Hughes and Kelly

[2017] FamCA 1134

FAMILY COURT OF AUSTRALIA

HUGHES & KELLY [2017] FamCA 1134

FAMILY LAW – CHILDREN – With whom a child lives –Where final orders made in February 2016 provided for the parties to have equal shared parental responsibility, for the child to live with the mother, and to spend time with the father – Where the mother refused to allow the child to visit the father after July 2017 – Where the father sought interim parenting orders to reverse the child’s residence – Whether there is a need to protect the child from physical or psychological harm – Ordered that in the interim the February 2016 final Orders remain in place, given the mother’s commitment to comply with them – Ordered the child is precluded from being left in the unsupervised care of the paternal grandfather

Family Law Act 1975 (Cth) ss 60CC, 61C, 61DA, 65DAA, 65DAC
Family Law Rules 2004 (Cth) Rule 10.15A

APPLICANT: Mr Hughes

RESPONDENT: Ms Kelly

FILE NUMBER: NCC 1801 of 2015

DATE DELIVERED: 1 December 2017

PLACE DELIVERED: Newcastle

PLACE HEARD: Newcastle

JUDGMENT OF: Austin J

HEARING DATE: 1 December 2017

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Levick

SOLICITOR FOR THE APPLICANT: LMC Lawyers

COUNSEL FOR THE RESPONDENT: Not Applicable

SOLICITOR FOR THE RESPONDENT: Ms King, King Legal

Orders

IT IS ORDERED THAT

1.Leave is granted to the mother to file in Court and rely upon the following documents in relation to today’s interim hearing:

a.The Response affirmed on 29 November 2017; and

b.The mother’s affidavit affirmed on 29 November 2017.

PENDING FURTHER ORDER, IT IS FURTHER ORDERED THAT

2.All former orders relating to the child B, born … 2012, are discharged.

3.The child shall live with the mother.

4.The parties shall take all reasonable steps to ensure that the child spends time with the father as follows:

a.From 9:00 am on Saturday, 2 December 2017, until 9:00 am on Monday, 4 December 2017;

b.From the conclusion of day care (or alternatively 3:00 pm) on Friday, 15 December 2017, until 6:00 pm on Sunday, 17 December 2017;

c.From 9:00 am on Saturday, 23 December 2017, until 6:00 pm on Sunday, 24 December 2017;

d.From 5:00 pm on Friday, 5 January 2018, until 6:00 pm on Sunday, 7 January 2018;

e.From 9:00 am on Saturday, 20 January 2018, until 9:00 am on Saturday, 27 January 2018;

f.Thereafter:

i.During school terms, each alternate weekend from the conclusion of school on Friday until the commencement of school on the following Monday, commencing on the first Friday of each school term; and

ii.During school holiday periods, from 9:00 am on the first Saturday of each school holiday period until 9:00 am on the following Saturday.

5.For the purposes of implementing Order 4 hereof, the parties shall respectively ensure the child’s:

a.Collection from school or day care whenever the child’s residence or expenditure of time with a party is to commence at or about the conclusion of school or day care during school term;

b.Return to school or day care whenever the child’s residence or expenditure of time with a party is to conclude at or about the commencement of school or day care during school term; and

c.Otherwise, collection from and return to the northbound Caltex Service Station, C Town, NSW.

6.The parties shall take all reasonable steps to ensure that the child communicates privately by telephone with the father at 6.00 pm each Wednesday, and for that purpose the father shall telephone the child on the telephone number provided to him by the mother, and the mother shall ensure that the child is able to receive the father’s calls on that number at that time.

7.The father is restrained from causing or permitting the child to be in the physical presence of the paternal grandfather unless personally supervised by the father.

8.The mother is restrained from causing or permitting the child to be submitted to or provided with counselling or therapy at the D Sexual Assault Clinic.

9.Each party is restrained from denigrating the other in the presence or hearing of the child and from permitting the child to remain in the presence or hearing of another person denigrating the other.

10.Each party shall forthwith inform the other, and keep the other informed, in writing of their respective current residential address, mobile telephone number, and email address.

11.Pursuant to s 65DA(2) and s 62B of the Family Law Act, particulars of the obligations that these orders create, particulars of the consequences that may follow contravention of these orders, and details of assistance to comply with these orders are set out in the attached Fact Sheet, which forms part of these orders.

12.Otherwise:

a.The application for interim relief contained within the Initiating Application filed on 29 August 2017 is dismissed;

b.The application for interim relief contained within the Response filed in Court on 1 December 2017 is dismissed; and

c.Any and all other outstanding applications for interim relief are dismissed.

NOTATIONS

A.The father does not require the publication of Reasons for Order 1 hereof.

B.The parties will have parental responsibility for the child, as provided for in s 61C of the Family Law Act. 

C.The proceedings remain listed before the Registrar for further procedural directions on 24 January 2018.

D.The parties remain due to confer with the appointed Family Consultant on 10 January 2018.

Order amended pursuant to Rule 17.02 of the Family Law Rules 2004

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 Hughes & Kelly 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 NEWCASTLE

FILE NUMBER: NCC 1801 of 2015

Mr Hughes

Applicant

And

Ms Kelly

Respondent

EX TEMPORE

REASONS FOR JUDGMENT

1.In February 2016, I made final orders between the parties in respect of their only child who was then three, but is now five, years of age. Relevantly, the orders provided for the parties to have equal shared parental responsibility, for him to live with the mother, and for him to spend time with the father.  Importantly, at that time I recorded notations in the following terms, the accuracy of which was presumably confirmed by the mother’s solicitor:

(a)Pursuant to Rule 10.15A of the Family Law Rules 2004 (Cth), the parties mutually submit that allegations of child abuse, family violence, neglect, and risk thereof have been made in these proceedings, but both parties are now satisfied that the child is not at risk of any harm while living with the mother or spending time with the father.

(b)The parties agree that the parenting orders are made in the best interests of the child and are reasonably practicable to implement, which concessions are relied upon to make the orders.

2.It seems that despite some animosity between the parties, they managed to successfully implement the orders until June of 2017. It is uncontroversial the mother has refused to allow the child to visit the father since 1 July 2017. Dissatisfied with that situation, the father commenced these proceedings in August 2017. His application for interim parenting orders, to reverse the child’s residence, was listed for hearing in today’s duty list. Despite the time she has had, the mother did not file any Response or affidavit in reply until she attended Court today with her solicitor – the same solicitor who appeared for her in the previous proceedings.

3.Notwithstanding the egregious lateness of the mother’s affidavit, the father did not object to its reception into evidence on the interim hearing. In essence, the mother sought to change the past arrangement, so the child only sees the father under professional supervision at a contact centre and to prohibit any interaction between the child and the paternal grandfather. Unfortunately, given the available evidence, the explanation advanced by the mother for such a new parenting regime for the child was garbled at best and illogical at worst. 

4.The father argued for reversal of the child’s residence because of concerns about the mother’s emotional stability and her proven failure over the past five months to comply with Court orders. He genuinely suspects the mother is really incapable of supporting, let alone promoting, the child’s relationship with him. Nonetheless, he sensibly recognised the significance of an order that would reverse the child’s residence on a summary basis at an interlocutory hearing when the available evidence was not tested. 

Proposals and evidence

5.The father prosecuted the application for interim relief set out within his Application filed on 29 August 2017, in support of which he relied upon his affidavit filed on 29 August 2017. 

6.In rebuttal thereof, the mother sought the interim relief set out within her Response filed in Court today and relied upon her affidavit filed simultaneously in Court today simultaneously.

Legal principles

7.Orders in respect of children are made under Part VII of the Family Law Act (“the Act”), where the meaning of a “parenting order” is defined (s 64B). The Court may make such parenting orders as it thinks proper (s 65D), within the context of the objects of the legislation and the principles which underpin those objects (s 60B).

8.When making parenting orders, the Court is mandated to regard the child’s best interests as the paramount consideration (ss 60CA, 65AA). The Act specifies the criteria which must be considered in arriving at a conclusion as to what is in the child’s best interests (s 60CC).

9.The Act imports a rebuttable presumption that a child’s best interests are served by an order allocating equal shared parental responsibility for the child to the parents (s 61DA). The presumption of equal shared parental responsibility does not apply in certain circumstances, including in instances of child abuse and family violence (s 61DA(2)), and the presumption may be rebutted if the Court is satisfied it would not be in the child’s best interests for the parents to have equal shared parental responsibility (s 61DA(4)). The presumption says nothing about the amount of time the child should live or spend with each parent, but the manner in which parental responsibility for the child is allocated by the Court may bear on that issue.

10.In the event an order is made allocating equal shared parental responsibility to the child’s parents, the Court is then obliged to consider both the advisability and practicability of the child living for equal time with both parents, or alternatively, living primarily with one and spending substantial and significant time with the other (s 65DAA). If parental responsibility for the child is allocated in some other way, then the exercise of the Court’s discretion about the child’s care arrangements is at large, though the discretion must still be exercised in the context of the child’s best interests being the paramount consideration.

Child’s best interests

Section 60CC(2)(a)

11.Section 60CC(2)(a) of the Act requires the Court to take into account, as a primary consideration affecting the determination of the child’s best interests, the benefit to the child of having a meaning relationship with both parents.

12.When parenting orders were made with the parties consent only last year, the parties agreed the child should live with the mother and spend significant amounts of time with the father. Although the issue has not been the subject of any evidence or submissions today, I impute from both the existence of those orders and their implementation by the parties for the following 18 months or thereabouts that they each acknowledge the child has a meaningful relationship with each of them, from which the child derives considerable benefit.

13.The fact the mother proposes the child should continue to see the father, albeit under supervision, manifests her belief in the importance of the child maintaining his relationship with the father, notwithstanding the safety concerns she harbours about him. 

14.The orders that I intend to make and have foreshadowed in discussion with the parties’ legal representatives will enable the child to continue deriving benefit from the meaningful relationships he undoubtedly has with both parties. 

Section 60CC(2)(b)

15.The other primary consideration mandated by the Act is that prescribed by s 60CC(2)(b): namely, the need to protect the child from physical or psychological harm through subjection or exposure to abuse, neglect, or family violence.

16.The evidence adduced by the parties was voluminous. Attempting to draw the threads of the vast amount of evidence together, the father appears to harbour concern about the child’s exposure to harm in the mother’s household by reason of her neglect, which he suspects may be caused by the mother’s misuse of alcohol and/or her unstable mental health. For her part, the mother has articulated, through her lawyer, her belief that the child is at risk of harm in the father’s household by reason of exposure to sexual impropriety, most probably perpetrated by the paternal grandfather. 

17.Aside from those issues, there is surfeit evidence about the occurrence of family violence between the parties, but neither of them articulated that issue as influential in the outcome of the dispute. For that reason, it need only be referred to tangentially. 

18.Dealing firstly with the issue of neglect, the father deposed to an incident between the mother and her partner, which occurred in or about late January or early February 2017. It is really uncontroversial the mother was seriously assaulted by her partner, who was charged and is now facing criminal prosecution for that assault. The mother was so badly injured that she deposed in her affidavit to her belief she might have died. In any event, her injuries were so serious she was conveyed to hospital for treatment. The police then summoned staff from the child welfare authority to intervene, because the child and his younger half-sister were present with the mother at the time she was assaulted and witnessed the incident. 

19.Without delving into too much detail, the mother lied to the police about whether or not the father was available to care for the child at that particular time. The child welfare authority, in reliance upon the mother’s false report about the father’ availability, therefore made arrangements for the child to be placed in foster care instead of with the father for about five days before the child was returned to the mother’s care. The mother lied to the father about the incident, telling him only that she had been involved in some form of accident, and she did not divulge to him that the child had been taken by the child welfare authority and placed into foster care. He did not learn of that fact until many months later, in June 2017, when he spoke with staff at the child welfare authority.

20.In the context of a discussion about what had happened to the mother and the children some months before, the father was told by the staff member of the child welfare authority that the mother had alleged both children had been sexually abused by her own uncle and, further, the child welfare authority staff had concerns for the children remaining in the mother’s care as they:

…are always dirty and showing signs of neglect

21.The father also deposed to having been told by the child welfare authority staff that they were concerned about the level of the mother’s alcohol consumption.

22.At or about the same time, in early June 2017, the father deposed to receiving a call from the maternal grandmother, who told him words to the effect of:

I’m really concerned. [The mother] is manic and unfit to care for the children

23.He alleges the maternal grandmother also told him:

I’ve been in contact with [the child welfare authority] about everything and they are concerned too

24.In mid-June 2017, the father collected the child from day care and found his clothes were filthy and that he had holes in his shoes. 

25.Clearly, there is an issue between the parties about the mother’s neglect of the child’s physical and emotional needs, but the issue was not explored in sufficient detail in the evidence and the evidence is incapable of being tested during an interlocutory hearing. I decline to make findings, at this stage at least, that the child is in need of protection from physical or psychological harm due to subjection to the mother’s neglect. Nonetheless, it is an issue that may feature more prominently at final trial. 

26.Turning then to the issue of sexual abuse, to which the mother fears the child will be subjected within the father’s family milieu, as I indicated to the mother’s solicitor, the evidence about the risk is threadbare. The mother deposed that the sexual abuse of the child is only an assumption on her part, and further, she only considers it is possible. To quote the mother:

I’ve seen signs of possible sexual assault of [the child] for a long time

I assume he has been exposed to some type of pornography

27.As I endeavoured to explain to the mother’s solicitor, whilst I do not doubt the honesty of the mother’s belief, she needs to understand the disparity between subjective belief and objective proof. The mother’s solicitor acknowledged the evidence fell far short of enabling a factual finding to be made on the balance of probabilities the child had been sexually abused or had been inappropriately exposed to pornography. The most that could be asserted on her behalf is that there is a risk of the child being associated with such sexual impropriety and even the existence of such risk could hardly be proven by the evidence the mother adduced. 

28.The mother gave evidence of the child beginning to make disclosures to her on the night of 29 June 2017. According to the mother’s own evidence, the extent of his disclosure was that:

He has a “baddie” too, like [his younger half-sibling]

29.The mother admits the child did not explain the context in which he described the unidentified person as a “baddie”. It may not have had any sexual connotation at all so, despite the mother’s ardent belief, the disclosure she attributes to the child falls far short of arousing any suspicion about his subjection to sexual abuse or adult pornography. 

30.One thing is clear though: notwithstanding the mother’s genuine belief in the risk of sexual abuse to the child, she does not regard the father as a culprit. She deposed in her affidavit:

[The child] has explained that his father knows the “baddie”.

31.If the child has, in fact, told the mother that the father knows who the “baddie” is, it follows that the “baddie” cannot be the father. It must be some other person, whom the mother seems to assume is the paternal grandfather. So much is obvious from her deposition in these terms:

I believe that [the child] has been sexually assaulted by [the name of the paternal grandfather], his “pop”.

32.She apparently reported that belief to the police on 30 September 2017 and she deposed the police “did nothing”. The only inference which can be permissibly drawn from the mother’s evidence is that, within the last two months of her making the report to the police, nothing has been done by the police to investigate it. Inferentially, the police do not accept its veracity. There is no evidence of the paternal grandfather having been contacted by the police in the course of investigation of the complaint.

33.Nonetheless, it appears the mother has drawn her concerns about the child’s sexual abuse to the attention of the child welfare authority. She deposed:

This allegation is being addressed by FACS and will be transferred to JIRT as soon as [the child] has completed [D] protective behaviours

34.It seems, from the evidence and the discussion with the legal representatives, that the mother has caused the child to be submitted to “protective behaviours therapy” at an organisation named D Sexual Assault Clinic. I impute she did so on the grounds of her belief he has already been sexually abused or inappropriately exposed to pornography and the purpose of the therapy is, first, to counsel him and ameliorate the psychological effects of his subjection to that misconduct, and secondly, to educate him in an attempt to enable him to avoid any such misconduct in the future. 

35.There are several problems with the mother’s decision to do that.

36.First, at this point in time, the parties have equal shared parental responsibility for the child and she did not reach an agreement with the father for the child’s submission to that therapy, as she ought have done. Her unilateral decision was in breach of existing Court orders, made with her consent. 

37.Second, her submission of the child to that therapy in expectation he will be assisted to overcome the effects of the sexual abuse to which he has already been allegedly subjected conflicts wildly with the father’s position that the child has not been subjected to any sexual abuse or improper sexual conduct of any sort. The father is understandably concerned that the child’s submission to such therapy might only serve to embed in his mind a false belief he was sexually abused when, in fact, he was not. Of course, it is entirely possible the child has been sexually abused, but such a finding could not possibly be made on the evidence placed before the court and it is very dangerous to assume it as a proven fact when it is not.

38.Before leaving the topic of the risk of sexual abuse, it is instructive to refer to one further portion of the mother’s evidence. She deposed:

I know from previous experience that if [the child] gets shipped up to the office at JIRT, he will be dismissed as fast as [name of half-sibling] was. I cannot let that happen.

39.To place that evidence in context, the mother also alleges the child’s half-sibling was sexually abused by members of the maternal family and so she has also caused the half-sibling to receive some form of sexual assault counselling.  Unfortunately, the child has attended the half-sibling’s counselling and apparently witnessed the discussion between the counsellor and the half-sibling.

40.The mother was informed, after the JIRT investigation in respect of the half-sibling, that the allegation of sexual abuse was not substantiated. She deposed to how a staff member of JIRT reported on about 2 May 2017 in respect of the half-sibling:

She can’t tell her feet from her vagina.  No point proceeding.  She will be useless at trial.

41.The mother understands that her allegation of the half-sibling’s sexual assault has been rejected for lack of veracity. 

42.Turning to the mother’s evidence about comparison between the child and his half-sibling, she appears concerned her allegations of the child’s sexual abuse will be dismissed or not substantiated by JIRT, just as the earlier allegations concerning the half-sibling were rejected. It seems she fervently does not want that to happen. Rather surprisingly, it seems she would prefer the investigating authorities to find that the child was sexually abused, which suggests she prioritises the outcome of this litigation above the child’s welfare. 

43.Suffice to say, none of the evidence placed before the Court comes close to demonstrating there is a need to protect the child from physical or psychological harm through his subjection to abuse, including sexual abuse, whilst in the father’s care.

44.Turning to the issue of family violence, as I earlier said, only passing reference need be made of it. I have already referred to the incident of domestic violence between the mother and her partner earlier this year which, alarmingly, occurred in the presence of the child and his younger half-sibling. It is clear that if the mother chooses partners of that ilk, the children are liable to be exposed to family violence within her household. Nonetheless, at this point in time, on the strength of one episode, despite its seriousness, I am not prepared to remove the child from the mother’s primary care. 

45.The issue of family violence as between the parties is more complex. The mother deposed in her affidavit and instructed her solicitor to submit in open court that she conceived the child as the product of her rape by the father. She must always have believed that but, notwithstanding, when the first bout of litigation between the parties was concluded before this Court in February 2016, in full knowledge of that asserted fact (which was then and has always since been denied by the father), the mother agreed to share parental responsibility for the child with the father and agreed for the child to spend substantial amounts of time with the father.

46.Let it be assumed, for the sake of this argument, the mother truly believed then and truly believes now that was the manner in which the child was conceived.  In such circumstances, she necessarily factored that belief into her decision to reach orders for the child to spend substantial amounts of time with the father and for her to, from time to time, negotiate with the father decisions that related to the long-term interests of the child. 

47.At the commencement of these reasons, I adverted to the notations made at the time those orders were made and I refer back to them now. The mother, through her solicitor (being the same solicitor now who appeared for her then) put on record that the mother submitted the allegations of child abuse, family violence, neglect and the risk thereof that had been made against the father in those proceedings evaporated as an issue, because both parties were then satisfied the child was not at risk of any harm while either living with the mother or spending time with the father. Furthermore, the mother instructed her solicitor to confirm with the Court that she regarded those orders to be in the child’s best interests. If she did not truly believe the orders were made in the child’s best interests, but consented to them nonetheless, she cannot be now heard as a voice of reason. Alternatively, if she did then believe the orders were made in the child’s best interests, but now retrospectively asserts otherwise by reference to knowledge she then possessed, it is difficult to repose any weight in her views. It beggars belief how the mother would consider orders of the sort made with her consent in February 2016 would meet the child’s best interests if she genuinely believed that on each and every occasion the child would visit the father, she would be sending the child to her rapist. 

48.Family violence most probably was a feature of the parties’ past relationship, but I see little evidence of it in their affidavits after the orders were made with their consent in February 2016. For those reasons, I do not see that family violence is an issue which influences the decision I am being asked to make today and, indeed, no party submitted that it was.

Section 60CC(3)

49.There are only two issues that were raised as additional considerations by the parties to which I need advert. 

50.The first is the sibling relationship the child enjoys with his half-sibling, who is about a year or so younger. I accept they have likely forged a strong bond. I have no social science evidence in the proceedings at this point in time, but I am prepared to assume they would both be emotionally distressed, not merely transiently, if they were separated and forced to live in different households. Often, when children find themselves in difficult residential predicaments, they seek and obtain emotional succour from one another and to remove the child from the mother’s care, she having historically been his primary carer, and to sever the residential relationship with his half-sibling would be a very serious step to take when the evidence is insufficiently comprehensive. That consideration weighs very heavily in the mother’s favour, at least at this point in the litigation. 

51.Secondly, I have concern about the mother’s willingness to commit to and comply with orders made by this Court. She chose to deliberately flout the orders made with her consent in February 2016 for the last five months. She was not the one who came to Court seeking variation of those orders, based on changed circumstances. It was the father who commenced the proceedings and she has only belatedly decided to engage in the proceedings. On the face of it, she acted unilaterally, even if she genuinely thought she was acting protectively in the child’s best interests, to deliberately contravene court orders and has done nothing about the contravention until figuratively dragged before the Court for this interim hearing. 

52.On two occasions during the course of this hearing her solicitor assured the Court, on express instructions, she will comply with Court orders. I sincerely hope that is a genuine undertaking and that she does do so. If she does not, she faces the prospect of being prosecuted by the father for a contravention of the orders without reasonable excuse and, even if that does not occur, come the final hearing, which should be expected to occur in the latter stages of 2018, it will likely be an issue taken up by the father with a view to persuading the Court that the mother cannot be trusted to comply with court orders. That would be one reason why the child’s residence could be reversed so he lives with the father instead of the mother. Nonetheless, at this stage, I am prepared to accept at face value the mother’s assertion she will comply with orders, notwithstanding the orders will conflict with those she proposed.

Conclusions

53.At this point I need to return to the issue of parental responsibility, because I earlier indicated that the presumption of equal shared parental responsibility applies unless rendered inapplicable or rebutted. The parties were invested with equal shared parental responsibility for the child when orders were last made with their consent in February 2016. It is now clear to me that these parties are likely incapable of sharing parental responsibility in the manner the law requires of them (s 65DAC). They do not appear to have the capacity to consult one another courteously or to negotiate civilly and the prospect of them reaching consensus over issues of dispute seems rather remote.

54.Section 61DA(3) of the Act provides that when the Court is making an interim order, which is what I am presently being asked to do, the presumption of equal shared parental responsibility applies unless the Court considers it would not be appropriate in the circumstances for the presumption to be applied when making the order. I intend to invoke operation of s 61DA(3) in this instance. Significantly, neither party sought an order in respect of parental responsibility, but their omission does not absolve me of the obligation to consider it. Given the dispute about family violence, neglect, and abuse to which the child is allegedly subjected or exposed, the presumption of equal shared parental responsibility would be rendered inapplicable if those allegations are proven (s 61DA(2)), so I consider it would be inapposite to allocate parental responsibility at this point in time. As a consequence, both parties will retain the parental responsibility they otherwise enjoy for the child pursuant to operation of s 61C of the Act.

55.Belatedly in submissions, the mother’s solicitor indicated there was likely a dispute brewing between the parties about the school at which the child will be enrolled to commence his education in early 2018. The parties live some distance apart, so I can understand there might be some agitation about the school at which the child will be enrolled. Nonetheless, no evidence on the issue was adduced by the parties. The mother’s proposal to be allocated sole parental responsibility singularly in relation to the child’s education was belatedly forewarned to the father, so to deal with it in the absence of evidence on such late notice would be a denial of procedural fairness to him. For those reasons, I see no option but to allow the parties to exercise their equal measure of parental responsibility to try and negotiate a decision about what school the child will be enrolled to commence in 2018. If they cannot reach a decision, one or either will need to make a fresh application to the Court for a decision, but at least then the Court will be armed with sufficient evidence to make a sensible decision.

56.Given I am not going to make an order for the parties to have equal shared parental responsibility, I am released from the obligation imposed by s 65DAA of the Act to consider the child living with the parties for equal time, or alternatively, living primarily with one and spending substantial and significant time with the other. For reasons to which I have already referred, I intend to make an order that the child live with the mother for the time being. She asserts her willingness to comply with orders for the child to spend time with the father. The child has formed a primary attachment with her and has never lived away from her. Moreover, he will be able to continue to enjoy the strong sibling relationship he has with his younger half-sibling.

57.As I have said, if the mother does not comply with the orders regulating the time the child should spend time with the father, then she should expect repercussions. When orders were last made between the parties in February 2016, the parties’ agreement extended to a change of the regime when the child commences school in 2018. At that point in time, they envisaged the regime should change to one under which the child spends time with the father on alternate weekends during school terms and for half of school holidays. I intend to make an order in similar terms on an interim basis.

58.I will also make an order by way of injunction precluding the child from being left in the unsupervised care of the paternal grandfather, not because I think the evidence is sufficient to warrant it, but because the father conceded no undue prejudice will accrue to him, the paternal grandfather, or the child by an injunction in those modified terms. The benefit of such an injunction is that it will help mollify the mother’s apparent genuine concern about the paternal grandfather being some form of sexual predator. 

59.For those reasons, I make the following orders.

ORDERS DELIVERED

I certify that the preceding fifty-nine (59) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Austin delivered on 1 December 2017.

Associate: 

Date:  2 February 2018