HERD & HERD

FAMILY COURT OF AUSTRALIA

HERD & HERD

[2015] FamCA 331

FAMILY LAW – CHILDREN – Best Interests – Where the child has meaningful relationships with both parents – Where the evidence was insufficient to prove any need to protect the child from physical or psychological harm caused by her subjection to abuse or family violence by the mother – Where the father’s criticism of the mother tended to impair his ability to support the child’s relationship with her – Where an equal time arrangement is not in the child’s best interests and was not sought by either party – Where the success of the current parenting arrangement suggests little need for alteration – Child to live with the mother – Child to spend substantial and significant time with the father

FAMILY LAW – CHILDREN – Parental Responsibility – Where the single episode of family violence conceded by the mother renders the presumption of equal shared parental responsibility inapplicable – Where both parties nonetheless sought that equal shared parental responsibility be allocated to them – Parties to have equal shared parental responsibility

Family Law Act 1975 (Cth), ss 4, 4AB, 60CA, 60CC, 61B, 61C, 61DA, 62B, 65AA, 65DA, 65DAA, 65DAC, 65DAE, 96

SCVG & KLD [2014] FamCAFC 42

APPLICANT:

Ms Herd

RESPONDENT:

Mr Herd

FILE NUMBER:

NCC

1519

2013

DATE DELIVERED:

8 May 2015

PLACE DELIVERED:

Newcastle

PLACE HEARD:

Newcastle

JUDGMENT OF:

Austin J

HEARING DATE:

20 & 21 April 2015

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Mr Gorton

SOLICITOR FOR THE APPLICANT:

Legal Aid NSW

COUNSEL FOR THE RESPONDENT:

Mr Levick

SOLICITOR FOR THE RESPONDENT:

Peter Hamilton & Associates

Orders

All former orders relating to the child B, born … 2010, (“the child”) are discharged.
The mother and father shall have equal shared parental responsibility for the child.
The child shall live with the mother.
The mother and father shall take all reasonable steps to ensure that the child spends time with the father as follows, or as otherwise agreed:
(a)During NSW public school terms, each alternate weekend from 5.00 pm Friday until 6.00 pm Sunday, commencing on the first Friday of each term;
(b)During NSW public school holidays, except the Christmas school holidays, for the first half of such holidays in every odd numbered year, and for the second half of such holidays in every even numbered year; and
(c)During the NSW Christmas school holidays, for the first half of such holidays in the years when the holidays commence in an odd numbered year and for the second half of such holidays when the holidays commence in an even numbered year.
For the purposes of implementation of Order 4 hereof, the NSW public school holidays are deemed to commence at 5.00 pm on the last day of school term, the holidays are deemed to end at 6.00 pm on the last day preceding the day upon which the child is due to return to school, and the mid-point is 5.00 pm on the day halfway between those first and last days.
Order 4 hereof is suspended during the following periods:
(a)From 3.00 pm on Christmas Eve until 3.00 pm on Boxing Day each year, during which period the child will spend time with the father from 3.00 pm on Christmas Day until 3.00 pm on Boxing Day, and with the mother from 3.00 pm on Christmas Eve until 3.00 pm on Christmas Day in odd numbered years, with the same arrangements in reverse in even numbered years; and
(b)Between 10.00 am and 5.00 pm on each Mother’s Day and Father’s Day, during which periods the child shall spend time with the mother on Mother’s Day and with the father on Father’s Day.
For the purposes of implementing Orders 4-6 hereof, the party with whom the child is due to live or spend time shall collect the child from the other party or his/her nominee at the residence of the other party.
Each party is restrained from causing or permitting the infliction of corporal punishment upon the child.
Each party is restrained from denigrating the other in the presence or hearing of the child and from permitting the child to remain in the presence or hearing of another person denigrating the other.
Each party shall forthwith inform the other, and keep the other informed, in writing of their respective current residential address, landline telephone number, mobile telephone number, and email address.
Pursuant to s 65DA(2) and s 62B of the Family Law Act, particulars of the obligations that these orders create, particulars of the consequences that may follow contravention of these orders, and details of assistance to comply with these orders are set out in the attached Fact Sheet, which forms part of these orders.
Any and all other outstanding applications are dismissed.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Herd & Herd has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

FAMILY COURT OF AUSTRALIA AT NEWCASTLE

FILE NUMBER: NCC 1519 of 2013

Ms Herd

Applicant

And

Mr Herd

Respondent

REASONS FOR JUDGMENT

Introduction

A four year old girl was the subject of these proceedings. The single issue for determination was with which parent she should live.
The parties agreed she should live predominantly with one of them and spend substantial and significant time with the other. They also agreed they should have equal shared parental responsibility for her. Such proposals manifested the parties’ mutual confidence in one another’s parenting capacity. Given such confidence, one wondered what evidence might tip the balance in favour of the child’s residence with one party over the other. The answer was: not much.

History

The parties commenced a relationship in 2009 and married several months later in 2009. They finally separated in May 2013.
Their child was born in 2010. The mother has an adult son to a prior relationship, but he is not relevant to these proceedings.
Upon separation in May 2013 the father took the child with him to live with the paternal grandmother.
These proceedings were then immediately commenced by the mother. She sought orders for the child to live with her and the child’s recovery from the father.
Interim orders were made by the Local Court of NSW at C Town on

14 June 2013 providing for the parties to have equal shared parental responsibility for the child and for the child to live between the parties – in each week, four nights with the mother and three nights with the father. The proceedings were simultaneously transferred to the Federal Circuit Court.
The father was dissatisfied with those orders and lodged an appeal against the decision of the State magistrate, as s 96(1) of the Family Law Act 1975 (Cth) (“the Act”) permitted. Since the appeal lay to this Court, the order for the transfer of the proceedings to the Federal Circuit Court did not take effect.
The father’s dissatisfaction with the interim orders caused him to deliberately breach them. Consequently, before the father’s appeal was heard in this Court, both parties filed further documents containing applications for extra interim orders. The mother filed an Application in a Case on 9 July 2013 and the father filed a Response to an Application in a Case on 23 July 2013.
The appeal and the additional interim applications were heard conjointly on

26 July 2013. All past parenting orders were discharged. Fresh interim orders were made for the child to live with the mother and to spend substantial and significant time with the father, amounting to three nights each week. The parties were allocated equal shared parental responsibility for the child. Otherwise, the appeal and interim applications were dismissed.
As the proceedings progressed towards final hearing in this Court it was formally noted that the parties agreed they should have equal shared parental responsibility for the child, that she should live primarily with one of them, and that she should spend substantial and significant time with the other. The parties have not deviated from that consensus.

The proposals

The mother pressed for the orders set out in her Amended Initiating Application filed on 20 October 2014.
The father pressed for the orders set out in his Amended Response filed on

29 October 2014.
Each party sought that the child live with him or her and spend significant periods of time in the care of the other. Their reciprocal proposal for the “substantial and significant time” (s 65DAA(3)) the child should spend with the non-residential parent amounted to four nights each fortnight during school terms, periods of each school vacation, and on other special occasions.

The evidence

The mother relied upon her affidavit filed on 6 March 2015.
The father relied upon his two affidavits, filed on 14 November 2014 and

6 March 2015. He abandoned reliance upon the affidavit of his partner,

Ms D, filed on 10 December 2014.
The parties also relied upon:
(a)The report of the single expert consultant psychologist, Dr E, dated 5 March 2014; and
(b)The Family Report dated 1 September 2014.
Both the single expert and family consultant were cross-examined. Neither party suggested any portion of their evidence should be rejected.

Child’s best interests

When making parenting orders the Court is mandated to regard the child’s best interests as the paramount consideration (ss 60CA, 65AA). The Act specifies the criteria which the Court must contemplate in arriving at a conclusion as to what is in the best interests of the child (s 60CC), requiring hierarchical, though not necessarily sequential, contemplation of those “primary” and “additional” considerations.

Section 60CC(2) – primary considerations

Dealing firstly with s 60CC(2)(a) of the Act, it was common ground the child enjoys meaningful relationships with both parents from which she does, and should continue to, derive much benefit. The family consultant found no noticeable difference in the way the child behaved when with the parties.[1]
[1] Family Report, para 45
The parties’ respective proposals implied their acceptance of the equivalent quality of the child’s relationships with them both. Consequently, s 60CC(2)(a) was not engaged as an influential consideration in the proceedings, which leaves s 60CC(2)(b) of the Act for consideration.
Despite the glaring incongruence between the father’s proposal for the child to unconditionally spend substantial amounts of time with the mother and his asserted concern about the child’s welfare when in her care, the evidence adduced by him about both family violence and the child’s possible physical abuse deserves attention.

Family violence

The father asserted the mother assaulted him on numerous occasions,[2] though the mother admitted only one such incident of much less seriousness.[3]
[2] Father’s first affidavit, paras 55-80
[3] Mother’s affidavit, para 91
Given the admission of one episode of family violence, it was quite unnecessary to determine whether family violence occurred more frequently, since the occurrence of any family violence affects the applicability of the presumption of equal shared parental responsibility regardless of its severity or frequency (s 61DA(2)).
The potency of family violence, by reason of either or both of its severity and frequency, does ordinarily influence findings about the best interests of any child who is witness to it (s 60CC(2)(b)), but not in the circumstances of this case for two conspicuous reasons.
First, the father did not seek to employ any finding of the mother’s perpetration of family violence for any real forensic effect. He proposed that the child spend substantial and significant time with her regardless. He did not propose the imposition of supervision or any other condition that might serve to attenuate the prospect of the child’s exposure to family violence committed by the mother.
The father suggested that curtailment of the child’s time with the mother to only four nights each fortnight would reduce the risk of the child’s exposure to such danger, but that was a superficial artifice. If the mother’s propensity to commit family violence was as the father asserted, she was just as likely to expose the child to violent conduct on any of the four nights the child would spend with her under his proposal as on any of the other ten nights in the fortnight. Moreover, the father could offer no sensible explanation to account for why he was then content for the child to spend half of each school holiday period with the mother, which would amount to a week at a time in the Autumn, Winter, and Spring vacations, and up to three continuous weeks in the Summer vacation.
Secondly, even if the father’s evidence was accepted at its highest, the last event of family violence between the parties occurred in May 2013, just prior to their final separation. They have since met with one another no less than twice each week to ensure the child is exchanged between them pursuant to the interim orders made in July 2013. There is no evidence at all of any conduct by either of them since then which could amount to family violence – even under the wide definition of that term now prescribed by s 4AB of the Act. On any reasonable view, it could not be contended there is currently any need to protect the child from any harm that might be sustained through exposure to family violence (s 60CC(2)(b)). The father accepted the correctness of that analysis and therefore declined to cross-examine the mother on the discrepancy in their evidence.

Child abuse

The father’s attitude to the current need to protect the child from harm through subjection to physical abuse was, however, much different.
The father contended the mother frequently punished the child in the past by smacking her, which he attributed to the mother’s easy susceptibility to frustration and anger over the child’s trying behaviour. It is convenient to note at this point the parties’ acknowledgement that the child suffers from mild autism, which tends to affect her behaviour adversely. The father believes the mother assaulted the child in December 2014, causing her bodily injury, which he furthermore believes proves the mother’s inability to cope with the child for more than short periods.
The mother unconditionally rejects the father’s allegations and imputations of both her physical abuse of the child and an inability to cope with her.
As will be appreciated from that short summary, the father’s contention relies upon two limbs – how he saw the mother react to the child in the more distant past and what he believes happened more recently in December 2014.
The father deposed he saw the mother physically hit the child “a lot…without any provocation or reason” in the period between September 2012 and May 2013,[4] which was the last nine months of their cohabitation. He later defined the terms “a lot” and “constantly” to mean some “8-10 occasions”.[5] It was not suggested the physical discipline caused the child any injury.
[4] Father’s first affidavit, para 42
[5] Father’s first affidavit, paras 49, 52
The mother deposed that the paternal grandmother encouraged them both to smack the child as a form of discipline,[6] which the father admitted in cross-examination to be true. The father also admitted in cross-examination that he too had smacked the child during the parties’ relationship, though he said in re-examination it only occurred once. He conceded it was hypocritical of him to criticise the mother for use of corporal punishment upon the child when he had done the same thing, let alone on the advice of the paternal grandmother.
[6] Mother’s affidavit, para 82
The mother deposed she had since changed the way she punishes the child and now uses different discipline strategies.[7] She was challenged in cross-examination, but firmly rejected any suggestion she had recently smacked the child. She denied having done so for a period of years and then explained the parties had discussed implementation of alternative strategies for discipline. She said she had faithfully observed the interim injunction imposed in July 2013 restraining the parties from inflicting corporal punishment upon the child.[8] Save for an incident in December 2014, yet to be discussed, there was no obvious reason to reject the mother’s evidence as incredible. The father’s mere suspicion of her dishonesty was not enough.
[7] Mother’s affidavit, para 83
[8] Order 7 made on 26 July 2013
Accordingly, the evidence about the child’s injury over a weekend in December 2014 became critical to the father’s case.
There is no doubt the child was bruised behind both ears, bruised on her upper arms, and scratched down her side. The controversy concerned the manner in which she sustained the injuries. The father alleged the injuries must have been sustained by virtue of the child’s abuse by the mother (or at least someone within her home), which was refuted by the mother.
Regrettably, there was considerable uncertainty about the actual extent of the child’s injuries, when they were actually observed, and the cause of them.
The inconsistent evidence about when the injuries were noticed was as follows:
(a)The father deposed he did not see the bruising on the child’s arms and the scratch down her side until when he bathed her on Saturday evening (13 December).[9] He said he did not notice any injuries on the child’s body on Saturday morning, though he gave inconsistent accounts about whether he dressed the child when she woke on Saturday morning or whether the child dressed herself.
(b)The father deposed he did not see the bruising on the child’s ears until he was at the police station with her on Sunday (14 December), after he had already taken her to the doctor’s for physical examination.[10] However, in cross-examination he gave two other accounts, both of which were inconsistent with one another and with his evidence in chief. He initially said he first noticed the bruising on her ears when he brushed her hair on Saturday morning, but then later said he first noticed it when he brushed her hair on Sunday morning. The father also gave an inconsistent earlier account to police. He told them he observed all of the bruising on the child’s body (which must have included the bruising around her ears, as it was mentioned in the police complaint) on Saturday evening (13 December).[11]
[9] Father’s second affidavit, para 13
[10] Father’s second affidavit, paras 14-15
[11] Exhibit M1
If, as the father deposed, he did not see the bruising around the child’s ears until later on Sunday, it seems inconceivable the doctor would have missed observing such obvious bruising earlier in the day when the express purpose of that medical examination was to examine her body for injuries. If the doctor did see the bruising around her ears at the time of that examination, it is inconceivable the father, who took the child to the examination, remained ignorant of such bruising until later in the day.
The inconsistent accounts given by the father were most troubling. Given that his evidence was the foundation for an allegation the mother had assaulted the child and continued to pose a risk of harm to the child, it was incumbent upon him to ensure his evidence was sound, particularly since the formal investigation by the NSW Joint Investigation Response Team resulted in no conclusion about the cause of the child’s injuries.[12] The father adduced no oral or documentary evidence from the doctor who examined the child on Sunday (14 December) about her injuries or their probable cause.
[12] Mother’s affidavit, para 124; Father’s second affidavit, para 24
The mother sought her own medical attention for the child when she returned to her care after the weekend visit to the father. The mother was led to believe the child’s ears may have been “grabbed and twisted”.[13] It is unlikely the mother would have voluntarily adduced evidence of her being told the child had been assaulted if she really knew she was the perpetrator of such abuse.
[13] Mother’s affidavit, paras 111-115

The child’s inconsistent explanations for her injuries, which were as follows, only compounded the muddle:
(a)She told the father on Saturday night (13 December) she did not know how she sustained the bruising on her arms and the scratch down her side.[14]
(b)The father alleged that when asked by police on Sunday (14 December) how she sustained her bruising she said nothing,[15] but the police reported she told them her injuries were “from a skateboard”.[16]
(c)The father also reported to the police on Sunday (14 December) that she told him she suffered her injuries through other misadventure, which included: falling off her bike, falling off a skateboard, from a friend, and by bumping into a wall.[17] The father admitted he would not have reported such things to the authorities unless the child had actually said such things to him.
(d)She told the father on Sunday evening (14 December), in response to a leading question about her ears being pulled, that the mother had done so.[18]
(e)Her pre-school staff told the mother that her explanation for her injuries on Monday (15 December) was “Daddy – skateboard”.[19]
(f)The father said in cross-examination he overheard her tell pre-school staff on Monday (15 December) that she injured herself while at the pre-school.
[14] Father’s second affidavit, para 13
[15] Father’s second affidavit, para 16
[16] Exhibit M1
[17] Exhibit M1
[18] Father’s second affidavit, para 17
[19] Mother’s affidavit, para 109
The mother alleged, without challenge, that on Monday (15 December) the child’s injuries also included bruising on her chin, a graze on her jawline, and a graze on the right-side bottom corner of her mouth.[20] Such injuries tend to be consistent with the explanation offered by the child, at least three times, about falling off a skateboard. Nevertheless, that explanation is hardly plausible for the bilateral ear bruising or the bruising on both upper arms from which she suffered.
[20] Mother’s affidavit, para 110
The police, who conferred with the child on Sunday afternoon (14 December), considered the bruises around her ears to be “purple in colour suggesting they were fresh”.[21] Such an opinion is just as consistent with the trauma which caused the bruising having occurred within the preceding 48 hours, while the child was in the father’s care, as it is with the child sustaining the trauma when in the mother’s care beforehand.
[21] Exhibit M1
The mother passed the child into the father’s care in the afternoon of Friday

(12 December). The father’s evidence was inconsistent and confusing about when his partner and her two children were present at his home with him and the child after that point in time. The father’s partner may well have been at the home until as late as Saturday morning and it remains unclear whether or not her children were away visiting their father and, if so, when they left the father’s home. Given the child already told the father some months before that she had been hit and bruised by them,[22] notwithstanding the father’s disbelief of her allegations, the possibility of their individual or collective involvement in the child’s injuries on this occasion cannot be discounted. So far as the investigating authorities were concerned, the father and members of his household were just as suspect as the mother.[23] Interestingly, the father’s partner declined to assist him in these proceedings because she did not want either her or her children drawn into the formal investigation of the child’s injuries.[24]
[22] Father’s first affidavit, para 94
[23] Exhibit F2 (page 89); Exhibit F4 (page 72, para 5)
[24] Father’s second affidavit, paras 40-41
When the father was asked in cross-examination why he suspected the child’s injuries were all due to assaults by the mother, he gave two reasons: first, what the child had said about the cause of her injuries, and secondly, the content of a voice message recorded on his mobile telephone.
As to the first of those reasons, the following points should be noted about all of the different explanations given by the child for her injuries: she only once blamed the mother; that attribution of blame was confined to the bruising around her ears and did not extend to any of her other injuries; and such explanation was offered in response to a loaded question asked by the father.
The father knows the child’s representations are prone to unreliability. He admitted as much in cross-examination. He believes little weight can be reposed in the truth and accuracy of what she says because the child previously alleged she was smacked and thereby bruised by the father, his partner, and his partner’s two children, but the father regarded all of those allegations as false.[25] Given his belief the child is capable of lying, particularly in relation to her abuse and the infliction of injuries upon her body, he could give no sensible answer to the question why he would so readily believe in the truth of the child’s allegations that her ears were pulled by the mother.
[25] Father’s first affidavit, paras 94-95
As to the second of the reasons advanced by the father for his belief in the mother’s abuse of the child, he tendered as an exhibit the auditory content of a message recorded on his mobile telephone on 12 December 2014.[26] The significance of the recording was both its content and its proximate occurrence with the child’s weekend visit when bruising was visible on her body.
[26] Exhibit F1
It was uncontentious the recording contained an interchange between the mother and child, which was inadvertently recorded on the mother’s mobile telephone and transmitted to the message bank of the father’s mobile telephone.
The recording occurred at a time when the mother was loading the child into her car in a shopping centre carpark in readiness to deliver the child to the father for her weekend visit with him. The mother was hurrying because she was late and the child was resisting her efforts to hurry.
The recording is indistinct in parts, but there is no dispute that the mother said to the child at one point:
Shut up, I’ve fuckin’ had it.
The father asserted the recording contained other comments in a similar vein, as follows, though it was difficult to discern such from the recording:
Get in the car now…When I say get in the car, get in the car.
Fuck…get in the car, I’ve fuckin’ had enough. Shut up. When I’m driving you sit in your seat and your [sic] shut up…fuck.
It would be unsurprising if such additional comments were made by the mother, as it was consistent with what she clearly did say.
As might be expected, the mother was chastened by her intemperance with the child on that occasion. She readily agreed her outburst warranted censure. She admitted the child can be oppositional, exacerbated by her mild autism, and she was occasionally frustrated by her inability to control the child’s behaviour.
There was one further aspect of the recording which the father regarded as important. There was a sudden noise during the mother’s conversation, which the father interpreted to be the mother slapping the child once and the child yelping in pain. The mother vehemently denied she struck the child during that incident or at any other recent time. She said the child actually hit her.
The father simply disbelieved the mother’s account of the incident. He reasoned as follows: the mother struck the child during that encounter at her car on Friday; that assault explained the bruising he saw on the child’s body over the ensuing weekend; such conduct by the mother was not isolated, but rather exemplified her usual pattern of behaviour with the child; and in aggregation, such facts proved the mother remained a threat to the child’s physical and emotional safety.
Such a reasoning process was flawed on several levels.
First, the evidence did not unequivocally establish the mother probably struck the child during the incident at the carpark. Her denial of striking the child on that occasion, and for several years beforehand, was convincing. The sound on the recording which the father interpreted to be a slap may not have been. The sound on the recording which the father interpreted as the child’s yelp may not have been. There were numerous noises on the recording besides the mother’s voice which were indistinct. In cross-examination the father was moved to admit “I don’t know what happened in that recording in relation to that sound”, by which he meant he could not really know what actually occurred. Even if one of the noises was a slap, it could have been the noise of the child striking the mother, just as she alleged. Although the mother was aggravated, the child was resistant and melancholic. It was feasible the child did strike the mother because both parties admitted the child had hit them, pulled their hair, and thrown objects at them on past occasions. It was an aspect of the child’s behaviour which had been troublesome over a prolonged period.
Secondly, even if the mother did slap the child on that occasion, the father accepted the recording only verified one slap. It would be pure speculation, not valid inference, to conclude the mother slapped the child more than once during that episode. One slap could not possibly account for all of the injuries that both parties observed on various parts of the child’s anatomy between Saturday (13 December) and Monday (15 December).
Thirdly, if as the father may believe, the mother lost all control and physically beat the child on that occasion so as to inflict all of the injuries later observed on her body, it is almost impossible to reconcile such a vicious and sustained attack with the child’s demeanour when she was shortly thereafter delivered into the father’s care. The mother was hurriedly loading the child into her car to immediately take her to the venue at which she arranged to exchange the child with the father. He adduced no evidence to suggest the child’s demeanour was commensurate with her presumed beating by the mother only a short time before. In fact, the father admitted in cross-examination the child made no complaint at all to him over the ensuing weekend about either her bruising or any associated soreness.
Fourthly, the father’s belief in the mother’s propensity to often react to the child in the way as was recorded was complete conjecture. Other than momentarily on occasions when the child was exchanged between them, the father has not witnessed the child in the mother’s care since shortly after they separated nearly two years ago in May 2013. He could not possibly know what occurs between the mother and child in the mother’s home. Although the father was critical of the mother’s past discipline of the child during their cohabitation, his criticism was disproportionate. He admitted the paternal grandmother advised them both to use corporal punishment on the child, he admitted he too smacked the child, and he never suggested the mother’s past punishment of the child ever resulted in any injury to the child.
Fifthly, the father’s inability to reconcile his asserted genuine belief in the risk of harm posed by the mother to the child with his proposal for the child to spend substantial amounts of time in her care tends to rob the evidence of the strength for which he contends. Only an incompetent parent would willingly want his or her child to spend time in the care of another parent who genuinely poses a risk of physical or psychological harm to the child. The father is not an incompetent parent. The only logical inference to draw is that, while he harbours concern about the relative contemporaneity of the mother’s altercation with the child and the child’s injuries, he does not genuinely believe the mother is capable of assaulting the child. For the same reason as was earlier addressed in respect of the incongruence between the father’s parenting proposal and his complaints of family violence, his proposal for the child to spend substantial and significant time with the mother instead of living with her was a fanciful solution to the risk of harm he alleged the mother posed to the child.
Lastly, even if it is assumed the mother did assault the child on that particular occasion, there is no evidence at all of her having abused the child either before or since. Past instances of proportionate corporal punishment do not constitute “abuse” for the purposes of the Act, even though accepted morality may now deem that corporal punishment should be abandoned as a legitimate form of discipline. The furore the incident created in these proceedings is likely to be a strong deterrent to the mother to ever react towards the child in a similar way again.
The shortcomings in the evidence preclude a finding to the requisite civil standard of proof that the mother physically abused the child. The father ultimately admitted that was so during final submissions.
The father argued for an alternate finding of “unacceptable risk”, but nor was the evidence sufficient to prove there is an existent need to fashion orders to protect the child from physical or psychological harm caused by her subjection to abuse by the mother in the future.

Section 60CC(3) – additional considerations

It may be acknowledged at the outset that, generally speaking, both parties are capable parents. These proceedings were essentially a narrow contest about which party is best equipped to meet the child’s emotional needs.
The mother contended she was better suited to the role of residential parent because the child’s maintenance of loving relationships with both parents was vitally important and the father was less likely than her to support the child’s relationship with the non-residential parent.
The father contended he was better suited to the role of residential parent because his calmer approach to parenting was more beneficial to the child than the mother’s anxious, loud, and confrontational style of parenting, particularly given the child’s mild autism.
With their respective claims staked on those grounds, the parties expressly addressed only the considerations prescribed by s 60CC(3)(f), (i), and (m) of the Act and ignored the remaining “additional” considerations. If the parties construct their dispute in that manner, the Court is not required to slavishly address all other statutory considerations in its reasons for judgment simply for completeness, unless they have obviously been overlooked (see SCVG & KLD [2014] FamCAFC 42 at [77]-[91]).
The father’s final submission was to the effect that his “overarching concern” was the manner in which he believed the mother reacted towards the child. While it may be accepted his concern is genuine, that did not necessarily mean his concern was reasonable. Some aspects of the evidence did give some cause for concern about the mother’s parenting style, but not so much concern as would render her parenting capacity inferior to the father’s.
The mother was the victim of a brutal criminal assault when she was a young adult, which has since caused her some “anxiety and anger issues”, for which she has received counselling.[27] From time to time she has been prescribed pain and anti-depressant medication.[28] She also sought counselling in relation to the breakdown of her relationship with the father.[29] The single expert opined that the mother’s disposition to anxiety and tendency to anger easily did not meet diagnostic criteria for any recognised psychological or psychiatric condition,[30] and further, her traits did not materially impair her parenting capacity.[31]
[27] Single expert report, paras 17, 26, 27, 29; Mother’s affidavit, para 85
[28] Single expert report, paras 24, 25
[29] Single expert report, paras 29, 32; Mother’s affidavit, para 85
[30] Single expert report, paras 42, 56, 59, 60, 62
[31] Single expert report, para 64
The single expert considered the completion of these proceedings of itself would substantially reduce the mother’s stress, which was a trigger for her anxiety.[32] The single expert said in cross-examination that he understood the mother regarded the father as a trigger of her anger; not so much other factors in her environment. The family consultant considered the father’s criticisms of the mother in these proceedings, which are yet to be addressed, “add considerably” to the mother’s stress.[33]
[32] Single expert report, para 65
[33] Family Report, para 55
The mother admitted she was a “yeller”, which was an aspect of her parenting upon which she needed to improve,[34] though the father could not take too much comfort from that evidence because he admitted in cross-examination he has also yelled at the child. He did so as recently as the day before the trial. As the single expert said in cross-examination, yelling of itself does not suggest abusive parenting. It is the frequency and virulence of such behaviour that has the potential to impinge parenting capacity.
[34] Exhibit F3
While the mother’s manner is more demonstrative then the father’s and while she is more prone to anxiety than him, those considerations do not form a secure foundation to conclude the mother’s parenting capacity is impaired, or at least inferior to the father’s. Both parties present as reasonably capable parents.
The mother’s profane loss of temper on 12 December 2014, which was the subject of the recording in which the father reposed so much weight, was indeed regrettable, but expecting calm equanimity from parents on all occasions irrespective of the surrounding circumstances is really a demand for perfection. Parenthood is never an exercise in perfection. No child always receives optimal parenting. The most that can be expected from parents is satisfactory results borne of constant commitment. As the family consultant wisely recommended in cross-examination, one should be reluctant to read too much into the mother’s parenting capacity as a consequence of the one-minute recording of her behaviour on one isolated occasion.
The father subjectively asserted that the child’s behaviour was routinely calmer and more controlled when she was in his care, but no weight can really be reposed in his uncorroborated opinion about that. He does not witness how the child behaves in the mother’s care. Although the mother reported the child’s behaviour while in her care is intermittently difficult, that may merely demonstrate how she is less tolerant of the child’s deviant behaviour than the father. It does not necessarily mean the child behaves differently in their respective households. It should be noted that the child’s pre-school staff reported to the family consultant the child’s behaviour at pre-school does not appear to be any different irrespective of in which party’s care the child has been immediately before her attendance at pre-school.[35]
[35] Family Report, para 47
The father’s criticisms of the mother, concerning her behaviour towards the child, offered an insight into the pervasive nature of his dislike of her.
The family consultant found the father “highly critical” of the mother’s attitude to parenting and her parenting skills.[36] He also openly related his criticisms of the mother to the staff of the child’s pre-school[37] and repeated such criticisms in his affidavit filed in these proceedings.[38]
[36] Family Report, paras 32, 54
[37] Family Report, para 48
[38] Father’s first affidavit, paras 81-89, 108-111
He criticised her approach to the child’s health and diet, for failing to allow the child to get sufficient sleep, for failing to satisfactorily develop the child’s language skills, for inappropriately seeking out medical advice and medication for the child, and for failing to obtain work or undertake further education.[39] The father’s contrariness went so far as to refuse to follow medical advice and administer medication prescribed for the child, which had been procured by the mother for her.[40] He was impelled to admit it was reasonable for the mother to follow medical advice for the child and unfair of him to criticise her for it.
[39] Family Report, paras 33, 34, 35
[40] Family Report, para 23

The father was in no position to criticise the mother on matters related to the child’s medical care anyway. While in his care in July 2013, the child ingested another person’s prescribed medication and needed to be conveyed to hospital. He did not tell the mother of the incident, which she learned about only by reading documents produced on subpoena in these proceedings.[41] The father admitted in cross-examination he did not divulge the incident for fear it would jeopardise his chances of success in these proceedings. The family consultant said in cross-examination he was concerned how such an incident demonstrated the father’s willingness to act in his own interests in preference to the child’s.
[41] Mother’s affidavit, para 81
In cross-examination, the father admitted he was critical of the mother having recently changed the child’s pre-school without consulting him, which was amazingly hypocritical, since he was forced to admit that was precisely what he had done in the past. The father changed the child’s pre-school without consulting the mother shortly after their separation in May 2013,[42] at a time when both parties were still vested with parental responsibility for the child

(s 61C). When the mother unilaterally changed the child’s pre-school in March 2015,[43] she at least was vested with sole parental responsibility for the child pursuant to interim orders made in July 2013,[44] and she gave the father advance notice.[45] In any event, the mother changed the child’s pre-school to one in the area where she now wants to live and work and where the child already undertakes other extra-curricular activities, so her decision seemed reasonable.
[42] Mother’s affidavit, para 41
[43] Father’s second affidavit, paras 37-39
[44] Order 2 made on 26 July 2013
[45] Father’s second affidavit, para 22
The father’s blatant disregard of court orders also warrants mention. When the parties separated the father retained the child with him. The mother immediately commenced these proceedings to seek the child’s return to her. Orders were made by a State magistrate in June 2013 providing for the child to live with the mother for four days each week and with the father for the other three days of each week. The father was dissatisfied with that outcome. He appealed the orders, as was his entitlement. However, although the magistrate’s orders were not stayed, the father wilfully disobeyed them.
He telephoned the mother and told her:[46]
I won’t be returning [the child] to you…I can’t do the shared custody, it’s killing me.
[46] Mother’s affidavit, para 51
Later he told the mother:[47]
I am not breaking any laws, just court orders.
[47] Mother’s affidavit, para 66
Thereafter, until the interim orders were made by this Court in July 2013, the father carefully controlled the conditions under which he was prepared to allow the mother and child to see one another. The father’s compliance with the latter orders does not absolve his brazen breach of the earlier orders.
The father’s past attitude should be contrasted with the mother’s. Notwithstanding the interim orders of July 2013, the mother has allowed the child to spend extra time with the father. She did so as recently as only several weeks ago at Easter, when she allowed the child to stay with the father for five instead of three days.
In cross-examination the father admitted he was not open to accept any innocent explanation for the injuries the child sustained in December 2014. He was unwilling to exonerate the mother because he had not personally witnessed her lack of involvement. The father also admitted he struggled to nominate any “positive things” the mother brought to the child’s life. The best he could say about her was that she was “funny”.
The father’s dismissive attitude towards both the mother and the sanctity of court orders reflects adversely upon him.
The father is currently gainfully employed in various capacities. His employment engages him for most weekdays, including at hours outside school and pre-school hours. If he retained his current work schedule he could not be the residential parent for the child without outside assistance. The father said in cross-examination he was in the process of making alternate arrangements so that his work commitments would not clash with his residential responsibilities for the child. I expect the father does prioritise the child’s care above his employment, but the evidence was scant about how he would be able to successfully balance both his employment and child-care commitments if the child was in his full-time care.

Conclusion and orders

The Court is required to apply a rebuttable presumption that a child’s best interests are served by an order allocating equal shared parental responsibility for the child to the parents (s 61DA). Parental responsibility is defined to encompass all duties, powers, responsibilities and authority conferred by law upon parents (s 61B). The legislation dictates the manner in which equal shared parental responsibility is to be exercised in respect of decisions relating to “major long-term issues” concerning the child (s 65DAC), being matters such as education, religion, culture, health, name, and changed living arrangements (s 4), and also in respect of decisions which do not relate to such significant issues (s 65DAE).
The presumption of equal shared parental responsibility does not apply in certain circumstances, including in instances of child abuse and family violence (s 61DA(2)), and the presumption may be rebutted if the Court is satisfied it would not be in the best interests of the child for the parents to have equal shared parental responsibility for the child (s 61DA(4)). The presumption says nothing about the amount of time the child should live or spend time with each parent, but the manner in which parental responsibility for the child is allocated by the Court may bear on that issue.
In the event an order is made allocating equal shared parental responsibility to the child’s parents, either presumptively or otherwise, the Court is then obliged to consider both the advisability and practicability of the child living for equal time with both parents, or alternatively, living primarily with one and spending substantial and significant time with the other (s 65DAA).
The single episode of family violence conceded by the mother renders the presumption of equal shared parental responsibility inapplicable. However, equal shared parental responsibility for the child may still be allocated to the parties if the child’s best interests would thereby be served.
Both parties confirmed in final submissions their long-standing proposal for equal shared parental responsibility to be allocated to them. With some misgivings, I am persuaded to accede to their joint request. They must have sought such an order in full knowledge of what such an order requires of them (s 65DAC), even though they both had complaints about the lack of past consultation by the other and both had residual worry about how well they could communicate collaboratively. If they are well-intentioned, the chances of their successful collaboration are better.
Since the parties are allocated equal shared parental responsibility for the child, s 65DAA of the Act is engaged and the Court must consider making orders for the child to live with the parties for “equal time”, or alternatively, for the child to live primarily with one and to spend “substantial and significant time” with the other.
An “equal time” residential arrangement would not reflect the child’s best interests. Neither party sought such an outcome. They have different parenting styles. If neither party genuinely wants to be bound by such an arrangement it should not be foisted upon them. They would resent it and their resentment would deleteriously affect the child. Since such an arrangement would not be in the child’s best interests it is futile pondering whether it would be a reasonably practicable arrangement.
Both parties petitioned the Court for a parenting regime under which the child lives with one party and spends substantial and significant time with the other. Such an arrangement would be reasonably practicable to implement and would meet the child’s best interests. She will maintain close and frequent personal contact with both parents, both of whom live in reasonably close proximity on the Central Coast of NSW. Both parties have cars and are licensed to drive so the conveyance of the child between them will not be difficult or expensive.
The real question then is with whom the child should live. She should live with the mother, principally because the child is more likely to retain and develop her loving relationships with both parents by living with the mother rather than the father. The father’s negativity about the mother is likely to be perceived by the child over time, even though the father may not openly denigrate her. The father’s verbal and non-verbal cues would probably reveal his true sentiments about the mother, to which the child would probably intuitively react.
The family consultant recommended that the child live with the parent who is “more likely to actively and positively promote [the child’s] relationship with the other parent and extended family”.[48] It was not suggested that opinion should be rejected. In fact, the father embraced the proposition and suggested in cross-examination to the family consultant he would discharge that obligation better than the mother, since the family consultant had observed one comment made by the single expert tended to call into question the mother’s commitment to support the child’s relationship with the father.[49] The family consultant neither endorsed nor rejected the father’s proposition.
[48] Family Report, para 60
[49] Family Report, para 53
In other parts of his cross-examination the family consultant stated his concern about the father’s strident criticisms of the mother which, if made without reasonable cause, tended to impair his ability to support the child’s relationship with the mother. I accept that evidence. Some of the father’s criticisms of the mother were harsh and unreasonable, which even he was impelled to admit in some respects. In final submissions, the mother described the father’s criticisms of her as “entrenched and unreasonable”, which seems a fair characterisation. So, in aggregation, the findings of fact and the family consultant’s recommendation warrant the child’s residence with the mother.
There was another aspect of the evidence that tended to favour the mother as the residential parent. Although the father and his partner currently live apart, they intend to resume cohabitation “at some point in the future”.[50] As the family consultant observed,[51] that eventuality would require considerable adjustment for the child, since her household would then comprise not only the father, but also his partner and her two sons. The father’s partner and her two sons are not unknown to the child, but living with them on a full-time basis would be a quite different experience for her. No such adjustment would be required of the child to remain living primarily with the mother.
[50] Father’s second affidavit, para 42
[51] Family Report, para 56
The child has lived with the mother for four days of each week since July 2013. Aside from the incident in December 2014, which pre-occupied the father, there was no evidence to suggest that the child’s primary residence with the mother has not been completely successful. She still spends plenty of time with the father each week and still maintains a loving relationship with him. The success of the current arrangement suggests little need for alteration.
Although not a factor of much weight, some residual concern about the father’s ability to indefinitely balance his work and proposed residential child-care commitments tends to galvanise the selection of the mother as the preferential residential parent.
The orders therefore provide for the child to live with the mother and spend substantial and significant time with the father. She cannot continue to indefinitely spend three days of each week with the father because it will interfere with school, which she is due to commence in 2016. In any event, neither party sought maintenance of the existing arrangement.
Both parties considered the child should spend a total of four nights in each fortnight with the non-residential parent during school (or pre-school) terms. There was some slight disagreement about the exact nights, but I regard the difference as irrelevant, since it was not addressed at all in either the evidence or submissions. The parties agree the child should spend half of her school (or pre-school) vacations with the non-residential parent, as well as other special occasions. Again, no evidence or argument was directed to precisely which halves of the vacations or which particular special occasions. The orders make similar provision to reflect that broad agreement.
The venues for the child’s exchange between the parties will be their homes, just as the parties mutually proposed.[52]
[52] Amended Application, Order 12; Amended Response, Order 11
No specific order is made for telephone communication. The family consultant was dismissive of the need for it, in both his report and in cross-examination, since other than in Christmas school vacations the child will not go a week without seeing both parents. Of course, the absence of an order does not preclude such communication. If the parties wish to exercise their equal shared parental responsibility to implement telephone communication between themselves and the child that is a matter for them.
The mother said in cross-examination she would consent to perpetuation of the interim injunction restraining the parties from inflicting corporal punishment upon the child. The father conducted his case from the premise that it was wrong for the child to be subjected to corporal punishment, so he would be content with transformation of the interim injunction to a permanent injunction. Such an order is made.
The injunction restraining the parties’ exposure of the child to any denigration of them could not be the subject of reasonable opposition.
The orders require the parties to keep one another appraised of their contact details. That is necessary so they can properly exercise equal shared parental responsibility and exchange the child between them at their residences.
The orders set out at the commencement of these reasons serve the child’s best interests.

I certify that the preceding one hundred and thirteen (113) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Austin delivered on 8 May 2015.

Associate:

Date: 8 May 2015

[2015] FamCA 331

8 May 2015

Key Legal Topics

Areas of Law

Family Law

Legal Concepts

Remedies

Procedural Fairness