Henley and Henley
[2016] FamCA 681
•19 August 2016
FAMILY COURT OF AUSTRALIA
| HENLEY & HENLEY | [2016] FamCA 681 |
| FAMILY LAW – CHILDREN – final orders – where the parties are in dispute as to parental responsibility and time the child is to spend with the father – where there is a family consultant – where consideration is given to the best interests of the child and the primary and additional considerations – where it is ordered that the parties have shared parental responsibility – where it is ordered that the child live with the mother and spend four nights a fortnight with the father. |
| Family Law Act 1975 (Cth) s 60CA, 60B, 60CC, 60CE, 61DA, 65DAA, 69ZN, 69ZQ, 69ZR, 69ZT, 69ZV, 69ZX |
| Beckham & Desprez [2015] FamCAFC 247 MRR v GR (2010) 240 CLR 461 |
| APPLICANT: | Mr Henley |
| RESPONDENT: | Ms Henley |
| FILE NUMBER: | ADC | 1876 | of | 2014 |
| DATE DELIVERED: | 19 August 2016 |
| PLACE DELIVERED: | Adelaide |
| PLACE HEARD: | Adelaide |
| JUDGMENT OF: | Berman J |
| HEARING DATE: | 14, 15, 16, 17 June 2016 |
REPRESENTATION
| COUNSEL FOR THE APPLICANT: | Litigant in person |
| SOLICITOR FOR THE APPLICANT: |
| COUNSEL FOR THE RESPONDENT: | Mrs Lindsay |
| SOLICITOR FOR THE RESPONDENT: | Harry Alevizos Barrister & Solicitor |
Orders
That the parties shall have equal shared parental responsibility for N born … 2010 (“the child”).
That the child shall live with the mother.
That the child shall spend time with the father as follows:-
(a)From the conclusion of school on Thursday or 4 pm if the child is not at school to the commencement of school on the following Monday or 10 am if the child is not at school and each alternate weekend thereafter commencing 26 August 2016;
(b)For one half of each end of term and end of year school holiday periods as agreed between the parties but in default of agreement for the first half of each school holiday period to be calculated by counting the last day of the school term as representing the first day of the school holidays and the day immediately before the first day of term as the last day PROVIDED that paragraph 3(a) herein be suspended during all periods of school holidays;
(c)Such further and other times as the parties may agree.
As and from 1 December 2016, the child shall spend time with each of his parents as follows:-
(a)In odd numbered years, with the mother from 2 pm Christmas Eve until 2 pm Christmas Day and with the father from 2 pm Christmas Day until 2 pm Boxing Day;
(b)In even numbered years, with the father from 2 pm Christmas Eve until 2 pm Christmas Day and with the mother from 2 pm Christmas Day until 2 pm Boxing Day.
That unless otherwise agreed between the parties and where the handover of the child does not occur at the child’s school:-
(a)The mother is to collect the child from KFC, D Street, Suburb I at the commencement of her time with the child;
(b)The father is to collect the child from KFC, D Street, Suburb I at the commencement of his time with the child.
That the parties be restrained and an injunction granted restraining each of them from changing the principal place of residence of the child from the metropolitan area of Adelaide and from removing or causing or allowing the child to be removed from the Commonwealth of Australia.
That each of the parties be authorised to receive direct from the child’s school (at their separate expense) information regarding the child’s attendance and progress including but not limited to school reports, school photos and parent newsletters.
That the parties will immediately advise each other of any emergency medical or dental treatment required by the child when in each of the parties separate care and shall provide details of any hospital or dental admission with the necessary authorities to enable each of the parties to contact any treating medical practitioner or dentist and obtain information in respect of the child’s health, ongoing medical or dental treatment or other health related matters affecting the child.
Note: The form of the order is subject to the entry of the order in the Court’s records.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Henley & Henley has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).
| FAMILY COURT OF AUSTRALIA AT ADELAIDE |
FILE NUMBER: ADC 1876 of 2014
| Mr Henley |
Applicant
And
| Ms Henley |
Respondent
REASONS FOR JUDGMENT
INTRODUCTION
By Amended Initiating Application filed 15 March 2016 Mr Henley (“the father”) seeks parenting orders in respect of N born in 2010 (“the child”). The final orders sought by the father can be summarised as follows:-
(1)That the parties have equal shared parental responsibility.
(2)That the child live with the parties on a week about basis.
(3)That the time the child shall spend with the parties during school holiday periods is shared.
(4)That handovers occurs at KFC, D Street, Suburb I.
(5)Various restraint and injunctive orders.
By Amended Response to Initiating Application filed 9 May 2016 Ms Henley (“the mother”) opposes the orders sought by the father. The final orders sought by the mother can be summarised as follows:-
(1)That the mother have sole parental responsibility.
(2)That the child live with the mother.
(3)That the child spend time with the father from the conclusion of school on Thursday to the commencement of school on Friday each alternate week and from the conclusion of school on Friday to the commencement of school on Monday (or Tuesday if Monday is a public holiday) in the intervening week.
(4)That handovers occur at school or during school holidays at KFC, D Street, Suburb I.
The father relies upon the following documents:-
(1)Amended Initiating Application filed 15 March 2016
(2)Affidavit of the father filed 11 March 2016
(3)Affidavit of Ms L Henley filed 20 January 2015
(4)Affidavit of Ms L Henley filed 11 March 2016
(5)Affidavit of the father filed 15 March 2016
(6)Affidavit of the father filed 2 May 2016
(7)Affidavit of the father filed 25 May 2016
In addition the father relies upon a Case Outline document filed 8 June 2016.
The mother relies upon the following documents:-
(1)Amended Response to Initiating Application filed 9 May 2016
(2)Affidavit of the mother filed 2 May 2016
In addition counsel for the mother relies upon a Case Outline document filed 8 June 2016.
Both parties also rely upon the family report dated 9 May 2016 prepared by Ms O (“family consultant”).
The matter proceeded and was heard over four days concluding on 17 June 2016. The mother was represented by counsel while the father appeared in person.
The proceedings were conducted pursuant to the provisions of s 69ZN of the Family Law Act 1975 (Cth) (“the Act”) and in determining and giving effect to the principles set out therein, I advised the parties of the general duties and powers as set out in s 69ZQ and the ability that I have to make determinations, findings and an order at any stage of the proceedings if it will assist in the better management of the trial pursuant to s 69ZR.
I considered that I should not deviate from the provisions of s 69ZT and accordingly the parts of the Evidence Act 1995 (Cth) (“the Evidence Act”) as set out in s 69ZT were not the subject of further application.
I reminded the parties of s 69ZV which relates to my ability to hear the evidence of children in matters which would ordinarily contravene the rules of hearsay and importantly s 69ZX which relates to my ability to truncate, limit and manage what might be described as the routine aspects of the trial.
Background
The father was born in 1953 and was 63 years of age at the time of trial. He is employed as a public servant. He resides in Town L. The mother was born in 1982 in South East Asia and was 34 years of age at the time of trial. She lives in Suburb E with the child.
13.The parties met online in October 2008. In December 2008 the father travelled to South East Asia so that the parties could meet. Soon after, they became engaged and were married in 2009. The parties separated on 25 May 2013 and were divorced in August 2014.
There is one child of the relationship.
15.The mother has one child of a previous relationship, F born in South East Asia in 2002 (“F”). F resides with the mother and child.
The father has four adult children of a previous relationship. The father has re-partnered with Ms L Henley. The father and Ms Henley met online in 2013. They were married in 2014. Ms Henley is of Asian descent.
There are a number of difficulties that have adversely affected the relationship of the parties. The father admits that he engaged in foreign exchange dealings online. The parties were unsuccessful and the father places his overall losses in the order of $100,000. The mother asserts that the marriage was demonstrably unhappy and notwithstanding her own depression and loneliness following the substantial loss of money invested in online trading, the father was also depressed and lonely.
The father alleges that following the child’s birth the mother suffered post-natal depression. The mother agrees that this has been an ongoing difficulty for her. The father says the mother suffered irregular mood swings which resulted in mood stabilising medication being prescribed and taken by the mother.
The mother also asserts a dramatic power imbalance within the relationship. She says that this is attributable to gender, culture, financial and social dependence and the significant age difference between the parties.
The mother has made allegations of the father’s sexual abuse and manipulation of her. These allegations are denied by the father and it is his position that all sexual practices of the parties were consensual.
The parties initially resided in G Town before moving to H Town and then P Town. In October 2013, following separation, the mother moved to Adelaide with the child. Initially the father remained in P Town. However, arrangements were subsequently made for the child and F to spend significant time with the father. Eventually the father transferred his employment to the Town L area, a location closer to Adelaide. At this time, the parties reached an agreement that the child and F would spend four nights a fortnight with the father.
In May 2014 the father was arrested and charged with rape of the mother both prior to and following marriage. The bail conditions were stringent and obliged the father to reside in his premises at Town L and in particular not communicate directly or indirectly with the mother. Later, the bail conditions were amended with the consent of the mother to enable communication between them for the purposes of arranging the father’s time with the child. Following amendment the child spent nine days including the first half of the July school holidays with the father.
It is the father’s position that up until the time the father was charged the parties’ relationship was amicable and they would spend time together.
The mother and the child returned to live in P Town in July 2014.
In August 2014 the father initiated proceedings. He sought an order requiring the mother to return the child to the metropolitan area of Adelaide.
On 15 September 2014 I made orders requiring the child to relocate to Adelaide. On 8 October 2014 the child was placed in the father’s care as the mother had been unable to make arrangements to relocate to Adelaide. On 16 December 2014 the child returned to the mother’s care as the mother had finalised her relocation from P Town to Adelaide.
In March 2015 all charges against the father were withdrawn by the mother. The father was re-instated as a public servant in August 2015 following internal investigations. He has been employed in Q Town since 1 February 2016.
Since December 2014 the child has remained primarily in the mother’s care, spending four nights per fortnight with the father.
EVIDENCE
The father
The father relies upon his trial affidavit filed 11 March 2016 and his affidavit in reply filed 25 May 2016. The events leading up to the separation are matters of significance to the father.
He asserts that the parties separated under amicable circumstances and that it was the mother’s decision to separate. The father says that he did not anticipate the separation. The parties engaged in marriage counselling and on 27 May 2013 proposed a parenting arrangement which the father believed would see the child and F spending four nights with him each week and on Mondays from the conclusion of school to 7.30 pm. It is his evidence that on the strength of the mother’s proposal, the father prepared a parenting plan which was subsequently signed by each of them.
The mother attended at the former matrimonial home on 28 May 2013 in a dishevelled state. She advised the father that she had obtained emergency housing in P Town.
Later in the day the mother expressed upset and distress about the terms and conditions of the parenting plan. The father interpreted the mother’s presentation as alleging that in some way the father had tricked her into entering into the plan. Later that night the mother attended the marital home in what appeared to the father to be an agitated and emotional state. He called the parties counsellor who attended and because of her emotional distress agreement was reached that she would be admitted to hospital where she remained for two days whilst the child and F stayed with the father.
The father alleges that the parties thereafter were separated but on an amicable basis. He considers that the mother explored reconciliation later in 2013, but again became distressed when she was informed that the father had entered into a new relationship.
The mother moved residence to Adelaide and it was agreed that the child would spend time with the father each alternate weekend. Between October 2013 and December 2013 the father commuted from P Town to Adelaide to spend time with the child.
The father applied for and was offered a position in Town L situated approximately 100 kms from Adelaide.
An example of the amicable relationship between the parties is evidenced by the extent to which the child and F stayed with the father both in P Town and then Adelaide. In February 2014 the mother required hospitalisation and the child remained with the father for a period of about one week.
The father attended a police station on 31 May 2014 and was arrested upon the allegation of the mother that he had raped her during the course of the marriage.
He says that the initial complaint was lodged with the police in late 2013.
It is not controversial that the charges were ultimately withdrawn on 8 April 2015. The father summarises his belief in respect of the mother’s motivation at paragraph 68 of his trial affidavit:-
I hold the belief that the charges arose in circumstances where the mother tactlessly and brashly, (as she was wont to do) and perhaps fuelled by alcohol, divulged her involvement in instances of “menage a trois” for the purpose of presenting herself as a “maiden in distress”, to gain male sexual attention, to get attention generally and to justify (in a very small isolated community) that she was “partying” whilst leaving her husband to look after the children. Furthermore, that once the “cat was out of the bag”, the mother was encouraged to, and did obtain the services of a Church based domestic violence agency. I believe that the mother then felt considerable pressure to continue to present herself as the innocent victim of “outrageous conduct”.
Whilst I place no weight on the belief of the father as to the mother’s motivation, it is an acknowledgement by him that the sexual proclivities of the parties could not be said to have been without impact on their lives.
It was the mother’s evidence that if left to her own decision, she would not have proceeded with the charges or indeed would not have made the initial complaint to the police. Her evidence is that her legal advice and others who were counselling and assisting her strongly urged her to complain. She alleges that she did not feel comfortable about the charges or the resultant litigation.
42.On 13 June 2014 the father’s bail was amended such that he was able to contact the mother to arrange time with the child. The bail variation was not opposed by the mother and whilst initially there were some difficulties, the parties settled into an arrangement with the child spending significant time with the father from October to December 2014. It appears that during this time the mother travelled to South East Asia for about two weeks.
The father relies upon email communication from the mother on 22 and 23 October 2014 where the mother appears to recognise the attempts made by the father for the child to spend time with her as an act of kindness.
Upon the mother’s proof of residence in Adelaide, orders were made on 22 December 2014 that provided for the child to be returned to the mother’s care. It was only upon the presentation of a lease agreement that the father returned the child to the mother on 1 February 2015.
The father considers that the child has a strong and loving relationship with his current partner and he has provided a safe and caring environment in his current residence.
The father’s affidavit in response to the mother’s trial affidavit is not complimentary towards the mother.
He considers that the mother was lazy and was not able to maintain employment.
He was also concerned as to the mother’s ability to care for the child and was unnecessary eager to place the child into childcare so that she could obtain employment.
For reasons best understood by the father, but presumably to cast some doubt on the mother’s character, significant detail of the alleged sexual activities is set out in paragraphs 48 to 71.
The father could not easily explain the relevance of his allegations pertaining to the mother’s sexual activities. There was no suggestion that the sexual history of either of the parties should be considered as a relevant factor in terms of the orders sought.
There is significant focus by the father as to the personal relationship that existed between the parties.
Under cross examination the father confirmed that he has a hearing disability and that his hearing loss has been a long term issue. It does not however appear to interfere with his ability to continue his employment, or to adequately and safely care for the child when in his care.
His current partner is 25 years of age. The father has three adult children from a prior relationship aged 33, 40 and 42 respectively.
The mother has never met the father’s adult children, but the child has come into contact with the father’s eldest child on about three or four occasions. The father’s employment history is that he qualified with a degree in about 1980 and commenced employment in 1981. In 1983 he decided to undertake a second degree and whilst doing so continued working.
The father has two male associates known in the course of the proceedings as Mr R and Mr T. Their significance is that from time to time the father introduced Mr R and Mr T into the sexual lives of the parties. One or other of these men were also implicated in the criminal charges laid against the father upon the mother’s complaint to the police. The father has had little communication with Mr R and Mr T since the criminal charges were withdrawn and has not been involved in any sexual encounter with Mr R or Mr T since 2014/2015.
There was significant focus by counsel for the mother on the history and activities of Mr R and Mr T, particularly in terms of their involvement in sexual relations with the parties, but also as to the extent that Mr R had babysat both the child and F upon the father’s request. Any involvement by either of these men with the child is of concern and should be avoided.
The father admitted that he became irritable and at times taciturn in his demeanour. He admitted to being depressed and anxious following the loss of $100,000 on the stock market and share trading. He admitted to feeling guilty and concedes that his presence in the home would have been difficult for the mother during this time.
It was an obvious focus of cross examination as to how the father considers himself taking into account his age being 63 and his ability to care for a five year old child. He conceded that to others, he was likely to be considered as the child’s grandfather rather than his father.
It appears that the focus on the sexual relations between the parties may have been explored by the mother’s counsel in order to consider the extent to which the father lacks insight into his circumstances.
It is noted that the father rails against the opinion of the family consultant that there is a substantial power imbalance between the parties. The father seeks to deflect this criticism by strongly highlighting that in terms of their sexual relationship the mother was certainly a willing and consensual participant, if not at times to be considered the more proactive party.
The father appeared not to accept the proposition that it is relevant that the mother is from a poor and socially disadvantaged family, that there exists significant cultural differences between them, that she had limited English and was also separated from her family whilst living in Australia.
The father considered that his and his partner’s current circumstances are better able to provide for the child’s needs.
The father’s partner has become integrally involved in the care of the child. She effects the handover and communication with the mother. While he is highly complementary of her efforts, he acknowledges that his partner’s unilateral decision to return a shirt that the mother had arranged the child to give to the father for Father’s Day was inappropriate and represented poor judgment on her part.
The father considered that there are proper concerns in respect of the relationship between the child and F. He says that the mother is harsh to F in contrast to the child. This has led to a concern on his part that F may be being a bully to the child.
The father gave evidence that he and his partner are intending to have children and are taking active steps given that she suffers from poly-cystitis which may impact on her ability to easily conceive.
The father was also questioned as to his statement that the circumstances surrounding the parenting agreement were videoed by him. When challenged, he denied that the use of the video was in any way unusual. He had recorded the entirety of his relationship with the mother and that it had a documentary style quality about it.
I do not accept the father’s evidence in this regard. I am left in little doubt that far from the videoing of the signing of the parenting plan being part of a relationship history, it was more likely to have been a calculated attempt by the father to document and substantiate the parenting plan which provided him with the child’s primary care plan.
Generally, I consider that whilst the father attempted to be truthful, his evidence was clearly slanted to his own circumstances and case strategy. Whilst it may not be necessarily correct to explain the relationship between the parties as one of power imbalance, nonetheless, the father’s focus was clearly on his own needs and with little regard for the mother’s circumstances. I do however accept his evidence that in a technical sense the sexual activities of the parties was consensual.
Ms L Henley
This witness is the father’s current partner. Her evidence is contained in her affidavits of 20 January 2015 and 11 March 2016. She asserts that she has developed a loving and affectionate relationship with the child and she plays an important role in the child’s everyday parenting. She confirms that she undertakes the handovers with the mother.
She has clearly become highly supportive of the father. Her first affidavit annexes correspondence and letters that she found which demonstrate that the mother was happy in her relationship with the father.
She attributes the use of offensive language by the child in October 2014 to events that presumably were occurring in the mother’s home.
She records the child as telling her that he loves her and at paragraph 17 of her first affidavit talks of the child’s change in demeanour and appearance since coming into the father’s care:-
… I was really amazed how he transformed (sic) now than when we first met him on 8 October 2014. At one instance in late November 2014, when he had a haircut, a hairdresser repeatedly said to me and [the father] “He is beautiful” referring to [the child].
She conceded under cross examination that the child sleeps with them. She says that the child has been troubled in his sleep and that he now sleeps on a mattress on the floor in their bedroom.
The witness currently works at McDonald’s at Suburb U for about 10 hours per week. She admits that she has been jealous of the mother and explains her inappropriate conduct in returning a Father’s Day gift from the child as being potentially an attempt made by the mother to reconcile a relationship with the father. She agreed that she was both jealous and suspicious of the mother.
The father’s partner is staunchly supportive of the orders that he seeks. I accept her evidence that she was appalled at the earlier sexual conduct of the father and his use of pornography. To that extent I consider that the father’s partner is a moderating and beneficial influence on him and there was nothing about her evidence or her presentation which would suggest that the child would be other than well cared for in their home.
There is however proper concern that the father’s partner may not be sufficiently respectful of the role of the mother and there is at least some evidence to support the contention that she may either undermine the mother’s parenting role, or seek to reinforce her own position with the child creating the potential for confusion in the child’s mind as to the status and position of each of the significant adults currently in his life.
It is also a feature of the father’s home that he has given his partner considerable autonomy in terms of parenting the child and has chosen to abrogate his responsibility in relation to a number of parenting issues, but in particular any interaction with the mother in relation to the child to his partner.
The mother
The mother’s evidence is contained in her trial affidavit filed 2 May 2016.
The parties met on line in October 2008. Following a meeting in December 2008 in South East Asia, the parties became engaged and the mother travelled to Australia in January 2009 and stayed with the father at G Town for about three months.
Following the birth of the child the mother remained at home and cared for the child whilst the father continued his employment as a public servant in the local area. The family moved to P Town in 2013. The child was 2 ½ years of age. The mother considers that there were the early signs of marital disharmony. She considers that the father’s behaviour became increasingly more regressive and that he was irritable and grumpy.
The mother felt belittled by the father’s conduct.
Whilst not as focussed as the father on their sexual activities, the mother does detail that at times other persons were involved and she concedes that the criminal charges that were ultimately laid against the father arose from what she considers was his encouragement for her to engage in “threesomes” both prior to and during the marriage. The sexual encounters involved the father’s male friends Mr R and Mr T. The mother complained that the sexual activities were filmed and she is concerned that there may be videos taken by the father which could have been provided to other persons.
The mother acknowledges that the father alleges that she has mental health issues which he considers could adversely impact upon her parenting capacity.
She agrees that she was diagnosed with depression during the course of the marriage but considers that the stress arising from the marital discord was an appropriate explanation for her major depression.
She consulted with a psychiatrist between 2011 and 2015 and annexed to her trial affidavit is a report of the psychiatrist which can be summarised as now having resolved with the mother no longer experiencing or reporting any symptoms suggestive of a major depressive disorder.
She is nonetheless under ongoing monitoring.
Her history is one of compliance with recommendations of her psychiatrist and medication as prescribed.
The report of the psychiatrist is not challenged by the father and whilst he was not called, I consider that I am entitled to rely upon his report and I give it significant weight in support of the contention that there are no issues affecting the mother’s mental health that would impact upon the orders she seeks or could be considered adverse to her capacity to appropriately parent the child and F.
An unfortunate feature of the trial affidavit material has been the focus on the history of the parties’ relationship with little assistance provided as to the likely circumstances of each of the parties going forward.
The information provided by the mother is best described as scant. She asserts that she has not re-partnered, is not in employment and that she stays at home being able to fully care for and supervise the child and F.
She considers that her home is comfortable, neat and possessed of appropriate amenities. Her income is represented by a Centrelink benefit or allowance, supplemented by child support payments from the father in the sum of $145 per week. The child attends V School and is in reception year. F attends W School and is in year 9.
In her evidence, the mother advises that she is currently a student and that the family have moved of recent date to Suburb X which is a home owned by an acquaintance that the mother met in P Town.
It is noted that the mother saw her psychologist about two weeks prior to the commencement of the proceedings and that she is not currently taking any antidepressant medication. She considered that the medication made her feel unwell and the continued use of the medication in her opinion was more harmful than beneficial.
She was supportive of the father maintaining a role with the child and promotes an order that would see the child spend four nights per fortnight with him. Any more time than this was considered by her to have the potential to confuse the child as to who was responsible for his day to day care.
Under cross examination the mother confirmed that she had commenced a university course and that her home in Suburb X was owned by her friend from P Town. She denied that she was in a relationship with him presently, but agreed that previously a relationship had existed.
The mother was unconvincing of her denial of a current relationship with her friend. Irrespective of the status of their relationship, I consider that her friend has been highly supportive of her.
The mother readily conceded that the parenting agreement highlighted by the father had been freely entered into by her and in the terms as set out in the agreement, but after speaking to her counsellor and taking some advice she changed her mind.
Following the separation from the father, I consider that the mother’s life had been somewhat chaotic and unsettled. She had formed a new relationship following her enrolment in an online dating site. This relationship lasted for six months and ultimately proved to be damaging and dysfunctional.
The mother had moved in with this person in April 2014, but broke up with him in July 2014. She thereafter went to P Town to live with her acquaintance.
She concedes that she did not tell the father of her whereabouts and it was reasonable for him to be concerned as to the whereabouts of the child and F.
The mother concedes that there is some voracity to the father’s version of the events of 27 May 2015 which led to her hospitalisation.
The mother considered that she had been upset by the final separation of the parties, the parenting agreement and was alone in Australia without support exacerbated by the remoteness of the region. The mother was challenged as to the extent to which she was aggressive with the child and F. She conceded that in P Town she had hit F, but denied kicking him and denies that she had ever hit the child.
The mother agreed that on one occasion she had called the father after separation to assist her in managing F who was defiant and oppositional.
She admitted that from time to time she had consumed alcohol to excess.
The mother was challenged in respect of paragraph 29 of her trial affidavit. The following is recorded:-
Although the father was not [F’s] biological father, he nevertheless included [F] in that Plan without any consultation with me, no doubt, in a contrived effort to set out the parameters of the children’s future living arrangements. He then proceeded to draft that plan and insisted that I sign it. I felt I had no choice than to do so but felt pressured in that entire process (which was a common theme throughout the course of our marriage). I now say however that it was never my intention to sign that plan or agree to its terms and I only did so as a result of the father’s insistence and bullying.
The mother had difficulty in responding to the father’s questions. Ultimately it was her evidence that she did not understand paragraph 29 and it was certainly not her way of speaking or language.
She hadn’t read her trial affidavit in preparation for the proceedings and does not agree with the information set out in the paragraph.
A serious issue was raised by the mother’s evidence in terms of the reliability of the entirety of her trial affidavit.
It is clear that the document was not translated to her, nor does she state that it was read to her seeking her comment or amendment.
I am satisfied that the mother is telling the truth that whilst the subject matter of many of the paragraphs is consistent with her evidence, the phraseology, words used and the expressions are not her words and make it difficult, if not impossible for her to understand the document.
The affidavit confirms that it was prepared by the mother’s solicitor Harry Alevizos and that he witnessed her signature.
There is nothing in the affidavit which refers to the method by which the mother’s solicitor satisfied himself that the mother understood the document she was being asked to sign. I have found that in the main and certainly in respect of paragraph 29 of the affidavit, she did not have the requisite level of understanding.
The mother’s trial affidavit is therefore to be considered as either the personal view of her solicitor or at its most benign, an interpretation of what he considers the mother’s evidence to be.
The issue was raised with the mother’s counsel and it was confirmed by her that Mr Alevizos had been informed of the concerns raised by the Court and the potential adverse implication for his client.
It is also to be noted that the mother’s solicitor did not attend during the course of the proceedings even after counsel had confirmed to the Court that he had been advised of his client’s evidence.
The mother’s counsel was invited to consider her position in terms of whether she felt confident in her instructions to continue to represent the mother. No application was made by the mother’s counsel to withdraw.
The circumstances of a party to the proceedings giving evidence on oath that her trial affidavit is at best a document unfamiliar to her and at worst not representative of her instructions or her case is entirely unacceptable.
It is fortunate that when giving her evidence the mother impressed as a witness of truth and as having an ability to protect the child, provide appropriate parenting to him and importantly, a willingness to support the child’s relationship with the father.
But for that finding, the mother’s case may well have been fundamentally disadvantaged or of perhaps greater mischief, the Court may not have been able to discharge its proper obligation to make orders that are in the best interests of this child pursuant to Part VII of the Act.
She did not consider that the child was in any danger whilst with the father, but did not trust him to respect her relationship with the child.
She confirmed that she now lives in the Suburb X area and that the child and F will continue to attend their same school. She is not prepared to give the father her address because she fears that he will harass her.
She feels that she is under constant surveillance by the father and whilst accepting of his relationship with the child, she wants to be able to get on with her life and not feel that she is constantly under the close scrutiny of the father.
She did admit that she went to the police in respect of the allegation of rape on the advice of a counselling service.
She was asked why she allowed the child and F to stay with the father while she was in hospital. Somewhat candidly, the mother reinforced the importance that she placed on the child and F to better appreciate the father as a person who had helped them. Her evidence was to the effect that by establishing a relationship with the father there was the beneficial outcome of the mother and F being able to move to Australia away from poverty.
She was concerned at the father’s irritability and was keen to do all that she could to lighten his mood.
The mother’s evidence was impressive in respect of her acknowledgement of the father’s assistance to the family.
The mother properly conceded that the father was protective of the child. The father takes him to soccer, but she provides the uniform and equipment. She does not have any concern in respect of the ability of the father’s partner to protect and care for the child and agrees that the child has spent extended periods with the father whilst she travelled to South East Asia in April 2016.
The mother’s evidence presented as being balanced and whilst she was determined that the primary care of the child should remain with her, she was nonetheless respectful of the need for the child to have a relationship with the father.
The family consultant
The family consultant had the advantage of relevant documents from the Court file together with a report from the mother’s treating psychiatrist dated 18 December 2014.
She conducted separate interviews and observations on 2 May 2016 involving the father, his current wife, the mother and the two children.
Information was also obtained from the child’s school.
The family consultant noted that the child had primarily lived with the mother apart from a period in 2015 when by Court order the child was placed in the care of the father pending the mother’s relocation to Adelaide.
It was also noted by the family consultant that the child had spent his regular and at times substantial time with the father. The family consultant identified that the primary issue in dispute was what she considered to be a dramatic power imbalance arising out of both gender and a 29 year age difference between the parties. It was also considered relevant to the presentation of the parties to note the mother’s less than competent English skills, lack of familiarity with Australian culture and as a result of the separation from her family, her dependence at least until separation on the father. It was considered important that at the commencement of the relationship the mother lived with the father in a remote and regional setting.
The family consultant interpreted the mother’s history as being representative of “repeated sexual manipulation and sexual exploitation by the father, which included the father filming such events and distributing the films amongst his friends or other participants of the sexual encounters”.
It is noted that the father denied the imbalance of power, or that the mother was anything other than a willing participant in terms of their sexual conduct and interaction.
The father considered that the family consultant had adopted a level of bias against him simply because of a personal objection by her to the existence of a relationship that involved a significant age difference.
It was inherent in the father’s cross examination of the family consultant that he considered she was not able to separate her own views of the relationship from the reality of the position which was the age imbalance that did not necessarily carry the heavy negative implication and impact as suggested by the family consultant.
The mother reported to the family consultant that she did not consider F bullied the child and that taking into account the age difference, there was a close sibling relationship. Any idea that F may be physically violent to the child arises from the father’s made up complaint.
It was noted by the family consultant that the father and his partner described the child as being very happy.
The father challenged the family consultant as to her religious beliefs and whether this might cause her to be biased against him in terms of what was described as the father’s liberal sexual practices.
It is again difficult to understand why the father would need to reinforce his view of the mother and to restate what he considers to be her relevant sexual history.
The assessment of the family consultant was set out in paragraph 31 of her report:-
… Indeed, the father, who was clearly keen to convince the writer that he was blameless in regard to the mother’s claims of sexual manipulation by him concluded by saying, “It’s a massive slur against my character…she’s basically saying I’m a bad bastard…am I to bring the videos out that depict her differently?”.
To his credit, the father acknowledged that the child appeared well settled in the current arrangements which had been extant for 14 months prior to the interviews in early May 2016.
Notwithstanding this concession, the father was still of the view that the child would be better off living with him and his current wife. He was concerned as to the extent of changes in the child’s schooling and considered that his partner would interact with the child in a genuine and loving fashion, whereas the mother is a “bit of a party animal…she likes to go out a lot”.
The father’s partner was reported to be complimentary of the father, citing her opinion that he was a gentle man and that they get on well.
She was also complimentary of the child and considered that he was also gentle and sensitive. The family consultant was left in no doubt that the father’s partner would be a willing and happy participant to take on a more expanded parenting role in respect of the child.
The mother also conceded that the child was clearly accepting of the current arrangements and therefore there was no good reason that they should be changed, but equally there should not be an extension of time as sought by the father.
There was always anxiety when coming into contact with the father and she felt intimidated by the force of his presence.
The family consultant was reluctant to place too much weight on matters as expressed by the child. He appeared to be sensitive, polite, mischievous and excitable. He presented as being too young for formal interview. He did not have sufficient cognitive abilities to answer significant questions about his relationship with the father.
The family consultant noted that whilst the child interacted easily and in an “animated fashion” with her, there were clear deficiencies in his language skills. The child spoke too quickly and at times was incomprehensible.
Whilst the family consultant considered that the child presented as happy and well settled, he was nonetheless emotionally immature.
The implication of the findings of the family consultant is that the child was emotionally immature and whilst not much weight could be placed upon his views and wishes, nonetheless he was demonstrably well settled and happy in the current arrangements.
There was little assistance gained from the interview with F. He confirmed that he was happy at his current school, that he had made friends and was not now teased. He also professed to have a good relationship with the child, but conceded that from time to time the child may have thought that his interaction amounted to him being teased. The child would often say to F that he would tell his father about F’s actions.
He did confirm that there have been times when he would push the child and he might fall over and cry, but generally they were close and they would play together and interact appropriately.
There appeared to be no issues arising out of the observations of the child with the father and then the father’s partner. The only area of concern was that the child made reference to telling the family consultant “I said seven sleeps”, implying that the child reported to the father that he had said what was expected of him.
It was obvious to the family consultant that the child had a lot of fun with both his father and his partner and “seemed to relish being the sole focus of both his father’s and step-mother’s interest and attention”.
There was clearly a loving and attentive mother child relationship observed by the family consultant.
The child was responsive to the mother’s invitation and at paragraph 55 the family consultant records the following:-
No matter what activity [the child] was involved he was observed to stop from time to time and hold his mother’s face before then kissing her soberly on the cheek. [The child] did this at least five times during the observation.
The communication with the child’s school reveals that whilst it had taken a significant period of time for the child to settle into school, it was reported that “the child is very responsive to direction, tries hard to please and is quick to get back on task”. Although the child’s language skills are “less than average”, his reception class has other children from different cultural backgrounds who are on a par developmentally with the child. The school concluded by reporting that the child had established “good friendships in class” and that he is a “lovely child…a delight to teach”.
The family consultant remained critical of the father and considered that he lacked any compassion or sympathy for the mother’s vulnerable circumstances. She considered that there was a significant power imbalance but did not explain how that would impact upon the proposed parenting arrangements for the child.
What was of more importance was the observation of the family consultant that the father appeared to lack emotional atunement and considered that the child “would be better off with L and I…he is attached to his Mum and his Mum is fun but organisation, planning and stability aren’t there”.
The family consultant considered that this could be interpreted as a lack of insight into the importance of the relationship between the child and the mother.
Ultimately the family consultant considered that the mother was more child focussed, whereas the father was “more self-entitled”.
Clearly the family consultant at [66]was not impressed with the denigration of the mother and what she considered to be his:
… openly expressed readiness to prioritise or replace that mother-son relationship with his 25 year old wife, (“Frankly [the child] would be better off with [Ms L]”, paragraph 32) would seem to offer a poor parental role model to [the child] who needs to view both his parents as loving him equally if he is to successfully adjust to his current circumstances of living between two households…
The family consultant considered that the parties should have equal shared parental responsibility with the child living with the mother but spending significant and substantial time with the father.
The family consultant recognised that the relationship with the father was important and implicit in her recommendations was the acceptance that the father poses no physical risk to the child, but that any lack of support by the father for the mother’s relationship with the child may present as an emotional risk, particularly where the child is immature and vulnerable.
It was put to the family consultant that if the mother was incorrect in her assertion that she had been tricked into entering into the parenting plan, would that in any way alter or change the family consultant’s assessment. She indicated that it would not have any effect.
Under cross examination by the father, the following is recorded at page 7, line 26:-
The father:Yes. I’m suggesting you did come into the observation room and that I told you that, “[The child] has just said that he is moving house,” and that you berated me for discussing the matter with [the child]. Do you recall that?
Answer:No, I don’t recall that, but certainly I did – when I was at the point of coming in, I remember clearly at the point of coming in when I heard you questioning [the child] in relation to whether he wanted to have more than one overnight with you. So I was about – I was poised to go in there and – but I have absolutely no recollection of berating you for…
The father challenged the family consultant by asserting that the process had been hijacked by her attitude towards power imbalance arising out of the age difference. The family consultant did not agree with that contention and whilst conceding that it was a concern, her “recommendations were solely on my assessment of this – of [the child] and his emotional vulnerability and his development – current developmental stage, which I perceived as being less than his five-and-two-thirds-year-old years, and that that was shared by the school”.
In answer to questioning from me as to the importance that the purported power imbalance had on her assessment, the family consultant gave the following answer at line 28 page 14:-
I believe that even this current trial is – is in a way an example of what I was trying to get…my concerns about power, because my perception of [the father] is that he – he does want – he wants to win. He wants to control, and what he wants to propose is what he believes is the right – so I guess there is that notion of his wanting, without – and I guess my parallel perception of that is that I didn’t view him as emotionally – an emotionally attuned man, both in his relationship with the mother, but also in his interactions with [the child]. He’s not a man who engages, in my view, with his emotions in a – in a way that I could perceive during the time that I was with him, and – and so that power imbalance then still…its own.
The father continued the theme of either bias or predetermination of issues in the following exchange at line 43 page 17:-
The father:I would suggest to you that you had basically already made your conclusion whilst you were talking to me before my wife [Ms L] had come in and we jointly spoke to you, that within about 45 minutes you had told me that – you were giving an intimation that you didn’t consider that [the child] ought to be away from his mother as primary caregiver for seven days at a time. Now, do you say you couldn’t have said that, or you didn’t say that?
Answer:So if I recollect that same conversation that you are referring to, that had nothing to do with the power imbalance discussion. It had solely to do with the fact that both you and your partner described to me a very happy little boy, and therefore I got you both in there to talk about why you would change such an arrangement.
The issue was again taken up at line 25 page 28:-
The father: About what – that the arrangement should not change?
Answer:Well, I certainly found – you weren’t able to persuade me about shared care not being a better arrangement with a child who was already flourishing, by your words, with the current arrangement, so that’s when I asked you both to come in and just said, “Well, how would this benefit [the child]? How would this make him happier to have more time with you,” and neither of you were able to say – well, actually, you did. You did expand on the fact that – of what – what you would bring to the parenting, and you were quite clear about the benefits to – that you could bring to [the child’s] life, as opposed to what the mother was able to bring to [the child’s] life. So you were quite clear about that.
The family consultant reinforced her views in answer to a question by the father at line 30 page 47:-
I think if you say that it has coloured my report, it hasn’t coloured my judgment about – in my view, about what is happening for [the child] and how he presented and how he – what his needs currently are, and – and I was persuaded by my observations and interview with him that he is a very vulnerable little boy who is behind developmentally in lots of areas, in my view, and he had an emotional dependence on his mother, and – which didn’t surprise me because she has been his primary carer, and even in the times that you have him, I think your relationship with him isn’t one of – that is similar to the mother’s. You provide stimulation and creativity and activity and essential things in a parental relationship, but my view was that this emotionally vulnerable little boy was emotionally dependent on his mother at this point in time.
Notwithstanding strong criticism by the father of the views expressed by the family consultant, I considered that she had approached the matter with professionalism and without any preconceived or determined position against the father.
It does not appear that the age difference between the parties is the relevant factor, but rather the father has focussed on his own needs and to some extent is oblivious as to the circumstances of others, in particular the child’s relationship with the mother.
PRINCIPLES RELEVANT TO PARENTING ORDERS
The child currently resides with the mother and spends unsupervised time with the father for four nights each fortnight.
The mother was initially prepared to share parental responsibility for the child. She sought orders that the child live with her and spend time with the father for four days each fortnight and half school holidays. That position has since changed.
The focus of the proceedings has been almost entirely centred upon the power imbalance within the relationship alleged by the mother. There is no suggestion that the father has been violent to the child, but it is the mother’s position that so extreme was the level of power imbalance attributed to gender, culture, financial dependence and the significant age difference between the parties that it is argued the child is at risk in the father’s care.
The father presents as vehemently denying abusing what appears to be a gross imbalance of power in the marital relationship and attests instead to the mother always being a “willing participant” throughout their sexual relationship.
At trial it became apparent that the parties were not agreed as to parental responsibility. There has been a consistent lack of clarity in terms of the orders sought by the mother. During final submission counsel for the mother clarified that the mother seeks sole parental responsibility for the child. The father seeks equal shared parental responsibility for the child.
Section 60CA of the Act requires that I have the best interests of the child as the paramount consideration. The best interests of the child are to be considered by the application of the objects of s 60B(1).
I am cognisant of the primary considerations and the additional considerations in respect of the matters as set out in s 60CC(2) and (3).
I am mindful of the directions contained in s 60CC(2A) and have regard to the allegations of the mother that both before and after separation, the father was the perpetrator of family violence towards the mother.
The father denies the allegation of repeated sexual manipulation and sexual exploitation of the mother. His response to the allegations was to minimise the circumstances, relevance and impact of the parties’ sexual practices.
I propose to adopt the following approach:-
(1)Give consideration to the proposals put forward by each of the parties as they were identified and presented to the Court;
(2)Have regard to the objects expressed in s 60B(1) and underlying principles in s 60B(2);
(3)Have regard to the provisions of s 60CC in order to determine in each case what is in the child’s best interests;
(4)Have regard to the primary considerations under s 60CC(2) namely, the benefit of the child having a meaningful relationship with both of the child’s parents and the maternal grandmother and the need to protect the child from physical or psychological harm;
(5)Have regard to the additional considerations under s 60CC(3);
(6)The evidence adduced by each of the parties in respect of the particular considerations pursuant to s 60CC(2) and (3) are to be considered and if more weight is to be given to one or more of the matters raised then this must be the subject of delineation and comment.
Section 61DA requires the Court to consider whether to apply the presumptions of equal shared parental responsibility by having regard as to whether the matters as set out in s 61DA (if relevant) would rebut the presumption.
In that respect the provisions of s 61DA(2) are relevant:-
The presumption does not apply if there are reasonable grounds to believe that a parent of the child (or a person who lives with a parent of the child) has engaged in:
(a)abuse of the child or another child who at the time was a member of the parent’s family (or that other person’s family); or
(b)family violence.
The presumption may also be rebutted if there is evidence that will satisfy the Court that it is not in the best interests of the child for the parties to have equal shared parental responsibility.
This consideration is relevant in these proceedings as the father seeks an order of equal shared parental responsibility.
If the presumption is rebutted, the Court can proceed to make parenting orders having regard to the provisions of the Act, but based on findings pursuant to s 60CC. If the presumption applies (and in any event the parties seek an order of equal shared parental responsibility) and it is not rebutted, then s 65DAA requires a Court to consider whether there should be an order for equal time. If not, then substantial and significant time. The test is whether the orders would be in the best interests of the child and reasonably practicable. As was said in MRR v GR (2010) 240 CLR 461, the consideration of whether equal time is feasible “requires a practical assessment”.
I am of the view that notwithstanding the provisions of s 65DAA would not apply if the presumption of equal shared parental responsibility is rebutted, nonetheless, the separate proposals of the parties and the orders that each of them seek would nonetheless require a consideration as to whether they are reasonably practicable.
Following the remarks of Finn J in Blanding & Blanding [2016] FamCAFC 21 where her Honour considered the Full Court decision in Beckham & Desprez [2015] FamCAFC 247, there is now a proper focus upon the practical reality of each of the parties proposals and the consideration of the primary and additional factors in s 60CC that are applicable to the circumstances of each case.
PARENTING CONSIDERATIONS
Meaningful relationship
The parties are in clear agreement that there is benefit to the child having a meaningful relationship with each of them. The father seeks equal time, whereas the mother considers that the child’s interests are served by the child spending significant and substantial time with the father.
Those considerations represent in effect the competing proposals of the parties.
It is not contended that it is not reasonably practicable for the child to spend either equal time or substantial and significant time with each of the parties. The mother resides in Adelaide and the father and his partner in Town L. The distance is approximately 100 kilometres apart. Even so, the same level of travel is involved on either party’s proposal.
There is unlikely to be any issue in respect of implementing either of the parties separate proposals. The considerations required in respect of s 65DAA are to be determined by the impact that the separate proposals of the parties would likely have on the child and such other matters as the Court may consider relevant.
Risks to the child
Neither party seriously contends that the other presents a risk to the child of psychological harm, abuse, neglect or family violence.
It is argued by the mother and supported by the family consultant that the father is not sufficiently attuned to the needs of the child and in particular the extent to which the child gains benefit from being in the primary care of the mother, that the orders sought by the father may present a risk of emotional harm to the child. I do not consider however that the potential risk would be contemplated as a primary consideration pursuant to s 60CC(2).
Views of the child
I do not consider that the views of the child should be given substantial weight. The child presents with some behavioural difficulties as evidenced by the child’s school and it is conceded that he is immature for his age. English is the child’s second language and whilst there are significant improvements in terms of his linguistic dexterity (and likely to improve into the future), at present the child’s presentation when carefully considered by the family consultant, did not give her confidence that any views expressed by the child would be of assistance.
It is trite to note that whilst the Court may inform itself of any views expressed by the child by different means, but in particular a report that may be given under s 62G(2), s 60CE provides that the child is not required to express his views.
The child’s relationship with the parties and other persons
There is no dispute that the child has a strong relationship with each of the parties and a developing and beneficial relationship with the father’s partner.
The parties are clearly invested with the care, development and protection of the child. Their involvement with the child is impressive and whilst the father has been proscriptive in respect of the care arrangements for the child and at times has not been respectful of the important role that the mother plays in the child’s parenting, I have some confidence that following the conclusion of the proceedings, the parties are of sufficient maturity that they can work together in determining major long term issues that are integral to the child’s development.
The father is a public servant and brings important skills to his parenting role. The mother is currently a student and the family consultant considers that she has the more significant emotional attunement to the child and that the child is more closely attached and associated with her.
The likely effect of any changes in the child’s circumstances
It is the overarching consideration of the family consultant that this child needs stability. There are behavioural and developmental issues that are clearly present and it is the strong recommendation of the family consultant that the retention of the current arrangement namely, that the child remain primarily in the mother’s care and spends four nights per fortnight with the father should continue.
The father and his partner agree that the child appears happy and is adjusting well to his changing environment, in particular at his school. The mother appears to have found a level of stability in terms of her accommodation and has made important life decisions in terms of education and part-time employment.
The parties appear to have resolved much of their difficulties.
It is demonstrable that the obvious improvement in the child’s presentation is of a more settled environment for the child in the homes of each of the parties.
A change from four days with the father to equal time would require a substantial adjustment for the child. The family consultant does not consider that the child would easily make that adjustment and she is not able to predict the effect of any emotional deregulation of the child by such a change.
For his part, the father does not concede that the change would either be dramatic, or if it is, could not be dealt with by the child benefiting from his superior care.
The family consultant is concerned that the father’s presentation is self-centred and focusses on his needs rather than recognising the needs of the child and in particular, the extent to which the child is attached to the mother. I consider that this observation of the family consultant is a substantial factor to be brought to account.
There is not necessarily the certainty and stability that the father would promote. It is not known how long the father will continue teaching at Town L. There are some health considerations that affect the father in terms of his hearing loss. It is already the case that the father relies heavily on the assistance of his partner to care for the child. He has abrogated a significant responsibility to her in terms of dealing with the mother.
Moreover, the father concedes that he and his partner are pursuing treatment to enable her to conceive of their child. It is not known how that will impact upon the dynamics of the household.
The mother feels that she is under constant and ongoing scrutiny by the father in terms of all aspects of her life and that of the child whilst in her care. There is some basis for that concern with the consequence that the mother has had to adopt the unnecessarily vigilant approach to matters of parenting in order to satisfy the father rather than the mutual focus on the child’s needs.
The ability of the parties to support the child’s relationship with the other
The family consultant was clear in her forceful observations of the ability of the parties to support the child’s relationship with the other. She has little doubt that the father is not supportive of the child’s relationship with the mother and whilst not determined to disrupt the relationship, he does not accept that there is a level of emotional attachment and atonement as observed by the family consultant.
Moreover, there is some evidence to suggest that the father was prepared to engage the child in discussion as to the extent to which the child would spend time with each of the parties in preparation for the assessment.
The father was clearly fixated upon refuting any suggestion that he had been sexually inappropriate or opportunistic with the mother. Whilst there may be some justification for his approach arising out of the charges that were laid against him at the mother’s instigation, he does not appear to be able to relinquish his preoccupation with their history.
Other relevant circumstances
Ultimately, I place significant weight on the observations of the family consultant as to the extent of the attachment of the child with his mother and the benefit that has clearly inured to the child in terms of his happy disposition and developmental progress. The observations of the child’s teacher are important. The child is fitting in well at school and has developed a good social network with a basis for educational progress and development subject to language issues and a level of immaturity currently present.
The mother is able to focus on the needs of the child, whereas the father appears to be self-absorbed in his own self-interest. The father is disparaging of the mother and dismissive of her considerations. The family consultant considers that of the two parties, she is the more insightful as evidenced by the greater attunement that she has with the child.
PARENTAL RESPONSIBILITY
The father argues that there should be equal shared parental responsibility. That position is also recommended by the family consultant. The mother seeks sole parental responsibility.
Whilst the level of communication at present is diminished by the father’s preference to involve his partner in the arrangements for the child, nonetheless both he and the mother are high functioning individuals and that their past history reflects the ability to communicate both verbally or by email communication and to good effect.
Once the focus of the proceedings and the litigation has been resolved, the communication skills of each of the parties could most certainly translate to being child focussed and being devoid of hostility and mistrust.
There is no evidence presented by the mother to support a diminution of parental responsibility.
Clearly, that then requires a consideration as to whether it would be in the best interests of the child in spending equal time with the parties and if not, substantial and significant time.
CONCLUSION
I consider that it is in the interests of the child to effectively leave the arrangements as they currently are. There is demonstrably a good relationship between the child and his father and I do not consider that there has been any evidence presented which would suggest that in some way the child will gain greater benefit by spending more time with him. Whilst the father may be desirous of this outcome, there is no evidence and indeed such a contention is not supported by the family consultant.
The present order provides that the child spends time with the father for two days in each week and half school holidays. Given that the child is now at school, it seems sensible that whilst there should not be any increase in the father’s time, the child is likely to be more settled by spending his time with the father in one extended period. The impost on the child in terms of travelling is reduced and the parties will benefit from there being less interaction.
The Court was not assisted by the submissions of counsel and the father in terms of ancillary orders. It is noted that the orders sought by the mother in her amended response do not make sense. Nonetheless, doing the best that I can, I propose to accede to the father’s application as to the arrangements in respect of the Christmas period, the handover arrangements and an injunction that would restrain the mother from changing the principal place of residence of the child from the metropolitan area of Adelaide or from causing or allowing the child to be removed from the Commonwealth of Australia.
In addition, it is reasonable that the parties be obliged to advise the other of medical and health related emergencies and circumstances as they affect the child from time to time.
I make orders as appear at the commencement of these reasons.
I certify that the preceding two hundred and twenty eight (228) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Berman delivered on 19 August 2016.
Associate:
Date: 19 August 2016
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