial disputed facts regarding the alleged sexual abuse.
Section 140(1) of the Commonwealth Evidence Act 1995 provides that a Court must find the case of a party proved if it is satisfied that the case has been proved on the balance of probabilities. Sub-paragraph (2) further provides that, without limiting the matters that the Court may take into account in deciding whether it is so satisfied, it is to take into account:
(a) the nature of the cause of action or defence; and
(b) the nature of the subject – matter of the proceeding; and
(c) the gravity of the matters alleged.
In Briginshaw v. Briginshaw (1938) 60 CLR 336 at 361-2, Dixon, J. said:
“Except upon criminal issues to be proved by the Prosecution, it is enough that the affirmative of an allegation is made out to the reasonable satisfaction of the Tribunal. But reasonable satisfaction is not a state of mind that is attained or established independently of the nature and consequence of the fact or facts to be proved. The seriousness of an allegation made, the inherent unlikelihood of an occurrence of a given description, or the gravity of the consequences flowing from a particular finding are considerations which must affect the answer to the question whether the issue has been proved to the reasonable satisfaction of the Tribunal.”
Subsequently the High Court said in Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd (1992) 62 ALJR 70 at 170 – 172:
“The ordinary standard of proof required of a party who bears the onus in civil litigation in this country is proof on the balance of probabilities. That remains so even where the matter to be proved involves criminal conduct or fraud. On the other hand, the strength of the evidence necessary to establish a fact or facts on the balance of probabilities may vary according to the nature of what it is sought to prove. Thus, authoritative statements have been made to the effect that clear or cogent or strict proof is necessary ‘where so serious a matter as fraud is to be found’. Statements to that effect should not, however, be understood as directed to the standard of proof. Rather, they should be understood as merely reflecting a conventional perception that members of our society do not ordinarily engage in fraudulent or criminal conduct and a judicial approach that a court should not lightly make a finding that, on the balance of probabilities, a party to civil litigation has been guilty of such conduct”.
The civil proof therefore requires “a reasonable satisfaction” following a search for the truth and an evaluation of evidence adduced having regard to both statute and case law and in the context of the respective power or capacity of a party to produce or counter such evidence (Vetter v Lake Macquarie City Council (2001-2002) CLR 439 at 454.
The law requires that satisfaction be on a level of probability not certainty. I approached the determination of issues of proof on the basis that I could be fairly and properly satisfied of any alleged fact before accepting same. Conjecture or suspicion is not sufficient as the proof of the fact must be both rational and reasonably open and likely. In this case there are starkly different versions of events. The parties are in direct contradiction, one to the other. I have made specific findings on contested matters that are relevant and where I am able to do so on the evidence and to the required level of satisfaction. I will examine these factual contests throughout these reasons for judgment.
THE LAW
Section 60CA of the Act requires that the Court, in deciding whether to make a particular parenting order in relation to a child, must have regard to the best interests of the child as the paramount consideration.
The objects of and principals underlying Division 7 of the Act and its amendments from 1 July 2006 are to ensure that the best interests of children are paramount and are fully and wholly considered by the Court in determining residence and orders to spend time with or communicate with children.
As is provided for in s60B of the Act those objects are:
(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.
Sub-paragraph (2) thereof highlights the principles underlying those objects and they are said to be:
(a)children to have the right to know and be cared for by both parents, regardless of whether their parents are married, separated, have never 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.
I have specific regard to these objects and their underlying principles. There are however the facts of the making of previous sexual abuse allegations, and some emotional and practical difficulties in this case that may somewhat modify those general objects. These parents need to change their outlook and attitude to each other and commence to co-operate and communicate in a meaningful way. They may likely be on the lookout to criticise or verbally attack the other but that would only create further difficulties. They must change their behaviour and therefore I have included, in detail, within this judgment those objects and principles so they can be read, considered and understood by each of the parents and perhaps they may reflect upon their primary obligations to the child.
A Court is required to determine what is in the best interests of children by a careful and meaningful evaluation of the primary and additional considerations as are set out in s.60CC of the Act. The relevant and applicable considerations are:
(2)The primary considerations 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.
(3) The additional considerations are:
(b) the nature of the relationship of the child with:
(i)each of the child’s parents; and
(ii)other persons (including any grandparent or other relative of the child);
(c)the willingness and ability of each of the child’s parents to facilitate, and encourage, a close and continuing relationship between the child and the other parent;
(d)the likely effect of any changes in the child’s circumstances, including the likely effect on the child of any separation from:
(i)either of his or her parents; or
(ii)any other child, or other person (including any grandparent or other relative of the child), with whom he or she has been living;
(e)the practical difficulty and expense of a child spending time with and communicating with a parent and whether that difficulty or expense will substantially affect the child’s right to maintain personal relations and direct contact with both parents on a regular basis;
(f)the capacity of:
(i)each of the child’s parents; and
(ii)any other person (including any grandparent or other relative of the child);
to provide for the needs of the child, including emotional and intellectual needs;
(g)sex, lifestyle and background (including lifestyle, culture and traditions) of the child and of either of the child’s parents, and any other characteristics of the child that the court thinks are relevant;
(i)the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child’s parents;
(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;
(m)any other fact or circumstance that the court thinks is relevant.
(4)Without limiting paragraphs (3)(c) and (i), the court must consider the extent to which each of the child’s parents has fulfilled, or failed to fulfil, his or her responsibilities as a parent and, in particular, the extent to which each of the child’s parents:
(a)has taken, or failed to take, the opportunity:
(i)to participate in making decisions about major long-term issues in relation to the child; and
(ii)to spend time with the child; and
(iii)to communicate with the child; and
(b)has facilitated, or failed to facilitate, the other parent:
(i)participating in making decisions about major long-term issues in relation to the child; and
(ii)spending time with the child; and
(iii)communicating with the child; and
(c)has fulfilled, or failed to fulfil, the parent’s obligation to maintain the child.
(4A)If the child’s parents have separated, the court must, in applying subsection (4), have regard, in particular, to events that have happened, and circumstances that have existed, since the separation occurred.
I have considered carefully hereafter these primary and additional considerations when evaluating the facts and evidence throughout this judgment. Sub-paragraph (a) is by agreement, of no relevance in this case.
I have carefully reflected upon and evaluated sub-paragraph (4) and its impact on both parents and their conduct and behaviour in my assessment of the evidence.
THE CHILD A
On the evidence before the Court A is a confident, age-appropriate and delightful five-year old child. She is described by her mother as “strong-willed and independent … also a delightful affectionate child … very intelligent and articulate”.
The father describes the child as having an outgoing personality and is warm and loving of the important adults in her life. He had no issue with her age-appropriate development, both physical and emotional.
The professional expert witness, Dr W, said of his brief observations of the child that she was “quite robust, confident and assertive … and of at least average cognitive ability and is progressing well developmentally”.
What was abundantly clear throughout these proceedings is that the child has a very close and loving relationship with both of her parents and their extended families. She has a wide range of friends, in her local neighbourhood and in her pre-school.
The most updated and informed description of the child came from her pre-school teacher and that was glowing in its praise of the child and her development, behaviour and personality. That is a matter that I have more particularly developed when I have considered, evaluated and wholly accepted the evidence of Ms L.
THE CHILD P
I have earlier referred to P as part of the background facts to this case.
I accept that P a close and loving bond with his step-sister, A, and the basis of my pronounced orders are intended to ensure that A spends time with her father to coincide with his time with P. That will not always be possible but it is in A’s best interests that she does have the opportunity to share time and life experiences with P.
An issue that arose in the proceedings was that the mother likewise has a developing relationship with P and, for reasons unexplained, he has on occasions accompanied the mother for changeover of A. That fact has created additional pressures upon the parents and it is not an appropriate situation and I have ordered that the mother not involve P in any changeover situation.
THE MOTHER
The mother is a 37 year old part-time sales agent, currently employed on each Tuesday and Thursday between the hours of 9.00 a.m. and 5.30 p.m.
She lives with the child in a rented home in S, approximately a 30 minute drive from the father’s current residence. The mother’s rent is $340 per week which is paid from her income and other government pension benefits. There is no concern expressed in the case about the standard of this accommodation. The child has her own bedroom and has age appropriate friends within the neighbourhood.
Presently the child attends the M Pre-School and Day Care Centre on Wednesday, Thursday and Friday of each week. She has had involvement in swimming lessons and physical culture and dancing classes on a casual basis as organised by the mother.
The mother has not established any relationship though, post separation she did have a casual affair with a neighbour but that is of no relevance to the primary issues now before the Court for determination.
The mother seemingly enjoys good health and has plans to return to more substantial work with her current employer when the child commences at school on a full-time basis from late January of next year.
The mother described the daily home and pre-school routine and diet of the child in her affidavit and that was subject to no criticism.
The mother proposes that the child commence next year at the S Public School and that is to be contrasted with the father’s initial proposal that she attend P Private School from at least next year though his priority position is that the child be now removed from the mother to his primary and full-time care and, on that basis, she would, at the expense of the father, attend pre-school this year at that private school.
I have elsewhere considered the schooling that is in the child’s best interests but I am wholly satisfied that she should remain at her current pre-school and, with some of the children at that school and living her with mother at S, she should attend that public school. Of necessity, it flows therefrom that any enrolment or attendance of the child at the Private School proposed by the father is inappropriate and not in her best interests, within the short and long-term focus of her life.
My assessment of the mother is that she is a relatively immature and somewhat insecure person. She has somewhat flexible life standards and financially will struggle to support herself and her daughter. She does have some troublesome personal habits, such as her casual smoking of marijuana, that she must address. Significantly she must understand and accept that the child must share her life with each of her parents and their extended family and friends and therefore positively embrace the orders that I have pronounced in the child’s best interests.
The mother has previously not been prepared to take responsibility for her actions. There were a number of issues arising, which were well-summarised by the solicitor for the Independent Children’s Lawyer which highlighted the mother’s unhelpful outlook and limited acceptance of the father and his role in the child’s life, and that is highlighted by the personal conflict and mistrust between parents. The mother had a very clear tendency to blame others, perhaps most likely her solicitors, the father or his extended family for issues that developed beyond her control or not to her personal choice or benefit. Her inclusion of P at changeover times was inappropriate, her sending of a mischievous Father’s Day card was both childish and unhelpful and certainly was not of a light-hearted and funny nature.
Substantially, the primary criticism of the mother I have explored elsewhere is her unfounded, unsubstantiated and false allegation of sexual impropriety. Her unfortunate response was that “she had only been a voice for her daughter”. That merely highlights her lack of maturity and responsibility, certainly shows a lack of insight and does reflect a then lack of parenting skills which I have carefully evaluated within the primary and additional considerations within s.60CC(3) of the Act.
Both counsel for the father and solicitor for the Independent Children’s Lawyer were critical of the past choices and lifestyle of the mother, each to a varying degree, and there was substance in certain of their criticisms as I have hereafter developed in these Reasons for Judgment and I have given balanced and due weight to those matters.
Aside from what I have found to be false and unfounded allegations of sexual abuse and the poor relationship between the parents, the mother has conscientiously acted appropriately, devoted substantial care, time and attention to the child. It is evident from the evidence of the professional witness and the pre-school Director that she has largely succeeded in raising a well-adjusted, happy, healthy child and whilst not all credit, certainly substantial credit, must be given to the mother for that outcome.
I accept that the mother has a close and loving relationship with her parents and now her biological mother. She has friends and colleagues in her area of employment and in her neighbourhood. Those persons and that situation offer a balanced and proper environment for the upbringing of the child.
THE FATHER
The father is 38 years of age. He has a child, P, now aged 8 years of age born from a prior relationship and he spends time with that child prior to final orders made in the Federal Magistrates Court on 20 October 2003. P lives with his mother and spends time with the father on alternate weekends and each Thursday afternoon, and school holidays.
The father is a teacher at two local schools. His hours of engagement have been significantly reduced over recent years though the reasons for this were never wholly explained. Whereas he was formerly conducting up to sixty lessons per week (of 30 minutes duration each) he stated that he now works approximately 23 hours per week from Tuesday – Saturday (inclusive) and not during the four school term holidays. Currently he takes private sessional lessons on a Saturday morning between 9.00 a.m. and 1.00 p.m. but intends to cease working on that day when he is spending time together with A and P. His proposal is to reschedule work on a Monday and create an employment situation where he works Monday to Friday, 9.00 a.m. – 3.00 p.m. (inclusive) and with no weekend duties.
The father’s current child support assessment is a very modest $30 per calendar month, which is paid and with no outstanding arrears. The quantum of this assessment was not an issue and was not challenged during the hearing and I declined to permit counsel for the mother to address this topic in her final submission. The mother has available to her a proper avenue for reassessment of that monthly payment so as to better meet the financial needs of the child and ensure that the father’s contribution is financially appropriate, notwithstanding the increased substantial and significant time that he will now spend with her.
The father lives in a self contained two bedroom unit on a property owned by his uncle. There has been no adverse comment upon that accommodation and the child would have her own bedroom.
There is an issue raised by the mother in the proceedings concerning the previous alcohol consumption of the father but that has not been a matter of significance in the evidence and the father has deposed to his consumption of alcohol as being what he regards to be normal and not at a level of excess. He stated that he usually has a glass or two of wine each evening and on the weekend may drink an extra glass or two. He volunteered to an order not to consume alcohol during any time that the child spends with him but, on all of the evidence before me, that is an unnecessary obligation.
The father presented as a very serious, studious, patient and concerned person who is both organised and somewhat regimented in his lifestyle. I endorse the opinion expressed by Dr W that he is most probably moralistic and certainly critical of the mother and her lifestyle and level of social behaviour. He has however lived under very considerable personal and emotional pressure with the allegations of sexual abuse overhanging his life, in both domestic and work situations. As a teacher, the potential impact of the allegations, if widely known were very substantial but, no doubt with the assistance of family and the cooperation of the school hierarchy the father has seemingly coped well emotionally in confronting and dealing with those allegations. He has not passed up any opportunity to spend time with the child and has always maintained his total innocence and it is a matter of credit to him, which I have duly evaluated, that he continues to focus on the welfare and needs of the child throughout what was a very difficult and no doubt upsetting and embarrassing period of some two years.
I accept that for the 12 hours each fortnight, the child has received undivided attention and care from the father, and his extended family.
In his evidence-in-chief, the father summarised the reasons why a substantial change in the parenting arrangements was both warranted and in the best interests of the child and his reasons which I have carefully considered were that:
i.I am the parent most able to promote an ongoing and meaningful relationship between [the child] and the other parent.
ii.I am a teacher and working within the school system for a number of years, I know best what can be of benefit to [the child].
iii.I have a very close and loving extended family and [the child] knows them well.
iv.I have a stable home environment without undesirable influences, such as exists within the mother’s lifestyle.
v.In my 12 hours each week I have given concentrated quality time and care to [the child].
I have no doubt that the father does believe that the different home environment and lifestyle changes and a more rigid and controlled upbringing as he would offer the child are factors that should balance the decision of parenting in his favour and I have therefore carefully reflected upon the home, education and lifestyle environment that he and his extended family would provide for the child.
The father was also at length to emphasise that he valued the relationship that the maternal grandparents had with the child and that he would foster and promote that ongoing relationship and that does show insight on behalf of the father as clearly the child has a close and ongoing involvement with her maternal grandparents.
The solicitor for the Independent Children’s Lawyer was confident in her submissions to the Court, as was counsel for the father, that he would have no issues in managing the child and with the increased overnight and holiday periods that were sought on his behalf. It was suggested, and generally I accept, that the father, supported by his extended family would manage the transition to overnight stays with the child and that she would benefit from that developing situation. I acknowledge the “enormous patience and restraint” that the father has shown through the delay and trial period. He does have both the capacity to parent and a developing and appropriate attitude to parenthood and these are matters that I have balanced in providing the child to spend five overnight occasions in each fortnight and one half of school holidays and other occasions with her father.
Generally, and as to the evidence given by each of the mother and father, they were very complimentary and supportive of the child’s development. The father offered no criticism of the child’s emotional or physical development and well-being and that is a matter of very real importance in this case. He, quite naturally, was focused upon his relationship with the child and the time that he has been denied with her over past years.
In their evidence each of them focused upon issues to their benefit, perhaps more so the father and I have taken a considered and balanced overview of all of the interest in determining orders made for both the immediate and long-term best interests of the child.
SEPARATION
In the year leading up to separation, the parents had engaged in a more argumentative lifestyle and each made serious allegations against the other. The mother highlighted domestic violence and the incident of 6 May 2007 in paragraphs [7] – [15] of her initial affidavit. The father’s trial affidavit dealt with the various arguments and separation issues, and the incidents of the night of separation in paragraphs [36] – [66] (inclusive) of that affidavit.
As to the incident of 6 May 2007, there are very different versions of that day in each of the respective affidavits. The mother highlighted the father’s consumption of alcohol, aggression and threats. The father denied his assault of the mother but alleged an altercation in which the mother was the aggressor but from each of them suffered physical injuries.
Again, and within the considerations of those subparagraphs (j) and (k) of the additional considerations, I am not assisted by any further evaluation of that past event and I draw no significance therefrom in determining the best interests of the child.
The incident at separation on 11 April 2008 was more serious and had the consequences of police charges being laid against the mother and the AVO being provisionally granted. Again the parties have very different versions of that incident. The mother’s initial affidavit described those events in paragraphs [16] – [35] (inclusive thereof) and otherwise the father recorded at length the issues and events in paragraphs [45] – [66] (inclusive) of his affidavit.
There are some matters of agreement in that there was a level of aggressive and abusive language and a physical assault.
There were two incidents on that day, one early in the morning and the other around midday. My conclusion on the evidence, from affidavits and in cross-examination, is that both parents were aggressive to the other. Both behaved inappropriately and showed limited maturity and certainly no restraint or commonsense. It is likely that the second event was more promoted by the presence of the mother’s friend, Ms B, and their smoking marijuana. The father removed the equipment by which the mother was enjoying that drug and the mother stated and I accept that additionally the father took a brown bag of hers with her past diaries and letters. A dispute arose, the mother rang the emergency telephone contact number and the father then departed the home.
The father’s affidavit highlighted his actual visit to the police station and level of complaint and subsequently his return to the police station and the statement that he made by way of a complaint, annexure “A”, to his trial affidavit. On balancing the affidavit and other evidence that his statement is excessive and certainly only presented the facts that he intended to disclose so as to punish the mother or to have her charged. In the context of the dispute between parents, and particularly when the child was not at the home from about 11.00am until 4.30pm on that day the father could not have reasonably held fears for her wellbeing on that day. I have no independent corroboration of the alleged conversation between the father and Constable H (paragraph [51]) but it is most certainly an overreaction to the bad behaviour of both parents which led to substantial ongoing consequences.
Subsequently that evening the police arrived, arrested the mother and took her away in the police van and charged her with assault and obtained a provisional AVO as earlier considered. I conclude at this stage that the father was wholly focused upon the removal of the mother from the home and from the child and issues of the impact this separation could have upon the child and other matters of her welfare were not within his then focus, or the focus of others acting upon the father’s complaint.
That assault charged was ultimately withdrawn and the father says in paragraph [87] of his affidavit that was because of “a technical error in the police not advising the mother of her rights before taking her into custody”. It is not necessary for me to determine why the charge was withdrawn, but perhaps the father’s statement highlights the haste with which she was detained in her own home and removed.
It is unnecessary for me to further consider separation, notwithstanding the enthusiasm of counsel for the father in highlighting the issues of that day and the inferences that could or should be drawn against the mother related to her alleged conduct. I simply regard that separation date incident(s) as somewhat disgraceful, wholly inappropriate and probably tactical. It does not assist me in determining future orders for the best interests of the child and I repeat it was the catalyst for so much of the disharmony and future inappropriate behaviour of and between the parents and as recorded throughout the further facts of this case.
The outcome of the separation was that the mother was excluded from spending any time with the child from that separation date of 11 April 2008 until three days after the pronouncement of the consent orders on 28 April – that is until 1 May 2008 the mother did not see and had no meaningful communication with her daughter. The father’s evidence was that he was then primarily concerned for the child’s welfare and wanted to put “a proper parenting plan in place” before the mother resumed any time or contact with her daughter. I do not accept that was the primary purpose or intent of the father. That was wholly inappropriate and I conclude largely tactical and most certainly not in the best interest of the child.
In the hearing there were issues raised by each of the parent as to who was the primary parent to the child prior to separation. I have reflected upon that evidence but ultimately I conclude that each of them made a real contribution to and on behalf of the child in her first three years. As the husband specifically asserted that he was the primary parent over that period I do not accept that fact. I repeat that in their own way, each of the parents significantly and properly contributed to the child’s wellbeing.
COMMUNICATION BETWEEN PARTIES
The lack of respect that the parents have shown to each other over the past few years is illustrated by the quite abrupt and poor level of communication that now exists between them on matters concerning the child and her wellbeing. On an overview of all of the evidence I have concluded that the personal relationship between each of them and their ability to communicate deteriorated substantially in the period immediately prior to separation and most certainly thereafter.
The mother does not have a facility for sending or receiving emails. Her contact is largely by text messages or the communication book. There had been some telephone calls and voice messages.
Many messages from the mother that have been recorded in the father’s affidavit, in exact detail, some sent by text and some by recorded voice message. Some of the language, from each of them, was provocative and blunt. The mother was the more aggressive in her messages and comments.
The father more and more adopted a non-responsive approach to either limit issues and concerns or otherwise not to involve himself in any debate or situation. There were many messages or requests that were excessive. There were, however, a number of incidents where the father did not respond or created further tension and uncertainty by his refusal to reply and accept invitations or outcomes. One such example is recorded in paragraphs [231] – [234] of his trial affidavit. That was a recent event, in December of last year. I accept that there are two interpretations open, one being that the mother was extending an invitation to attend the child’s school concert and she was left in the situation of not knowing whether the father would attend. The contrary view is put by the father that he elected to make inquiries of the pre-school, ignore the mother’s invitation and simply attend without the courtesy of a response to her invitation. I conclude that his actions were somewhat high-handed and in all of the circumstances it was appropriate that he advise the mother in advance of his intention to attend that concert and that for the child to have known of that fact in advance was also a matter of importance. All matters considered, and using the pre-school concert as an example, if that level of failure to communicate or to respond to communications continues, there will most likely always be conflict and some acrimony between these parents.
Counsel for the mother focused her final submissions upon the father’s lack of respect for her client and in particular targeted the content and drafting of his trial affidavit which she submitted was “a testament to his criticisms of the mother”. The central theme of her address to the Court was the lack of communication that existed between these parents and the father’s total lack of respect for the mother and the child, particularly in the context of the many alleged ongoing personal inspections and invasions of her privacy. Counsel submitted that these parties do not agree and will not agree on future issues and the purpose of that submission was, I could only conclude, to further restrict the basis of time or quantum of time that the father should spend with the child.
I conclude that the focus of that final address was somewhat excessive and unhelpful and the criticisms of the father’s affidavit generally overlooked the fact that the solicitors for the father helpfully endeavoured to provide a comprehensive trial affidavit inclusive of all past events and evidence and in contrast to the various previous affidavits of the mother that were, of necessity, incorporated into the hearing and relied upon to present her affidavit evidence to the Court. Within that context I reject the criticism of counsel when she asserted that the father was “full of spite and criticism.” That is both excessive and generally was unhelpful to the Court in determining orders for the best interests of the child. The reality, in any event, was that the mother, through her counsel ultimately proposed five nights in each fortnight and the strident criticisms offered in final address were more akin to a case where limited, if any, meaningful time was offered to the other parent.
Counsel for both parents expressed a view, endorsed by the solicitor for the Independent Children’s Lawyer that the conclusion of these proceedings and final orders will most likely lead to an improvement in relationship between the parents and thus more child-focused communication. That most certainly is needed and whilst I do not necessarily wholly share that level of optimism it most certainly would be in the best interests of the child.
The orders that I have pronounced are drawn to somewhat limit personal contact between the parents with changeovers largely at the pre-school or school. The mother and father must understand their parental obligations as expressed in s.60B of the Act and undertake more meaningful, respectful and timely child-focused discussions with each other.
As an order has now been made for equal shared parental responsibility it is therefore necessary, and I take this opportunity to emphasise to the parents, that on all matters affecting the child’s wellbeing and in particular, her health, education and sporting, musical and social interests and activities the parents should be involved and act and speak in harmony with each other. That may be somewhat of a forlorn hope, but that is and must be the expectation of parents.
SEXUAL ABUSE ALLEGATIONS
On 12 June 2008 the mother caused to be filed a Notice of Child Abuse and the seven allegations as particularised by her therein were stated as follows:
(a)It is alleged by the mother that on Friday 23 May 2008, the child, [A], passionately kissed her on the mouth and put her tongue in the mother’s mouth when she kissed her.
(b)It is alleged by the mother that she said to [the child] “that’s not right you don’t kiss like that” and that [the child] replied “daddy kisses me like that”.
(c)The mother alleges that on Saturday 24 May 2008 when she was putting the child [A] to bed the child said to the mother “I have a sore wee wee mummy it’s very sore”.
(d)It is alleged that the child [A] said to the mother “daddy touches me there” and that when the mother responded “when he puts cream on there or other times” the child said other times.
(e)It is alleged that when the mother said “how does he touch you” that [the child] raised her index finger and commenced to insert her index finger inside of her vagina.
(f)It is alleged that when the mother said to the child “[A] is your wee wee sore or is it better” that the child said to the mother “it’s only sore when daddy touches me there”.
(g)It is alleged that the child [A] has also said to the mother “daddy hurts my wee wee”.
There is a history which is recorded in great detail in the father’s trial affidavit which both impacted upon and led to that Notice of Child Abuse being filed with the Court. It is important therefore to understand the post-separation events that led the mother to allege sexual abuse of the child as she identified and acted upon.
I have separately considered the events of and surrounding the separation and the detention and charging of the mother with assault, the Apprehended Violence Orders then taken out and the subsequent negotiated court orders of 28 April 2008 and the sharing of time between the parents with the child that was provided for therein.
The parents shared time with the child from 28 April but actually 1 May until 22 May 2008 in accordance with the interim orders. The father deposed to various complaints, issues and concerning circumstances that were initiated by the mother in or around May 2008 and thereafter. Two of those complaints are recorded in paragraphs [76] and [77] of his affidavit.
Thereafter there was an incident late on the evening of 15 May 2008 when a large Islander gentleman, said to be of threatening appearance, arrived at the father’s flat where he was then living and made threatening overtures both as to the recent property settlement ordered between the parties and parenting and lifestyle issues. Whilst the mother did not concede any knowledge of that person or visit, it is likely that there was some knowledge or real connection between her and that unwanted visitor. That was very clearly an improper and upsetting incident born out of the then hostility between the parties.
As to the incident of 21 May 2008 as recorded in paragraphs [80] – [82] of the father’s affidavit I have much less concern and would view this discussion more in the context of some heightened level of family concern and dispute.
After a visit to the general practitioner for the father’s family, as distinct from the medical practice where the child was referred by her mother, the father treated the child with both an antibiotic for a cold and cream for a rash. I accept that his actions, and those of his mother, were well-intentioned and most likely appropriate. Thereafter, and in paragraphs [86] and [87] of his affidavit, the father recorded the way in which his mother and thereafter himself, applied the Canesten cream to the child’s vaginal area. The father said that he “used two of my fingers to hold [the child’s] vagina open while I squirted some cream into the area”. The father, on the advice of his mother, had been told that the child may have had thrush, caused by the use of antibiotics and she had family experience of using this particular cream for that ailment.
Perhaps somewhat at the core of the ongoing sexual abuse allegations was, as recorded in paragraph [89] thereof, that the father did not tell the mother of the use and manner of the application of the cream or his concern that the child had developed thrush and thus when subsequently comments or alleged disclosures were made by the child they were initially without the mother having this knowledge of treatment.
In late May the father was alerted by the principal of his employer school of a developing issue and the involvement of both the Department of Community Services and the police. The following day a letter from the then solicitor of the mother was received by fax and that contained the allegations of both inappropriate kissing on the child’s mouth and digital penetration of her vagina. That letter is Exhibit “I” to the father’s affidavit and it confirmed that both the Department of Community Services and the Joint Investigation Response Team (“JIRT”) had become involved. The father’s response is recorded in Exhibit “J” to his affidavit and therein he vigorously denied the allegations and gave notice of his intention of a vigorous defence.
The court-ordered time that the father was then intended to spend with the child was unilaterally stopped by the mother for that period from 28 May until the further court hearing on 30 June 2008.
The mother’s statement of facts concerning the issues over this period are recorded in paragraphs [9] – [31] (inclusive) of her affidavit filed 22 July 2008, and relevant annexures thereto, which I have carefully read and considered.
As annexure “D” to that affidavit of the mother there are annexed letters from JIRT advising of the suspension of their investigation owing to insufficient evidence and an early letter, dated 29 May 2008, advising that investigations had been completed, the report concerning the child had not been confirmed and that the team would cease involvement with the family.
A matter of factual importance in evaluating all of the evidence of and concerning the sexual abuse allegation is that, on the day before the mother instructed her solicitors to send that letter of disclosure and unilateral suspension of time with the child, both the mother and the child attended upon her usual medical practitioner, Dr T. The father had procured for this hearing upon subpoena the medical computer records of the B Family Medical Practice for that day and they read as follows:
“Spoke with [the mother] – initially – discussed consultation with […] and [the mother] told me that [the child] had kissed her using her tongue and had told her that the father had kissed her this way. [The child] apparently sleeps in the same bed as father when visits. She stated that [the child] had also said that her father had touched her. On seeing [the child] I asked her if she was feeling better and she said yes. I did ask her did Daddy touch her bottom and she stated that he did when he put cream on her. I asked did he touch her at other times and she said yes.”
The two matters of significance from this medical note are that the mother was aware, at least on the day prior to her solicitor sending the letter of complaint and disclosure that there was cream applied to the child by the father. That should have led to a proper level of parental discussion on the purpose and manner of application of that cream to the child’s vagina. It did not and the mother then published her sexual abuse allegation and unilaterally ceased the father’s time with the child. The qualification to that conclusion is that the child made a further disclosure of touching at other times, presumably intended to mean at times when cream was not applied.
The difficulty for the parties at that time but more particularly the difficult for the Court now, is there was no affidavit or evidence from Dr T. On face value her medical notes disclose a purpose for the initial touching by the father of the child, that is for the application of cream. Further alleged touching at other times remains unexplained. I have no evidence as to the child’s then understanding of the question or indeed whether the question was asked in such a way as to obtain from the then three-year old child a meaningful and responsive answer.
I have carefully considered and evaluated this medical entry and the issue and uncertainty surrounding same. Various conclusions are open and, if Dr T had an independent memory thereof, it would have been helpful for her to have given evidence on these discussions. In the absence of further and better evidence, it is difficult to draw any absolute conclusions therefrom.
The mother’s allegations as contained in the Notice of Child Abuse all related to events which occurred on or before 24 May 2008 but, in summary, relate to the allegations of inappropriate kissing of the child and the digital penetration. Both allegations had been wholly denied by the father in his immediate letter in response from his solicitors and again now in paragraph [93] of his affidavit. I have no evidence in support of the alleged inappropriate kissing. That was not pursued in the hearing before me by any evidence from the mother. That allegation was wholly unproved.
I accept the father’s evidence and his denial of the allegations. I accept that the Department of Community Services and JIRT properly concluded that there was no evidence to continue investigations and I further find that the concerns and allegations of the mother were unfounded and inappropriate. It is likely that both the mother and the child’s medical practitioner did not place any real weight or level of urgent enquiry upon the child’s disclosure of the use of the cream. The mother’s reaction was to visualise a worst-case scenario and one that would be both critical of and interruptive to the father. Thus her allegations were made and continued. Ideally there should have been some level of discussion by both parties with an offer of Department of Community Services as to the nature and intent of the allegations and perhaps then in better informed circumstances all of the facts and actions could have been discovered and a more balanced outcome concluded. Alas, such community facilities are most likely unavailable, unfunded or in the then circumstances of these allegations would not have been taken up by both parties.
I have therefore found on all of the evidence that the sexual allegations of April/May 2008 are unfounded and that there was no proper evidentiary basis upon which such allegations then could or should have been made.
Thereafter the father’s affidavit records various observations of cream having been applied to the child and his mother referring the child to their family general practitioner for further advice and treatment. Exhibit “L” to his affidavit is an updated medical report from Dr C which recorded his treatment and prescription for Diprosone cream, twice daily. That action of the father led to a series of further text messages between the parents as to the manner and type of treatment and what was appropriate, all of which are largely recorded in the father’s affidavit between paragraphs [102] – [114] (inclusive) which I have read and considered. Again like issues arose late in 2008 and were the subject of further discussion by text message or at changeover between the parents are recorded in paragraphs [120] – [122] (inclusive) of that affidavit.
A developing issue between the parents was the referral by the father of the child to his medical practitioner who had been the doctor to his family for approximately 35 years. There was then an exchange of solicitor’s letters and information on the Diprosone cream and as part of exhibit “Q” to his affidavit that information is placed before the Court by the father. Whilst there is no professional evidence on the effect and use of that cream, or on the then medical treatment offered to the child, it is clear from the document exhibited that such cream should not be used when there is any fungal skin infection (such as thrush) though I do not understand that the mother then objected on that basis but rather on the fact that there was medical treatment provided for the child other than at the B Family Practice, as recorded in document annexed as exhibit “P”.
I do not make any critical comment upon, nor otherwise determine that the father or his extended family acted inappropriately in obtaining alternate and convenient medical advice. This issue was explored in the hearing before me and there was, ultimately, common agreement that the child should attend only one medical practice and I will order, without any disagreement from the father, that it is and will be the B Family Medical Practice.
I have touched upon the ongoing history after the conclusion of the first investigation arising from that allegation made in late May 2008 because it served as a lead-in to a second allegation of child abuse against the father, as made by the mother, and as explained in the letter from the mother’s then solicitors dated 20 August 2009, exhibit “F1” to the father’s affidavit.
I have read and considered that letter of complaint in which it is alleged that a further disclosure had been made by the child against both the father and his mother of at least an intrusive inspection of her private area or otherwise of a digital penetration.
The mother’s response was to seek further examination and investigation from medical professionals, the child protection unit at the Westmead Children’s Hospital or from the Department of Community Services.
Immediately following that further solicitor’s letter of complaint highlighting the mother’s allegations, her then solicitors withdrew from the proceedings. The solicitors for the father, by letter then sent to the mother again denied all allegations and insisted upon ongoing compliance with the extant court orders. The father rejected any invitation to exercise his time with the child at a Contact Centre.
For the latter part of his report Dr W helpfully summarised his conclusions and recommendations within the ambit of the s.60CC considerations, but of course this was on past facts and significantly without regard to the reality of the child’s lifestyle and development post-April of last year. I have therefore both qualified and balanced the professional opinion of this witness by the ongoing facts and circumstances now known to the Court.
No particular conclusion or recommendation was, in the then circumstances, appropriately arrived at by Dr W. His conclusions and recommendations highlighted particular issues and concerns relative to both parents and their problematic and disruptive relationship as at April of last year.
Dr W described the child as a quite robust, confident and assertive child who likely had no emotional or behavioural issues. He concluded that she was strongly attached to both parents and commented that her relationship with her father had probably not been allowed to develop to its fullest extent because of restrictions imposed by supervision and Court orders, though in his view that had not caused serious or irreversible harm to the relationship of father and daughter. Had the evidence of Ms L been known to Dr W and certainly if his updated discussion with and observation of the child had occurred, then Dr W would have been in a position to more relevantly comment upon the child’s development and social and emotional integration and the role that her mother had likely made in that situation during her pre-school year(s).
As to the willingness and ability of each parent to facilitate and encourage a close and continuing relationship between the child and the other parent Dr W observed that, between the parents, there is a climate of mutual distrust but he nevertheless formed the view that it is not at such a sufficiently high level that either parent would actively undermine the child’s relationship with the other, though that was qualified in the short term with the observation that the mother’s support of the relationship may not be strongly positive. As to the likely effect of any change in the child’s circumstances and her level of separation from either of her parents it was, understandably, difficult for Dr W to draw any conclusion in the brief interview and then factual circumstances. He ultimately concluded that both parents had played a role in the child’s upbringing to that date, notwithstanding the separation and existing Court orders and that the father played a role greater than many fathers. That however was qualified by the somewhat obvious and correct observation that the mother “was probably the primary care giver”. In this context, and significantly, Dr W observed that:
“The circumstances which produce the most major change in [the child’s] circumstances would be if she were to live with her father and see her mother along the lines of the Orders proposed by the father. I think this would probably represent a very significant change for [the child] and although she would settle into her father’s home, she would undoubtedly pine for her mother for some months. This would probably be associated with quite troublesome and difficult behaviour when she spent time with her mother, which would probably adversely affect their relationship, at least temporarily”.
As to the attitude of the parents to the child and responsibilities to parenthood Dr W observed that:
“The father appears to be a conscientious parent and he probably very organised and systematic in his approach. He is probably somewhat moralistic. The mother on the other hand is probably a more relaxed parent on the one hand, but on the other hand, is more inclined to irritability and allowing personal issues to intrude on her parenting and patience with her daughter. If affected by marijuana (in terms of the day after a period of use) this is probably more evident”.
The further observation made by this professional witness was that likely the mother was over emphasising the father’s work commitments and additional after-hours work opportunities and in that regard Dr W concluded that the mother “was not particularly encouraging in terms of her attitude towards his role in [the child’s] life”.
As to the capacity of the parents Dr W thought they each held an acceptable level of ability but observed that “the father is probably a more controlling and controlled parent and that the mother is probably somewhat less predictable”.
As to the emotional / behavioural state of the parents and their maturity, lifestyle and background issues I have carefully read and reflected upon the insightful comments of Dr W prepared in the context of the marijuana allegations made as against the mother and the excessive consumption of alcohol allegations made against the father. Dr W had the benefit of medical notes and an earlier and different professional opinion as to the mother’s more extensive use of marijuana than otherwise admitted by her. These are matters upon which there is now more evidence before the Court and in respect of which I have made findings and evaluated these matters and facts within the overall best interests of the child.
Central to the concerns of Dr W was the need to protect the child from any physical and psychological harm or from being subjected to any form of abuse, neglect or family violence. Within that criteria Dr W very properly observed that:
“The central concern in this matter is whether [the child] has been sexually abused by the father”. Dr [W] recorded the basic complaint of the mother and response of the father and was of the view that, if the father’s account could be corroborated then his explanation was the most likely and on that basis there would not be any unacceptable risk of sexual abuse to [the child].
I have earlier examined the available evidence and made findings of those past sexual abuse allegations and it is appropriate to record the insight of Dr W on this issue on the then limited and contested information available to him.
The further issue of conflict explored by Dr W was the extent to which the child had been exposed to domestic violence. It was clear that there had been considerable disharmony within the family home throughout the child’s life and that had escalated from verbal fights to pushing, shoving and mutual allegations of assault. Dr W was not able to conclude which parent was more responsible for the instigation and development of these various confrontations. At interview he observed the father presented as a more contained person whereas the mother was perhaps more impulsive but he concluded, and I would observe very properly, that “it may not be fair to generalise as to such conflict situations and lay the blame at her door”. Significantly he concluded that he did not form the view that the child was likely to be exposed to conflict of an unacceptable level between her parents in the future, at least of a physical and domestic violence nature.
Finally in his report Dr W examined the affect on the child of spending equal time, or substantial and significant time with each parent. Whilst he observed that there was obviously an impasse between the parents and clearly longstanding conflict within the relationship he did not form the view that it was a sufficient and enduring quality that the possibility of either equal time, or substantial or significant time should not be considered though that was qualified by his opinion that the child “is probably too young and the level of apathy between the parents is probably too high to contemplate an arrangement that would involve an exact sharing of time”.
The final observations in the report were further developed by Dr W in his evidence, and when under cross examination by Counsel for the father. He expressed an opinion, upon an updated reading of material filed, that he is less optimistic of a shared care arrangement working as between these parents.
He was properly cross examined upon the sexual abuse allegations made by the mother, in particular upon the further allegations and suspension of the father’s time with the child between July and early October 2009. He expressed a considered opinion that any such tactical or ill-founded allegation might highlight an unacceptable pattern of behaviour and lack of responsible parenting from the mother and if so that would be a matter of concern and of importance in determining appropriate Orders in the child’s best interest. I have given very careful and due consideration to all of these matters in my determination of the proper outcome of these proceedings.
Significantly and within the context of that ongoing cross examination Dr W clearly highlighted that, whilst he had a level of concern of the mother’s continuing complaints and the motive and reason underpinning her actions and concerns, he was nevertheless not suggesting a change of residence.
The level of confidence that I was able to take from his evidence was his strong belief that, when Court proceedings are concluded, issues and conflict between the parents will likely subside and each of them and more particularly the child, will be better off for the finality and conclusion of the Court proceedings.
I pause there to record that it was common ground between all legal practitioners, on instructions from their client, that they each believed issues of conflict will be better dealt with them upon the finality of this Court hearing and each of them have expressed a desire to move ahead with their own life and each to act in the best interests of the child.
PRIMARY CONSIDERATIONS (S.60CC(2))
I return to further consider the primary considerations of s.60CC(2). I proceed on the basis that there is a very real and substantial benefit for the child to have a meaningful relationship with her mother and father.
I have assessed the actions, character and personality of the parents and the current upbringing and appropriate development of the child and all matters that I have otherwise carefully analysed in these reasons for judgment. My conclusion is that the parents should have an equal shared parental responsibility for the child but that there must be a very clear focus and demarcation that the child is to live with the mother and spend time with the father.
I did, at an early stage of the hearing, raise with counsel for discussion the opportunity for the child to live with both parents for unequal time periods but, upon a careful assessment of the character and personality of the parents and all of the evidence I ultimately concluded that it is in the best interests of the child for orders to be made that she live with the mother and spend substantial and significant time with the father. I am therefore satisfied that the orders I have pronounced do properly encourage and should bring about a meaningful relationship for the child with each of her parents. I have intended to strike the proper balance of time in each fortnight but otherwise to maintain a level of stability and certainty in the child’s upbringing.
The second of the primary considerations would be to protect the child from physical or psychological harm or being subjected to abuse, neglect or family violence and on all of the facts of this case, when properly analysed, I conclude that the child is not at any such risk. Each of the parents are wholly devoted to the child and her wellbeing. I assess there to be no exposure to harm or neglect in either of the households of the mother or father. I particularly highlight that I have not accepted the allegations of sexual abuse. I do not regard there to be any ongoing neglect or family violence that would impact upon the child. To the extent that there was, pre-separation, disputes and a level of assaults and violence within the home, that is all in the past and is most unlikely to occur again with the physical separation of the parents. I have concluded that the child does not now have to confront any physical or psychological harm or risk thereof from her parents.
I have concluded that the actual division of fortnightly time between the parents, with nine nights to be spent with the mother and five nights with the father does maintain for each of them a meaningful relationship with the child and it is in her best interests and properly focuses upon her pre-school and school requirements and all of the matters that are important to the child in her upbringing. I am however alert to the division of substantial and significant time which means that the mother does not have an entire weekend with the child, save during school holiday periods. It may be that the father needs to show a mature response to any limited request by the mother for a whole weekend, commencing from Friday after school and that is a matter where the future relationship between the parents and their level of commonsense may be tested.
ADDITIONAL CONSIDERATIONS (S.60CC (3))
I have throughout this judgment analysed all relevant facts within the context of relevant additional considerations. I now emphasise that the more important of such considerations are as to the nature of the relationship which each parent has with the child, the willingness and ability to foster a close and continuing relationship with the other parent and the capacity and attitude of each of the parents towards the child and to the responsibilities of parenthood.
As to the nature of the relationship of the child with her parents and members of extended family as identified in sub-paragraph (b) thereof I have made very clear findings when I have analysed the evidence of each of the parents, and extended family members and those conclusions have formed the basis upon which final orders were pronounced.
As to sub-paragraph (c) thereof, I have evaluated the willingness and ability of each parent to encourage and to facilitate a close and ongoing relationship between the child and the other parent. There are matters of concern that I have identified. I record this was a consideration of particular concern to counsel for the father and I have therefore evaluated his submissions, and the evidence of the father on this aspect of the case. With my finding that the allegations of sexual abuse were unfounded, and with final orders now pronounced, there is no reason for the mother to have any ongoing concern of the relationship of child and father. I conclude that, on balance, she will hereafter likely display a willingness to foster that parental relationship and she must strictly comply with the final parenting and time spent with order to the benefit of the child.
There were of course periods were each of the parents prevented or denied the other spending time or having communication with the child. It is now time for a fresh start for each of them and they have now the opportunity to show respect for each other and for the child and their parenthood. They both have an absolute obligation to encourage and promote the child’s relationship with the other and extended family.
Sub-paragraph (d) requires the careful examination of the likely effect of removing the child more substantially from her parents and maternal grandparents, within the framework of the orders that were sought on behalf of the father. For the child to have lived with the father, on eight nights in each fortnight, I conclude would have had a significant and unwanted impact upon the child. It would have restructured her life, home and schooling circumstances in a way that would not promote her best interests. In her circumstance a level of stability and familiarity remains of importance and my orders are intended to provide that future security, balance and comfort to the child.
There are no real practical difficulties or expense of the child spending further substantial and significant time with her father and this is not a consideration that was addressed by counsel or is of any real importance in this hearing.
The capacity of both parents, and extended family has been exhaustively considered within this judgment. I am satisfied of the capacity of both parents to provide for the child and there is a reality of the positive, caring manner in which the mother has physically provided for the child’s wellbeing over the past two years. Evidence of Ms L has underlined the appropriate way in which the child’s emotional and intellectual needs have been handled.
Together with the capacity of the parents, their attitude to the child and their responsibilities for parenthood are matters of importance within sub-paragraph (i) and these have been carefully evaluated. Within the framework of this sub-paragraph all of the conflict and responsibilities of the parents over the past three years have been considered and ultimately I am satisfied that the final orders pronounced have proper regard to this additional consideration and to the best interests of the child.
As to sub-paragraph (l), it is always difficult to determine what order would most likely lead to there being no further and ongoing proceedings before the Court. The balance of the orders that I have pronounced provide for the child to substantially enjoy both of her parents and their extended family within their respective homes and environment. In part, and because of this additional consideration, I did not provide for an outcome where the child would live with both parents, but rather I provided for a live with the mother and spend time with the father outcome. That clearly defines the substantial and primary role that the mother has played over the child’s life, but particularly over the last two years since the unwarranted incidents of and surrounding separation on 11 April 2008. It should be very clear that the child now needs stability in her life, for her parents to mature, to accept these final orders and to assume the responsibilities of parenthood as identified within s.60B of the Act.
There are of course many other facts and circumstances throughout this judgment which I have identified as being relevant to the best interests of the child and I will not further repeat such matters within the considerations provided for in sub-paragraph (m) of this sub-section.
SECTION 60CC(4)
I have carefully considered throughout my reasons for judgment the extent to which each of the parents fulfilled, or otherwise have failed to fulfil their parental responsibilities. Additionally, and as was highlighted by counsel for the father, the Court must, in the circumstances post-separation, have regard to all of the events that have happened and the circumstances that have existed post-separation. Such an approach has been central to my reasons for judgment and an evaluation of all of the circumstances, both good and bad that have developed within the child’s life and impacted upon her.
SECTION 65DAA
The orders which were sought by all parties and which I have pronounced, provide for the parents to have equal shared parental responsibility for the child. I must therefore consider:
(a)whether the child spending time with each of the parents would be in her best interests; and
(b)whether the child spending equal time with each of the parents is reasonably practicable; and
(c)if it is, then I must consider making an order to provide for such equal division of time between the parents.
I have carefully considered and evaluated all of the evidence and assessed each of the parties in the giving of evidence. It would in this case be reasonably practicable to provide an equal sharing of time with the child between the parents, but I conclude that would not be in the best interests of the child.
Whilst both parents have a loving bond and relationship with the child the reality of the facts of this case, for all of the reasons earlier considered, is that the child has over the past two years spent the very substantial majority of her time with her mother or within the care and responsibility of her mother. She has blossomed in her physical and emotional development and whilst the father has had significant and meaningful input on the hours when the child has been within his supervised daytime care, I nevertheless conclude that the stability of her home situation and her bond with her mother and all of the lifestyle, pre-school and other influences of her current life situation support the orders that I pronounced.
As I have not made an order for an equal division of time between the parents, I must and have now considered (as provided for in sub-p.(2)thereof):
(a)whether the child spending substantial and significant with each of her parents would be in her best interests; and
(b)whether the child spending substantial and significant time with each of her parents is reasonably practicable; and
(c)if it is, consider making an order to provide for the child to spend substantial and significant time with each of her parents.
I conclude that the child should spend substantial and significant time with each of the parents and not equal time. Such an order is reasonably practicable and for all matters exhaustively considered through these reasons for judgment, that outcome is in the best interests of the child.
Sub-paragraph (3) thereof identifies what is substantial and significant time and includes both weekends and holidays and other occasions and events that are of particular significance to the child.
Clearly, the time that will now be spent by the child with her father is both substantial and significant. It is five nights in each fortnight and half of school and long vacation holidays and other special occasions. Such an order wholly satisfies the requirements of this sub-section and in that regard I have carefully considered the further requirements of sub-section (5) thereof and in all aspects of travel, time and communication these orders are reasonably practicable. In any event I further record, that without objection, a restraining order has been made for the permanent residential address of the parents to remain within 50km of the child’s pre-school or school, that is S Primary School, unless otherwise agreed and such an order adds a further security to the reasonably practicable circumstances and the outcome determined having regard to s.65DAA of the Act.
SPECIAL OCCASIONS / TIME SPENT
Aside from the primary issues in dispute of parenting and the time that the child would live with or spend time with each of her parents on a fortnightly basis many of the other special occasion days and times were the subject of a substantial, but not whole agreement between the parties.
I have pronounced orders for the child to spend time with each of her parents on her birthday, on their birthdays and on Mother’s Day and Father’s Day.
Additionally and for the days of Christmas Eve, Christmas Day and Boxing Day I have provided orders for the parents to share those days on a basis as requested by them.
As to school term holidays, I have provided orders on an equal shared basis and again have cooperated with each of the parents so that the father has the first half of such holidays in even numbered calendar years and the second half thereof in the alternate years commencing in 2011. This arrangement will facilitate A and P being together during school holidays.
As to the long school vacation in December and January each year, and because of the existing relationship which the child currently has with each of her parents, I have ordered that such holidays be shared equally but currently for no greater period than seven consecutive nights unless otherwise agreed in writing. I would record that, in the future years it would be very reasonable for each of the parents to have a longer consecutive period with the child and that is a matter upon which I would except that they would cooperate and make appropriate adjustments, out of court, to that order.
The orders further provide for telephone communication in accordance with the wishes of the parents and each of them are required to keep the other informed of their current residential address and current telephone number.
CHANGEOVER
The parents currently exchange the child at the P building. That has led to one incident where the father insisted on the changeover being in the foyer and the mother, for convenience, in the car park. Otherwise, and as counsel submitted to the Court, there have been few if any conflicts on changeover, save when P was present at the invitation of the mother and that will not again occur. In those circumstances I am comfortable and each of the parents endorsed and the Independent Children’s Lawyer agreed for future changeovers to be at the front gate of each of the parents’ homes.
COMMUNICATION BOOK
The parties have, over the recent period, maintained extensive communication books wherein they recorded all matters of conflict, issue and information about the child. These books have been relied upon in the drafting of affidavits and significant comments and statements have been uplifted there from and form part of the evidence in these proceedings.
The parties have indicated a position that there should not be an ongoing communication book as it has provided fertile ground for comment or argument. Their position, as they outlined through counsel to the Court was that they should talk more to each other and by discontinuing the provision of the communication book that may occur. Initially I was reluctant to dispense with a valuable means of communication, or of recording information to the benefit of the child. I have however determined to follow the wishes of the parties and the Independent Children’s Lawyer in this regard and I will make no ongoing order for the parties to use a communication book. I record however the observation that if problems in communication arise, then the parties should return to the position of recording the child’s issues and requirements in such a communication book.
ANCILLARY ORDERS
I raised with counsel and solicitor during the hearing the issue of whether there should be some limitation of movement imposed upon the parents so as to ensure that the child remains living and at school within reasonable proximity to both her mother and father. By agreement the parties determined that such an order was appropriate and requested a restraint distance of 50km be included and that is accordingly provided for in paragraph [15] of the orders.
I have earlier recorded the undertaking provided by the paternal grandparents and on the basis of orders pronounced, and again with the agreement of all parties, I will provide for a release from such undertakings to be included within paragraph [16] of my orders.
Arising out of the contravention application the costs of the father were reserved. Within the context of a dismissal of previous orders as is provided for in paragraph [1] of my orders, it was agreed by the father that he would forego such costs reserved and I have thereafter provided for in paragraph [19] of my orders that there be no order as to costs of an incidental to these proceedings.
The ongoing basis of the orders is that there will be a required level of communication between the parents so that each of them are aware of the child’s schooling and any current medical or health issue and I have provided appropriate orders, again in a form significantly agreed to by the parties in paragraphs [11], [12] and [13] of the orders.
Finally, it is appropriate that the appointment of the Independent Children’s Lawyer be discharged. These orders are final and there should be no ongoing need for the involvement of Legal Aid NSW and, whilst it is not provided for in my orders pronounced immediately upon the conclusion of the hearing, I intend that appointment to be forthwith discharged. I have previously received a statement of position from Ms Shea that they would not be seeking any costs orders as against the parents.
I certify that the preceding paragraphs are
a true copy of the reasons for judgment herein
of The Honourable Justice Young
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Associate:
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