Horner and Horner
[2019] FamCA 410
•2 July 2019
FAMILY COURT OF AUSTRALIA
| HORNER & HORNER | [2019] FamCA 410 |
| FAMILY LAW – CHILDREN – Whether the child should live with the mother or the father – Where family violence – Where ongoing parental conflict – Where both parents have personality vulnerabilities – Where the mother’s household poses a risk that she will deny the child a relationship with the father – Whether the father would facilitate a relationship between the mother and the child if the child was in his care – Where the child’s primary attachment is with the mother – Where a sudden change from the mother to the father’s care guarantee’s the child will suffer loss and grief – Order that the child lives with the mother – Order that the child spend time and communicate with the father as proposed by the Independent Children’s Lawyer. |
| Family Law Act 1975 (Cth) ss 4, 4AB, 60B, 60CC, 60CA, 60CG, 61DA, 65DAA, 65DAC, 65L, 68B Evidence Act 1995 (Cth) ss 140 |
| Horner & Horner (No.2) [2017] FamCA 779. Horner & Horner [2018] FamCA 487 S v Australian Crime Commission (2005) 144 FCR 431 Neat Holdings Pty Ltd v Karajan & Holdings Pty Ltd (1992) 67 ALJR 170 |
| APPLICANT: | Mr Horner |
| RESPONDENT: | Ms Horner |
| INDEPENDENT CHILDREN’S LAWYER: | Ms Bassano |
| FILE NUMBER: | CSC | 33 | of | 2016 |
| DATE DELIVERED: | 2 July 2019 |
| PLACE DELIVERED: | Townsville |
| PLACE HEARD: | Townsville |
| JUDGMENT OF: | Tree J |
| HEARING DATE: | 7, 8, 9 and10 August 2017, and 27, 28 and 29 August 2018 in Townsville, 26, 27 28 November and 21 December 2018 in Cairns |
REPRESENTATION
| COUNSEL FOR THE APPLICANT: | Mr George (2017) Mr Longworth (2018) |
| SOLICITORS FOR THE APPLICANT: | Tubaro Lawyers (2017) Somerville Legal (2018) |
| COUNSEL FOR THE RESPONDENT: | Ms Mayes – 27, 28 and 29 August 2018 and Ms Mc Diarmid – 26, 27, 28 November and 21 December 2018 |
| SOLICITORS FOR THE RESPONDENT: | WGC Lawyers (2018) |
| COUNSEL FOR THE INDEPENDENT CHILDREN'S LAWYER: | Ms McMillian QC |
| SOLICITORS FOR THE INDEPENDENT CHILDREN'S LAWYER: | Bassano Law |
Orders
Save for the orders appointing a s 65L Supervisor and the Independent Children's Lawyer, all previous parenting orders (including the Airport Watchlist order) be discharged.
Ms Horner (“the mother”) is to have sole parental responsibility for the major long term issues relating to B born … 2014 (“the child”) save that:
(a)She may not change his legal surname or the surname by which he is known;
(b)She may not change where the child lives if that would make the exercise of the rights conferred by these orders on Mr Horner (“the father”) materially more difficult.
The child is to live with the mother.
Unless order 7 applies, the child is to spend time with the father as follows:
(a)During school terms:
(i) Save as provided in order 4(a)(ii), the child is to spend the weekend following the conclusion of weeks three, six and eight with the father, from the conclusion of school on the Friday until immediately before the commencement of school on the Monday;
(ii) If there is a public holiday on a Friday or Monday, then in lieu of spending time with the father under order 4(a)(i) on the weekend closest to the public holiday, the child is to instead spend time with the father on the long weekend, from Thursday after school (if Friday is the public holiday), or until Tuesday before school (if Monday is the public holiday);
(b)During the school holidays at the conclusion of terms one, two and three:
(i) unless the parties have agreed otherwise, in 2019, from 9:00am on the Saturday at the end of the first week of the holidays until 5:00pm on the following Friday (being the last Friday of the holidays);
(ii) in 2020 from 9:00am on the Saturday after school concludes until 5:00pm on the following Saturday (being the middle Saturday of the holidays);
(iii) in 2021 and each alternate year thereafter, from 9:00am on the Saturday following the conclusion of school for that term until 5:00pm on the Sunday before school resumes.
(c)During the Christmas holidays:
(i) in 2019 for two eight day periods being from 15 December 2019 at 9:00am until 23 December 2019 at 5:00pm and from 11 January 2020 at 9:00am until 19 January 2020 at 5:00pm;
(ii) in 2020 for a 10 day period commencing from 17 December 2020 at 9:00am until 27 December 2020 at 5:00pm and a further seven day period from 10 January 2021 at 9:00am until 17 January 2021 at 5:00pm;
(iii) in 2021 and each alternate year thereafter from 5 January at 9:00am until 19 January at 5:00pm;
(iv) in 2022 and each alternate year thereafter from 15 December at 9:00am until 15 January at 5:00pm.
Changeovers that are not undertaken at the child’s school, are to occur as follows:
(a)For the next 12 months, as may be directed by the s 65L consultant, but absent direction, as provided hereafter in orders 5(b) and (c);
(b)Thereafter, if the father has advised the mother that he intends that the child spend time with him under these orders other than in C Town (or if the mother relocates, such place as she may be residing) and the child is flying unaccompanied, then changeovers will take place at C Town Airport (or the airport closest to where the mother may be residing) and are to be effected by the mother ensuring the child boards his flight;
(c)Otherwise changeovers are to occur at McDonald’s T Street, C Town, (or if she relocates from C Town, such McDonalds closest to where the mother may be residing).
The child is only permitted to fly unaccompanied once he has travelled accompanied on no less than 10 occasions.
If the child flying as an unaccompanied minor, then the child’s time with the father under order 4 is to commence from the time of his departing flight (to be no earlier than 9:00am) and conclude at the time of arrival in C Town (or other city where the mother may be residing) of the return flight (to be no later than 5:00pm).
The father is responsible for the child’s travel costs to spend time with him, and the mother is responsible for the return airfare. The father is responsible for the travel costs of any person accompanying the child.
In the event the father does not intend to spend time with the child under these orders, he is to provide no less than 14 days written notice of that to the mother, and until their discharge, the Independent Children's Lawyer and the s 65L consultant.
If either parent wishes to take the child out of the State of Queensland for the purpose of a holiday, that parent shall provide a written itinerary at least 14 days prior to the proposed travel to the other parent.
If a parent wishes to take the child out of the Commonwealth of Australia for the purpose of a holiday, such time is to only occur during the period the child is living or spending time with the travelling parent, who shall notify the other parent at least 60 days prior to the proposed travel. The travelling parent will provide to the other parent a written itinerary 35 days prior to the proposed travel, to include:
(a)The date the child will be leaving;
(b)The date the child will be returning;
(c)Where the child will be travelling to;
(d)The mode of transport (including arrival times and flight numbers); and
(e)A contact number for the place where the child will be staying each night the child is away.
Within seven days of a written request by either parent, the other parent will execute a passport application and will do all things necessary to direct and authorise the Department of Foreign Affairs and Trade, to issue a passport for the child when requested to do so by the other party.
In the event that the other parent fails to do all things necessary and sign all such necessary documents, the Department of Foreign Affairs and Trade is hereby requested to issue a passport for the child notwithstanding that a party has not provided his/her consent to the issue of the passports.
At any time the child’s passport is due for renewal, each parent will execute a passport application when requested to do so and each will do all acts and things necessary to direct and authorise the Australian Passport Office and/or the Department of Foreign Affairs and Trade to issue a passport to the child within thirty days of receipt of the renewal notice.
In the event that either party fails to do all acts and things necessary and sign all such necessary documents to enable the passport to issue for the child, the Australian Passport Office and/or the Department of Foreign Affairs and Trade is authorised to issue the passports for the child, notwithstanding that the other party has not given his/her consent to the issue of passport or failed to sign the relevant documents.
Upon a passport being issued in the names of the child, the parent who receives the passport or passports will deliver it to the Registrar of the Family Court of Australia (or such name the Court may be known as from time to time) to be held by the Registry.
When either parent seeks to travel overseas with the child, the parties are to do all acts and things and sign all necessary documents to cause the release of the child’s passport or passports to the travelling parent as requested by the travelling parent but no later than thirty days before the expected date for travel.
The mother and father are able to, upon request to the Registry holding the child’s passports, inspect the child’s passport at such dates and times as allocated by the Family Court of Australia (or such name the Court may be known as from time to time).
The Independent Children's Lawyer is discharged 12 months from the date of these orders.
The s 65L consultant is discharged 12 months from the date of these orders.
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 Horner & Horner 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 TOWNSVILLE |
FILE NUMBER: CSC33/2016
| Mr Horner |
Applicant
And
| Ms Horner |
Respondent
REASONS FOR JUDGMENT
INDEX
INTRODUCTION
BACKGROUND FACTS
The father
The mother
The relationship
Post-separation
Current situation [as at September 2017]
Post 2017 events
THE ISSUES
RELEVANT STATUTORY PROVISIONS AND LEGAL PRINCIPLES
The statutory regime
Abuse, neglect and family violence
The standard of satisfaction required
ISSUE 1 – NATURE OF RELATIONSHIP BETWEEN EACH PARENT AND THE CHILD
ISSUE 2 – RISK POSED BY PARENTS AND MEANS OF MITIGATION
Overview
The mother and her household
The father and his household
ISSUE 3 – BENEFIT OF MEANINGFUL RELATIONSHIP AND BEST MEANS OF FACILITATION
ISSUE 4 – WOULD EACH PARENT FACILITATE A MEANINGFUL RELATIONSHIP
ISSUE 5 – PARENTS CAPACITY TO PROVIDE FOR CHILD’S NEEDS
ISSUE 6 – IMPACT ON MOTHER OF CHILD CONTINUING TO SPEND, OR SPENDING INCREASING TIME, WITH THE FATHER
ISSUE 7 – DO BENEFITS OF CHILD’S RELATIONSHIP WITH FATHER OUTWEIGH ANY DIMINISHED PARENTING CAPACITY OF MOTHER
ISSUE 8 – REASONABLE PRACTICABILITY OF CHILD SPENDING REGULAR TIME WITH BOTH PARENTS
ISSUE 9 – LIKELY EFFECT ON CHILD OF EACH PARTIES’ PROPOSAL
ISSUE 10 – COULD PARTIES’ COMMUNICATION SUPPORT EQUAL SHARED PARENTAL RESPONSIBILITY OR SOLE PARENTAL RESPONSIBILITY WITH CONSULTATION
SECTION 60CC CONSIDERATIONS
PARENTAL RESPONSIBILITY
WITH WHOM SHOULD CHILD LIVE
CHILD’S TIME AND COMMUNICATION WITH FATHER
OTHER ORDERS
CONCLUSION
INTRODUCTION
Unfortunately, the only remedies which this court can dispense are orders. It cannot quell conflict, improve behaviour, or change dispositions, attitudes or personalities.
In cases such as this one, where those sorts of matters lie at the heart of the problem, orders, no matter how well intentioned and crafted, will be a blunt, and potentially ineffectual, instrument. That is not to invite despair or negativity: it is doing nothing more than recognising the reality that not all the problems which confront this court are susceptible of a good, or even an adequate, solution.
This case is an excellent example of the limits of court orders. The parties have now been in intractable disputation for approaching four years, in the aftermath of a relationship that lasted less than three. Indeed this litigation has persisted longer than the relationship did.
At the conclusion of the trial, the parties’ positions remained polarised. None of the resources, whether judicial or otherwise, which the court has devoted to this case, has seen the parties’ level of hostility reduce.
I am painfully aware that these parties are likely condemned to a lifetime of conflict. The one child born to their relationship will probably, on either parties’ proposal, live his childhood in the cross-hairs of that conflict, and be permanently affected by it. Sadly, the only true solution to that lies with his parents, but there is almost no chance that they will both realise that, or even if they did, be able to act to save the child from further exposure to their conflict.
In reality therefore, my role is to fashion parenting orders which try, in an inevitably imperfect way, to protect the child as best I can.
The child in question is B, born in 2014, and hence presently 5 years of age (“the child”). His father is Mr Horner (“the father”); his mother is Ms Horner (“the mother”).
The matter has had a most contorted history in this court. The parties’ positions have changed from time to time, as indeed have the recommendations of the Family Report writer. However, by the time of the ultimate conclusion of the trial before me on 21 December 2018, to a degree, both parties’ positions had moderated. The central matter of dispute between them remains, however, with which of the parties the child should primarily live. The father contends that the child should now move into his care in J Town, and spend time with the mother, who lives in C Town, during the school terms and school holidays. The mother contends that the child should remain living with her in C Town, and spend weekend and holiday time with the father, in C Town or in J Town.
No doubt reflective of their intense and protracted history of conflict, neither party contended for an order for equal shared parental responsibility, but conceded that it should run with the parent with whom the child primarily lives.
The Independent Children's Lawyer substantially supported the position of the mother, notwithstanding that the ultimate recommendation of the Family Report writer was to favour the father.
My involvement with this matter first commenced on 15 March 2017 (it having been transferred to this court from the Federal Circuit Court on 8 December 2016) when I listed it for trial in C Town to commence 7 August 2017. Then, on 5 July 2017, on the eve of trial, I dealt with an interim application brought by the father to, in effect, reinstate the child spending time with him. In granting that application, given the imminence of the trial, and the unlikelihood of a Contact Centre being able to accommodate the father before trial, a s 65L supervisor was appointed to manage the father’s time with the child. That occurred, and the father had spent some limited supervised time with the child by the time the trial commenced in August.
However because the father’s time with the child had only just recommenced, ultimately at the trial, both parties conceded that only interim orders should be made, permitting the father to continue to spend time with the child in C Town, although the parties could not agree the appropriate regime. That then resulted in me pronouncing interim orders on 21 September 2017, for reasons then delivered.[1] But notwithstanding highly prescriptive orders, and the continued assistance of the s 65L supervisor, the matter continued to be problematic.
[1]Horner & Horner (No.2) [2017] FamCA 779.
Although the orders that I have made provided for the father to have time with the child at Christmas 2017, in fact that did not occur. Next, in early 2018, the mother formed that view that the father had sexually abused the child, and in consequence suspended the father’s time with child, pending a police investigation. That investigation concluded that the child had not been abused, and the father commenced spending time with the child again.
However next, the mother formed the opinion that the father had, contrary to my orders, in fact had been spending time with the child in Brisbane, rather than, as the orders contemplated, in C Town. Perceiving that the Independent Children's Lawyer had been supporting the mother in relation to these concerns, on 13 February 2018, the father brought an application for the Independent Children's Lawyer to be removed. In due course I determined that application against him, for reasons delivered on 29 June 2018.[2]
[2]Horner & Horner [2018] FamCA 487.
By then the resumption of the trial was looming, and indeed it recommenced on 27 August 2018. It was then expected to run until conclusion, however unexpectedly, on the third day of the hearing, during the course of cross-examination of the Family Report writer by counsel for the father, the mother became extremely distressed by some of his testimony, to such an extent that the trial could not then continue. Ultimately it again resumed on 26 November 2018, and ran for a further three days, at which time the evidence was concluded, but submissions were not commenced, in consequence of which written submissions were ordered, and supplemented by oral submissions on 21 December 2018.
Moreover, there has been something of a passing parade of representation over this period. In the 2017 tranche of the trial, the father had Brisbane based solicitors and counsel, whereas the mother self-represented. In 2018, the father was represented by Sydney based solicitors and counsel, and the mother had retained Cairns solicitors and a Townsville based barrister to appear for her. However, after the unexpected adjournment in August, unfortunately that barrister became unavailable and was replaced with a Brisbane based barrister instead. Suffice to say that the increased cost to the parties which those changes necessitated, must be significant.
On 21 December I reserved my decision. This is that decision and the reasons for it. I should acknowledge that its publication has taken far longer than I anticipated, and I regret that it has done so. However as shall be seen, it is an extremely difficult matter, with a great many countervailing factors at play. Moreover, given that some of the evidence dates back to 2017, I have found it necessary to re-read all of the transcript, affidavits, tender bundles, exhibits and submissions, which has required considerable time. Moreover, it is a matter deserving of deep consideration and reflection, which I have attempted to give it.
BACKGROUND FACTS
In my reasons of 21 September 2017, I extensively traversed the relevant facts to that date. It is convenient to repeat them here, with some interpolation.
The father
10.The father was born in 1980, and hence is presently 36 [now 38] years of age.
11.The father grew up in E Town and attended school there. His parents separated in 1986 and he told Dr F, a psychiatrist who examined him for the purposes of these proceedings, that he had no contact with his father between the ages of 10 and 13 years of age. He left school in 1998 and after some manual jobs, completed a diploma in a health science and then undertook two years of a degree at G University. After that he undertook a variety of roles.
12.In about 2007 he began working as a support worker, in which occupation he remains engaged today.
13.The father and mother first met at a wedding in H Town. At the time the father was living and working in J Town. They kept in contact over the next two years and met again when the mother was visiting J Town in or around October 2012. At about that time they commenced a relationship, and the father moved to Sydney in December 2012, although he did not initially cohabit with the mother.
The mother
14.The mother was born in Europe in 1983, and hence is presently 34 [now 36] years of age. She told Dr F, the psychiatrist who examined her for the purposes of these proceedings, that she “did not remember much of her childhood.” However she did tell him that “she was raped by a stranger at the age of 15 years and she had decided not to report it or tell her parents.” She further told Dr F “she had discussed this issue through ten years of counselling and was not troubled by it.”
15.At the conclusion of her schooling, the mother had wanted to study in the arts, but her father insisted that she study finance instead. By this time her father had become considerably devoted to a business which he had established, seemingly to the detriment of his relationship with his daughter, and perhaps his then wife, as they separated when the mother was 21 years of age.
16.After completing her university studies, the mother decided to travel through Europe with a friend, but unexpectedly that in fact saw them travel all the way to New Zealand. Thereafter she arrived in Sydney on 3 July 2007 and has resided in this country ever since, apart from a year whilst the parties were married.
17.Seemingly in her early days in Australia, the mother married a man because, as she told Mr K, the Family Report writer, “I was going to be deported and it was done to prevent deportation.” By then, the mother had decided that she wished to live permanently in Australia. This marriage did not succeed, and she told Dr F that “her first husband had strangled her to the point of unconsciousness on one occasion.”
18.Although it is not clear on the material how the mother came to move to H Town, it appears that she had done so at least by January 2010 when she first met the father. It seems likely that at the time she was working in sales.
19.However by October 2012 the mother had resumed living in Sydney, and it was at that time, when the mother was aged 29, that the parties commenced their relationship.
The relationship
20.It appears as though the parties’ relationship proceeded uneventfully until July 2013, when the mother advised the father that she was pregnant. The father says that this precipitated them deciding to live together in August 2013, and they were married in 2014.
21.By then the parties had agreed that they would move to Europe, according to the father, so that the mother’s family could support her during her pregnancy and subsequent birth of the child. The parties relocated to Europe on 14 February 2014 and the child was born there in the same year 2014.
22.It appears uncontroversial that the father’s experience of Europe was not good. For whatever reason, he did not obtain much, or regular, employment there. It is likely that he suffered from depression during that time, and indeed it is likely that the mother had some psychological difficulties following the birth of the child as well. The mother alleges that during that time the father was domestically violent; for his part the father concedes some violence, but alleges that the mother was violent towards him during that time too.
23.In December 2014, the parties discussed the termination of their relationship. The mother says that the father simply refused to end their marriage. Whatever be the case, shortly thereafter the parties discussed moving back to Australia to live in J Town. The mother encouraged the father to move back to Australia to prepare for her and the child’s later arrival. However she concedes now that it was never her intention to again cohabit with the father in Australia, but rather she deceived him into thinking that, so that he would leave Europe and she could affect the end of the relationship.
24.The father returned to Australia on 16 June 2015. Both parties agree that this is the date of termination of the relationship.
Post-separation
25.The father says (and it does not seem to be controversial) that on the day after he returned to Australia, the mother rang him to advise that she wanted to separate. Notwithstanding that, the father says that he formed the opinion that the mother was still intent on returning to Australia and living close by him, so that he could spend time with the child.
26.Unbeknownst to the father, on 9 July 2015 the mother and child returned to Australia, and specifically Sydney. She did not tell the father that she had returned, and maintained her deception of the father as to where she was living with the child until October 2015, when the father found out that the mother was then residing in Australia with the child. He did not discover that she had in fact been in Australia from 9 July 2015 until March the following year.
27. On 5 August 2015 the mother and the child travelled to H Town to live.
28.In October 2015 the mother says that she met her current husband, Mr L. The father asserts that the relationship commenced prior to then, but nothing turns upon that. When the father became aware that the mother was living in H Town with the child, he began to press for the agreement of arrangements that would enable him to spend time with his son.
29.In August 2015 the mother had engaged a firm of Sydney solicitors to communicate with the father on her behalf in relation to parenting matters. In October of that year they forwarded to the father proposed consent orders which provided that the child live with the mother and spend time with the father supervised by the mother as may be agreed, together with a communication regime as agreed by the mother. The father responded saying that he was “not signing such rubbish” and continued later in that email saying “I’ll be seeing my son soon [Ms Horner] with or without your permission as I don’t need it!” The mother’s solicitor advised her not to make the child available as he believed “that his email is clearly threatening to take the child from you.”
30.Notwithstanding his protests, in fact the father agreed to have a visit with the child supervised by the mother, and she paid for his flights as he then did not have sufficient funds to meet that expense. However the mother’s recollection of the times which the father did spend with the child between 4 and 9 November 2015, were more in relation to him engaging aggressively with her, rather than enjoying his time with the child.
31.After his return to J Town, the father began to aggressively communicate with the mother, telling her that he was going to come and take the child, so that he could spend time with his family. He indicated that he did not need any order to lawfully entitle him to take the child from the mother’s care.
32.In November 2015 the mother and Mr L, together with the child, began living together. According to the mother’s trial affidavit, “from day one, [Mr L] treated the child as his own son.”
33.A Legal Aid conference was held on 21 December 2015, and although the matter was unable to be agreed in toto, arrangements were made for the father to fly up and spend time with the child on Boxing Day. The parties agreed to meet at [a playground] on Boxing Day and did so. At the end of that time, Mr L drove the mother’s vehicle to pick the mother and child up from the playground, but unfortunately a verbal altercation ensued between the father and Mr L. The father again spent time with the child on 27 and 28 December, although the mother says that it was causing her anxiety, amongst a range of other adverse reactions.
34.By this time the father had adopted a policy of sending a large number of hostile emails to the mother, demanding time with the child. That had caused the mother to file an application for a protection order, and temporary orders were made on 7 January 2016.
35.At about this time the parties began negotiating about using the H Town Contact Centre to supervise the father’s visits. The father refused the offer of this service.
36.These proceedings were commenced by the father filing an Initiating Application at the Federal Circuit Court in Brisbane on 27 January 2016. That resulted in some interim orders being made on 15 March, which provided for the father to spend time with the child in H Town under the supervision of a paid supervisor. That occurred on 28 and 29 March 2016. It appears as though the father was resistant to the supervisor’s instructions, and he used the opportunity presented of speaking directly with the mother. Since that time the father has refused to use paid supervisors.
37.Subsequently the parties litigated on two fronts. The first was the hearing of the father’s interim application in the Federal Circuit Court; the second was the mother’s application for protection orders. The former resulted in interim orders of Judge Willis on 12 May 2016, and the latter in final protection orders, for reasons given on 20 June 2016. The father unsuccessfully appealed from the final protection order.
38.The interim orders of the Federal Circuit Court provided that the mother would have sole parental responsibility for the child, who would live with her, but spend supervised time with the father at the H Town Contact Centre. Those orders also established a regime of Skype communication between the father and the child. The father appealed from those orders, although the appeal was not able to be determined, and hence was discontinued, by the time of the trial before me.
[38A.The father breached both the interim domestic violence order and the interim parenting orders. Although no conviction has ever been recorded, he has been found guilty of breaching the domestic violence order between 9 January and 6 March 2016 by repeatedly contacting the mother. On 21 September 2016 Judge Willis found the father had contravened the interim parenting orders on 31 occasions, again by contacting the mother. Her Honour imposed an 18 month good behaviour bond on the father].
39.Notwithstanding the opportunity to spend supervised time with the child at the H Town Contact Centre, the father did not engage with the centre immediately, although ultimately he did spend two hours of contact on both of 27 and 28 August 2016. It appears as though that time proceeded successfully, and both the father and the child greatly enjoyed their time together. However by then the mother had determined that she and Mr L would move to C Town for the sake of Mr L’s employment prospects, and asked the H Town Contact Centre to transfer their file to the C Town Contact Centre. Indeed the mother did shortly thereafter move to C Town, but not before a further contact visit had been arranged for 3 and 4 September 2016. However that visit was cancelled at very short notice (after the father had travelled to H Town) on the basis that the child had suffered a head injury and his medical advice was to keep quiet and not play. The father was understandably disappointed, particularly given that Sunday 4 September 2016 was Father’s Day.
40.After the mother moved to C Town, it is regrettable that the parties were not, with one exception, able to effect the father spending time with the child at the C Town Contact Centre, or indeed elsewhere, until the month prior to the commencement of the trial before me. In part the reason for that may lie with the father’s belligerent attitude towards the Contact Centre, and M Group’s decision to withdraw the offer of its services, at least for the time being.
41.On 27 September 2016 the Family Report interviews were scheduled. It had been anticipated that the writer, Mr K, would observe both parents with the child. However at paragraph 114 of the Family Report dated 1 February 2017, Mr K said as follows:
[The mother] did confirm she just recently moved to [C Town] from [H Town] some two weeks ago. She informed me, “Something had happened” in terms of the Contact Centre and [the father]. [The mother] indicated [M Group] called her and indicated, “There had been inappropriate action or interaction between [the father] and the staff”. As a result of this they, “Wanted to have a meeting on Thursday”. [The mother] went on to say she was told, “The supervisor was shaking and crying and just simply wouldn’t speak of what happened”.
42.Based upon this reporting, Mr K determined not to observe the father interacting with the child.
43.It turned out that in fact there had been no episode of the kind related by the mother. Once Mr K had determined that, he raised some issues in relation to that in his report. It appears as though prior to those interviews, the last time the father had spent time with the child was 28 August 2016, and there were no adverse aspects to that time whatsoever.
[43A.On 10 October 2016, the mother reported to police that, in breach of the domestic violence order, the father attended her home. The father was arrested, although ultimately the police investigation concluded that no offence had been committed].
44.These proceedings were transferred to this Court by order of Judge Willis made 8 December 2016.
45.The next occasion that the father was able to spend time with the child was on 13 January 2017, when there were two hours of supervised time at the C Town Contact Centre. That visit appears to have been uneventful, save that the M Group’s notes suggest that the father’s interaction with the child was very fast paced. Interestingly, the following day the mother rang M Group to discuss concerns she had in relation to the visit the previous day. She alleged that the father was “saying inappropriate things” during the visit, and the staff’s attempts to allay those fears did not persuade her to the contrary.
46.The father’s next scheduled visit was on 10 February 2017, however it appears as though there was some miscommunication, and although the mother presented the child, the father, when contacted, said that he had not been informed of the visit. It is apparent that the father became agitated at being told of the proposed visit, but being unable to attend it. Unfortunately that appears to have precipitated some conflict between the Contact Centre staff and the father, and communication thereafter was only between the centre’s lawyers and the father’s lawyers. Ultimately it appears as though M Group declined to supervise further time.
47.Pursuant to the orders of Judge Willis of 12 May 2016, the father continued to have Skype communication with the child. As I shall discuss in detail later, there have been numerous difficulties experienced in relation to that communication regime; each of the parties blames the other for those problems.
48.On 15 March 2017 I made orders listing the matter for trial commencing on Monday 7 August 2017. However subsequently on 9 June 2017, the father filed an Application in a Case seeking that he spend periods of unsupervised time with the child prior to the trial commencing. I dealt with that application on 5 July 2017, on which occasion I made orders for the child to spend time with the father supervised by either the C Town Contact Centre, or if it was not available, another private supervisor. However I further ordered that until that time could commence, the father’s time be supervised by a s 65L Supervisor. In fact, as I had thought likely, only s 65L supervision was able to be arranged prior to the trial commencing, and such time occurred on 19 and 26 July and 2 August 2017, for two hours on each occasion. On the last occasion Mr K also attended and observed the father’s interaction with the child for about 40 minutes. A memorandum was prepared by the supervisor and formed part of the evidence before me. She was glowing in relation to the father’s time with the child and his interaction with him.
Current situation [as at September 2017]
49.As at the time of trial before me, the father remained living in South East Queensland, and at least for the time being, was living at the paternal grandmother’s house outside of E Town. He continues to work as a support worker in J Town, commuting to there from E Town as and when required. It appears as though his financial circumstances are somewhat straitened, in part because his income is relatively modest, but also because he has incurred considerable costs in meeting his legal fees in these proceedings. As to that, it seems as though the paternal grandmother has been assisting him to meet those costs, at least in part. The father presently is in a relationship, although he does not cohabit with her. The child remains his only child.
50.For her part, at trial the mother remained living in C Town with her husband, together with the child the subject of these proceedings and her young child (N, born in 2016) to her relationship with Mr L. Mr L is employed in finance, and earns an income, said by the mother to have been in the order of about $250,000.00 in the last financial year [ie 2016/2017]. His is the only income in the mother’s household; she is presently not in any form of employment. Further, because the father pays only the child support for which he is assessed (said to be about $50.00 per month) it follows that Mr L provides virtually all of the financial support for the child.
51.The child appears to be in robust good health and developing well. He spends some time in day care to enable him to socialise with other children.
52.Between the conclusion of the trial [ie 10 August 2017] and these reasons [ie 21 September 2017], the father has, by interim consent orders, been spending unsupervised time with the child each fortnight. Inevitably the court does not have any report as to how that unsupervised time has been proceeding. Likewise, Skype time should have been continuing pursuant to the orders of Judge Willis. Again the Court has no indication as to how it has been being conducted.
Post 2017 events
Since 21 September 2017, as I have already noted, there has been very considerable history. I will detail some of the more significant matters.
The first thing which occurred was that the mother filed, on 21 September 2017, an Application in a Case seeking permission to travel with the child to Asia, and for the suspension of Skype communication that I ordered that day. Given that I had dismissed her oral application to travel to Asia in my 21 September reasons, I dismissed that part of her Application in a Case that day, but directed that the application, insofar as it dealt with suspension of Skype communication, be subject to Registrar management.
The Department of Child Safety had, since August 2017, been receiving a steady stream of notifications about the child, whilst in the mother’s care. They continued after 21 September 2017. It is said that a total of 17 notifications were made, some of which resulted in Departmental Officers attending the mother’s home. The father accepts he was the notifier for some, but not all, 17 notifications.
On 9 November 2017, the child, whilst spending time with the father, told him that Mr L hits him on his back and bottom. The father next spent time with the child on 23 November, on which occasion he observed a bruise on him. When questioned, the child said that Mr L “smacked me.” The father then reported the matter to the Department and police. The father thereafter continued to engage with those authorities in relation to his concerns regarding the child.
Next, on 24 November 2017, two charges against the father of breaching a domestic violence order protecting the mother were dismissed, but then on 27 November he pleaded guilty to a further breach, albeit there is no evidence as to the sentence which was imposed.
On 30 November 2017, the father attended police, reporting that the mother had committed domestic violence, perjury, child abuse and had threatened him. The ensuing investigation saw no charges laid, and police declined to seek a domestic violence order against the mother on behalf of the father.
On 18 December 2017, the father filed an application for a domestic violence orders to which the mother was the respondent. He sought orders protecting himself and the child. It was made returnable on 10 January 2018.
On 4 January 2018, the mother withdrew her application that the father be assessed for child support.
On 18 January 2018, the father prosecuted his application for a protection order in which the mother was the respondent. The mother did not appear and an order was made in her absence.
On a date which is unclear, but sometime in January 2018, the mother was becoming increasingly concerned about some alleged disclosures of the child that the father was sexually assaulting him when spending time with him. She reported the matter to the police and the s 65L supervisor. A police investigation ensued. A s 93A interview of the child was conducted on 1 February 2018, but no disclosures were made. On 5 February 2018, the father was advised that the child would be withheld from spending time with him. On 13 February 2018 the father filed his application to have the Independent Children's Lawyer discharged, (which I heard on 12 March 2018 but reserved my decision).
On 16 February 2018, the mother filed an Amended Application in a Case seeking that the orders which afforded the child to spend time with the father be suspended. That application came before me on 23 February, and directions were made for the filing of material. On 24 February 2018 the mother created a “go fund me” page which was headed “fighting for my son B.” Extensive details of the case were made available on that page.
On 7 March 2018, the father was interviewed by police. He emphatically denied sexually assaulting the child.
On 9 March 2018 police abandoned their investigation in relation to the father’s sexual abuse of the child. The police records state:
This matter appears to be an ongoing dispute between the parties with the mother attempting to use allegations of harm against the father to further her cause. On reviewing the allegations it is apparent that these complaints will continue and there will need to be some form of intervention if it continues with the child’s mother who is the informant.
The child then resumed spending time with the father on 21 March, by which time police had advised the mother that they were of the view that there had not been any offence committed.
On 6 April 2018 there was, in the circumstances, a most unusual event, in that the mother’s partner, Mr L, telephoned the father’s mobile phone, which was answered by his partner. Subsequently the father then received a text message from Mr L which read:
[Mr Horner] please. I understand you think [Ms Horner] and I are horrible people but [B] can’t sleep in this house after what has been said! He now thinks the house is full of monsters and only Daddy can keep him safe. It is the second night in a row that [Ms Horner] and I can’t sleep. Can you help?
The following day the mother sent the father a text message which said:
[Mr Horner]. We don’t need you to settle him down. He told him that his house is full of monsters, you just need to tell him that it isn’t simple. Please do that for [B] next visit. He needs to feel safe in his home, don’t take that away from him.
On 2 May 2018, pursuant to my 21 September 2017 orders, the child spent his first overnight time with the father.
On 16 May 2018 the father says that the child, during an overnight visit, disclosed to him and Ms Q that “papa hit mummy, hit me and he hit [N].”
On 26 May 2018, it seems the father, Ms Q and her two children commenced to live together (although the father had previously spent overnights in her home).
On 31 May 2018 the mother contends that the child had a conversation with her, in which he disclosed that he had been on a plane with the father. The mother raised this with the s 65L supervisor, and in due course on 1 June 2018, the Independent Children's Lawyer sought to have the matter relisted, to determine if the father had indeed taken the child on a flight.
On 5 June 2018 the terms of the Temporary Protection Order against the father were varied. The matter was again mentioned on 11 June 2018, although somehow not to the father’s knowledge. The mother’s solicitor then advised the Magistrate – in the mother’s presence – that the father’s time with the child was currently supervised, and the mother herself told the Magistrate that the Independent Children's Lawyer had recommended that contact be suspended effectively immediately “due to [the father’s] behaviour.” Neither of these matters were true.
On 12 June 2018 I dealt with the matter in relation to the father’s alleged travel to Brisbane with the child in breach of the orders. He staunchly denied doing so.
On 25 July 2018 the father filed a Contravention Application in relation to the mother’s withholding of the child. It was listed to trial.
On 31 July 2018 the mother filed a Notice of Discontinuance of her Application in a Case filed 16 February 2018, which had sought a suspension of the father’s time with the child.
Later in 2018 the mother and Mr L were married in H Town.
On 16 August 2018, the updated Family Report was released. It recommended that the father’s time with the child cease.
As I have indicated, the trial then resumed on 27 August 2018, but had to be adjourned on 29 August, when the mother became terribly distressed as a result of some evidence, unfavourable to her case, being given by the Family Report writer, Mr K. The trial then resumed on 26 November. At that resumed hearing, I was advised that the parties had withdrawn their mutual domestic violence order applications. Further, I was told that shortly after the August 2018 hearing, the parties had agreed that the child should spend two consecutive overnights with the father on the occasions which, under my 21 September 2017 orders, he spent time with the child.
Since then, at least so far as I am aware, there has been a period of something approaching calm. Certainly no application to re-open has been made, no Contravention Application has been filed, and no application to vary the existing interim orders has been made.
Current situation
As at the conclusion of the trial, the father remained living in J Town with his partner, Ms Q, and her two children. Those children spend one week in Ms Q’s and the father’s household, and one week with their father elsewhere. The father remains employed as a support worker in the Brisbane region. He spends overnights at the home or facility where he works. Ms Q is employed as a sales manager.
For her part, the mother remains living with her husband Mr L, and their child N, together with the child the subject of these proceedings, in C Town. She is presently works in allied health, and Mr L remains employed as a finance manager, and is well remunerated.
The child was due to start Prep at C Town School in January 2019. I assume that has now occurred. Likewise I assume that the father is continuing to spend an extra night with the child in addition to those provided for in the 2017 orders, and that such time is being spent on weekends in C Town, hence requiring the father to fly up and back to J Town on his days off, in order to spend time with the child.
THE ISSUES
With the assistance of the parties, during the course of the trial, I identified that the following are the significant issues raised in the case, in that their determination is likely to significantly inform the outcome of the exercise of my discretion:
1.What is the nature of the relationship between each parent and the child.
2.What risk, if any, does each parent and/or their household pose to the child, and what, if any, means are available to adequately mitigate it.
3.Would the child benefit from a meaningful relationship with each parent and their respective families, and if so, how might it best be facilitated.
4.Would each parent facilitate a meaningful relationship between the other parent and the child.
5.Does each parent have the capacity to adequately provide for the child’s developmental and emotional needs.
6.What is the likely impact on the mother if the child were to continue spending time with the father, or that time were to increase, and what effect would that have upon her parenting capacity.
7.Would the benefits to the child of having a relationship with the father, outweigh any adverse impact on the child from any diminished parenting capacity of the mother, arising from the child’s continuing relationship with the father.
8.Is it reasonably practicable for the child to spend regular time with the non-residential parent, given the location of the parties’ residences.
9.What would be the likely effect on the child of each party’s proposal.
10.Could the parties’ communication and relationship history adequately support equal shared parental responsibility, or sole parental responsibility with an obligation to consult the other parent.
Once I have considered the relevant statutory provisions and legal principles, but in advance of a consideration of any residual s 60CC factors, I will address those issues, and then consider the appropriate parenting orders in this case.
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.
However s 61DA(2) provides that the presumption does not apply if there are reasonable grounds to believe that a parent of the child (or a person who lives with a parent of the child) has engaged in either abuse of the child or another child who, at the time, was a member of the parent’s family (or that other person’s family) or family violence. Further, subsection 61DA(4) provides that the presumption may be rebutted by evidence that satisfies the court that it would not be in the best interests of the child for its parents to have equal shared parental responsibility.
In this context it is convenient to also advert to s 65DAC, which sets out the effect of a parenting order that provides for shared parental responsibility. By subsection (3) such an order is taken to require each of the persons subject to it to consult with the other person in relation to the decision to be made about any major long-term issue in relation to the child, and make a genuine effort to come to a joint decision about that issue. It can therefore be seen that the obligations which an order effecting equal shared parental responsibility imposes are potentially onerous.
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].[3]
[3] 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.
Abuse, neglect and family violence
“Abuse” is defined in s 4 of the Family Law Act in the following terms:
Abuse, in relation to a child, means:
(a) an assault, including a sexual assault, of the child; or
(b) a person (the first person) involving the child in a sexual activity with the first person or another person in which the child is used, directly or indirectly, as a sexual object by the first person or the other person, and where there is unequal power in the relationship between the child and the first person; or
(c) causing the child to suffer serious psychological harm, including (but not limited to) when that harm is caused by the child being subjected to, or exposed to, family violence; or
(d) serious neglect of the child.
Neither the term “neglect” nor indeed “serious neglect” appears to be defined in the Act; absent any indication in the Act to the contrary they should therefore have their usual dictionary meanings. I can discern no contrary indication in the Act. The relevant definition of the word “neglect” in the Macquarie Dictionary is “to be remiss in care for or treatment of.”
“Family violence” is defined in s 4AB(1) of the Family Law Act in the following terms:
For the purposes of this Act, family violence means violent, threatening or other behaviour by a person that coerces or controls a member of the persons family .. or causes the family member to be fearful.
Section 4AB(3) provides that for the purposes of the Act, a child is exposed to family violence if the child sees or hears family violence, or otherwise experiences the effects of family violence. Section 4AB(2) and (4) respectively give examples of behaviour that may constitute family violence, and examples of situations that may constitute a child being exposed to family violence.
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.
Conduct intended to, or with a risk of, either emotionally or psychologically harming a child, or destroying or impairing a relationship between a child and a parent, is not, of itself and without more, necessarily criminal. Nonetheless an allegation of that kind is potentially a grave one, although whether it is so or not will depend upon the facts of individual cases. It is probably idle to seek to arrange conduct in some hierarchy of gravity; rather what s.140(2)(c) requires is that appropriate consideration is given to the gravity of the matter in question in determining whether or not the Court is satisfied of its existence on the balance of probabilities.
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.”[4]
[4] See K v R (1997) 22 FamLR 592 and Re W (sex abuse – standard of proof) [2004] FamCA 768 at [15].
ISSUE 1 – NATURE OF RELATIONSHIP BETWEEN EACH PARENT AND THE CHILD
The unchallenged evidence of Mr K was that the child’s primary attachment is with the mother. In his oral evidence, he said that the mother has cared for him since day one, and they clearly love each other. He said that the mother had done a very good job in raising the child. He conceded that the child derives nurture, comfort and support from the mother. I accept all of that evidence.
As to the father, again Mr K’s evidence was unchallenged. He said that he had watched the relationship between the father and the child grow, and that both he and the s 65L supervisor, Ms R, concluded that the relationship has blossomed, and although, because they only spend short periods of time together, it “tends to create a bit of a party-time atmosphere,” nonetheless he observed that child to go to his father for safety when he a little bit scared, and to cling and hold onto him. He thought that put beyond any question that there was a strong paternal-child bond. He conceded that it was an attachment, although it was in the developing stages and “it is nowhere near that which the boy has with his mother.” Again I accept that evidence.
Ms R also gave some evidence relevant to this matter, in the context of the child having moved to spend two nights with the father. She said:
I think it has stretched him. I think that emotionally we’ve taken him to the edge. I don’t think we need to pull back .. I can see he’s mentally and physically exhausted .. I think that he’s reached his limit…
This evidence was not challenged and I accept that it represents the position when she gave that evidence on 27 November 2018, albeit the child is now seven months order, and is likely more resilient that he was last year.
ISSUE 2 – RISK POSED BY PARENTS AND MEANS OF MITIGATION
Overview
This was the central battleground in this case. For his part, the father says that the mother is such a risk of emotional harm to the child, that the only means of adequately mitigating it is to move the child into his primary case.
For her part, the mother denies that she poses any such risk, and further says that it is the father who, by virtue of his personality traits and history of intractable conflict with her, poses a risk of harm to the child, which justifies the child remaining in her primary care.
I will discuss those separately.
The mother and her household
Overview
The father points to a long history of the mother acting so as to deny the child a relationship with him. Particularly he points to the fact that, both at the 2017 trial, and again in 2018, up until 26 November, her stated position was that the child should have nothing to do with him until he was either 12 or 18. Whilst noting that on 26 November 2018, the mother articulated orders which would see the relationship continue, he says that her alleged change of heart is not genuine, but strategic. He says that unless the child is in his primary care, the mother will, once the trial is over, not permit the relationship to continue, and he says that her past behaviour is the best indicator of the future in that regard.
The mother’s past behaviour
It is convenient to deal with the significant occasions when the mother has allegedly so acted in a chronological order. They are as follows:
Keeping child from father after separation
The mother deceived the father at the time of separation into returning to Australia ahead of her. The effect of this was that the father was, for a period of time, deprived of any relationship with the child, as the mother kept her whereabouts secret.
The mother says that at the time, she was attempting to protect herself from the father, in the course of exiting from a relationship which both parties concede involved some domestic violence.
Further, the mother says that her actions and interpretation of events are informed by her underlying anxiety disorder as diagnosed by Dr F who gave evidence in the 2017 proceedings. Counsel for the mother, in her helpful written submissions, correctly notes that Dr F’ evidence was largely unchallenged. Particularly in his affidavit filed 20 October 2016, he said this pertaining to the mother’s state:
(a)Nature of the mother’s condition
Ms Horner appears to have some personality vulnerabilities that may have contributed to issues during past relationships.
Following the birth of the child, the mother experienced difficulties with her mood, which might be characterised as an Adjustment Disorder with Depressed Mood. The history provided was not consistent with a Major Depressive Episode.
Her current symptoms are consistent with an Adjustment Disorder with Mixed Anxiety and Depressed Mood; although she is experiencing panic attacks and may go on to develop Panic Disorder.
…
In the future, the mother’s personality vulnerabilities are more likely to come to the forefront in situations where she is exposed to a high level of stress. Clinically, it is often the case that individuals with personality vulnerabilities can function well under normal circumstances but they can decompensate under circumstances such as discord at work or the breakdown of a relationship.
I accept that in Europe after the birth of the child, there was violence in the course of the relationship, in that the father has conceded at least throwing a Christmas tree and smashing a chair into the floor, and both parties’ concede verbal conflict and physical fighting occurred. Although the mother concedes she denigrated the father in those episodes, nonetheless I accept that the father’s behaviour likely caused her to become somewhat fearful of him, and given her underlying psychological issues, it is likely that she was viewing his behaviour, and formulating an assessment of the risk which he posed to her, through that prism.
That said, nonetheless by withholding the child from the father, she was putting her needs above those of the child. Whilst one perhaps should not be too critical, or indeed critical at all, of that occurring for a short period of time, in order for the mother to achieve a perception of physical safety, that is not what has occurred. Rather, the mother travelled to Australia from Europe with the child, but did not advise the father of that for some months. This is conceded by the mother, and again it is said that her experience of family violence informed her choice, but the mother did not offer the father supervised time with the child, nor did she seek to engage with him at all. In effect, she hid the child from him.
The fact that the mother may have been the victim of family violence only goes so far. Either she should have proactively sought some safe means for the child to continue a relationship with the father, or alternatively, if she contended that there was no safe means, she should have commenced proceedings seeking orders restraining the father from having any time with the child. She did neither. I accept that she was therefore prioritising her needs over those of the child.
Insisting that the father’s time with the child in H Town be supervised
At the time that the father commenced spending time with the child in H Town in November 2015, the child was about 18 months old. He had not spent time with the father since the father left Europe in 2015. As I shall shortly discuss, the father has a number of personality vulnerabilities himself which, as shall be seen, I am well satisfied can make him a difficult person to deal with. In any event, he was no doubt furious at the mother’s high handed withholding of the child from him, and angry that she had tricked him into leaving Europe on a false understanding.
I do not think that it was unreasonable of the mother to insist upon supervision of the father’s time, at least initially, until he re-established a relationship with the child, and demonstrated a capacity to properly care for him. Further, it would have alleviated any concerns which the mother may have had that the father was a flight risk with the child. I do not accept that, by insisting upon supervised time, at least in the first instance, the mother was acting unreasonably, or was deliberately seeking to put a practical impediment to the father’s relationship with the child.
I have noted that the mother withheld the child from supervised time in H Town on 3 and 4 September 2016, on the pretext of him having a head injury. The truthfulness of that claim was not explored before me.
There is one further matter that I should advert to, and that is by this time, the mother was in a relationship with Mr L. I have to say that I think Mr L has been a significant difficulty in the post separation co-parenting relationship between these parties. I fear that Mr L has overstepped his role as a step parent in relation to the child, which perhaps is understandable, but nonetheless regrettable. It is useful to review some of the evidence on this point. In the mother’s affidavit of 12 July 2017, she said that [Mr L] “was the first person [the child] really trusted, besides me …” and later that [Mr L] “… relationship with [the child] is a normal and healthy father/son relationship.” She continued “… [The child] sees [Mr L] as his dad” and “is his father.” Later still, she said “from the beginning [Mr L] treated [the child] like his own.”
Mr L gave evidence before me. He expressed anger and frustration at the legal process he was enmeshed in. He was also provoked by the father’s lack of financial support for the child. Indeed, in cross-examination he was challenged that, in his affidavit, he included the child within the description of “my wife and kids.” Sarcastically, he responded “sorry, as opposed to my wife and kids, perhaps I should have written “my wife, my kid, and the child I have been caring for and educating and raising for the last four years.” Would that be more accurate?”
The father is largely to blame for Mr L being the financial provider for the child, because of his own low level of support. That father has done himself no favours in this regard. Not only has his child support assessment – legitimately – been low, but he has disputed it, and let arrears accrue. The mother was not challenged that in January 2018 she eventually withdrew her application for child support because the conflict with the father – on yet another front – was simply too much for her.
Mr L has permitted the child to call him “papa” notwithstanding that he knows this causes the father grief and resentment. I am well satisfied he has, for all intents and purposes, assumed the fathering role of the child. Regrettably, both the mother and Mr L during their evidence, referred to the father as the “biological father.” That assumes a little significance given that the mother is adopted, and although she did later meet her father, is now estranged from him. It might be that she sees the father in this case as assuming a similar role to her own biological father.
Mr L is heavily emotionally invested in this litigation. He is probably heavily financially invested in it too. The mother says that Mr L “sacrificed two properties and a car to pay for [her] legal bills.” Indeed at times I wondered if the true conflict in this case was between Mr L and the father, although I accept that impression might have been in part the product of Mr L seeking to act protectively of his wife. Whatever be the true position, Mr L does not assist in providing a solution to the conflict between the parties; I am firmly of the view that he worsens it.
The mother moved from H Town to C Town once supervised time had been arranged at Contact Centre in H Town
The mother says that she moved cities to further Mr L’s employment. That is undoubtedly true. However she thereafter insisted upon the father engaging with the C Town Contact Centre, and would not continue to make the child available in H Town. Whilst I am suspicious that this was simply to meet the convenience of the mother, who by then, was being bombarded by assertive emails and text messages from the father, nonetheless her actions did impede the continued redevelopment of the relationship between the father and the child.
Moreover, even accepting that the father likely bears great responsibility for the C Town Contact Centre withdrawing its services, the mother herself challenged the Centre, by accusing it of permitting inappropriate dialogue between the father and the child on the one occasion it did supervise time.
Making allegations of sexual abuse against the father
In this regard, the parties are in significant disagreement. The father says that the mother falsely concocted the allegation of sexual abuse of the child, in a desperate and wholly dishonest way, so as to provide a justification for terminating his relationship with the child, which was then re-establishing, and was shortly to move to overnights. The mother denies this, and says that she was acting protectively in relation to genuine utterances by the child, but once they were investigated by the appropriate authorities, she has not raised them again. That said, even on her own evidence, the mother still thinks that there is a chance that the father did in fact sexually assault the child.
This then raises squarely the question of the mother’s credibility. The first point to note is that it was, of course, strategically convenient for the mother to have these allegations raised at the time when she did, in the context of the father clearly developing a good relationship with the child under the 2017 orders, and it about to move to overnight time in advance of the trial then resuming. All of this was in the context where, despite her plea to make a final order in 2017 that the child lived with her, I had refused to do so, and in consequence, the question of the primary residence of the child still remained a live issue.
The mother, in cross-examination, disclosed that she had been, since about August 2017, increasingly concerned about the child’s use of sexual language. She then said that in about November 2017, her day care provider had recommended she start keeping a diary. She purchased one, and started making entries in it, including, she says, of the child’s disclosures. However some entries at the rear of the diary plainly relate to times earlier in 2017, commencing 23 August. She said that in preparing her affidavit, she had “copied it word for word from the diary.” At the time she gave that evidence, the diary was at her home. I adjourned the proceedings in order that she could retrieve it. She did not initially do so, but rather brought back photocopies of a selection of pages of the diary. She plainly was resisting the production of the original.
I required her to go back home again, and to bring the original of the diary. Eventually she did so. Whilst ultimately it is difficult to fathom why she was prepared to, so brazenly, not comply with a direction that I had given, at the very best it was truculence, and at the worst it was obstruction. It provided plenty of fodder for subsequent attacks on her credibility, as it transpired that the diary did not really comprise such a document, but was a collection of notes which she made, not necessarily contemporaneously. Moreover, it did not support the level of frequency of disclosures which she had attributed to the child.
Further attacks on the mother’s credibility ensued. Many of them well and truly hit home. Some of those directly related to the sexual abuse allegation, in that the mother sought to explain the lack of disclosure by the child to police in his 93A interview as being the product of him being scared because he was at a police station. But it was correctly identified that just some months earlier, the mother had been seeking to effect a changeover of the child into the father’s care at a police station, and far from then expressing any concern, said “if anything, the child would find it exciting as the police station has police cars.”
Further, the mother was criticised, in my view legitimately, after the police had rejected her complaint, for taking the child to “play therapy” with a therapist practising some four hours away, rather than a more traditional therapist in her own town. The inference was that she was trying to have the child treated as a sex abuse victim, and falsely implant that idea in his head. Certainly it is troubling that the mother did not accept at face value the outcome of the police investigation.
In this context the father’s counsel correctly notes that the father was scarcely cross-examined by reference to the sexual abuse allegations, which had only some months earlier assumed such prominence in the case.
Perhaps the worst example of the mother’s credibility difficulties was a “caught in the headlights” moment during cross-examination by counsel for the father, when she was challenged about the circumstances of her separation from her first husband. She had told Ms S, a therapist who had seen her, that the circumstances of separation were that she returned from work to find that the partner had taken his things, leaving a note to say that he was not going to return. She was then confronted with an application for a protection order against her first husband, which she had filed, but apparently later withdrawn, which alleged violence, but made no mention of what she had told Dr F, about the circumstances of separation, namely that she had been strangled to the point of unconsciousness. My impression of the mother’s response to these documents was one of intense surprise and discomfort. She said that it was “really unkind” and “not really nice” to confront her with the documents like those counsel was using to challenge her. I have little doubt that she realised that she had been caught out telling different things to different people, and was trying to find some plausible means of reconciling those inconsistent statements, but was having difficulty doing so.
Also highly relevant to the mother’s credit are her various statements in relation to her investigations in relation to the father’s alleged taking of the child on a plane to Brisbane during a visit in C Town. There were plainly considerable inconsistencies between what she has told people that airline staff had advised her about the father’s flight bookings (if one can accept that airline staff would disclose that information to a member of the public who rings up at all) which continued to raise serious questions in relation to her veracity.
There were other significant issues which impact upon the mother’s credibility including:
·A significant variation between what police recorded relating to the 26 December 2015 events at a changeover at H Town (verbal only) and the mother’s evidence (father pushing her);
·A clear disagreement between the mother’s version of events of a changeover by the s 65L supervisor on 26 July 2017 (albeit the mother was not there) and Ms R’s recall;
·The mother not correcting her solicitor’s error in the Magistrates Court on 11 June 2018 – and her making a false statement to the Magistrate herself;
·The mother’s false representation to Mr K that Contact Centre staff had some kind of incident with the father, in consequence of which Mr K did not observe the father and child together when completing the first Family Report;
·A very strange episode at a changeover at the Townsville Registry on 18 October 2017, when the mother, far from demonstrating fear of the father, confronted him, and after leaving, later returned and cried in front of security staff.
What the father ultimately contends is that the mother will lie when it suits her, manipulate the authorities and courts to achieve the outcome she desires, and that the occasions when she has behaved in a way suggesting or consistent with anxiety, “all confections.”
As to the latter, examples of the sorts of confections relied upon by the father are the mother’s distress when telling Ms R about the father’s alleged taking the child to Brisbane (such distress said to have lasted 10 minutes) and the mother’s alleged response to seeing the father on 3 May 2018.
The events of 3 May 2018 occupied some considerable focus in the trial. The mother says that, in the course of a changeover, she unexpectedly saw the father, who walked towards the car she was in. She says this caused her to panic. Ms R observed the mother. She said:
… Her skin was pallid, she was trembling, she was hyperventilating and her hands were shaking. And she was extremely distressed…
Later he continued:
… If he went to his father’s place and was denied the ongoing primary attachment with mum, whatever relationship he has developed with [Mr L] – and, to some extent, I think I would quote his connection with [Mr L] to be something that he would adapt to over time if he was excluded from his life – but if excluding him from his brother’s environment into a new place with a new school, we have unknowns into how he would react. And between those two positions one is a better position than the other.
That was his evidence when responding to questions by Queens Counsel for the Independent Children's Lawyer. But under later cross-examination by counsel for the father, who put to him an extensive history of asserted deliberate exclusion of the father from the child’s life by the mother, he thought that therefore the mother’s household posed a risk to the child of emotional harm. That was because the mother had, on the assumptions he was being asked to make, deliberately raised allegations against the father, with a view to using those as a pretext of withholding the child from him, which harm could only be adequately mitigated by removing the child from the mother’s primary care. Further, the father’s proposal was, Mr K thought, the only one which has a realistic prospect of the child having a meaningful – or indeed any – relationship with the father and paternal family. Therefore in this sense, his evidence rather dramatically changed during the course of cross-examination, although as I understand it, his predictions as to the likely effect on the child of going into the father’s care, and breaking the primary attachment with the mother, remained unchanged. It was rather that the magnitude of the risk of harm which that needed to be weighed against that which, changed, or at least he was asked to assume it had changed.
However there remained a difference between his recommendations and the father’s proposal, in that Mr K contemplated that there would need to be, at the outset, a period when which the father lived in C Town and during which there would be a move to equal time, and then a transition of the child into living in the father’s primary care. Significantly, that recommendation was never taken up by the father, as it was said to be impractical on a number of levels. The father persisted with a precipitous change of residence.
Mr K’s report dated 27 November 2018 said this in relation to the appropriate transition arrangements:
MATTERS TO CONSIDER IN CREATING ORDERS FOR [THE CHILD]
·It is recognised there is a strong attachment between [the child] and [the mother].
·There is a significant and developing relationship between [the child] and [the father].
·Using the principles usually relied upon by the Family Court such as effective communication being in place, there being trust and respect shared between the parties and the understanding of the importance of the other parent in their child’s life and their role in fostering this – these are patently absent. As such, joint parental responsibility arrangements as well as a substantial time spend arrangement are typically excluded.
·To precipitously change the present arrangements is contra-indicated and to do so would likely have a traumatic or at least a most unsettling impact upon [the child].
·Hence if we are to move to an arrangement in which [the child] lives with [the father] and spends time with [the mother] it must occur in a stages, stepped and gradual manner. This would allow for [the child] to both age and mature and for a stronger attachment to form to [the father].
·This would necessitate a significant investment in both time and resources by [the father] as that process would need to take place in C Town. To do so it would:
1.Minimise [the child’s] adjustment to location
2.Minimise the impact of the reduction of time with [the mother]
3.Minimise the impact on [the child’s] education and
4.Minimise the impact upon [the child’s] relationship with his brother.
·Either a failure or refusal to do so would lead the Report Writer to conclude the risks associated with an abrupt and potentially traumatic severance to the attachment of [the child] to [the mother] would outweigh the risks associated with having [the child] remain in the primary care of [the mother].
·It would be incumbent upon both parties to ensure a comforting, nurturant and facilitative approach towards assisting [the child] to adjust is put into place. The outcomes in this matter are critically ties to this process.
SUGGESTED SCHEDULE ARRANGEMENTS FOR TRANSITION
Commencing 2019
1.Months 1, 2 & 3 (12 weeks) Move from present arrangements to one in which an equal amount of time spent with each parent.
2.Months 4, 5 & 6 (12 weeks) Move towards a majority time spent with [the father] arriving at alternative weekends spent with [the mother].
3.Transition to J Town and change Prep School.
4.Commence alternative weekends between [the child] and [the mother] as soon as [the child] can travel unescorted.
5.Utilise Skype on a regulated and as needed basis.
6.Engage services of a child psychologist to monitor and assist [the child’s] adjustment.
7.Arrange half of the school holidays with each parent during the course of the school year.
8.Arrange half of the Christmas school holidays with each parent alternating yearly.
9.Utilise parenting App and parenting book to facilitate parental communication.
10.Enable SMS/email communication which are child-centric only.
11.[The father] to facilitate ad hoc or out-of-routine visits to the South East corner by [the mother].
12.[The father] to ensure [the mother] is apprised of all significant matters as they relate to [the child’s] health and education.
The difficulty with the father’s proposal not adopting that process, is that there would be no attempt to transition the child into living primarily with him; the five year old child would simply be delivered to his full-time care on the same day that he moved out of living full-time in the mother’s home. It was conceded by the father by his counsel in submissions that is likely to cause the child grief and loss. It is likely to be a species of trauma for the child. It flies in the fact of the professional recommendations.
The father’s evidence about the impact of his proposal on the child bordered on alarming. When asked about the impact on the child of breaking his primary attachment with his mother, the father said “I believe there will be very minimal percentages or amounts of impact, because [the child] never asks about his mother when he’s with me…”
Earlier, whilst seemingly accepting a move into his care would be “an enormous adjustment” for the child, the father rather idealistically – although vacuously – said “I would do everything I can in my power as a father, and as well as my beloved partner [Ms W], and her beautiful two children to make it a smooth transition, by always influencing and allowing contact to occur between [the child] and his mother…” He thought Skype might help achieve that.
Later the father said that he thought the impact on the child of being removed from N would be “minimal.” Worryingly, he then went on to say “that does not outweigh the contact in a relationship between child and father and family.”
I am satisfied that the father, naively and rather grandly, thinks that there will be little impact on the child of abruptly uprooting him from his long settled home and family, and moving to live with the father, his partner, and her two children, in a house he has likely never been too – much less lived in – in a place where he knows no one else, or is familiar with. The father thinks that he can – somehow – solve any problems that might arise, by virtue of being the child’s father.
Moreover, there was some disturbing and unchallenged evidence as to what the father would likely do if the move into his care did not succeed. Mr K said that the father would put this down to being the mother’s fault. Particularly a [172] of the first Family Report of 3 February 2017, he said:
I tried to raise with [the father] how he would cope if the Court were to order [the child] to live with him in [J Town] away from his mother and what would he do if [the child] did not do well, pined for his mother’s company and attention and failed to thrive. From there he refused to accept this would be anything other than her fault and she is the one that “brought it about.”
Later, he continued:
239. Finally I share with Judge Willis the concerns expressed that [the father] would, if given the opportunity through orders, simply take [the child] from the arms of his mother with nary a though of the impact this might have on [the child]. And that if this was done and [the child] failed to prosper, to then sheet this home to [the mother].
240. This suggests a deficit in his understanding of how young children develop and the vital importance of primary attachments and how one, as a parent, must at all times maintain the child’s needs and well-being as the foremost principle that guides them.
Since then, nothing in the father’s material has demonstrated any change in that regard.
Mother’s proposal
The mother, in effect, proposes a reduction of the father’s time with the child to very limited time comprising only one weekend during school terms, and incrementally increasing holiday time, culminating in one week in each holiday. Such time would not be augmented by Skype, or indeed any communications regime at all.
Unfortunately, given its late promulgation, the mother’s ultimate proposal was not the subject of comment from Mr K. Nonetheless, I am satisfied its meagre time, and absence of communication, would make it very difficult for the child to maintain a meaningful relationship with the father. It is certainly better than recognition only contact, but not markedly so. Other than to generally observe it will likely deprive the child of a relationship of any substance with the father, I cannot reach any detailed conclusions of the likely long term effects of her proposal on the child.
The Independent Children's Lawyer’s proposal
The Independent Children's Lawyer’s proposal sees a reasonable blend of weekend term time, and school holiday time, being undertaken by the father and the child. I assess it likely to be able to achieve the continuance of a meaningful relationship.
ISSUE 10 – COULD PARTIES’ COMMUNICATION SUPPORT EQUAL SHARED PARENTAL RESPONSIBILITY OR SOLE PARENTAL RESPONSIBILITY WITH CONSULTATION
Neither party seriously contended that their communication could possibly support equal shared parental responsibility. Further, neither party contemplated that they should have an obligation to consult the other in the exercise of their sole parental responsibility. That to my mind speaks volumes as to their recognition that they cannot communicate. Indeed, even with extensive s 65L assistance, in the 12 months prior to December 2018, their communication was still then poor. It is likely, in my view, to not improve, and perhaps even worsen, with the eventual removal of the assistance which the s 65L provides them. In my view, the parties could not possibly discharge the duties imposed on them by s 65DAC if there was an order for equal shared parental responsibility.
The Independent Children's Lawyer contemplated sole parental responsibility, but said that a consultation regime ought be imposed on the parties. I am afraid that I cannot see that as anything other than an invitation to ongoing mayhem and litigation.
SECTION 60CC CONSIDERATIONS
It will be appreciated that in traversing the issues, I have addressed both primary considerations, and a numbers of the additional considerations. However I make the further observations.
The child is too young to express any views deserving of weight.
Other significant persons in the child’s life include Mr L and his brother N. As at December 2018, there is little suggestion that the child has much, if any of a relationship with Ms Q, or indeed the paternal family more broadly. No doubt that will develop over time.
The mother contends that the father’s behaviour, on occasion, has been such that he prioritised his own position over spending time with the child. For instance, she points to his difficult behaviour in relation to the C Town Contact Centre, which saw them ultimately withdraw their services. Moreover, she points to her offer to have the child spend time with the child at Christmas 2017, although the father declined that on the basis that he would not accept changeovers at a police station. He says that was mindful of an observation that I had made during the course of an interim hearing about the unsuitability of police stations for a changeover. Nonetheless the effect of his behaviour was to preclude the child from spending time with him; it was self-defeating.
In the past, the father has been assessed for child support, albeit at a low level. Arrears accrued. The father disputed the assessment. Eventually, the mother gave up. The father thereafter has made no contribution to the costs of the child. The reality is that Mr L has been providing most of the child’s financial support, for all his life.
There has been family violence between these parties. Family violence orders have applied on numerous occasions. The inference I draw from that is that the parties have from time to time, both genuinely and strategically, deployed family violence orders as part of the ongoing battle between them. I am told that all applications have now been withdrawn. There is very little I can infer from that.
Further, the father has breached the family violence orders on a number of occasions, and has been found guilty, and on one occasion punished, for that. The inference I draw from that is that, but for the prospect of serious consequences, he likely would have continued to breach the orders. That accords with the expert evidence.
PARENTAL RESPONSIBILITY
Both parents primarily seek orders for sole parental responsibility in their favour. Both concede that it should flow with the primary residence of the child (although the father sought equal shared parental responsibility in the event the child lived with the mother – an order which would never work, given the parties’ relentless conflict and poor communication). I accept that is the case.
WITH WHOM SHOULD CHILD LIVE
This is the nub of the case. The father contends that the child should move immediately into his care in J Town, and thereafter spend limited amounts of weekend time during school terms, and one half of school holidays, with the mother. The mother contends for the converse, albeit proposing a far more spartan amount of time.
With the assistance of the parties, during the course of the trial, I identified the following as being the points which are in favour of the mother’s proposal, or against the father’s proposal (and interpolate the following comments):
(a)The child’s primary attachment is with the mother, and he has only ever lived with her, and never lived apart from her;
This is conceded by the father.
(b)The father’s proposal likely abruptly disrupts the child’s primary attachment to his mother;
The father says that Mr K’s opinion was that the child is now of sufficient age that the challenges are not insurmountable. That is so, but he ameliorated that impact by suggesting a transition whereby the father would move for a period to live in C Town, and gradually the child would move in to equal care and then into the father’s primary care over a period of 6 months. The father did not adopt that.
(c)The father’s proposal would significantly diminish the child’s relationship with all members of his current home;
The father says that, although the child’s time in his mother’s home would be significantly reduced, “it is not at all clear it would diminish the quality of the relationship(s) however.” That must be rejected. The child would go from living permanently in that household (but for the time he currently spends with the father) to only experiencing that home and the people in it for a few weekends a year, and half of school holidays.
The father further says that the quality of the child’s experience “may well improve” because the child would be less exposed to the mother’s “mental health and its management.” I frankly really do not understand that submission. The child is flourishing in the mother’s care, save for concerns in relation to her exposure of the child to the impacts of her anxiety (as I have found it). It is rather fanciful to suggest that the child’s relationship with the mother would improve by spending less time with her. Although in fairness, the father does not make the point, it could not be contended that his experience of Mr L or N would improve either if the child saw less of them either.
(d)The mother has a demonstrated history of being the primary carer of the child;
Although conceded by the father, he says that the child’s emotional health and development is significantly challenged and at risk from the mother’s diminished capacity. I have sufficiently dealt with that contention earlier in these reasons.
(e)The mother’s proposal would likely optimise the benefits which the child would obtain from his relationship with her;
The father concedes this, (which is contrary to his submission in relation to (c) above) but says that the child’s benefits from that relationship are diminished “in light of the mother’s diminished parenting capacity.” I assume this is an echo of his previous submission that the mother poses a risk of emotional harm to the child. I have sufficiently dealt with this earlier.
(f)The mother’s proposal may reduce the opportunity for parental conflict, and hence the risk of emotional harm to the child from exposure to it;
The father contends that he has come into less level of conflict with others than the mother. That must be roundly rejected. Ms R’s reports tells to the contrary, and there is the father’s conflict with officers at Relationship Australia, and his conflict with the Independent Children's Lawyer, to the point of seeking to have her removed (and even have her practising certificate suspended as well).
(g)The mother’s proposal would obviate the risk that the father may, if his proposal were ordered, not facilitate a meaningful relationship between the mother and the child;
The father correctly points to the fact that this assumes the mother genuinely proposes her orders. I accept, as I have explained earlier, that there is a real doubt as to whether the mother’s proposal is genuine or strategic.
(h)The mother’s proposal would mitigate (but not eliminate) any risk of harm which the father may pose to the child;
Although the father says that “there is no basis for suggesting the father would harm, or has harmed, the child” that is not altogether accurate, given the mother’s historical allegations of sexual abuse. I am certainly not persuaded that the father poses any risk of sexual harm to the child, but the point of this matter is to recognise that such risk of harm as the mother thinks the father may pose to the child, would be significantly reduced.
(i)There is a risk that the mother may not be able to adequately cope with the child moving into the father’s primary care, or that time increasing, which may adversely impact on her parenting capacity, and hence the child;
The father says that there is no evidence to ground this evidence, other than the evidence of Dr F, which he says “must be of diminished weight given the significant flaws discovered in the mother’s credit.” That is not a logical connection. Even if Dr F was misled in relation to the circumstances regarding the breakdown of the mother’s first marriage, it by no means follows that his assessment of the mother was not correct, or significantly undermined. Further, there is the evidence of Ms R which I have previously discussed.
Although the father relies upon Ms R’s alleged manipulation by the mother, I have found that, particularly based upon Ms R’s observations of the mother’s autonomic reactions, she was not deceived in the way the father contends.
The father makes the point that the mother’s treating mental health “professional” did not give evidence. It is not correct to describe her psychotherapist as working in a profession.
It is correct to say that the mother proffered, via her counsel, the reason for not calling of the psychotherapist being to preserve the therapeutic relationship. That may be the reason, but it does not therefore follow that the evidence would have been of any assistance.
I have declined to draw the inference that the calling of the therapist would have not assisted the mother’s case. The evidence likely would have been little more than a well-intentioned person giving evidence of their good intentions in dealing with a distressed person.
(j)On one view, the father’s proposal is more about getting even with, or part of a continuing campaign to destabilise the mother (and perhaps Mr L), than about the child’s welfare;
The father correctly says that this was never put to him in cross-examination, and it were true, would see the father proposing a “no time arrangement” which he has never propounded. However I cannot exclude that the father’s proposal does have this element in it.
(k)The father spending time with the child has only recently reduced the parental conflict, but if it were to re-intensify, his proposal may not adequately protect the child from exposure to it;
The father says this is a hypothetical upon another hypothetical. That is true. This case is full of hypotheticals. However it is not idle to conjecture that, if the child were to go into his care, and only spend time with the mother, the parental conflict may re-intensify, and the child may be exposed to it. As I have already pessimistically opined, I have a very deep suspicion that this child will continue to be exposed to parental conflict, no matter what the outcome.
(l)The history of this matter would not allow a justifiable prediction that the parties are capable of amicably co-parenting or sharing care of this child, even with s 65L assistance;
The father says that the history of the matter demonstrates a deep commitment on the part of the mother to cut him out of the child’s life, and to do anything to achieve that end. There is an element of truth in that. However what the father does not factor into that is the mother’s anxiety, which although not a complete, or indeed a particularly satisfactory, explanation for the parties’ history over the last four years, nonetheless does go some way to explaining the reasons why the child is in the predicament that he is in, and likely will continue in.
(m)The father is untested as to whether he would facilitate a meaningful relationship between the mother and the child;
The father concedes that he is untested.
(n)The father is untested as the primary carer for the child, or indeed any child.
The father concedes this.
On the other hand, the points in favour of the father’s proposal, or contrary to the mother’s, were as follows:
(a)The father has a good and meaningful relationship with the child, and living primarily with the father may optimise the child obtaining the benefit of that relationship;
(b)The paternal family generally probably have much to offer the child, and living with the father is likely the best way of the child obtaining those benefits;
(c)The father’s proposal, if ordered, may appease him, and hence reduce the risk of ongoing parental conflict, and thus the risk of the child being exposed to, or involved in it;
(d)The father’s proposal would significantly reduce any risk of harm to the child posed by the mother and her household, and particularly if the mother has deliberately raised false allegations against the father, then the father’s proposal may be the best way to protect the child from the risk of harm which she may thereby pose to him;
(e)The father is perhaps more likely to facilitate a relationship between the child and the mother than vice versa (although he is untested in this regard);
(f)The mother may not see the father as an important person in the child’s life, and hence may never, under any regime of orders, facilitate any form of relationship between the father and the child;
(g)The mother’s proposal, if ordered, may see the father continue to agitate for increased time, or a change in primary residence of the child, with the consequence that the child may be exposed to, or involved in, continuing parental conflict.
However the parties’ proposals were not the only ones on the table. Also live was the variation recommended by Mr K. Again with the assistance of the parties I identified the points in favour of that proposal as follows:
(a)It would maintain the child’s relationship with both his parents, their households and their families;
(b)Although it would disrupt, nonetheless it would not sever, the child’s primary attachment to the mother, and his sibling bond with N.
The points contrary to that proposal were as follows (with interpolations to address some of the parties’ submissions):
(a)The parties have not been able to achieve co-parenting, even with a 65L supervisor (albeit both may have continued in “trial mode” given the previous orders were only interim);
The father says that this is because the mother has sought to thwart any attempt at co-parenting. That much is relatively clear. The father concedes that he is an untested primary carer, but “has consistently acted and spoken in support of the child’s right to be involved with each parent.” That is not altogether correct, in that although he has protested that, there is the evidence which I have traversed earlier in these reasons in which he has trenchantly criticised the mother, and believes that her household poses a risk of physical and emotional harm to the child.
(b)His proposal may too optimistically require the parties to change, and co-operatively co-parent the child;
The father concedes that this may be correct, but points to the risk to the child in the mother’s care.
Ultimately however, there was a conceded element of what might be described as over enthusiasm on the part of Mr K, that the parties may ultimately act like responsible adults, and parent the child cooperatively. My fear is that enthusiasm may be the triumph of hope over experience.
(c)It may see the mother’s anxiety continue, and thereby, to some degree, diminish her parenting capacity;
The father says that there is no evidence to this effect, but I have addressed that issue earlier in these reasons. There is some risk her parenting capacity may diminish.
(d)It may see the child regularly moving between two non-aligned, conflictual households, and hence make it difficult for him to satisfactorily adjust to such an arrangement;
The father concedes this risk, but says the court would be confident “he would carry that commitment to [the child’s] relationship with his mother.” I do not share that confidence.
(e)It would require the parties and/or the child to regularly travel significant distances at considerable expenses, and hence may not be practically achievable.
This is conceded by the father.
The critical issues in this case are the risks posed by the mother’s household, the benefit to the child of having a meaningful relationship with the father, and the prospect that, if he were to move into the father’s care, the father may not in fact facilitate a meaningful relationship between the child and the mother. Also looming large is the absence of any transition period in the father’s proposal to move the child’s primary care to him.
In that sense the parties’ cases boil down to this: the mother said that if the child were to go into the father’s care, he would suffer immediate grief and loss, and would likely lose his relationship with her and her household; the father said that there is a risk of real harm to the child if he remains in the mother’s care, because she has a demonstrated history of not facilitating a relationship between him and the child, in consequence of which the child will suffer harm.
Both of the parties’ cases require predictions as to the future. That is, inevitably, a most vexed task.
Ultimately I weigh the considerations as favouring the mother’s (and indeed the Independent Children's Lawyer’s) proposal that the child remain living with the mother. I place particular weight upon the prospect that the father may not facilitate the relationship between the mother and child, and that the child will inevitably suffer grief and loss at moving from the mother’s care into the father’s. I am very troubled that the graduated process proposed by Mr K was not adopted by the father, without any other mitigatory measures being proposed by him. Had the father been willing to contemplate Mr K’s changeover proposal, then the case may have had a different outcome. But the sudden change of the child into the father’s care guarantees that he will suffer loss and grief, and thereafter it is only that father who will be able to assist the child in coping with that. However, in my view, he demonstrates a lack of insight, likely consistent with his personality traits, as to the impact on the child of his proposal, and his capacity to thereafter parent what will be almost certainly be a grief stricken young child. That does not, to my mind, predict a good outcome, even with the assistance of Ms Q.
As to Ms Q, whilst she impressed me as a very sensible woman, she is still a relatively new-comer to the child, and yet, on nights when the father is working away, she will be the child’s primary carer under the father’s proposal.
The father argues that, because the mother’s keeping the child from having a relationship with him would be family violence, then a combination of s 60CC(2A) and s 60CG mandate the orders he proposes, as the only means to not expose the child to an unacceptable risk of family violence. However I have not assessed the risk in the mother’s household as unacceptable, and whilst I do give the need to protect the child from harm from, for instance, the mother’s likely desire to exclude the father from his life, than the benefit of a meaningful relationship with the mother, that cannot therefore mean that abruptly, and effectively, dramatically changing his relationship with the mother, N and Mr L, by moving him into a household also not with risk, is in his best interests.
There will therefore be an order that the child live with the mother.
CHILD’S TIME AND COMMUNICATION WITH FATHER
In the event that she was successful, the mother proposed that the father spend time with the child on the fifth weekend of each school term, and then for progressively increasing amounts of time during school holidays, that would ultimately culminate in seven days and nights each school holiday period from 2022. She further contemplated that the father could spend that time with the child in J Town if he gave the mother notice of that. She proposed that all changeovers take place in C Town, with the implicit outcome that the father would be paying for any travel of the child.
It would be flattering to describe that proposal as miserly.
For his part, the father’s alternate orders sought that the child spend each alternate weekend with him during school terms in J Town, with the mother to be responsible for the child’s costs of travel, and those of any accompanying adult. He further proposed that the child spend school holiday time with him, being one half of the three first term holidays (with the mother to again be responsible for travel costs) and one half of Christmas school holidays (again with the mother being responsible for all costs). The father required the mother to travel with the child from C Town to Brisbane if the child was unable to travel unaccompanied, and that thereafter changeovers would either take place at the airport, or midway between Brisbane and J Town.
Leaving aside the burden on the child of such an inordinate amount of travel, to describe this proposal, from a man who is presently not paying any child support, and has expressed no interest in meeting any of the child’s costs in the mother’s household in the future, as audacious, is an understatement.
For her part, the Independent Children's Lawyer proposed that the child spend every term long weekend, and in any event, a total three weekends, (being weekends three, six and eight absent there being a long weekend) with the father, together with one half of the first, second and third term school holidays, and periods of time during the Christmas school holidays, being two eight day periods in 2019, a ten day seven day period thereafter, culminating in a period of two weeks in one year, and four weeks in every other year. The Independent Children's Lawyer proposes that the father should be responsible for the child’s costs of travel to spend time with him, and the mother responsible for the return airfare. There are other proposed prohibitions on the child flying unaccompanied unless he has travelled by plane for at least ten flights.
This proposal is far more child focussed, and less about imposing financial imposts on the other party, or diminishing the other parent’s role, than either of the parties’ proposals. It has the merit of the child spending regular and predictable time with the father, but not excessively as the father’s proposal would have, and sees the parties equally responsible for the costs of travel.
Demonstrably the Independent Children's Lawyer’s proposal is the only one which is in the child’s bests interests, and I will make orders substantially reflecting it.
OTHER ORDERS
The mother also sought injunctions for her protection under s 68B, which would permit the arrest of the father in the event that he breached them.
At various points, there have been extant domestic violence proceedings and orders between the parties, and I am satisfied that they have been used strategically, at least in part. The mother has a heightened sense of anxiety around the father, and I am well satisfied that she has in the past overreacted to his presence, or his perceived presence, because of her anxiety. She has jumped too rapidly to incorrect conclusions (for instance, having the father arrested for allegedly being at her home, when plainly he was not) and I am satisfied, may well do so again. I am not persuaded that is a good combination for the making of s 68B injunctions, and I decline to do so. Further, why the parties have how abandoned their domestic violence applications against each other is unexplained.
The father’s alternative orders were silent in relation to international travel for the child. The mother and Independent Children's Lawyer contend that the mother should now be able to travel overseas with the child. The child was born in Europe. Half of his family lives in Europe. It is ridiculous to contend that the mother presents some flight risk. Correctly as she says, had she wanted to live outside of Australia, separation provided the mother with a perfect opportunity to do so, given that she was then in Europe. The mother should be permitted to take the child overseas. It is plainly in the child’s best interests. The Watchlist order will be discharged.
The Independent Children's Lawyer also proposes that the s 65L supervisor should remain engaged for a further 12 months from the date of these orders. These orders should be given every prospect of working successfully. Although ordinarily I would have great reservations in again devoting s 65L resources to these parties, Ms R volunteered to continue to do so, recognising that these parties need every assistance that can be afforded. There will therefore be orders in that respect as contemplated by the Independent Children's Lawyer. I will also continue the Independent Children's Lawyer’s engagement for 12 months, as she proposes.
The Independent Children's Lawyer also proposes that the parties be compelled to attend mediation each year in November, for no less than three hours. No party made any submissions opposing this, but I would have to say that I am troubled about it. My first concern is whether s 13C of the Family Law Act empowers me to so order. If it does, then of course it would be an admirable thing if the parties were able to sensibly and formally meet face-to-face, with the assistance of a mediator, to try and work out matters for the succeeding year for the child. However given that sole parental responsibility will be afforded to the mother, I am not sure that there is any utility to compelling the parties to further annual face-to-face conflict. I am not satisfied that such orders are in the best interests of the child and will not make them.
The mother proposed that the child’s name should be changed to Horner-L… . It was said that this would in some way or other enable him to better identify with family. The father strongly opposed this order, on the basis that the surname Horner was a significant part of the child’s heritage.
I frankly do not understand quite how it is going to advantage the child to have a surname that is different to not only his father and mother, but also his sibling. Perhaps there is some desire on the part of the mother to connect the child with his step-father and half sibling by having half their surname. I am far from satisfied that is in the child’s best interests, or that it might not be sought to be, in some means, utilised by the mother in a way adverse to the father. Her past conduct in trying to, in effect, erase the father from the child’s life, cannot be overlooked. I decline to make an order for the changing of the child’s surname. The mother’s sole parental responsibility will need to have that matter excised from it. Likewise there should be an order that she not be permitted to relocate the child to a place where the exercise of the father’s rights under these orders would be significantly impacted.
CONCLUSION
For these reasons there will be orders as set out at the commencement of this judgment.
I certify that the preceding two hundred and twenty-two (222) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Tree delivered on 2 July 2019.
Associate:
Date: 2 July 2019
0
7
2