Henley and Henley (No 2)
[2019] FamCA 424
•4 July 2019
FAMILY COURT OF AUSTRALIA
| HENLEY & HENLEY (NO. 2) | [2019] FamCA 424 |
| FAMILY LAW – CHILDREN – Best interests of the child – Where the father seeks orders for equal time – Where the family report writer does not support an equal time arrangement before the child turns 10 – Where the father challenges the mother’s capacity to care for the child properly – Where the court not persuaded the mother presents any risk of harm to the extent it should reduce her time with the child – Where alleged family violence – Where the mother accused the father of making her engage in sexual encounters without her consent – Where the court satisfied the accusations do not inform the outcome of the proceedings – Where the court satisfied that both an equal time, or substantial and significant time regime would be reasonably practicable – Where there ought be a continuation of the current regime until the child turns at least 10. |
| Family Law Act 1975 (Cth) ss 60B, 60CA, 60CC, 61DA, 61DAA, 65DAA Evidence Act 1995 (Cth) ss 140 |
| B & B: Family Law Reform Act 1995 (1997) FLC 92-755 Henley & Henley [2016] FamCA 681 Henley & Henley [2017] FamCAFC 142 Henley & Henley [2018] FamCA 694 |
| APPLICANT: | Mr Henley |
| RESPONDENT: | Ms Henley |
| FILE NUMBER: | ADC | 1876 | of | 2014 |
| DATE DELIVERED: | 4 July 2019 |
| PLACE DELIVERED: | Cairns |
| PLACE HEARD: | Cairns (via video link to Adelaide) |
| JUDGMENT OF: | Tree J |
| HEARING DATE: | 25 and 26 March 2019 |
REPRESENTATION
| THE APPLICANT: | In person |
| COUNSEL FOR THE RESPONDENT: | Mr Roberts |
| SOLICITORS FOR THE RESPONDENT: | Harry Alevizos Solicitor |
Orders
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;
That otherwise all extant applications be dismissed and the matter is removed from the list of active pending cases.
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 CAIRNS VIA VIDEO LINK TO ADELAIDE |
FILE NUMBER: ADC1876/2014
| Mr Henley |
Applicant
And
| Ms Henley |
Respondent
REASONS FOR JUDGMENT
INTRODUCTION
On 19 August 2016, for reasons published on that day,[1] Berman J made final parenting orders in these proceedings. Pursuant to those orders, the parties would have equal shared parental responsibility for the child born to their relationship, being N, born in 2010, and hence presently 8 years of age (“the child”). Further, the child would live with Ms Henley (“the mother”) and spend a block of four nights per fortnight with Mr Henley (“the father”) including weekend time. School holidays were to be shared equally between the parties, and there was also provision made in relation to the child’s arrangements at Christmas.
[1]Henley & Henley [2016] FamCA 681.
The father appealed from those orders, and on 20 July 2017 for reasons then published,[2] the Full Court allowed the appeal, but only disturbed that order which provided for the father to spend time with the child during school terms. That matter was remitted for determination by another judge.
[2]Henley & Henley [2017] FamCAFC 142.
Notwithstanding the limited scope of the remitter, the father sought to disturb virtually all of the orders made by Berman J, although on 30 August 2018, Stevenson J determined[3] that the father had not established a sufficient change in circumstance to justify re-litigation of anything other than the remitted matter.
[3]Henley & Henley [2018] FamCA 694.
Before me, the father sought orders for equal time, whereas the mother sought a continuation of the orders made by Berman J. There was no Independent Children's Lawyer.
On 25 and 26 March 2019, I heard the remitted proceedings and reserved my decision. This is that decision and the reasons for it.
BACKGROUND FACTS
The father
The father was born in Australia in 1953, and therefore is presently 66 years of age. It appears as though although he obtained a degree, and briefly practised as a professional, thereafter he pursued another profession as a public servant.
At some point he married his first wife, to which relationship there were born four children, Ms DD (presently 45 years of age) Ms FF (presently 43 years of age) Ms GG (presently 37 years of age) and Mr JJ (presently 32 years of age).
At some stage that marriage concluded, and in due course, in October 2008, when the father was 55 years of age, he commenced a relationship with the mother.
The mother
The mother was born in South East Asia in 1982 and hence is presently 36 years of age. I know little of her life in South East Asia other than that, whilst resident there, she gave birth to a son, F in 2002. F is therefore presently 17 years of age. The mother was 26 years of age when she commenced a relationship with the father.
The relationship
The parties initially met online on October 2008, and chatted for a couple of months until, in December 2008, the father travelled to South East Asia, so as the parties could meet. Soon afterwards, they became engaged. In January 2009 the mother and F travelled to Australia and stayed for three months. Upon their return to South East Asia, the mother applied for a prospective spouse visa, which was granted, and in September 2009 she and F returned to Australia, where she married the father in Adelaide in 2009. Post marriage, the father continued his full-time employment as a public servant, whereas the mother remained at home and attended to household duties.
The mother fell pregnant with the child a couple of months after marriage, and gave birth on 2 August 2010.
The father’s employment saw him transferred from time to time, including to remote areas. One such posting, to Town H in early 2012, provided the mother with an opportunity to work for a few months at a local business. Then in 2013 the father was transferred to Town P, in Northern South Australia, by which stage the child was two and a half years of age. The mother obtained part time employment in that town, working for about three to four days per week.
At paragraphs 23 to 26 of the mother’s trial affidavit, she said as follows:
23. By this time, my relationship with the father was not progressing well. We would argue frequently, he would often belittle and patronise me, he would regularly “tell me off” and I formed the clear impression that he believed that his opinion was more important than mine and that I should do what I was told. His behaviour became increasingly aggressive and he was very irritable and grumpy which caused immense friction between us. He would also sulk for extended periods of time when he was angry.
24. Further, he would often make comments to me about feelings he had for other women. I recall he said to me words to the effect that he had feelings for one of his school students that he taught, a young girl by the name of [KK] in [Town LL]. He went on to say that one day “she bent over and her breasts showed up and she looked up at me.” He would often talk about his feelings for other women and this would make me very upset and sad as I felt it was improper for a married man to say such things to his wife.
25. Additionally, the father would encourage me to engage in sexual activities, specifically, threesomes, and he would film these encounters and although I did not want him to do this, I was too scared to raise any objection. Further, I have a niece by the name of “[Ms MM]” who was about 20 years of age at the time and the father would often request me to ask if she would like to participate in a threesome. I recall him saying “we need to give her a massage and see how she reacts.”
26. I therefore regarded these behaviours on his part to be quite disturbing and improper and by about late May 2013, I could not tolerate them any further and decided to separate from him.
While the father concedes (it seems) some, if not most, of those allegations, he denies that the mother did not provide consent to the events referred to in [25]. At paragraphs 55 and 56 of his trial affidavit, the father said as follows:
55. In a matter of days after I had rejected the mother’s attempt to reconcile on 3 October 2013, the mother attended on police and falsely claimed that I had raped her during the marriage and persists with this to the current time. This is so notwithstanding that after the DPP withdrew the charges, my Employer ([NN Organisation\) conducted a many month long investigation (April 2015 – Oct 2015) and then cleared me to return to work (in total I had been suspended by my employer from working with children for ~ 18 months).
56. I have retained the “sex tapes” of the encounters of which the mother complains. I say they show the mother playing up to the camera and her being an enthusiastic participant enjoying herself. Upon viewing a tape of one of the first sessions the mother was so disappointed at how her breasts looked that she persistently pursued me to pay for a breast enhancement operation. I eventually capitulated. The procedure cost about $10,000.00 and was carried out in [South East Asia]. After the procedure the mother lamented; “I should have gone for a bigger size.”
At all events, the parties’ relationship concluded in May 2013, when they were both still living in Town P.
Post separation
One of the first things that the parties undertook post separation, was to negotiate in relation to a parenting plan. A transcript prepared by the father of a recording of that conversation was in evidence, and bears a date of 27 May 2013. In that transcript, the father says that he proposes to have the child on Wednesday, Thursday, Saturday and Sunday, and in response to the mother’s question “is that too much for you ?” he said “na nope I’ll manage, I’ll be ok.”
In evidence before me was a parenting plan dated 27 May 2013 and signed by both parties. It indeed showed that the father was to have the child for four nights per week.
However according to the father, the next day the parties attended a pizza bar together, where the mother was upset and extremely angry with the father in relation to what they agreed the day before. The father then contacted the parties’ mutual counsellor, who apparently arranged for the mother to stay in hospital for two or three days.
It seems likely that at that time, the mother and the children moved into emergency accommodation in Town P, and thereafter the father did not see either of the children for about a week and a half. However, ultimately the parties agreed that both children would stay with the father on Friday, Saturday and Sunday nights every week, and for one half of school holidays.
The father says that on 28 June 2013 the mother grabbed his penis and poked his anus whilst he was changing a car wheel. It is unclear whether the mother accepts that. Then in July 2013 the father says that, in full view of F and himself, the mother sucked the child’s penis, whilst he was on the couch in the father’s home. The mother denies having done so.
In September 2013, the father met his present wife, Ms L Henley, online. She was then living in the Country RR, where she had been born in 1990, making her now around 28 years of age. At around the same time, it seems as though the mother met a man online by the name of Mr SS, who lived in Adelaide.
According to the father, on 1 October 2013, at about 2:00am in the morning, the mother telephoned him and told him that she hated Town P and wanted to move to Adelaide. Two days later, on 3 October she phoned the father again at 3:45am in the morning, told him that she was drunk, and asked to come over and stay. Inferentially, the father says that after she arrived at about 4:15am, she attempted to reconcile with him, but he refused, and she ultimately fell asleep. The following morning she was very upset, to the point where, on her counsellor’s recommendation, the father took her to Town P hospital where the mother stayed overnight. However when she returned to the father’s home the following day, the father says that she was “coldly determined” and collected her keys from him “without a word and drove away.”
The father says that within a couple of days of that, the mother attended police and made complaint that he had raped her earlier in time, during the course of the relationship. The mother says that she did so on advice of counsellors at the centre where she was staying, who advised her to report what she had told the police without delay, and to also engage a lawyer.
Seemingly in late October 2013, without notice to the father, the mother moved from Town P to Adelaide. According to the father, although initially the mother denied him any opportunity to spend time or communicate with the children, after a week she permitted him to see them once a fortnight in Adelaide, which involved him travelling some 1,700km in a round trip.
Next, at the end of 2013, the children spent either three weeks (according to the mother) or all (according to the father) of their Christmas vacation with the father, whilst the mother and Mr SS travelled overseas.
The father says, and there is no reason to doubt, that in January 2014 the mother commenced cohabiting with Mr SS in his home in Adelaide. By then the father had obtained a compassionate transfer from Town P to Town L (apparently something like only 100km from Adelaide) and once he moved there, he had the children in his care from Friday afternoon until Sunday evening each weekend.
At the end of May 2014, the father was arrested and charged with five counts of rape, four counts of sexual manipulation and five counts of indecent filming. All charges involved the mother as the alleged victim. He was released on bail, and although initially a condition of that bail was that he not communicate with the mother, after 14 days those terms were varied permitting him to communicate with the mother for the purposes of contact with the child. At some stage thereafter, he was suspended on full pay from his job for 18 months.
It seems from the affidavit of Ms L Henley filed in these proceedings, that notwithstanding the charges, the child spent weekend time with the father on 27 June and then for one half of the following school holidays.
In July 2014 the mother’s relationship with Mr SS terminated, and she returned to Town P. The father says that for the next three months the mother denied him all contact with the children, and that he did not even know she had returned to Town P until a process server located her there. The parties are also in dispute as to why the mother returned to Town P. The father says it was to commence a relationship with her former employer there, whereas the mother says that she decided to return there because that person had offered her further employment and accommodation.
At all events, the father commenced these proceedings in August 2014, and in due course, after she had been located, the mother was served. Orders were then made on 15 September 2014 requiring the child to be relocated to live in Adelaide, however the mother says that she was unable to relocate there as she had no employment or accommodation, and therefore on 8 October 2014, she passed the child N into the father’s care.
The mother says that thereafter the father “made it exceedingly difficult for me to see/spend time with [the child].” She was, however, able to communicate with him by Skype. Negotiations between the father and the mother’s solicitors then ensued, resulting in an agreement that the mother could spend time with the child between 16 and 21 December 2014.
By then, in 2014, the father had married his current wife, Ms L Henley. Indeed the changeover of 16 December, was not effected by the father, but Ms L Henley.
At [52] of her trial affidavit, the mother says that after that visit:
52. On our first night back together, myself, [F] and [the child] all slept in the one bed and [the child] was hugging me all night. [The child] also told me repeatedly that he wants to remain in my care and would often sit down and cry. I asked him if he was crying because he missed his father and in response he would point to me and then hug me.
On 22 December 2014 orders were made by Berman J passing the care of the child to the mother from 26 December 2014 until 15 January 2015, at which time the child would return to the father’s care until 22 January. However the orders went on to provide that, if the mother could confirm that she had accommodation within 25km of the Adelaide GPO, then (seemingly) the child would not go back into the father’s care on 15 January, but rather remain with the mother, subject to him spending time with the father pursuant to the 15 September 2014 orders.
In consequence of those orders, although she says it was very difficult for her to do so, the mother returned to Adelaide, initially living with a friend, but subsequently obtaining a rental property into which she moved in January 2015. From that time on, the 15 September 2014 orders prevailed, until 10 February 2015, when they were discharged, and orders were made for the child to spend time with the father from 6:00pm on Thursdays until 10:30pm on Saturday in each alternate week, and from 6:00pm on Friday until 6:00pm on Sunday on the other weekend. Further, it was ordered that the child spend one half all school holidays with the father. Otherwise the child was to live with the mother.
Thereafter 2015 appears to have been a relatively stable time. On 29 October 2015, the father and Ms L Henley moved to a suburb called Suburb VV, which is much closer to where the mother and the child lives.
At a date which is unclear, the father’s criminal proceedings were discontinued, and he resumed teaching. The mother says that she “chose not to proceed because I found that whole process very stressful and distasteful and did not wish to go through the ordeal of having to give evidence in court and detail the occurrences that took place during the course of those encounters.”
The trial of the proceedings before Berman J extended for four days in June 2016, with orders, as I have already indicated, being made on 19 August 2016. Notwithstanding the father’s subsequent appeal, and indeed its success, at the time of the trial before me, and indeed these reasons, the father has been spending time with the child pursuant to the orders of Berman J.
In February 2018 a Family Report was prepared and released to the parties.
In July 2018 the preliminary issue of the Rice & Asplund question was heard, and determined on 30 August.
On 6 December 2017 a daughter, AA, was born to the father and Ms L Henley.
Present situation
As at the time of the hearing before me, the mother is residing with the child and F in a rental property at Suburb X. She is not in employment, but lives on a combination of Centrelink entitlements and child support payments. She is undertaking some online study to improve her prospects of obtaining employment, and thereafter hopes to secure a job in marketing, retail sales, or similar.
The mother maintains a species of relationship with her former employer in Town P. However they do not cohabit, with him continuing to live in Town P and she in Adelaide.
The father remains living with Ms L Henley and AA at their home at Suburb VV. He continues as a public servant.
For his part the child appears to be doing well. Although the father says that he has noticed that the child gains weight when in his care, and tends to lose weight when in the mother’s care, there is no suggestion that he is medically unwell in that respect. The father says that the mother regularly takes the child to Town P, and that causes him some respiratory issues.
The child’s school reports for 2018 were in evidence. He was then in year two. The end of year report notes that he is a happy, positive child, with an infectious laugh. He is popular. He has a good command of spelling, and reads a wide range of books with fluency. He is appropriately mathematically proficient. He can read a clock. It is reported that he “always puts in a fantastic effort.” He participates fairly in games.
Unfortunately I did not have the benefit of an up-to-date Family Report, which would also be a useful source of information about the child’s present circumstances, but suffice to say there was nothing of concern in 2018 when the report in evidence was prepared, and there is no suggestion that the child is not progressing well at school, or is unhealthy. I shall address some of the specific concerns which the father has about the child in due course.
RELEVANT STATUTORY PROVISIONS AND LEGAL PRINCIPLES
The statutory regime
Part VII of the Family Law Act contains the relevant statutory provisions dealing with children. Section 60B specifies the objects of Part VII, and the principles underlying those objects in the following terms:
(1) The objects of this Part are to ensure that the best interests of children are met by:
(a) ensuring that children have the benefit of both of their parents having a meaningful involvement in their lives, to the maximum extent consistent with the best interests of the child; and
(b)protecting children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence; and
(c) ensuring that children receive adequate and proper parenting to help them achieve their full potential; and
(d) ensuring that parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of their children.
(2) The principles underlying these objects are that (except when it is or would be contrary to a child’s best interests):
(a) children have the right to know and be cared for by both their parents, regardless of whether their parents are married, separated, have never married or have never lived together; and
(b) children have a right to spend time on a regular basis with, and communicate on a regular basis with, both their parents and other people significant to their care, welfare and development (such as grandparents and other relatives); and
(c) parents jointly share duties and responsibilities concerning the care, welfare and development of their children; and
(d) parents should agree about the future parenting of their children; and
(e) children have a right to enjoy their culture (including the right to enjoy that culture with other people who share that culture).
Section 61DA(1) of the Family Law Act provides that the court must apply a presumption that it is in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child. In the event that, either because that presumption applies, or because it is otherwise in the child’s best interests that there be an order providing for equal shared parental responsibility, the court is obliged pursuant to s 65DAA(1) to then consider certain matters, including whether the child should spend equal time with each of the parents, or substantial and significant time.
Finally s 60CA provides that in deciding whether to make a particular parenting order, the court must regard the best interests of the child as the paramount consideration. The matters which a court must have regard to in determining the best interests of a child are set out in s 60CC. Consideration does not mean discussion: Banks & Banks [2015] FamCAFC 36 at [49].[4]
[4] Although that case was in relation to interim orders, there is no reason to think it does not equally apply to final orders.
In Mauldera & Orbel (2014) FLC 93-602 the Full Court had occasion to consider the interrelationship between s 60B and ss 60CC. At [72] the Court applied the principles enunciated in Wacando v The Commonwealth (1981) 148 CLR 1 in concluding that objects clauses, such as those contained within s 60B(1) can be used as an aid to the construction of words of legislation, but cannot be used to cut down the plain and unambiguous meaning of a provision if that meaning in its textual and contextual surroundings is clear (quoting from S v Australian Crime Commission (2005) 144 FCR 431 at [22] per Mansfield J). At [79] the Court concluded that the primary Judge could not attach greater weight to the factors referred to in s 60B than to the outcome of her s 60CC deliberations, and in doing so, her Honour had erred.
The standard of satisfaction required
Section 140 of the Evidence Act 1995 (Cth) provides as follows:
140(1) In a civil proceeding, the Court must find the case of a party proved if it is satisfied that the case has been proved on the balance of probabilities.
(2) 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;
(b) the nature of the subject-matter of the proceedings;
(c) the gravity of the matters alleged.
In Neat Holdings Pty Ltd v Karajan & Holdings Pty Ltd (1992) 67 ALJR 170 at 170-171 the majority of the High Court stated:
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 fact on the balance of probabilities may vary according to the nature of what it is sought to prove. Thus, authoritative statements have often 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.
Therefore consistent with s 140(2), in taking into account the gravity of the parties’ allegations against each other, I propose to carefully evaluate the evidence relied upon in support of such a contended finding and be particularly vigilant to identify and place reduced weight upon “inexact proofs, indefinite testimony or indirect inferences.”[5]
[5] See K v R (1997) 22 FamLR 592 and Re W (sex abuse – standard of proof) [2004] FamCA 768 at [15].
SECTION 60CC CONSIDERATIONS
By reference to the primary and additional considerations, I make the following observations.
Before me, neither party contended that the child would not benefit from having a meaningful relationship with each of his parents.
Although the father has some criticisms of the mother’s care of the child, which I will discuss in due course, I did not understand him to assert that she was subjecting him to abuse, neglect or family violence, and hence there was no need to protect him from physical or psychological harm from exposure to any of those matters.
The child expressed to Ms CC, the Family Report writer, a desire for equal time. However she dismissed those views as deserving of any real weight, because she was of the view, firstly, that he did not understand the consequences of the choice which he was articulating, and secondly she thought that he had been coached. Although she was challenged in relation to the latter conclusion, I am satisfied that indeed it is likely that the child has been influenced by the father’s discussions with him in relation to his claim for equal care. The child’s utterance that his father would be “mad” if he did not get equal time, is particularly telling.
The child has a good relationship with both parents. To the extent that either party may have suggested otherwise, I reject it. The child has a good relationship with both F and AA. He does not appear to have any extant relationship with any of the father’s children to his first marriage.
Specifically as to his relationship with F, I am satisfied, as Ms CC opined, that it is important, and in a sense F is a role model for the child. Apart from when the child is spending time with the father, he has always lived with F. I am satisfied that the child has a strong interest and connection with AA. He appears to take particular responsibility for her. He was described by Ms L Henley as being a good elder brother.
The father inferentially says that the mother has, on occasion, prioritised her own interests ahead of the child’s by, for instance, holidaying overseas without him. I am not satisfied that her desire to do that is a legitimate basis for criticising her as failing to take the opportunity to spend time with the child. I am not otherwise satisfied that the wife prioritises her needs above the child’s.
The father pays child support in relation to the child to the mother.
The likely effect of the proposed change sought by the father was a live issue in evidence before me. Ms CC rejected the father’s suggestion that she viewed such a change as a disaster, and was adamant that was not a word she would use, but rather simply contented herself with saying it was not in the best interests of the child. Particularly she explained, both in her Family Report and in her oral evidence, the concerns she had of moving to an equal time regime. In the Family Report she said:
107. The body of knowledge that is most applicable to the consideration of moving to equal time-sharing arrangement for children under ten year of age indicates that where there is ongoing parental tension, conflict and distrust, such children are at a higher risk of additional stress resulting in an increase in the possibility of later mental health issues, particularly in the teenage years. Where the research is particularly applicable in this case is in regard to the dynamics between the parents.
108. The most worrying aspect of the dynamic amongst these adults is, primarily, the very negative attitude of the father (and his wife) towards the mother. The presented as very clearly undermining .. the primary role that [the mother] plays in [the child’s] life.
At [109] she expressed the view that the mother is less undermining of the father, and genuinely supports the child’s time with him, and then continued at [110]:
110. Children are exquisitely sensitive to adult conflict and adult emotional reactions including toward others. The situation where [the child] remains for the time being in the primary care of his mother, who he has experienced as his primary parent figure for all of his life, is more likely to be protective in regard to those negative attitudes of his father, by lessening the psychological need for the child to struggle with his profound loyalty toward both his parents.
In her oral evidence, Ms CC said that it is clear that children respond to their care givers’ hostility towards others and if it persists, is likely to be felt by the child in fundamental ways, which she described as “quite primal.” She said the long term adverse effects of that are well documented.
Notwithstanding the length of time since her Family Report, she maintained her opinion that shared care was not appropriate before the child turned 10 or 11.
The father’s challenges to that evidence were appropriately considered, but ultimately rejected, by her. I give her evidence in this respect considerable weight.
The parties do not live at a distance from each other such that there is any practical difficulty or expense in the child spending time and communicating with the other parent.
The father challenges the mother’s capacity to care for the child properly. The principal challenge relates to her taking him with her, on occasions when she spends weekends in Town P with her partner. The father says that this unduly tires the child, exposes him to dust, which irritates his lungs or throat, and sees the child absent from school, if the mother travels on either side of the weekend.
The father tendered into evidence a number of tables of, not only the child’s absenteeism, but also F’s, in an effort to prove this point. The mother denied excessive absenteeism, but said that the child’s absences may be explicable by illness, attending the Temple, or family events. She did, however, concede that she has taken the child to Town P, and on occasions would have taken the child out of school to do that.
In a sense, it is unnecessary for me to determine this issue, because even if what the father contends is true, it does not tellingly speak against the mother’s capacity as a parent. It is idle to suggest the child is not emotionally or intellectually provided for by her. There is no suggestion whatsoever that he is not physically provided for by the mother. I will return to consider the father’s further criticisms of the mother’s capacity shortly.
The child is fortunate to have both Australian and South East Asian heritage, culture and traditions. A part of his South East Asian traditions is attending the Temple from time to time. However that is not an issue that loomed large in this case.
The father contended that the mother’s taking of the child to Town P, and resulting absences from school on occasions, demonstrated some reduced responsibility of parenthood. Even if it be the case, as the father contends, that the mother has more regularly travelled to Town P than she was prepared to concede, I do not conclude that reflects adversely on her attitude to the responsibilities of parenthood.
The mother accuses the father of having made her engage in sexual encounters, both with himself and others, without her consent. The father denies that the mother did not consent. It was not an issue that loomed large in the trial as a matter of fact, but rather it is the allegation, charging of the father, and subsequent discontinuance, which is important as I shall discuss in due course. Plainly sexual activity without consent would comprise family violence.
Family violence orders have not prevailed between these parties.
It would be preferable to bring these now long running proceedings to an end, in a way which is least likely to lead to further proceedings.
I cannot identify any other fact or circumstance that is relevant to this case.
CHILD’S TIME WITH THE FATHER
Reasonable practicability
The undisturbed parenting orders made by Berman J provide for equal shared parental responsibility. Therefore pursuant to s 65DAA I must consider whether the child spending equal time with each of the parents would be in his best interests, and whether it is reasonably practicable, and if so, consider making an order for equal time.[6] In the event that I am not so persuaded, then I need to do the same in relation to substantial and significant time, which concept the present regime of orders would satisfy.
[6] At the trial of the remitter, I raised the seeming incongruity of the failure of the Full Court to disturb the order that the child “live with” the mother, and the father’s equal time proposal. However it is plain that a “live with” order does not preclude an order for the other parent to have the child “live with” them on an equal basis too: see B & B: Family Law Reform Act 1995 (1997) FLC 92-755 at 9.39 – 9.41.
Reasonable practicability is dealt with in s 61DAA(5). By reference to the considerations in that sub-section, I make the following observations.
The parties live close by each other. They have clearly demonstrated capacity to implement an arrangement for substantial and significant time, but other than for some periods of holidays, not equal time. That said, I cannot identify any lack of capacity in either parent, whether currently or likely to arise in the future, to implement an equal time regime. This case is rather about the impacts of such a regime on the child prior to him turning 10 or 11 years of age.
The parties have some difficulty in communicating with each other, which may have its foundation in their marked difference in age and culture. However I do not assess that they do not presently, or in the future would not likely, have the capacity to communicate with each other and resolve difficulties in relation to either an equal time, or substantial and significant time, regime.
I have already discussed the evidence about the impact which an equal time regime would have on the child. I am satisfied that there would be no impact on the child of a substantial and significant time regime, such as presently prevails. The child is flourishing under that regime.
I cannot identify any other matters that I consider relevant.
I am therefore satisfied that both an equal time, or a substantial and significant time regime, would be reasonably practicable.
The father’ contentions
The father’s Case Outline helpfully sets out his argument as to why the best interests of the child lie in the equal care regime for which he contends. It is convenient to state those, and then make some commentary and findings in relation to them.
1. The child will benefit by spending more time with the father as:
·The mother has been taking the child out of school very frequently and needlessly;
·The mother has been frequently taking the child during term time to Town P (a 10 hour trip one way by road);
·The mother denigrates the father and persists in making serious criminal allegations against him;
·The mother uses physical and inappropriate punishments against the child;
·The father and his wife demonstrably put the child’s well being and best interests, as far as is reasonably possible, first, including educationally, emotionally, physically and socially and they provide a high level of love, care and support for the child.
I am not satisfied that the mother has been taking the child out of school “very frequently and needlessly.” That said, I am satisfied that she has, on occasion, kept the child out of school for non-medical reasons. Allied to this was the father’s suggestion that the child’s school reports show that he is not attaining an excellent achievement, even though he is reported as having excellent effort. To my mind the mother’s answer about this, when pressed in cross-examination, was telling. It was to the effect that she agreed with the father’s contention, but since the child was only in grade 2, his happiness was more important than achieving excellence at school. I must say I tend to have some sympathy for the mother’s position in relation to an eight year old boy. The father may have a different view, but grade 2 academic results do not, to my mind, carry great weight in the overall scheme of things.
I am satisfied that the mother has, on occasion, taken the child during term time to Town P, and the trip is likely to be tiring to the child. However I accept Ms CC’s evidence that the father is perhaps too sensitive in relation to the child, whereas the mother has a desire to see the child resilient and adaptive. I am not persuaded that the child has been unduly exposed to extensive road travel.
I am not satisfied that the mother denigrates the father before the child, and indeed there is no evidence to that effect.
The mother does not withdraw her serious allegations against the father. However I am far from persuaded that the child is, or is likely to become, aware of those allegations.
The child has told the father that the mother has hit him. The father accepted in cross-examination that he had never seen the mother hit the child, although the mother conceded in her cross-examination that she does, on occasion, use corporal punishment in the form of a light tap. I am not persuaded that the mother inappropriately disciplines the child. It was further said that she has disciplined him by leaving him in the dark (it being apparently conceded that the child is scared of the dark). The evidence could not possibly persuade me that she does so, given her denial.
I accept that the father and Ms L Henley have the child’s best interests at heart, and provide a high level of love, care and support for the child. The child is lucky in that respect.
2. The mother has stated that she did not want the child (ie conceive him) and the mother’s opposition to the father’s application is not based on the child’s best interests. In this regard, the mother has a history of granting or denying contact as it suited her; including proposing, at separation, that the father have the child 4 nights / week (when the child was less than 3 years of age).
Whether or not the mother wanted the child is irrelevant. She plainly loves and nurtures him now.
It is true that the mother has a history of relatively high handed granting or denying the child spending time with the father in the past. Her move to Town P without telling the father in July 2014 is perhaps the high water mark of this, as it denied the child time or communication with the father for some three months.
I place little weight upon a parenting arrangement negotiated two days after separation. I am far from persuaded that it was the product of two equal parties negotiating to an agreed bargain.
3. The father and his wife (and toddler AA) have a close, caring, appropriate and beneficial relationship with the child.
I accept this contention.
4. The father has had significant contact to the child since separation and also extended blocks of time including when the mother has travelled overseas; consequently, an increase of time to week about is unremarkable.
Whilst I accept that the father has, to his credit, had significant contact with the child since separation, including extended blocks of time when the mother has travelled, it does not logically follow that therefore an increase to equal time is “unremarkable.” I accept Ms CC’s evidence as to the effect which such an arrangement is likely to have to a child under the age of 10.
5. There are circumstances of concern as to the state of the mother’s psychological health and about behaviours such as:
·Extraordinary levels of deceptiveness;
·Outbursts of violent and abusive behaviour;
·Making bizarre and or, contradictory assertions;
·Manipulating people so as to gain sympathy and or, attention;
·Inappropriate sexual interactions with the child;
·Behaviours divulging a lack of appropriate judgment or boundaries;
·Persisting in allegations that the father raped her.
Consequently, the greater the time the child spends with the father the lesser is the likelihood that the child will be exposed to such behaviours.
There is no evidence of an extraordinary level of deceptiveness on the part of the mother. Other than the father’s allegations, which I do not accept, there is no evidence of any outburst of violent and abusive behaviour by the mother.
On one view, the mother’s behaviour post separation, may not be consistent with her allegations of non-consensual sexual activities with the father and others. However these proceedings will not be determined, and should not be determined, by reference to whether or not the parties’ threesome activities were consensual or otherwise.
There is no evidence of the mother manipulating people as the father contends.
The father says that the mother sexually assaulted the child by sucking his penis. It is a serious allegation and would engage s 140 of the Evidence Act. The mother denies it. I am not persuaded that it occurred. In any event, it does not speak to the orders for which the father advocates, in that if the mother were a risk of sexual harm to the child, then plainly there should not be orders for equal time.
I am not satisfied that there has been a lack of appropriate judgment or boundaries by the mother. It is critical to note the age difference between the parties, and perhaps this informs the differences in their expectations.
There is no significant evidence of erratic behaviours. The mother has, on occasions, been distressed. Unfortunately, that is frequently a consequence of relationship breakdown.
The mother persists in allegations that the father raped her. That does not inform the outcome of these proceedings.
The mother sought to rely upon evidence of a psychiatrist to the effect that she suffered major depression in 2011 as a result of the relationship, but by 2014 had recovered. Correctly, the father identified that the failure to call that witness for cross-examination inevitably diminishes the weight which the material would otherwise have. I give it no weight. The father also contended that the failure to call that witness with an updated report, should lead to a finding that such evidence would not have assisted the mother. I decline to make that inference. On the evidence, the mother has not seen the psychiatrist for many years.
I am not persuaded that the mother presents any risk of harm of any kind to the child, such that there is merit in reducing her time with him, so as to commensurately reduce the child’s exposure to that risk of harm.
6. Notwithstanding the concerns that the father has about the mother’s parenting; communication between them has been overwhelmingly cooperative and amicable and the father and his wife do not denigrate the mother to the child, or in the child’s presence.
I accept that the parties have a species of communication that can presently support substantial and significant time, and likely equal time. However I do not accept that the child has been shielded from the parental hostility. My impression is that the father is still red raw at the allegations of sexual assault of the mother that she raised against him. It plainly had a profound effect upon his life at the time, including interrupting his professional career, and the inevitable gossip that likely ensued within the public service environment.
7. The Family Report of 26 February 2018 be given little weight and the recommendations therein, not be accepted by the Court as:
7.1the author had regard to the mother’s highly prejudicial and false allegations against the father;
7.2the author did not have regard to other false, and or irrelevant considerations;
7.3the author did not have regard to the relevant considerations;
7.4 the report divulges a loss of objectivity in taking a sympathetic view of the mother’s assertions and in ignoring assertions of the father.
Ms CC roundly rejected the suggestion that she had placed weight of any moment upon the mother’s allegations against the father. It is not clear what other false or irrelevant considerations Ms CC is said to have had regard to. The Family Report writer had regard to relevant considerations. I am not satisfied that Ms CC demonstrated a lack of objectivity to the extent she may have taken a sympathetic view to the mother, and in any event, she denied doing so. I am satisfied that her report is independent, objective, impartial and deserving of weight.
Evaluation
I identify the following points as favouring the father’s proposal for equal time as being in the child’s best interests:
(a)It is consistent with the child’s articulated wishes to Ms CC, but I accept that at age 8, those wishes are deserving of little weight, and in any event, I am satisfied they are likely the product of at least inadvertent influence by the father;
(b)It may appease the father, and hence be less likely to lead to further litigation. True it is that this litigation has been long running now, but appeasement of a parent seems of dubious benefit to a child if otherwise the impact of the orders would not be in their best interests;
(c)The father says that he used to take the child to soccer every Saturday, and under the present orders, has been unable to do so except on alternate weekends. Soccer appears to be important to the child;
(d)It might reduce the frequency of the child’s travel to Town P, or non-medical absence from school, but I cannot be confident of that.
On the other hand, the following points tell in favour of the mother’s proposal:
(a)The present arrangements have been working for some two and a half years now, and the child is flourishing under them;
(b)The father’s proposal seems to be at least as much about his perception of his entitlement in relation to the child, than about the child’s best interests;
(c)Ms CC’s evidence, which I accept, is that any move to equal time should occur when the child is older, at about 10 or 11.
Weighing those factors in the balance, to my mind tells strongly in favour of the continuation of the present regime established by the orders of Berman J, at least until the child turns 10. I accept Ms CC’s recommendation that, at around that time, it is likely that the child would be able to adequately cope with a move to an equal time arrangement, but it is presently not possible to confidently predict that, and particularly whether or not the child would then wish such a regime to commence. However I do not propose to require the parties to engage in any process as recommended by Ms CC at that time. It may be that the parties readily concede that the child is not then ready to move to such a regime, or are in heated agreement that he is ready. There should not be any formal requirement for them to engage in some process prior to any agreement being reached.
CONCLUSION
For these reasons there will be orders as set out at the commencement of this judgment.
I certify that the preceding one hundred and eleven (111) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Tree delivered on 4 July 2019.
Associate:
Date: 4 July 2019
0
8
2