Hughes & Miller
[2022] FedCFamC2F 218
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Hughes & Miller [2022] FedCFamC2F 218
File number(s): ADC 2685 of 2020 Judgment of: JUDGE DICKSON Date of judgment: 4 March 2022 Catchwords: FAMILY LAW - Parenting – same sex relationship – 7 year old child - where respondent is the biological mother to the child – where the applicant commenced a relationship with the respondent shortly after the birth of the child – where the applicant has spent time with the child during her relationship with the respondent and post separation – where the applicant seeks equal shared parental responsibility and ongoing time spending orders with the child – where the respondent seeks an order for sole parental responsibility and opposes any time spending orders being made – allegations of family violence - consideration of who may apply for a parenting order – where applicant is not a parent but is a person concerned with the care, welfare and development of the child – where the Family Consultant supports an ongoing involvement between the applicant and the child – where there should be an order for sole parental responsibility in favour of the respondent but orders for the applicant to spend time with the child – best interests of the child Legislation: Family Law Act 1975 (Cth) Pt VII, ss 60B, 60CA, 60CC, 61B, 61DA, 65AA, 65D Cases cited: Chan & Chan & Anor [2015] FCCA 265
Donnell & Dovey [2010] FamCAFC 15; (2010) FLC 93 428; (2010) 42 Fam LR 558
Goode & Goode (2006) FLC 93-286
KAM & MJR & JIG (1998) FamCA 1896
Mankiewicz and Anor & Schwarz and Anor [2016] FamCAFC 153; (2016) FLC 93-275
Musgrove & Panshin [2014] FCCA 1680
Re J & M: Residence Application (2004) 32 Fam LR 668
Sharp & Underwood [2014] FamCA 301
Division: Division 2 Family Law Number of paragraphs: 246 Date of last submission/s: 16 December 2021 Date of hearing: 13-16 December 2021 Place: Adelaide Counsel for the Applicant: Ms Horvat Solicitor for the Applicant: Peter Fisher Lawyers Counsel for the Respondent: Mr McQuade Solicitor for the Respondent: C M Tucker & Associates Counsel for the Independent Children's Lawyer: Ms Olsson Solicitor for the Independent Children's Lawyer: Silkwoods ORDERS
ADC 2685 of 2020 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: MS HUGHES
Applicant
AND: MS MILLER
Respondent
INDEPENDENT CHILDREN'S LAWYER
ORDER MADE BY:
JUDGE DICKSON
DATE OF ORDER:
4 MARCH 2022
THE COURT ORDERS THAT:
1. All previous parenting orders be discharged.
2. The respondent mother do have sole parental responsibility for the child X born 2015 (‘the child’) PROVIDED THAT prior to making the sole determination about any significant medical or educational issues the respondent mother shall:
2.1.Use her best endeavours to advise the applicant mother in writing of the decision intended to be made;
2.2.Seek the applicant mother’s written response to the issues to be decided;
2.3.Advise the applicant mother in writing as soon as reasonably practicable of her ultimate decision; and
2.4.If there is any emergency situation that does not reasonably permit the respondent mother to consult with the applicant mother in advance, the respondent mother will make any decision that is in the child’s best interests (to address that emergency) and will as soon as reasonably practicable notify the applicant mother of the emergency and the advice provided and the decision made.
3. The child live with the respondent mother.
4. The child spend time with the applicant mother as follows:
4.1.Each third Friday from the conclusion of school (or 3:00pm if a non-school day) until 7:00pm Sunday and each third week thereafter;
4.2.As and from the commencement of Term 2, 2022 each third Friday from the conclusion of school (or 3:00pm if a non-school day) until the commencement of school (or 9:00am if a non-school day) Monday and each third week thereafter;
4.3.As and from the commencement of Term 2, 2023, each third Friday from the conclusion of school (or 3:00pm if a non-school day) until the commencement of school (or 9:00am if a non-school day) Tuesday and each third week thereafter;
4.4.On the said child’s birthday in each year as follows:
4.4.1.On a non-school day, for a period of five hours, at times to be agreed between the parties and in default of agreement, from 10:00am to 3:00pm that day;
4.4.2.On a school day, from the conclusion of school until 6:30pm.
4.5.From 3:00pm Christmas Day until 3:00pm Boxing Day commencing 2022 and each alternate year thereafter;
4.6.From 11:00am Christmas Eve to 12:00pm Christmas Day commencing 2023 and each alternate year thereafter;
4.7.During school holiday periods when the applicant mother is on annual leave on dates and times as agreed between the parties in writing or in default of agreement for such period as provided for in paragraph 4.1 to 4.3 herein as applicable; and
4.8.At such further or other times as agreed between the parties in writing.
5. Any handover not taking place at the child’s school do occur in the carpark of the McDonald’s restaurant on B Street, Suburb C, or such other place as the parties agree in writing.
6. The parties do communicate in writing via SMS text message, Facebook Messenger or such other agreed electronic means regarding the child’s welfare.
7. Each party is authorised by these orders to obtain from the child’s school copies of all notices, letters, school reports, invitations and school photographs at their sole expense.
8. Each party is authorised by these orders to attend parent/teacher interviews and other school events to which parents and family members are usually invited to attend.
9. The parties do advise each other of any change to their respective mobile telephone numbers within 24 hours of such change occurring.
10. Without admission, the parties be restrained and injunctions be granted restraining each of them from:
10.1.Discussing any issue arising from these proceedings with the child, or permitting any other person to do so;
10.2.Abusing, denigrating or rebuking each other in the presence of the child, or permitting any other person to do so;
10.3.Attending at each other’s homes without the prior written consent of the other having first been obtained, or permitting any other person to do so;
10.4.Blocking or preventing the other from communicating via the mode of communication referred to in paragraph 6 herein.
11. Without admission, the respondent mother be restrained and an injunction be granted restraining her from leaving the child unsupervised in the care of Mr D.
12. Each party do inform the other as soon as practicable by SMS text message or Facebook Messenger of any accident, injury, illness or hospitalisation involving the child.
13. Each party do communicate with the child by Facetime, Skype or such other electronic means on each Monday and Thursday that the child is in the care of the other at a time to be agreed in writing.
14. Each party do provide to the other no less than 21 days’ notice in writing of any intention to change their residential address, including the proposed new address and contact details.
15. The appointment of the Independent Children’s Lawyer be discharged.
16. All proceedings be otherwise dismissed.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Hughes & Miller has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
JUDGE DICKSON:
INTRODUCTION
These proceedings concern competing parenting applications between Ms Hughes (‘the applicant mother’) and Ms Miller (‘the respondent mother’) in relation to the child X born 2015 (‘the child’).
The child was born in 2015 and has just turned 7 years of age.
During the Trial, the respondent mother objected to the use of the word “parent” in reference to the applicant mother. I am satisfied for the reasons set out herein, however, that the child has referred to the applicant as “mummy” and sees the applicant in a mothering role. Hence, for the purposes of this judgment, I have referred to each of the parties as “mother”, but have identified them as being either “the applicant mother” or “the respondent mother” for clarity in these Reasons.
DOCUMENTS RELIED UPON AT TRIAL
The applicant mother relies upon the following documents:
(1)Amended Initiating Application, filed 1 November 2021;
(2)Trial affidavit of the applicant mother, filed 1 November 2021;
(3)Trial affidavit of Ms E, filed on 1 November 2021; and
(4)Trial affidavit in Reply of the applicant mother, filed 9 December 2021.
The respondent mother relies upon the following documents:
(1)Response to Initiating Application, filed 4 August 2020;
(2)Trial affidavit of the respondent mother, filed 2 December 2021;
(3)Trial affidavit of Ms F, filed 29 November 2021.
The Court also heard evidence from Dr G, Family Consultant (‘Dr G’). Dr G’s oral evidence supplemented two Family Reports dated 25 November 2020 and 8 December 2021 respectively.
Counsel for each of the parties and the Independent Children’s Lawyer relied upon a Case Outline Document.
The applicant mother tendered by consent a report from Dr H dated 2 October 2018. Dr H had prepared a psychiatric assessment, opinion and management plan of the respondent mother. The report of Dr H was marked as Exhibit A1.
The Independent Children’s Lawyer tendered to the Court:
(1)The Affidavit of Ms K filed 26 November 2020 annexing a copy of a letter of joint instruction to the Family Consultant dated 15 September 2020 and a copy of the Family Report of the Family Consultant dated 25 November 2020 (‘Exhibit A2’).
(2)The Affidavit of the Independent Children’s Lawyer filed 9 December 2021 annexing a copy of the addendum Family Report of the Family Consultant dated 8 December 2021 (‘Exhibit A3’).
ISSUES FOR DETERMINATION AT TRIAL
The parties were unable to reach agreement in relation to any aspect of their respective applications. The issues to be determined at Trial are as follows:
(1)Whether or not an order should be made for equal shared parental responsibility between the parties, or an order for sole parental responsibility in favour of the respondent mother.
(2)Whether or not there should be any orders for time spending between the applicant mother and the child.
(3)Whether or not there should be any other orders made as sought by the applicant mother in her said Amended Initiating Application.
BACKGROUND
The applicant mother was born in 1988 and is currently 32 years of age. The applicant mother is employed as a “Fly In/Fly Out” (‘FIFO’) manager employed on a full time basis by J Company at L Town in Region M. The applicant mother has been employed by J Company since 2008 and has worked as FIFO since 2014.
Pursuant to her roster, the applicant mother works on a three week shift rotation, being two weeks on and one week off. The applicant mother departs Adelaide on a Wednesday morning at 7:30am before arriving at L Town at 9:00am that morning. The applicant mother departs L Town at 12:00pm on a Wednesday and arrives in Adelaide at 1:30pm on the same day.
The respondent mother was born in 1995 and is currently 26 years of age. The respondent mother is not currently in paid employment, although has worked previously in a variety of roles including at N Company, O Company and as a health worker.
The applicant mother has not repartnered since separation from the respondent mother and resides in a property purchased by her at Suburb P.
The respondent mother purchased a property at Suburb Q in February 2016. In or about February 2021, the respondent mother moved with the child to reside in R Town where she has family. At the time of Trial, the respondent mother had agreed to return to reside in the metropolitan area of Adelaide. On 16 December 2021, I made a raft of orders by consent. Paragraph 3 of the said order provides as follows:
3. That the respondent do return the principal place of residence of the child [X] born …2015 to within the Adelaide metropolitan area prior to the commencement of the first day of Term 1 of the [S School].
The respondent mother gave evidence that upon returning to reside in Adelaide pursuant to paragraph 3 of the said order that she and X would move back in to her property at Suburb Q.
The respondent mother has repartnered with Mr T (‘Mr T’). Mr T resides in Adelaide. The respondent mother intends to live at the Suburb Q property with Mr T and her brother, who is a student.
The parties met in early 2015 through online messenger on a dating website. Their relationship formally commenced a short time after in or about April 2015. At the commencement of their relationship, the parties were living with their respective families. The applicant mother lived with her parents at Suburb U and the respondent mother lived with her parents at Suburb V. Consequently, during the period from April 2015 to February 2016 when the applicant mother was in Adelaide on her rostered week off, the parties would spend time together staying at the home of their respective families.
In February 2016, the respondent mother purchased the property at Suburb Q. The applicant mother contends that thereafter the parties commenced cohabitation and “lived there together from February 2016 to February 2018.”[1]
[1] See applicant mother’s Trial affidavit filed 1 November 2021 at [17].
The applicant mother contended at Trial that the parties had become engaged in April 2017 and the engagement ring had been returned to her when the parties separated for a period of time in 2018.
The applicant mother contends that the parties then separated for a period of six months from February 2018, before resuming cohabitation in September 2018.
During this six month separation, the applicant mother continued to spend time with the child during her week off in Adelaide.
The applicant mother contends that she moved out of the Suburb Q property for a period of four months in 2019, before again moving back in with the respondent mother in December 2019. During the separation, the applicant mother continued to care for and spend time with the child.
The parties’ separations are not disputed by the respondent mother. However, the circumstances and extent of the child’s time spending with the applicant mother during these periods are contested.
The parties are in agreement that they separated for the final time in mid-February 2020.
LITIGATION HISTORY
On 22 June 2020, the applicant mother issued proceedings for parenting orders.
On 21 August 2020, orders were made following argument wherein the child was to spend time with the applicant mother inter alia as follows:
(a)Each third Sunday from 11:00am to 2:00pm;
(b)Each third Wednesday from 4:00pm to 6:00pm; and
(c)Either the applicant mother’s mother or father were to be substantially present during these periods.
On 13 September 2020, the respondent mother withheld the child contrary to Court order after alleging that the child had been bruised during a visit with the applicant mother. The allegations were reported to the relevant child welfare authorities and the South Australian Police.
On 29 September 2020, the respondent mother alleged that the applicant mother had “slashed” her car tyres. At the time of the alleged incident, the applicant mother was working remotely, some 700 kilometres away.
The respondent mother then sought and obtained an interim Intervention Order against the applicant mother.
Further interim applications were filed by each of the parties. On 28 October 2020, orders were made reinstating the time ordered on 21 August 2020 and with the applicant mother’s time to be supervised.
On 8 December 2020, orders were made upon argument whereby the child was to spend time with the applicant mother inter alia as follows:
(a)Each third Sunday from 9:00am to 5:00pm; and
(b)Each third Wednesday from 3:00pm to 7:00pm.
(c)As and from 28 February 2021 and thereafter until the end of May 2021, as follows:
(i)Each third weekend from 9:00am Saturday until 7:00pm Sunday; and
(ii)Each third Wednesday from 3:00pm to 7:00pm; and
(iii)On Christmas Day 2021 from 1:00pm to 5:00pm.
It is not clear from the court file as to why the orders were due to expire in May 2021. Regrettably, by May 2021 the judicial officer who made the order had left the Court.
In February 2021, the applicant mother was notified by the respondent mother’s solicitor that the respondent mother had moved to R Town. R Town is approximately two and a half hours drive one way from Suburb C.
On 3 March 2021, the applicant mother issued an Application in a Case (as they were then called) seeking orders inter alia:
(1)That the respondent mother immediately return the child to reside within the metropolitan area of Adelaide.
(2)That until further order, the respondent mother be restrained by way of injunction from removing the child from the metropolitan area of Adelaide, save and except with any order made by the Court.
(3)The respondent mother do return the child to the W School and an injunction be granted restraining the respondent mother from removing the child from the W School, save and except in accordance with any order made by this Court.
The respondent mother continued to comply with time spending orders after she relocated to R Town until May 2021 when the orders expired.
On 11 May 2021, the respondent mother reported to the South Australian Police (‘SAPOL’) that the child has taken photos and a video of her vagina using an iPhone. An investigation by the Department of Child Protection and SAPOL followed. On 18 May 2021, SAPOL attended at the applicant mother’s home and seized her mobile phone and iPad.
The respondent mother signed a Safety Plan with the Department of Child Protection which expired on 18 June 2021, preventing time between the child and the applicant mother.
The Safety Plan was not continued by the Department of Child Protection. The SAPOL investigation concluded. No further action was taken against the applicant mother.
Due to a lack of judicial availability, the Application in a Case filed on 3 March 2021 was not able to be heard until 22 September 2021.
The application for the return of the child to reside in the metropolitan area of Adelaide was opposed by the respondent mother. Notwithstanding this, orders were made on a “not by consent but not opposed” basis pending Trial on 22 September 2021 as follows:
(1)The child live with the respondent mother.
(2)The child spend time with the applicant mother:
(a)From 9:00am to 7:00pm on Saturday 25 September 2021; and
(b)From 9:00am to 7:00pm on Monday 27 September 2021; and
(c)Thereafter every three (3) weeks from after school Friday (or 3:00pm if a non-school day) until 7:00pm Sunday;
(d)Such other times and places as may be agreed upon by the parties.
(3)Handovers on 25 September 2021 and 27 September 2021 take place at Suburb C McDonald’s.
(4)Handovers otherwise take place with the applicant mother to collect the child from the conclusion of school and the respondent mother to collect the child at the conclusion of time at the Suburb C McDonald’s.
(5)The respondent be restrained by way of injunction from leaving the child unsupervised in the care of Mr D.
(6)Each party is authorised to obtain all notices, photographs and school reports of the child.
(7)Each party is to notify the other party as soon as possible of any serious injury or hospitalisation.
(8)The parties be restrained by way of injunction preventing them or their agents from:
(a)Discussing any issue arising from these proceedings with the child, or permitting any other person from doing so;
(b)Abusing or denigrating the other party in the presence of the child, or permitting any other person from doing so.
At Trial on 16 December 2021, interim orders were made by consent as follows:
(1)Orders 1, 3, 4, 5 and 6 of the orders made on 22 September 2021 do continue pending further order.
(2)Pending further order, handovers take place as follows:
(a)At the commencement of the applicant’s time, the applicant do collect the child from school on school days, and on non-school days, from Suburb C McDonald’s on B Street.
(b)At the conclusion of the applicant’s time, the respondent do collect the child from the Suburb C McDonald’s on B Street.
(3)That the respondent do return the principal place of residence of the child to within the Adelaide metropolitan area prior to the commencement of the first day of Term 1 of the S School.
(4)That forthwith, the respondent do enrol the child in the S School for the commencement of the 2022 academic year.
(5)That pending judgment, the respondent is restrained by way of injunction from:
(a)Changing the child’s principal place of residence from the Adelaide metropolitan area; and
(b)Removing the child from the S School and enrolling the child in any other school.
A further order was made “not by consent” that paragraphs 2(c) and (d) of the orders made on 22 September 2021 do continue.
Hence, the operative orders at Trial are a combination of the time spending orders made on a “not by consent but not opposed” basis on 22 September 2021 and the orders made on 16 December 2021.
THE APPLICANT MOTHER’S POSITION
At Trial, the applicant mother sought orders as set out in her Amended Initiating Application filed on 1 November 2021, as follows:
UPON NOTING: That the applicant mother, [Ms Hughes], may pursue additional time with the child at a later date and that these orders do not preclude her, pursuant to Rice & Asplund, from bringing a further application at a later date in the event the parties are unable to resolve any issues in dispute at community based Family Dispute Resolution.
1.That the respondent mother immediately return with the child, [X], born … 2015, to reside within metropolitan Adelaide.
2.That the child is re-enrolled at [W School].
3.That the respondent mother be restrained and an injunction be granted restraining her from:
a.Changing the child’s school from [W School];
b.Permanently changing the child’s residential address from metropolitan Adelaide save and except in accordance with any order made by this Honourable Court.
4.That the parties equally share parental responsibility in relation to the child.
5.That the parties are required to make all decisions about major long-term issues in relation to the child jointly.
6.That under this order the parties are not required to consult each other when making decisions about the issues that are not major-long term issues while the child is in their care.
7.That the child live with the respondent mother.
8.That the child spend time with the applicant mother as follows:
a.Each third Wednesday commencing after school (or 3:00pm if not a school day) on Wednesday 15 December 2021 until the following Tuesday returning to school or (or 3:00pm if not a school day) and each third week thereafter;
b.On the child’s birthday or a period of not less than 6 hours over the course of a mealtime at a time agreed between the parties, noting the same time shall be afforded to the respondent mother in the event the child’s birthday falls on the applicant mother’s time;
c.On Christmas Eve from 11:00am until 3:00pm on Christmas Day each alternate year commencing 2021 and from 3:00pm Christmas Day until 7:00pm on Boxing Day each alternate year commencing 2022 with the child to spend time with the respondent mother for the equal opposite periods of time;
d.During periods when the respondent mother is on annual, long service or other leave as agreed between the parties but to be a minimum of 2 full weeks per annum;
e.At all other times, as agreed between the parties.
9.That unless otherwise agreed, handovers will occur at the child’s school, or if not a school day in the car park of McDonald’s [Suburb C].
10.That each party is hereby authorised to obtain from the child’s school all notices, letters, school reports and invitations and to attend parent/teacher interviews or other activities to which parents are invited.
11.That the parties advise each other of any change of telephone number or residential address within 24 hours of such change occurring.
12.That the parties are restrained and injunction is granted restraining them and/or their agents from:
a.Enrolling the child in any form of counselling with a psychologist, social worker or any other type of therapeutic counsellor;
b.Discussing any issue arising from these proceedings with the child or permitting any other person from doing so;
c.Abusing, denigrating or rebuking the applicant mother in the presence of the child or permitting any other person to do so;
d.Discussing the child’s issues or these proceedings at any handovers or permitting any other person to do so;
e.Attending each other’s home or permitting any other person to do so.
13.That each party inform the other as soon as practical of any incident, injury of hospitalisation of the child by SMS.
14.That each party shall do all things reasonable and necessary to facilitate the child calling the other parent, irrespective of care arrangement, between 5:00pm and 5:30pm each Monday, Wednesday and Friday.
15.That the parties encourage and do not undermine the child’s relationship with the other party.
16.In the event of any dispute as to the interpretation, implementation or enforcement of this order (including any claim by a party that it should be varied) the parties shall first attend family dispute resolution (FDR) with an FDR practitioner appointed by the parties and make a genuine attempt to resolve the dispute. Failing agreement as to that appointment the party raising the dispute shall nominate three FDR practitioners, one of whom shall be chosen by the other party within 14 days.
17.Other such Orders as the Honourable Court deems fit.[2]
[2] See applicant mother’s Amended Initiating Application filed 1 November 2021.
THE RESPONDENT MOTHER’S POSITION
The orders sought by the respondent mother at Trial are as follows:
1.That the respondent mother have sole parental responsibility for the child [X] born … 2015 (‘the child’).
2.That the child live with the respondent mother.
3.That the applicant be restrained and an injunction be granted restraining the applicant mother from attending at the respondent mother’s home or the child’s school.[3]
[3] See respondent mother’s Response to Initiating Application filed 4 August 2020.
THE INDEPENDENT CHILDREN’S LAWYERS POSITION
In the Outline of Case Document, the Independent Children’s Lawyer’s position was (subject to evidence) as follows:
1. The said child live with the respondent in Metropolitan Adelaide.
2. That the child be re-enrolled to attend [W School].
3. The child spend time with the applicant:-
a. Every three (3) weeks after school (or 3:00pm if a non-school day) (sic) until 7pm Sunday until the commencement of Term 1 of the 2022 school year.
b. Thereafter the child is to spend time with the applicant every three (3) weeks (or 3:00pm if a non-school day) until the commencement of school on the following Wednesday (or 9:00am if a non-school day).
c. Such other times and places as may be agreed upon by the parties.
4. All handovers that do not occur at school to take place at [Suburb C] McDonalds.
5. The respondent is restrained and in junction be granted restraining her from leaving the child unsupervised in the care of [Mr D].
6. Each party is authorised to obtain all notices, photographs and school reports of the child.
7. Each party to notify the other party as soon as possible of any serious injury or hospitalisation of the child.
8. The parties are restrained and in injunction is granted preventing from or their agents from:
a. Discussing any issue arising from these proceedings with the child or permitting any other person to do so; and
b. Abusing or denigrating the other party in the presence of the child or permitting any other person from doing so.
9. An order discharging the appointment of the Independent Children’s Lawyer.[4]
THE EVIDENCE
[4] See Case Outline of the Independent Children’s Lawyer dated 10 December 2021.
The applicant mother
The applicant mother did not seek to lead any further evidence in chief.
Under cross examination by Mr McQuade, counsel for the respondent mother, the applicant mother’s evidence can be summarised as follows:
(1)That the parties were in a committed relationship from April 2015 until February 2020 with two distinct separations in that period. The separations are referred to below in paragraph 9 hereinunder.
(2)That the applicant mother worked in South Australia for the first three years of the parties’ relationship.
(3)That the applicant mother had looked for other employment in 2018 and again more recently, so as to spend time with the child. The applicant mother described looking for other employment as “on and off”.
(4)She conceded that she did not know the respondent mother before or at the time the respondent mother fell pregnant with the child. Furthermore, the applicant mother conceded that she had been “in no way” associated with the respondent mother’s pregnancy. For example, she had not attended any pre-natal classes prior to the birth of the child.
(5)That during the relationship the applicant mother was present in Adelaide for one out of every three weeks and during those periods would stay with the respondent mother when in Adelaide. The applicant mother described herself as “not being the biological mother” but having been a “parental figure” since the child was six weeks old.
(6)The applicant mother conceded that she wasn’t physically present to assist for what Mr McQuade described as “the vast majority of time”, but agreed when it was put to her by Mr McQuade that she assisted with the care of the child during periods when she was in Adelaide.
(7)When challenged as to why she was seeking an order for equal shared parental responsibility, the applicant mother stated “on the basis of my relationship with the child … I have parented the child since she was six weeks old”.
(8)The applicant mother conceded that she had not been the primary carer of the child, but pointed out that she had never claimed to be that.
(9)The applicant mother conceded that there had been two periods of separation in the relationship, being for a period of six months between February and August 2018 and a period of four to five months between August to December 2019.
(10)In response to a question as to how many times she had attended medical appointments with the mother for the child, the applicant mother described this as being “multiple” and that she was not able to give a precise number, commenting that she would attend any medical appointment that fell during her week in Adelaide. The applicant mother agreed with the proposition put by Mr McQuade that the number of medical appointments that she attended with the mother for the child was “probably” more than ten prior to separation. The applicant mother agreed that she had accompanied the respondent mother to the child’s first day of primary school in 2020. When asked on how many occasions she had taken the child to school, the applicant mother gave evidence that she would have taken the child “each day that I was home”. When it was pointed out that the parties had separated about one week after the child commenced at school, the applicant mother conceded this but commented that she had taken the child to school following separation in February 2020 up to April 2020 with the consent of the respondent mother as well.
(11)The applicant mother conceded that she had become upset on receiving an SMS message showing a picture of the respondent mother with a new partner and the child. The applicant explained that she was upset by this because the respondent mother had told her “I would always be the child’s mum”. The applicant mother conceded that she objected to the respondent mother referring to any new female partner as “mum”, particularly if they had only been in a relationship for “a few weeks”. In response to a question from Mr McQuade, the applicant mother contended that she would only object to the use of the word “father” if the respondent mother was in a relationship with a man, depending on “the circumstance” of the relationship and use of the term.
(12)The applicant mother conceded that in 2019 she had been prescribed anti-depressants and commenced seeing a therapist, Ms Y. Ms Y worked at “Z Service”. She was unclear of Ms Y’s precise qualifications. The applicant mother described being diagnosed as suffering from anxiety and having been prescribed anti-depressants by her General Practitioner. The applicant mother gave evidence that she had gone back to her General Practitioner after the first dose as they had made her drowsy.
(13)Under cross examination by Mr McQuade, the applicant mother conceded that she would yell at the mother, but denied demeaning her. Whilst conceding that she complained that the house was a “mess”, she denied yelling or becoming angry about this. The applicant mother denied yelling at the child. This arose in circumstances where the respondent mother had revealed to the applicant mother about her relationship with her own step-father and how it had impacted on her. The applicant mother described “not wanting” that to happen to the child.
(14)The applicant mother conceded however that her anger may have impacted on the child indirectly, and it was for that very reason that she had sought assistance from Ms Y. The applicant mother attended six appointments for anger management therapy and then more appointments in 2021, the last of which occurred about three weeks prior to the commencement of Trial. Ms Y was not called to give evidence at Trial. Her report dated 16 July 2020 is Annexure U to the applicant mother’s Trial affidavit filed 1 November 2021. The applicant mother described her history of anger management as pre-dating her relationship with the respondent mother, but being confined to “yelling” and no expressions of physical anger. The applicant mother conceded that on one occasion she had prevented the respondent mother from leaving a room, but stated that she had “moved out of the way” once asked to do so by the respondent mother. The applicant mother explained that she had attempted to stop the respondent mother from leaving because the respondent mother was upset and the applicant mother was concerned the she would “harm herself”. Under cross examination by Mr McQuade, the applicant mother denied calling the respondent mother derogatory names, slamming doors, throwing objects and vehemently denied being controlling and possessive of the respondent mother.
(15)The applicant mother conceded that on occasion she did not deal with the child in an age appropriate manner and at times had struggled parenting the child. She conceded “yelling” at the child but denied “screaming” at her. When asked by Mr McQuade as to what was a distinction between yelling or screaming, the applicant mother advised that there was a distinction between the two, but could not explain it.
(16)The applicant mother conceded having smacked the child on her bottom, but only at a time when the child was wearing nappies. She denied that the child suffered any injury and stated that the child had not been bruised. The applicant mother denied pulling the child along on the ground by her legs. She conceded having put the child over her shoulder when she was having a tantrum in a shopping centre. The applicant mother strongly denied ever “slamming” the child on a bed or screaming in her face.
(17)The applicant mother denied that she had only cared of the child on a few occasions in the absence of the respondent mother. She gave evidence that she cared for the child when the respondent mother was at work and would stay at her home in the respondent mother’s absence. When asked by Mr McQuade what she found challenging about parenting, the applicant mother stated that those occasions occurred when the child would “not listen” or at bedtime, or when they were trying to leave the house and the child refused to get dressed and “stayed naked”.
(18)In response to specific questions put by Mr McQuade, the applicant mother denied telling the respondent mother that she “should kill herself”. She denied telling the respondent mother that the child would “better off if she was dead”. Mr McQuade was highly critical of the applicant mother not answering certain paragraphs in earlier affidavits. It was put to the applicant mother that she was being deliberate in electing not to answer those matters in her affidavits in reply. The applicant mother denied this. She contended that there had been “lots of affidavits” signed by her and it was difficult to remember what she had answered and what she had not.
(19)The applicant mother conceded having delayed seeking assistance for her emotional dysregulation claiming that she “did not want to admit” that she had a problem. Having received the assistance, the applicant mother stated that she had found it beneficial. I accept her evidence in this regard.
(20)Mr McQuade was highly critical of the applicant mother having subpoenaed the respondent mother’s medical notes. When challenged as to why this was necessary, the applicant mother contended that she did so because the respondent mother had been “downplaying her mental health”. The applicant mother denied that the medical notes were subpoenaed to “degrade” the respondent mother. She contended that the documents were subpoenaed in response to the respondent mother alleging that the applicant mother was “unfit” whilst “downplaying” her own mental health difficulties.
(21)When asked by Mr McQuade as to whether or not she wanted to be involved with the child “for the rest of her childhood” the applicant mother replied that she wanted to be involved with the child “for the rest of her life”. The applicant mother denied the suggestion that the child would be “help captive in the conflict” between the two parties.
(22)The applicant mother denied that she remained hostile to the respondent mother.
(23)The applicant mother conceded that she wanted an “equal say” in relation to the child’s schooling and medical needs because she “assisted the mother in the child’s care” during their relationship. The applicant mother went on to state that she had “parented the child for the first five years of her life”. Even after separation, the applicant mother contends that she was informed by the respondent mother that she would always be “the other parent”. The applicant mother contended that she would not agree to the respondent mother having sole parental responsibility because “up to now, we made decisions jointly in relation to the child’s school and kindy”. The applicant mother denied that the child knew of the term “step” when it was put by Mr McQuade that she was a “step mother” to the child.
(24)When the applicant mother was asked by Mr McQuade as to whether or not the respondent mother would need to obtain her permission when the child was to attend high school, the applicant mother replied:
she could ask my opinion, and have a discussion about it, but not my permission... assuming I’m in her life and that the orders get granted, then yes we’ll have to have a discussion and come to an agreement, if I get nothing, then no she obviously doesn’t have to consult me.
The applicant mother could not see a time when she would not otherwise be in the life of the child, other than unless the child chose not to see her.
(25)The applicant mother contended that the child “deserves to be able see me as well, we have a relationship…for it to just end it would be quite painful for her I’d imagine…because she thinks of me as her parent…it would be painful to have a parent disappear”.
(26)The applicant mother conceded that the respondent mother does not suffer from Bipolar Disorder.
(27)When Mr McQuade asked the applicant mother whether she conceded that the relationship between herself and the respondent mother could be described as “domestically violent”, the applicant mother commented that “that is the realisation that has come…but not physically violent…”
(28)The applicant mother denied that the relationship could be described as “coercive and controlling”, but stated that the relationship was “psychologically abusive on both sides…I did it but not intentionally and I did it with the yelling”.
(29)The applicant mother stated that the arguments between herself and the respondent mother would last about 15 minutes and after leaving the area, and upon her return “I’d be fine”. The applicant mother advised that there had been no attendance by the Police at the parties’ homes during their relationship.
(30)The applicant mother conceded that she does not pay Child Support for the child, or make any other financial contribution toward her financial upkeep to the respondent mother. Paragraph 25 of the applicant mother’s Trial affidavit filed 1 November 2021 sets out some expenses paid for the benefit of the child.
(31)The applicant mother conceded that it was the respondent mother who had enrolled the child at the W School and that she had acceded to her request. Ultimately, the issue of the child’s schooling upon her return to the Adelaide metropolitan area was resolved by consent at the conclusion of Trial and pending Judgment. Pursuant to the orders made on 16 December 2021 the child will now be enrolled in and attend at the S School. This school was promoted by the respondent mother.
(32)In relation to the child’s education, the applicant mother conceded that the parties had discussed sending the child to the W Kindergarten. She denied that the respondent mother had simply told her of the decision, but rather it was said to be one of the kindergartens that they had discussed together. The applicant mother conceded that she had been advised by the respondent mother of her preference for W Kindergarten because it was a “feeder” kindergarten for the primary school, namely W School, where the respondent mother’s sister’s child attended. It was the applicant mother’s evidence that thereafter she had “agreed” to that kindergarten. When it was put to her by Mr McQuade that it was only the respondent mother who had attended to the formal enrolment, the applicant mother answered that she had been in attendance and present for the enrolment, but could not remember whether or not she had signed the enrolment form. When it was put to her that the respondent mother had attended at the school to enrol the child, the applicant mother answered “possibly”. When pressed that it was only the respondent mother who had actually enrolled the child at the W School, the applicant mother eventually conceded this.
Under cross examination by the Independent Children’s Lawyer, the applicant mother’s evidence is summarised as follows:
(1)When working away, the applicant would communicate with the child by way of “video chat, Skype, phone calls or Facebook Messenger”.
(2)That as the child grew older, this communication took place on a “nearly” daily basis.
(3)That after the respondent mother purchased her property in February 2016, the applicant mother had lived primarily with the respondent mother in that home.
(4)During a separation in 2018, the applicant mother continued to see the child and gave evidence that she would take the child to her parent’s home, or stay with the respondent mother. This arrangement was pursuant to a verbal agreement and had not been enshrined in any sort of written document.
(5)When asked by the Independent Children’s Lawyer whether or not she could recall specific occasions when she had the child during the separation in 2018, the applicant mother replied that she was “sure that there were” but she “could not give specific incidents”.
(6)Following the parties reconciliation, the applicant mother’s evidence is that she continued to care for the child as she had done prior to separation, and when she was in Adelaide.
(7)During the separation from August to December 2019, the applicant mother contended that she would see the child either at the mother’s home or at her parent’s home. Again, this was said to be pursuant to a verbal agreement.
(8)The applicant mother was then cross examined on the question of “anger management”. The applicant mother conceded when it was put to her that children would likely be impacted when observing anger displayed by an adult in their presence.
(9)After commencing sessions with Ms Y at “Z Service”, the applicant mother gave evidence that she became aware that her behaviour was triggered by anxiety. She then began to receive assistance for her anxiety, which was of benefit. The applicant mother described her anger as being “very nearly overcome”.
(10)The applicant mother conceded when it was put to her that parenting children, in particular toddlers, was difficult and that placing the child over her shoulder “mid tantrum” was possibly not the best way to deal with difficult behaviour.
(11)The applicant mother contended that she would continue to see Ms Y as needed and that she had derived benefit from her professional assistance.
(12)When cross examined on the issue of parenting courses, the applicant mother conceded that she had not undertaken any parenting courses during the course of litigation because “I did not think of it”, but added that she would be “happy” to undertake those courses, if required.
(13)The Independent Children’s Lawyer then cross examined the applicant mother in relation to the sexualised behaviour of the child when living in R Town. The applicant mother’s evidence is that she had not observed the child engaging in such behaviour and that the allegations came as a “surprise” to her. The applicant mother said that she was “very concerned” about the child’s behaviour at that time.
(14)In relation to the child’s exposure to Mr D (who is the respondent mother’s stepfather) the applicant mother replied that there had been contact with Mr D while she was in a relationship with the respondent mother, up and until 2017. Thereafter, the communication totally ceased. The applicant mother conceded that her concerns in relation to Mr D arose from discussions about his behaviour and poor character within the respondent mother’s family, which she then reported to SAPOL.[5]
(15)The applicant mother conceded under cross examination by the Independent Children’s Lawyer that the communication skills between the parties was “currently non-existent”. The situation has been worsened by the respondent mother obtaining an interim Intervention Order against the applicant mother on 28 September 2020. However, the interim Intervention Order allows the parties to communicate pursuant to an order of this Court and the applicant mother proposed that any such communication take place by way of SMS messaging or a parenting “app”. Showing a degree of insight, the applicant mother conceded that the parties had a “history of interpreting SMS messages differently”.
(16)Finally, the applicant mother conceded that she wanted to be a parental figure in the life of the child and that she would “do whatever is asked of me” to improve her skills as a parent.
[5] See applicant mother’s Trial affidavit filed 1 November 2021 at Annexure P.
Overall, I was impressed by the applicant mother’s evidence. The applicant mother gave her evidence in a business-like and a matter of fact way. I prefer her evidence when it is at odds with the respondent mother’s evidence. The applicant mother impressed as being devoted to the child and sincere in her desire to remain a positive influence in the child’s life.
Ms E
Ms E is the mother of the applicant mother in these proceedings. For the sake of ease, I will refer to her as “Ms E”.
Ms E gave no further evidence in chief.
Ms E deposes in her Trial affidavit that she and her husband Mr AA have known the child and the respondent mother since the child was three months of age. This came about due to the parties commencing their relationship shortly after the child was born. Ms E deposes that she considered that she had a good relationship with the child and also with the respondent mother. Until final separation in 2020, Ms E gave evidence of there being regular family events including celebrations and holidays together.
Ms E deposes that when the parties announced their engagement in 2017, that she and her husband were “very happy” and introduced the respondent mother as their “daughter in law”.
Ms E described in her Trial affidavit having a close and loving relationship with the child. Her affidavit sets out at length the activities that were enjoyed with the child prior to the parties’ separation. In particular, attention is drawn to the fact that Ms E resides on a country property in the BB Region. The child was said to enjoy attending at the property given the size of the block, the outdoor area available and the “farm” atmosphere that was available.
Ms E deposes that during the relationship and when the mother was working at CC Service, she and her husband would care for the child at their home. This continued even after the respondent mother ceased working at CC Service.
In 2019, when the respondent mother was admitted to hospital for a medical procedure, Ms E stayed at the respondent mother’s home to care for the child and to take her to kindergarten. Ms E also took the child to visit the respondent mother in hospital and stayed with the respondent mother after her discharge from hospital to assist with her recovery. Ms E deposes that in 2020, she would stay overnight at the applicant mother’s home on a Wednesday when the applicant mother was returning to her work on a Thursday morning and would care for the child prior to school in the morning.
In relation to the applicant mother’s mental health, Ms E deposes that whilst the applicant mother has had “mental health ups and downs, I have not witnessed anything that I would say has been detrimental to the respondent mother or the child”.[6]
[6] See affidavit of Ms E filed 1 November 2021 at [19].
In relation to the applicant mother’s parenting, Ms E described having had a close opportunity to observe this as the applicant mother lived with her parents for a four month period in 2019 when the parties were separated and then again during the period from February to October 2020. The applicant mother resided with her parents whilst building a home and during these times the child also lived with the maternal grandparents.
Ms E describes the child as calling her daughter “mummy” and sets out at length the sorts of activities she has observed the applicant mother engaging in with the child.
In the period post separation, Ms E describes in paragraph 35 of her Affidavit that following separation, the respondent mother informed both Ms E and her husband that they would “always be the child’s grammy and pa and that we are welcome to see X and have her overnight. She also told us that no one other than the Ms Hughes will be her other parent”.[7]
[7] Ibid at [35].
Ms E observed in her evidence that despite these reassurances, time spending with the child since final separation “has been different”. During the period from 15 April 2020 until 23 August 2020, there was no contact other than “a couple of” phone calls.[8] Pursuant to orders made on 21 August 2020, Ms E and her husband were ordered to be substantially present for the applicant mother’s time spending with the child and to facilitate handover.
[8] Ibid at [37].
Ms E refers in her Trial affidavit to an alleged incident which was said to have occurred during a period of time spending on 9 September 2020. It had been alleged by the respondent mother that the applicant mother had injured the child causing bruising during a period of supervised time at the play café. Ms E denied that any such incident occurred. The respondent mother thereafter withheld the child. Hence, no time spending occurred during the period from 9 September 2020 until appointments with Dr G as part of the Family Assessment Report on 26 October 2020.
Following orders made on 28 October 2020, requiring Ms E or her husband to supervise the child’s time with her daughter, Ms E refers in paragraph 48 of her affidavit to a conversation which occurred on 2 December 2020 between herself and the respondent mother’s mother, Ms F. It was alleged by Ms E that Ms F by inference had raised the issue of property settlement proceedings and had suggested that the applicant mother might “end up with a $150,000 Child Support bill”. Ms E describes herself as being “very uncomfortable” with the conversation and terminated it. Ms E’s evidence about this conversation was not challenged under cross examination.
Following orders being made by the Court on 8 December 2020, the applicant mother’s time became unsupervised, save for the first two occasions when Ms E was ordered to be substantially present. Ms E deposed in her affidavit that she had continued to attend at visits, not as a supervisory role but in order to maintain contact with the child. Her Trial affidavit sets out at some length the visits that took place during the period between 8 December 2020 until 1 May 2021. On 18 May 2021, the applicant mother arrived home from work and soon after received a visit from the South Australian Police attending with a warrant to seize her mobile telephone and tablet. This investigation was part of an alleged child exploitation investigation triggered by the complaint made by the respondent mother. A Safety Plan entered into between the Department of Child Protection (‘the Department’) and the respondent mother prevented contact with the applicant mother whilst investigation was underway.
Time spending between the applicant mother and the child did not resume until 25 September 2021, a period of about five months.
When cross examined by Mr McQuade, Ms E would not concede that the opportunities for her to spend time with the child or to observe the applicant mother with the child was limited. Her evidence in this regard was consistent with the matters raised in her Trial affidavit. Ms E conceded that the parties argued, but not in her presence. She became aware of the arguments when each of the parties reported these incidents to her following the event. In response to a question regarding the applicant mother carrying the child over her shoulder, Ms E’s evidence was that she had observed each of the parties to do this, not just the applicant mother. Ms E conceded that each of the parties had smacked the child. Ms E described an incident where she had personally smacked the child on her fingers because she came close to touching a hot oven.
Ms E conceded that during their relationship each of the parties had complained to her about the other and had “sought assistance” from her. Ms E described saying to each of the parties “talk…don’t yell…try to listen to each other”. Ms E conceded that the respondent mother had informed her that she was “scared” when the applicant mother “yelled”. The respondent mother explained to her that she was worried about the impact of such yelling on the child. Ms E denied ever having observed the respondent mother fearful of her daughter, but conceded that “from time to time” the applicant mother was prone to angry outbursts. Ms E described a situation where the anger would express itself when the applicant mother was stressed. Ms E strongly denied that she had used the word “fucking” when referring to the mother. Ms E contended that she had only ever heard the applicant mother swear in front of the child “once or twice”.
Ms E contended that she continues to see the child when in the care of her daughter and that she missed the child. Either Ms E or her husband currently undertake handovers due to the terms of the interim Intervention Order.
When cross examined by Ms Olsson, the Independent Children’s Lawyer, Ms E’s evidence was as follows:
(1)That she regarded the child as her granddaughter.
(2)That the child has been embraced within their family.
(3)That when the applicant mother was angry, she “might yell” or “stomp outside” and “sometimes uses colourful language”. Ms E described the volume of her voice as being the most frightening aspect of her anger. Ms E contended that she was not frightened for her safety during her daughter’s angry outbursts and that she had challenged her daughter’s behaviour on occasion.
(4)In relation to the arguments between the parties during the relationship, Ms E contended that both parties had yelled at each other. On one occasion the conduct between the parties must have been sufficiently of concern to Ms E as she described having taken the child outside to play and told the respective parties to “stop”.
(5)Ms E describes an improvement in the applicant mother’s behaviour since attending upon Ms Y. Ms E contended that the applicant mother now “tends to think about things…she doesn’t get as angry…she’s not as stressed as she was when she and the mother were together”.
(6)Ms E described being content with the parties placing the child over their shoulder when the child was misbehaving as this ‘”took the child’s mind off the tantrum”. Ms E contended that both of the parties had “smacked the child on the bottom” during their relationship but as the child got older discipline took the place of a “time out chair” or the child was “sent to her room”.
(7)Ms E stated that the child referred to her and her husband as “grammy and pa” and that they had “no other grandchildren”.
Ms E’s evidence was otherwise unremarkable. She impressed me as a person devoted to the child and enjoying her role as a grandparent figure in the child’s life.
The respondent mother
The respondent mother gave updating evidence in chief. Her evidence confirmed that she intended to return to Adelaide and for the child to commence schooling in Adelaide at the S School as and from Term 1, 2022. The respondent mother described intending to move back in to her property at Suburb Q where she would live with her brother.
In relation to the child’s past enrolment at W Kindergarten, the respondent mother contended that she had made the decision in relation to the kindergarten and had undertaken the enrolment. The respondent mother described the applicant mother as being “not happy” with her decision, but regardless the enrolment went ahead.
The respondent mother had enrolled the child at the W School and again contended that this was not a joint decision, given the applicant mother’s response to the question of what kindergarten the child was to attend.
The respondent mother denied that the applicant mother had stayed overnight with her by consent during separations. The clear inference to be drawn from this evidence was that the applicant mother had for many months stayed at the respondent mother’s house allegedly against her wishes.
In response to cross examination by Ms Horvat, counsel for the applicant mother, the respondent mother gave evidence as follows:
(1)She agreed that her position at Trial was that the applicant mother should play no role in the child’s life.
(2)That she did not consider that the applicant mother and the child have a close relationship, and in fact, she did not consider that they had any relationship at all.
(3)That having read the two Family Assessment Reports prepared by Dr G, she disagreed with his observations and recommendations.
(4)That the reason why she opposed time spending was because the applicant mother had behaved in a way which was “hostile and violent”. The respondent mother conceded that the last time she had observed the child with the applicant mother was around the final date of separation in February 2020.
(5)The applicant mother described “never” having seen a close relationship between the child and the applicant mother.
(6)She agreed that the SMS annexures attached to the applicant mother’s Trial affidavit at pages 4 to 15 were true and correct. The mutual SMS messages show a loving relationship between the parties with frequent references to their future together as a family. The respondent mother was challenged in relation to the content of those SMS messages, which appeared contrary to the evidence just given by the respondent mother about the nature of her relationship with the applicant. On page 10 of the annexures, Ms Horvat put to the respondent mother a message sent to the applicant mother which reads “I’m not a single parent… me and bubba have you”. The respondent mother conceded that she had written this SMS message but that she would “write anything to keep me and bubba safe and away from aggression”. The thrust of the respondent mother’s evidence on the SMS messages was that they had only been prepared by her in order to protect both herself and the child from violence said to be imminent from the applicant mother despite the applicant mother working remotely.
(7)Despite this, the respondent mother agreed when it was put to her by Ms Horvat that the applicant mother showed concern in relation to the child and would enquire as to her wellbeing. She conceded that the parties had been engaged for a “brief time”. When it was put to the respondent mother by Ms Horvat that becoming engaged signifies a “deeper commitment to one another”, the respondent mother gave evidence that “she threw the ring at me and told me to put it on”. I do not accept the respondent mother’s evidence in this regard. The multiple SMS messages between the parties where the question of a commitment between them was actively discussed and the respondent mother frequently refers to her “love” for the applicant mother and how much she “missed” her when working away.
(8)Despite the engagement ring being “thrown” at her, there had been discussion of marriage. The respondent mother denied that upon being presented with the ring that the applicant mother had proposed marriage. Rather, she describes being given the ring in a small box with the words “put it on”.
(9)The respondent mother conceded having sent SMS messages referring to marriage. The respondent mother conceded sending the words on page 34 of the applicant mother’s Trial Affidavit, the messages were as follows:
Respondent mother: I don’t care about rings or money or any of that bs just a promise of forever
a promise to love each other forever
Applicant mother: Just not in messages at a late as hour of the night when I have to get up in 5 and a half hourd
I love you
Respondent mother: Oh ok
Love you too
Applicant mother: In the last 2 nights I’ve had a combined amount of 7 hours sleep, I really need to sleep, I’m sorry
We will have a proper talk about it tho, I promise
Respondent mother: I just want you to know I’m serious
Like money I willelope with you if that’s what we decided I want it I don’t want anything else just yoj
Monday
….
I just want you forever even if it meant marrying you on Monday when you get here
Applicant mother: Pretty sure you can’t get married that quickly in Australia anyway
Respondent mother: … I wish
Applicant mother: We will talk
I promise
Respondent mother: Promise promise
Applicant mother: I promise
But I need to sleep now
Respondent mother: Ialresdyconsider us married I just want it legal, okay baby night xoxoxo[9]
[9] See applicant mother’s Trial affidavit filed 1 November 2021 at Annexure D, p 34.
(10)The respondent mother’s explanation of the above passage under cross examination was that she had done this when she was “drunk and arranging a funeral”. I do not accept her explanation in this regard. I find that the respondent mother was a willing participant in a relationship with the applicant mother.
(11)The respondent mother conceded that there had been discussions about her having another child to complete their family unit. However, the respondent mother stated in her evidence that she had promoted a donor and that her preference was that she not have a child with the applicant mother. When challenged as to why she would even talk about having a child with the applicant mother if she felt this way, the respondent mother attempted to explain that she was “emotional”.
(12)The respondent mother conceded that she wrote the entries set out on page 36 of the applicant mother’s Trial affidavit, but later changed her mind. Those entries as follows:
Respondent mother: I want a baby and I want to marry you but you don’t want that I don’t know what to do
Applicant mother: Do you even read my messages?
Respondent mother: You said to give it time
Applicant mother: You don’t try to see things from my point of view, it’s what you want
Respondent mother: But I don’t want bub to be any older
Applicant mother: We just broke up for 6 months, we’ve been back together for 3 weeks
Respondent mother: Doesn’t change the fact it’s been 5 years
I get you want to wait and thats ok. But I dont want a bigger age gap then what there already is so if your not ready to do it with me what do i do?
Applicant mother: Maybe talk about it instead of essentially giving me an ultimatum
Respondent mother: I won’t force you into doing it with me is what I’m trying to say
I’m not giving you an ultimatum
Applicant mother: Yeah you are
Do it with you or don’t do it but you will on your own
That’s an ultimatum
Basically you’re saying do it or I’m going to anyway and you’ll have to deal with it
Respondent mother: You don’t have to deal with it
Applicant mother: Ok so you’re saying do it woth you or we don’t have a relationship[10]
[10] Ibid Annexure D, pg 36.
(13)In relation to the child’s attendance at school, the respondent mother conceded that she had been happy for the applicant mother to be present, even though she had no active involvement in the enrolment process.
(14)The respondent mother was cross examined about paragraph 3 of an affidavit sworn by her on 4 August 2020 when the respondent mother deposed “I do not know for certain the identity of the child’s father”. No father has ever been listed on the child’s Birth Certificate. The applicant mother explained this by giving evidence that her affidavit “was meant to say” that at the time of birth that she did not know the child’s paternity. The respondent mother conceded that the first the Court or the applicant mother was aware of Mr EE being the child’s biological father was on or about 22 April 2021. The respondent mother explained that she had “wanted him in” but that her solicitor had advised her that he “didn’t need to”.
(15)When it was put to the respondent mother that the raising of the child’s paternity only came about after time spending orders had been made in favour of the applicant mother, the respondent mother conceded that she “didn’t like” the Court orders as she did not believe that the child was “safe”.
(16)The respondent mother conceded that Mr EE had declined to participate in paternity testing and therefore agreed that the child’s paternity has not been formally confirmed. However the respondent mother described the child as looking “identical” to Mr EE in terms of their physical appearances. The respondent mother’s evidence is that she would permit the child to spend time with Mr EE if he asked. Mr EE apparently lives in Adelaide and spends time with the child “whenever he is free”. The respondent mother considered that it was important for that connection to be maintained. When it was put to the respondent mother that it was also important for the child to maintain a relationship with the applicant mother, the answer was “not when the connection is a violent and aggressive one”. When the respondent mother was challenged that if the Court found that there was no violent or aggressive relationship between the applicant mother and the child, and time was ordered, the respondent mother replied that she would “continue to believe that violence and aggression exists…” but that “I will comply with orders of the Court”.
(17)The respondent mother was challenged in relation to her proposition regarding compliance with Court orders. It was put to her that she had moved to R Town in order to prevent overnight time commencing. This was denied by her. When it was put to the respondent mother that she had raised issues in relation to paternity to again prevent or delay time spending, this was denied. The mother replied “I didn’t stop the time…DCP did”. This was despite the respondent mother clearly stating in her evidence that she did not believe that the applicant mother had taken photos of the child said to have triggered the child exploitation investigation. The respondent mother gave evidence that she “never believed” that the applicant mother had taken such photographs, rather, it was her view that the child may have seen such photographs on the applicant mother’s mobile phone. The respondent mother confirmed that she had never seen “anything like that” when the parties were together. The respondent mother then definitively replied “I don’t think Ms Hughes would do that… I told DCP my view”.
(18)The respondent mother gave evidence that her own mother Ms F was “very happy” when time stopped because the family considered that the child was no longer in “danger”.
(19)When questioned by Ms Horvat, the respondent contended that she accepted the findings of the South Australian Police and that no child exploitation material had been found on the applicant mother’s mobile phone or tablet, which had been seized. When asked as to whether or not she still had concerns or a belief that the applicant mother was implicated in the photographs, the respondent replied “I believe she will be more careful with her phone”.
(20)Ms Horvat then cross examined the respondent mother on the basis of her move to R Town. In response, the respondent mother stated:
I have witnessed the applicant mother’s motor vehicle in my street. I received a death threat from [Ms Hughes] through the child. The child would run and hide in the cupboard and check doors at night. I reported these concerns to DCP. DCP did nothing. I reported these concerns to SAPOL. SAPOL did nothing.
(21)The mother went on to state that she was “not sure” if the applicant mother had slashed her tyres.
(22)When it was put to the respondent mother that the applicant mother had not “slashed her tyres” because at the time of the incident she was in fact working away remotely, the respondent mother replied that she was “no longer concerned” and whilst the applicant may have threatened to slash tyres in the past, she conceded that on this occasion the applicant mother was unlikely to be the purported offender.
(23)When it was put to the respondent mother that she had informed the Department on 16 April 2021 that her move to R Town was to place distance between the child, herself and the applicant mother, the respondent mother conceded this.
(24)The respondent mother was then cross examined about the incident at the play café on 9 September 2020. The respondent mother conceded that the child had not disclosed an assault by the applicant mother. On sighting the child’s bruising, the respondent mother immediately considered that the perpetrator was the applicant mother because she had seen the applicant mother display “violent behaviour” during their relationship. Both the respondent mother and her mother then questioned the child. The respondent mother contended that whilst she had “no evidence” she “knew what Ms Hughes is capable of”. The respondent mother believed that there was “no other explanation” for the bruise other than it was caused by the applicant mother.
(25)Following the allegations of bruising and alleged assault, the respondent mother attended upon SAPOL. She described herself as “being scared of repercussions” from the applicant mother and believed that the applicant mother had been attending at her home without her consent. When asked as to what the specifics were in relation to the trespass, the respondent mother contended that the applicant’s parents had “come on to her property” to collect belongings and that she had observed the applicant mother driving past her home.
(26)It was put to the applicant mother by Ms Horvat that she was more concerned or frightened about the child having a relationship with the applicant mother not on her terms, the respondent mother contended strongly that she was frightened of the applicant mother. The respondent mother contended that she had telephoned the Police, only after the applicant mother had filed an application because she was “scared”.
(27)When asked as to why she was now returning to Adelaide, given the fear for her safety, the applicant mother described her relationship with Mr T and then went on to state that “I don’t feel that I have a choice about where I live”.
(28)The respondent mother conceded that the child referred to the applicant mother as “mummy” but explained this by stating “I told her she can call Ms Hughes anything she wants to keep her safe”. The respondent mother contended that she had not wanted the child to call the applicant mother as “mummy” but if she had refused, it would “result in aggression”. When asked as to why the child referred to as Ms E “grammy” the respondent mother stated that “all the children in the town call her grammy”. The respondent did not consider that Ms E is a special grandparent figure to the child and the same applied to her husband as a grandfather figure. I do not accept the respondent mother’s evidence in this regard.
(29)The respondent mother went on to say that she did not think that the applicant mother “had anything to offer” the child and that she “could not say anything positive about their relationship”.
(30)Ms Horvat then cross examined the respondent mother about the Family Reports. The respondent mother’s evidence can be summarised as follows:
(a)She conceded that the child presented as comfortable in the company of the applicant mother during interview with the Family Consultant.[11]
[11] See Family Report of Dr G dated 8 December 2021 at 7.
(b)She denied that the child was aware of her dislike for the applicant mother. She explained that the child understands that the applicant mother is unsafe “from her own volition”. When asked as to how she could explain the child’s warm behaviour when said to be unsafe, the respondent mother replied “X has been exposed to Ms Hughes’s anger and aggression her entire life, this is her normal and if she can find a way to be happy while being sad she’s going to…this is what she has been raised with and this is what she thinks is okay”. When Ms Horvat put to her whether she believed the child had been putting a show on for Dr G, the mother’s evidence was “no I believe she was acting”…. “she has stated that she has been tricky to not get Ms Hughes angry so she does not get hurt”.
(31)When it was put to the respondent mother by Ms Horvat that she would say anything to stop the relationship between the applicant mother and the child she replied “I believe it is good to know the truth in order to make decisions for the child’s future”.
(32)It was put to the mother that she had moved to R Town to make it harder for time to occur. The respondent denied this and pointed out that she had continued to comply with orders of the Court and to bring the child down to Adelaide as ordered until the “child exploitation” investigation commenced in May 2021.
(33)The respondent mother contended that following the child’s visits with the applicant mother, the child is asked as to whether or not she has enjoyed the visits. The respondent mother contended that the child did not usually answer this question. When asked as to whether or not the child reports any positive aspects of her time spending with the applicant mother, the respondent mother contended that the child had referred to a “naming a puppy and attending at a child’s birthday party”. The respondent mother asserted that she did not like asking the child questions about the weekends because the child “gets visibly upset”. Otherwise, anything the child does tell the respondent about those weekends was described as “negative”.
(34)It was put to the respondent mother that given the connection between the applicant mother and the child, there would be a deleterious impact on the child if time spending ceased. The respondent mother’s answer to this was that there had been no reaction previously when time was suspended, so therefore it was “unlikely to happen again”.
(35)When cross examined about her mental health, the respondent mother conceded that she had longstanding mental health issues including self-harm when she was 14 years of age. The respondent conceded that she had been diagnosed with Complex PTSD in 2018 by Dr H (‘Dr H’) following one appointment. Dr H’s report has been tendered into evidence and is marked Exhibit A1 (‘Dr H’s report’).
(36)On Page 2 of Dr H’s report, the respondent mother describes her own mother Ms F as “violent, narcissistic and manipulative with an alleged diagnosed of Borderline Personality”. The respondent mother denied describing her own mother as “violent” but agreed that she had told Dr H that her mother has been “narcissistic and manipulative” in the past. The respondent mother was unable to explain how Dr H had come to report that her own mother had Borderline Personality Disorder and denied making that statement to Dr H herself. On page 2 of Dr H’s report, it was noted that the respondent mother reports to Dr H that her relationship with the applicant mother was “supportive”. When this passage of the report was put to her, the respondent mother stated “it was not true at the time. I lied to Dr H because at the time I was too afraid to say it. There would have been retribution”. I reject the respondent mother’s evidence in this regard and find that the respondent mother reported the relationship to be supportive because it was.
(37)The respondent mother conceded that she had attempted suicide in 2018 when the child was in her primary care. The respondent mother also conceded that her own sister had been angry with her for attempting to take her own life while the child was in her care. Following on from her attendance upon Dr H, the respondent was referred to “FF Service” for treatment. She describes having had 10 sessions with a therapist and medication was prescribed by her General Practitioner, which she ceased taking in March 2021.
(38)The respondent mother was cross examined in relation to notes produced pursuant to subpoena from “GG Service”. The respondent mother conceded that she had informed her General Practitioner of an incident on 24 October 2018 whereby she had become angry and “hit a wall”. The respondent mother stated that this was the only occasion where she had lost her temper and punched a wall whilst the child was in her care.
Under cross examination by the Independent Children’s Lawyer, the respondent mother conceded that the child enjoyed activities with the applicant’s parents in a “general sense” and the respondent mother had “no concerns” in relation to behaviours when the child was with them at present.
The respondent mother expressed the view that the child enjoyed being with the applicant mother’s parents, but not when the applicant mother was present. The respondent mother conceded that she wanted the applicant mother removed from the child’s life. Her evidence is that when time was suspended, there had been no negative impact on the child at all and if there was no time spending moving forward there would be no further reaction.
As set out above, I prefer the evidence of the applicant mother over that of the respondent mother where such evidence is in conflict. The respondent mother’s evidence in relation to the slashing of her tyres and the move to R Town was inherently implausible. It is open on the evidence to find that the respondent mother has done whatever she can to stop the relationship between the applicant mother and the child. This includes the unilateral relocation to R Town, the raising of Mr EE as an interested third party in these proceedings and the allegation leading to the child exploitation investigation. The respondent mother made no concessions even when it was obvious from corroborative evidence that she should do so. For example, her evidence about circumstances surrounding the parties’ engagement was quite simply unbelievable in the face of the mutual SMS messages expressing love and commitment for each other and I reject it.
Ms F
Ms F is the mother of the respondent mother in these proceedings. For the sake of ease, I will refer to her as “Ms F”.
Ms F relied upon her Trial affidavit filed 29 November 2021. No further evidence in chief was called.
Ms F was clear from the start of her evidence that she did not support the child having any relationship with the applicant mother. Nor did she accept that the applicant mother had played any role in the life of the child. Ms F stated that the child did not refer to Ms E and her husband as “grammy and pa”. Her evidence is that the child refers to them by their Christian names.
Ms F had not one positive thing to say about the applicant mother or her relationship with the child. She confirmed that her position at Trial was to support no ongoing relationship between the child and the applicant mother. Ms F conceded that she “may” have informed the Department for Child Protection that the applicant mother had “caused” the respondent mother’s mental health issues. Ms F went on to say that she believed this statement to be true at the time that she made it and that she still believed it. This is not withstanding the fact that the respondent mother had described Ms F to her psychiatrist Dr H as a “violent narcissist and manipulative with an alleged diagnosis of borderline personality”.[12]
[12] See Report of Dr H, Exhibit A1 at pg 2.
In response to a question put by Ms Horvat regarding a Safety Plan entered into with the Department for Child Protection, Ms F confirmed that she was “extremely happy” when the said Plan was agreed upon as it would mean that the child was “not going to be hurt anymore”.
Ms F’s negative attitude of the applicant mother extended to blaming her for the episode wherein the child was said to have taken photographs of her vagina with a mobile phone. When asked if it was her view that this incident was caused by the applicant mother, Ms F replied “I don’t know where it came from, but there is no other possible explanation”.
When it was put to Ms F that neither the Department for Child Protection, nor SAPOL had confirmed any fault at the feet of the applicant mother, Ms F replied “I don’t know how you can look at those photos and not see”. It was her firm view that if time spending took place the child would be “definitely” unsafe in the applicant mother’s care.
On the issue of the applicant mother’s imminent return to Adelaide, it became apparent during Ms F’s evidence that she was completely unaware of the respondent mother’s plans to return to Adelaide to reside with the child. This seemed somewhat surprising given that the respondent mother was residing in Ms F’s home at the time of Trial and one might have expected the respondent mother to inform her own mother that she would be moving away.
Ms F presented as a person hostile to any form of relationship between the applicant mother and the child. She presented as a person with a strong and domineering personality who would be prepared to say anything to ensure that the relationship between the applicant mother and the child did not continue. Ms F’s view is consistent with that of the respondent mother and in my view, is likely to shape the respondent mother’s opinion as well.
Dr G (‘Dr G’)
Dr G is a Psychologist. Dr G has been in the business of preparing Family Assessment Reports since 1996. Dr G was engaged as a single expert by the parties and the Independent Children’s Lawyer.
Dr G has prepared two Family Assessment Reports for Court. Those reports are dated 25 November 2020 and 8 December 2021 respectively. The said reports were tendered attached to Affidavits and have been marked Exhibit A2 and Exhibit A3 respectively.
Family Assessment Report dated 25 November 2020 (‘the first report’)
At the time of interviews and observations for the first report the child had not seen the applicant mother for some seven weeks. Despite this, Dr G observed under the heading “Background” that “the child adapted readily to resumption of connection, during the process of the assessment, with both the applicant mother as well as the applicant grandmother”.[13]
[13] See Family Report of Dr G dated 25 November 2020 at 6.
Under the heading of “Interview with the Child”, Dr G observes the following:
[X] adapted readily to spending time alone with the assessor and remained comfortable throughout the subsequent introduction of the Applicant Mother and her mother [Ms E].
…
When asked about [Ms Hughes], [X] was initially hesitant to respond but then said ‘she was my mummy but not she’s not. She was talking angry to my mum’. When asked what she could call [Ms Hughes], [X] said ‘I can choose [Ms Hughes] or mummy’. When asked if she could remember any times when [Ms Hughes] was angry with her, [X] said ‘I don’t remember’. However, she then repeated the claim that ‘she was being mean and hit me with her hand for being naughty’. When asked when this happened [X] said ‘long time ago’. When asked how she felt about [Ms Hughes], [X] said ‘a bit cross’. However, when asked if she would like to see [Ms Hughes], [X] smiled and said ‘yea’ without reservation.[14]
[14] Ibid.
Under the heading ‘Observation of the child with the Applicant Mother and Ms Hughes’, Dr G observed that the child greeted the applicant mother and her mother warmly. Dr G further observes that:
[X] was totally relaxed and natural with me as well as with [Ms Hughes], though [Ms Hughes] was initially somewhat reserved and cautious with [X]. She appeared somewhat surprised that [X] was as relaxed as she was, but soon began to relax into the fun of the games herself. For her part, [X] gradually displayed more initiative in communication and spontaneous affection (including sitting on [Ms Hughes]’s knee), including unsolicited uses of ‘mummy’ even when I referred to ‘[Ms Hughes]’s turn’ instead of ‘mummy’s turn’. The general impression gained was that there was no substantial emotional barrier in the relationship and that they had shared a long sense of close connection. The same applied to [X]’s relationship to [Ms Hughes]’s mother, [Ms E], when she was introduced into the room.[15]
[15] Ibid 7.
Further on under this passage Dr G describes trying to bring the period of observed interaction to an end with the child being described as ‘keen for it to go longer’.[16] When Dr G did bring the observed interaction to an end he commented that the child seemed ‘genuinely disappointed’.[17] Overall, Dr G observed ‘no signs of discomfort or distress in the child throughout this whole reunion and interaction period’.[18]
[16] Ibid.
[17] Ibid.
[18] Ibid.
In the interview with the applicant mother and a follow up telephone consult on 25 November 2020 the applicant mother confirmed the chronology of her care of the child and the parties’ relationship. The applicant mother was noted as stating that she had been:
there since [X] was three weeks old and effectively we were in a relationship at six weeks. I threw myself into the role’. [Ms Hughes] then became visibly distressed and said ‘I don’t know why she is doing this’, that is trying to preclude [Ms Hughes] from [X]’s life. Later she added that it was frustrating. I miss her ([X]). I just want to see her’.[19]
[19] Ibid 8.
When asked by Dr G as to why the respondent mother had adopted a position against time spending the applicant mother is reported as stating:
‘her mum wormed her way back and is a powerful influence. She never liked me. I gave [Ms Miller] self-confidence and she started standing up to her mum. They had a toxic relationship; she steals from the children and [Ms Miller] was bullied by the step father. He was threatening. She wanted to escape her mum and didn’t want her to track her down’[20]
[20] Ibid.
Under the heading ‘Summary and Opinion’, Dr G reports as follows:
…[Ms Miller] and her mother show no willingness to acknowledge that [Ms Hughes] has any right to maintain a meaningful relationship with [X]. I agree with [Ms Miller]’s concern about the potentially harmful effects of exposing [X] to such behaviour, and thus consider this issue of potential of risk of emotional dysregulation and possible resultant violent behaviour in the presence of the child as an important consideration in this matter…however, based on the evidence presented in this assessment, I am also not convinced that [Ms Hughes]’s role in past exposure of the child to any such behaviour (acknowledged by her and her mother) is sufficient to exclude her from consideration as a parenting figure in [X]’s life.[21]
…
Given all of the above factors, it is my opinion that the child [X] has a substantial and relatively stable attachment to [Ms Hughes] that has not been significantly damaged or compromised by the history of conflict, emotional dysregulation and dispute between [Ms Miller] and [Ms Hughes]. [Ms Hughes] is intent on maintaining and consolidating this strong connection while the child shows all the signs of being open to and appreciative of this ongoing relationship with her other’ mummy’. This connection does not appear in any way to diminish or challenge [Ms Miller]’s primary emotional role in the child’s life, so in principle [Ms Hughes] needs, in my opinion, to be acknowledged as a co-parenting figure in [X]’s unfolding life.[22]
[21] Ibid 12.
[22] Ibid 12-13.
Based on the interviews with the parties and the observed interactions Dr G recommended:
1.That the Court acknowledge and consolidate the primary role of [Ms Miller] in [X]’s life while also recognising the child’s strong attachment to [Ms Hughes] as a natural parenting figure.
2.That the Court consider removing the requirement of supervision of the subsequent time spent between [Ms Hughes] and the child, but encourage the regular involvement of [Ms Hughes]’s parents, particularly in the early stages of developing and consolidating a workable ongoing regime of contact within the limits of [Ms Hughes]’s work regime and new home.
3.That the Court design, with the involvement of the parties, a gradually evolving regime of time for X to spend with [Ms Hughes], beginning with longer periods (such as a whole day on a weekend) leading, once the child is comfortable in [Ms Hughes]’s new home, to resumption of overnight stays at her place and that of the grandparents.
4.That over a period of no less than one year [X] goes through a process of gradually increasing time with [Ms Hughes] during every third week that she is available, eventually spending at least four consecutive nights including the weekend. This allows for greater involvement in the school.
5.That, should the parties not come to agreement on this general direction, the matter proceed to Trial as soon as possible.[23]
[23] Ibid 13-14.
Addendum Family Report dated 8 December 2021 (‘the addendum report’)
Dr G prepared an Addendum Family Report dated 8 December 2021 in anticipation of Trial.
In interview with Dr G and on being asked about staying with the applicant mother and where she lived, the child changed in her affect and was observed by Dr G as becoming “somewhat unsure about how to respond”.[24] The child then went on to describe the applicant mother living on “a naughty road”[25] and when asked if there were anything that made her unhappy the child at first said “don’t know”[26] but then said “if she yelled at me like “stop it” a very loud one”.[27] The child described feeling “sad, a little bit”[28] when this had happened.
[24] See Addendum Family Report of Dr G dated 8 December 2021 at 6.
[25] Ibid.
[26] Ibid
[27] Ibid.
[28] Ibid.
When asked by Dr G as to what it was like staying for a weekend with the applicant mother the child replied “I miss mum a lot”.[29] The child explained that she was worried about the applicant mother “hurting me”[30] and went on to describe an incident which had occurred “a long time ago”[31] wherein the applicant mother was alleged to have thrown the child on the bed. Interestingly, when asked by Dr G to clarify her feelings with respect to each of her homes the child was asked what she would wish to change in each house, for each of her homes the child wished that either the applicant or the respondent mother would “stop yelling”.[32]
[29] Ibid 7.
[30] Ibid.
[31] Ibid.
[32] Ibid.
An observed interaction between the applicant mother and the child occurred on 29 November 2021. The child was observed not to spontaneously greet the applicant mother when she entered the room but was also described as being “not visibly uncomfortable”.[33] They played a board game with “growing mutual comfort”[34] and the child became “visibly more relaxed after few minutes’.[35] The child then spontaneously referred to the applicant as “mummy”.[36]
[33] Ibid.
[34] Ibid.
[35] Ibid.
[36] Ibid.
When the session ended the child was observed to accept this “without fuss”[37] and said goodbye without any “overt signs of discomfort, relief or distress”.[38] However, it was observed that the child did not “spontaneously hug Ms Hughes on the way out”.[39]
[37] Ibid.
[38] Ibid.
[39] Ibid.
In interview with the applicant mother, and upon being asked as to how the child refers to her during contact periods, the applicant mother indicated that “all she calls me is mummy but she told me that at home Ms DD doesn’t like her calling me mummy but she (X) would like to”.[40]
[40] Ibid 8.
Under the heading “Summary and Opinion” Dr G observed that on re-reading his first Family Report he was:
struck by how much of that assessment remains relevant to the unfolding dynamics of this matter. The same fundamental issues are still being contested in much the same way. I concluded that it was appropriate to acknowledge the Applicant Mother, [Ms Hughes], as a significant and enduring parenting figure in [X]’s life and to embody this conviction in orders allowing for a consolidation of regular time for the child in the care of [Ms Hughes], within the limits imposed by her three weekly cycle of work. [41]
[41] Ibid 10.
After setting out the history of litigation and allegations, Dr G stated:
I wish to point out one salient feature, namely the apparent inability or unwillingness of [Ms Miller] (and apparently her mother) to consider any other potential contributor to [X]’s at times concerning presentation other than the presumed destructive role of [Ms Hughes]. For example, once the Police and DCP found no evidence of any involvement of [Ms Hughes] contributing to [X] taking indecent pictures of herself, I see no evidence of ongoing curiosity or concern by [Ms Miller] about how the child might have come to develop this sexualised behaviour at such an early age. Similarly, I can see no evidence of any recognition of what has been obvious to others (including me, DCP and the Police) namely the lack of any major trauma signs in the child when discussing her connection with [Ms Hughes]. Rather than such inconsistency initiating reflection about how the background dynamics or even the mother’s own fears or tacit expectations might contribute to the child’s presentation, [Ms Miller] and her mother seem intent on persisting with a one sided negative appraisal of [Ms Hughes], despite any evidence to the contrary. This is, in my view, a very disturbing and persisted dynamic that is not in the best interest of the child. It means that [X] is vulnerable to becoming, in a continuing way, the emotional buffer for [Ms Miller] and her mother’s concerted quest to eliminate [Ms Hughes] from any meaningful enduring relationship in [X]’s life.[42]
[42] Ibid 11.
Further on in the report, Dr G opined:
I am concerned that [Ms Miller] (and her mother) are willing to do whatever is expedient to make sure [Ms Hughes] cannot get a foothold in [X]’s life, and are also not sufficiently adept at distinguishing their own concerns and fear from those of the child. As a result, [X] may thus be prone to enduring emotional demand characteristics that encourage her to response unhelpfully to these perceived concerns (for example, by implying a negative view about time with [Ms Hughes])…in any event, the most disturbing feature remains the apparently relentless persistence of [Ms Miller] and her mother’s quest to preclude [Ms Hughes] from recognition as a significant figure in [X]’s life. This has extended to attempting to recruit [Mr EE] into the Court proceedings as someone who they believe has more “right” to be seen as a valid parenting figure than [Ms Hughes].[43]
[43] Ibid.
Dr G went on to opine:
In light of the above, I see no reason to alter the general assessment and recommendations outlined in my previous report. I believe it is appropriate for the Court to acknowledge [Ms Hughes] as a significant parenting figure who can contribute a great deal to [X]’s young life.[44]
[44] Ibid.
At the conclusion of the addendum report Dr G remained “very concerned” about the willingness and ability of the respondent mother (and her mother) to accept such an assessment that even if it is eventual Judgment of the Court. Dr G considered this to be an important issue to be explored with the mother during Trial. Dr G opined:
Is she willing and able to support [X] in a relatively seamless transition from household to household in the event that [X] ends up spending appreciable time in [Ms Hughes]’s care. Will the parties be able to communicate respectively and cooperate effectively in matters of relevant to [X]’s development and best interests?[45]
[45] Ibid 11-12.
Based on the assessment Dr G made the following recommendations:
1.That the Court continue to acknowledge and consolidate the primary role of [Ms Miller] in [X]’s life while also recognising and encouraging the child’s strong attachment to [Ms Hughes] as a natural parenting figure.
2.That the Court consider whether it is in [X]’s best interest to return to her old school and location in order to allow for a gradually evolving regime of time for [X] to spend with [Ms Hughes] when she is available from her work (up to the natural limit of 6 overnights over every third available week).
3.That on the assumption of return to Adelaide, [X] go through a process of gradually increasing time with [Ms Hughes] during every third week that she is available, eventually spending at least five and perhaps six consecutive nights. This allows for greater involvement in school life and other activities.
4.That the Court explore with [Ms Miller] her willingness and ability to cooperate fully in such a direction, as well as with [Ms Hughes] in communicating about and focus on the best interests of the child.[46]
[46] Ibid 12.
Ms Horvat submitted that the applicant mother supported the order promoted by the Independent Children’s Lawyer for the continuation of the injunction in relation to Mr D.
Ms Horvat submitted that it was appropriate to build up the respondent mother’s time with the child moving to a six night block.
Finally, Ms Horvat acknowledged that the question of parental responsibility was a “fraught question” in circumstances where the parties’ communications was conceded as being difficult.
WHO MAY APPLY FOR A PARENTING ORDER
Section 65C of the Family Law Act 1975 (Cth) (‘the Act’) provides as follows:
A parenting order in relation to a child may be applied for by
(a) either or both of the child's parents; or
(b) the child; or
(ba) a grandparent of the child; or
(c) any other person concerned with the care, welfare or development of the child.
The question of whether or not the applicant mother had standing to bring an application for a parenting order had never been raised during the currency of this litigation until Trial. It was not until final submissions that Mr McQuade on behalf of the respondent mother referred to the decision of KAM & MJR & JIG (supra). In that decision, Justice Burr of the Family Court made the following findings in relation to import of section 65C of the Act.
5.Conclusions and Findings
5.1In view of my findings on the evidence, and having considered all of the matters put to me by Counsel, I make the following findings:-
5.1.1. Any person may file an application for a parenting order.
5.1.2. A parenting order may be made in favour of a person other than a parent(Section 64C).
5.1.3.In order to proceed beyond the mere making of the application, the Applicant for a parenting order must demonstrate that they are a “person concerned with the care, welfare or development of the child”. In my view this imposes a threshold test, it being a test to be determined on the individual facts and circumstances of each case.
5.1.4.That the degree or strength of the nexus or concern with the care, welfare or development of the child is again an issue for determination in each case, depending upon the facts and circumstances of each case. For example, as mentioned earlier in my reasons, it may be appropriate for a complete stranger, say in the form of an aunt who resides overseas, to be granted a parenting order by this Court in the event of the death or incapacitation of the child’s parents. The nature and degree of her concern with the care, welfare or development of the child in that case, would be defined and determined by entirely different circumstances than those which exist in this matter. I do not find the authority to which Ms. Vanstone referred me, to be of benefit or assistance in the context of Part VII of this Act where the Court must regard the best interests of the child as the paramount consideration (Section 65E). There may well be circumstances in this Court where a mere “interest in” or “concern about” the child in question is sufficient to satisfy the threshold test. Once the threshold stage has been passed, the individual facts and circumstances of the matter again must be viewed in order to determine whether or not a parenting order is appropriate and in the best interests of the child, as would be the nature and form of any such order.
5.1.5.The specific wording of Section 65C(c) appears to require demonstration of a concern with only one of the issues of care, welfare or development.[49]
(original emphasis)
[49] KAM & MJR & JIG [1998] FamCA 1896 [5].
I am satisfied on the evidence available that the applicant mother is a person “concerned with the care, welfare or development of the child” as set out in section 65C(c) of the Act. This finding is made with regard to the applicant mother’s historical involvement in the care of the child and the familiar relationship between her and the child as evidenced in the two Family Reports. I am also cognisant that any argument as to standing was only raised at Trial and even then, was only faintly pressed.
The effect of section 65C was considered in the decision of Mankiewicz and Anor & Schwarz and Anor.[50] In that decision the majority of the Full Court held as follows:
Section 65C as it operated when his Honour determined the appellants’ lacked standing is identical to the provision as now formulated and as set out above.
The effect of s 65C is that the only people who have an unconditional right to apply for parenting orders are those identified in ss 65C(a), (b) and (ba). Applicants who only fall within s 65C(c) have the right to do no more than bring an application to attempt to establish facts which would permit them to apply for a parenting order and have no right to seek substantive relief until they do so. The point being that they can only apply for a parenting order where a court determines they are such a person and thereby grants permission. Whether or not permission should be given is a question of fact and to be determined on the basis that an applicant can demonstrate he or she is concerned with the care, welfare or development of the child. It will be a matter for the judge to decide in the individual case whether this issue is addressed as a discrete issue early in the case or at some other stage.
The Full Court considered this issue in Aldridge v Keaton(2010) 42 Fam LR 369 and described the process thus:
Senior counsel for the applicant agreed in circumstances such as the instant case, where a person is not a parent or grandparent of a child, there is a threshold question to be determined as to whether or not an applicant is a “person concerned with the care, welfare or development of a child”. However, he submitted once that threshold is crossed, the only test in respect of any applicant is whether or not a parenting order will be in the best interests of a child. For reasons we will now explain, we agree with that submission.
We agree.[51]
(my emphasis)
[50] Mankiewicz and Anor & Schwarz and Anor [2016] FamCAFC 153; (2016) FLC 93-275.
[51] Ibid [9]-[12].
There are a number of reported decisions where persons who are not biologically related to a child have been permitted to seek parenting orders.[52]
[52] See Chan & Chan & Anor [2015] FCCA 265; Musgrove & Panshin [2014] FCCA 1680; Re J & M: Residence Application (2004) 32 Fam LR 668.
I accept the evidence of the applicant mother as to her involvement with the child during the parties’ relationship and post separation. The applicant mother is a person concerned with the child’s care, welfare and development within the wording of the Act.
THE LEGISLATIVE PATHWAY
Allocation of Parental Responsibility
The applicant mother seeks an order for equal shared parental responsibility. This application is opposed by the respondent mother who seeks an order for sole parental responsibility in her own right. An order for equal shared parental responsibility is not supported by the Independent Children’s Lawyer at Trial.
Section 61DA(1) of the Act provides:
When making a parenting order in relation to a child, 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.[53]
[53] Family Law Act 1975 (Cth) s 61DA(1).
Section 61DA(2) of the Act provides:
The presumption does not apply if there are reasonable grounds to believe that a parent of the child (or a person who lives with a parent of the child) has engaged in:
(a) abuse of the child or another child who, at the time, was a member of the parent's family (or that other person's family); or
(b) family violence.[54]
[54] Ibid s 61DA(2).
Section 65D(1) of the Act provides:
In proceedings for a parenting order, the court may, subject to sections 61DA (presumption of equal shared parental responsibility when making parenting orders) and 65DAB (parenting plans) and this Division, make such parenting order as it thinks proper.[55]
[55] Ibid s 61D(1).
The Court is also directed to have regard to the objects of Part VII of the Act and the principles which underpin those objects as set out in section 60B of the Act. The paramount consideration when making parenting orders is still in the child’s best interests.[56]
[56] Ibid ss 60CA, 65AA.
Section 60C of the Act directs the Court to matters which must be considered in determining what is in each child’s best interests.
The question of the application in principles in a case involving competing applications between a “parent” (“the mother”) and a “non-parent” (“the psychological father”) was considered in the decision of Sharp & Underwood.[57] In that case, the Court considered principles that applied and referred to the decision of Donnell & Dovey[58] where the Full Court addressed the manner in which Part VII of the Act is to be applied in cases involving disputes between a biological parent and a non-biological care giver. The Court considered that the following relevant binding principles emerged:
[57] Sharp & Underwood [2014] FamCA 301.
[58] Donnell & Dovey [2010] FamCAFC 15; (2010) FLC 93-428; (2010) 42 Fam LR 558.
a.‘parent’ means a biological or adoptive parent and does not include a person who stands in loco parentis to a child– hence, the Applicant is not a ‘parent’ for the purpose of Part VII of the Act;
b.sections 60B(1) and (2) of the Act maintain a distinction between a ‘parent’ and a ‘non-parent’ as the Objects expressed in s 60B(1)(a), (c) and (d) and the Principles expressed in s 60B(2)(a), (c) and (d) specifically refer only to “parents” (or parenting);
c.there being no distinction between parents and non-parents in s 60CA of the Act, a child’s best interests remain the paramount consideration in deciding whether to make a particular parenting order regardless of ‘the biological (or other) connection of the child to the parties to the proceedings;
d.sections 64B(2) and 64C of the Act permit a parenting order, which includes an order for parental responsibility, to be made in favour of a non-parent as well as a ‘parent’ and an order can be made for a non-parent to share parental responsibility with another person;
e.in the absence of an order of the Court which allocates parental responsibility for a child or a parenting plan, only the ‘parents’ of a child have parental responsibility in relation to that child;
f.the presumption of equal shared parental responsibility prescribed by s 61DA of the Act and considerations of equal or significant and substantial time prescribed by s 65DAA of the Act are not ‘prescribed pathways in the reasoning process towards a best interests conclusion’;
g.section 65DAA of the Act has no application in circumstances where an order is made for a parent to share parental responsibility with a person who is not a parent;
h.section 60CC of the Act on its face maintains clear distinctions between a ‘parent’ and a non-parent such that:
i) section 60CC(2)(a) has no application to a person who is not a parent and any consideration of the benefit to a child of having a meaningful relationship with a non-parent is not a primary consideration;
ii) the additional consideration in s 60CC(3)(e) of the Act does not apply to proceedings between a parent and non-parent.
i.whilst the benefit to a child of the maintenance of a meaningful relationship with a non-parent can never be a ‘primary consideration’, this does not, of itself, mean that it will be of any less significance than the benefit to the child of the maintenance of a meaningful relationship with a ‘parent’;
j.where the subject matter of a consideration which refers only to a ‘parent’ is relevant to a non-parent, consideration of the same can occur pursuant to s 60CC(3)(m) of the Act.[59]
[59] Sharp & Underwood [2014] FamCA 301 at [14].
In this case I am not satisfied that it is in the child’s best interests to make an order for equal shared parental responsibility.
Based on the evidence, I find that the parties simply do not have a level of communication necessary, or trust in one another, sufficient to enable them to communicate in relation to such important matters involving the child’s medical, education or long-term needs. I accept the respondent mother’s evidence that historically she has been the person who made decisions in relation to the child’s schooling and medical needs. Whilst during the relationship I find that there were discussions regarding the child’s kindergarten or school, the final arbiter of those decisions was the respondent mother. The facts of this case do not support the applicant mother being elevated to a role where she has joint input into such matters.
This does not mean however that I consider that the applicant mother should not have some input if agreement can be reached. I therefore propose to make an order providing for the respondent mother to have sole parental responsibility but further orders directing her to advise the applicant mother, seek her input but if no agreement is reached then the ultimate decision will be made by the respondent mother as she has historically done for the child. This is the “hybrid” order as promoted by the Independent Children’s Lawyer.
Accordingly, I decline to make an order for equal shared responsibility as sought by the applicant mother.
Section 60CC ‘How a Court Determines What is in a Child’s Best Interests’
Section 60CC(1) of the Act provides:
Subject to subsection (5), in determining what is in the child's best interests, the court must consider the matters set out in subsections (2) and (3).[60]
[60] Family Law Act 1975 (Cth) s 60CC(1).
Section 60CC(2) of the Act directs the court to consider primary considerations being:
(a) the benefit to the child of having a meaningful relationship with both of the child's parents; and
(b)the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.[61]
[61] Ibid s 60CC(2).
Section 60CC(2A) of the Act directs the Court that in applying the consideration set out in subsection (2) the court is to give greater weight to the consideration set out in paragraph (2)(b).[62]
[62] Ibid s 60CC(2A).
The applicant mother is not “a parent” of the child within the definition of section 65C(a) of the Act. Rather, I have found that the applicant mother is a person concerned with the child’s care, welfare or development pursuant to section 65C(c) of the Act. Whilst the applicant mother has played a role in the child’s life to date and I find is devoted to the child’s welfare, she is not a parent.
In considering the need to protect the child from the matters set out in section 60CC(2)(b) of the Act, I am not satisfied on the evidence that this is a relevant consideration for the child. I accept the evidence of each of the parties that their relationship was marred by verbal arguments, which became loud at times. I accept the respondent mother’s evidence that she found the applicant mother’s behaviour in this regard to be frightening and was concerned about the impact on the child when exposed to mutual arguments and loud yelling exhibited by the applicant mother. This behaviour however, based on the evidence available, was a feature of the parties’ own relationship and arose in the context of their own personal interactions with one another, during the relationship. There is no evidence to suggest these verbal arguments or loud yelling by the respondent mother has continued post separation.
Furthermore, the allegations with respect to “child exploitation”, which if true, could constitute “abuse”, were investigated and dismissed by the relevant child welfare authorities and Police in this State. The respondent mother’s own evidence is that at the time the allegations were made she did not believe them to be true.
In those circumstances, I am satisfied on the evidence and find that the child will be properly cared for not exposed to abuse, neglect or family violence by either of the parties when in their respective care.
Section 60CC(3) of the Act directs the Court to consider “additional considerations”. I now propose to have regard to the additional considerations insofar as they are relevant.
(a) any views expressed by the child and any factors (such as the child’s maturity or level of understanding) that the court thinks are relevant to the weight it should give to the child’s views
The child’s views and perceptions with respect to her ongoing relationship with each of the parties are addressed briefly in the two Family Reports of Dr G (Exhibits A2 and A3 respectively).
For the first report, interviews and observed interactions took place on 26 October 2020. The child was brought to the interviews by the respondent mother and the maternal grandmother Ms F. At the time of interview, the applicant mother had not spent time with the child for a period of six weeks after time had been withheld by the respondent mother following an allegation of bruising which was said to have occurred during a period of supervised time spending at a play café.
When interviewed by Dr G about the applicant mother, the child was reported as being “initially hesitant to respond” but then said:
‘she was my mummy but now she’s not. She was talking angry to my mum. When asked what she called [Ms Hughes], [X] said ‘I can choose [Ms Hughes] or mummy’. When asked if she could remember any times when [Ms Hughes] was angry with her, [X] said ‘don’t remember’. However she then repeated the claim that ‘she was being mean and hit me with her hand for being naughty’. When asked when this happened, [X] said ‘long time ago’. When she was asked how she felt about [Ms Hughes], [X] said ‘a bit cross’. However, when asked if she would like to see [Ms Hughes], [X] smiled and said ‘yea’ without reservation. She then said that [Ms Hughes] ‘lived with us and talked about ‘Pa’ who has a walking stick’ and ‘Grammy’ with grey hair who ‘lives near the farm’. [63]
[63] See Exhibit A2 at pg 11.
Further on in this section of the report, Dr G then asked the child if she would like to meet with the applicant mother. The child is reported as “nodding affirmatively”. When asked by Dr G if there was anything she would like to change the child said “Ms Hughes not hitting my mum and me”. When asked how she would feel if it had stopped now. The child said “I’m ok to see her”.[64]
[64] Ibid.
Under the heading “Observation of the Child with the Applicant Mother and the Applicant Grandmother on 26 October 2020” Dr G informs the child that he would see if the applicant mother had arrived at his offices. The child then followed him out of the room and was observed to greet the applicant mother and her mother warmly before re-entering the Dr G’ office for a period of play. The child was observed by Dr G as being “totally relaxed and natural with me as well as with Ms Hughes” and the child was also observed to relax, including sitting on the applicant mother’s knee and using what was described as unsolicited uses of “mummy” even when Dr G referred to “Ms Hughes’s turn” instead of “mummy’s turn”. Dr G opined:
The general impression gained was that there was no substantial emotional barrier in the relationship and that they had shared a long sense of close connection.
The same applied to [X]’s relation to [Ms Hughes]’s mother, [Ms E], when she was introduced into the room.[65]
[65] Ibid 12.
When Dr G attempted to bring the observed interaction to a conclusion the child was observed as being “keen for it to go longer’ and when it was eventually closed the child was purported as seeming “genuinely disappointed”. The child then informed the applicant mother that she “would like to go to her place” and hugged the applicant mother before being led back into another room to meet the respondent mother. Dr G concluded that “overall, there were no signs of discomfort or distress in the child throughout this whole reunion and interaction period”.
For the purposes of the addendum report dated 8 December 2021 the child was interviewed by Dr G on 29 November 2021. By the time of this interview the child was 6 years and 9 months of age. At this juncture of the report Dr G reported as follows:
When asked about staying with [Ms Hughes] and where she lived, [X] changed in her affect, became somewhat unsure about how to respond, and then said ‘[Ms Hughes] lives on a naughty road. I go to her house’.
When asked what it was like, she said ‘there is a gate and a garage. It’s nice’. When asked if she had her own room [X] nodded and said it was ‘very Christmas and nice’. When asked if she liked sleeping there [X] said ‘yes’ and nodded affirmatively. When asked she did there that was fun, [X] said ‘go to the park, the beach and on trips’. When asked what were her favourite things to do with [Ms Hughes], [X] said ‘play chess and checkers’. When asked if there was anything that made her unhappy, [X] at first said ‘don’t know’ but then said ‘if she yelled at me, like stop, a very loud one’.[66]
[66] See Exhibit A3 at pg 10.
Dr G then asked the child what it was like staying for a weekend and the child was reported as stating “I miss mum a lot”.
When asked further in the body of the report if it had been getting better at the applicant mother’s the child nodded affirmatively but added somewhat incongruously, “I don’t like seeing her”.
During the period of the observed interaction the child did not spontaneously greet the applicant mother but nor was she observed to be physically uncomfortable.[67] As the session unfolded the child was reported as being “visibly more relaxed after a few minutes and spontaneously began to refer to Ms Hughes as “mummy” when indicating it was Ms Hughes’s turn in the game”.
[67] Ibid at pg 11.
The child then continued to interact with the applicant mother and gave the impression to Dr G that “she would have continued playing indefinitely if given the opportunity”. The session ended without any overt signs of discomfort, relief or distress. She also was said to have “readily acknowledged her as “mummy” and engaged in warm and positive interaction throughout”.
Based on the above, the child was not asked directly by Dr G as to her precise views regarding time spending arrangements. The Court is also concerned about the impact on the child’s presentation for the purposes of the addendum report given that by the date of interview the child had been living in the home of the maternal grandmother Ms F since February 2021. I have already made a finding that Ms F is a strong personality, has an influence over the respondent mother and is hostile to the applicant mother and any suggestion of an ongoing relationship between the applicant mother and the child.
In those circumstances I can place no weight on the child’s views, limited as the evidence is on this topic.
(b) the nature of the relationship of the child with: (i) each of the child’s parents; and (ii) other persons (including any grandparent or other relative of the child)
The child has a demonstratively close and loving relationship with the respondent mother. The quality of their relationship is not challenged.
I accept that during the parties’ relationship the applicant mother played a significant role in caring for the child with the respondent mother to the extent that she was able to due to the nature of her employment.
I am satisfied on the available evidence including the observed interactions undertaken by Dr G that the child has a close and loving relationship with the applicant mother and Ms E.
(c) the extent to which each of the child’s parents has taken, or failed to take, the opportunity: (i) to participate in making decisions about major long‑term issues in relation to the child; and (ii) to spend time with the child; and (iii) to communicate with the child
I accept the evidence of the applicant mother that even when the child was very young she sought every opportunity to communicate with the child when she was working away from Adelaide.
I find also that the applicant mother and the respondent mother both participated in caring for the child when they lived together and for a short period post final separation in February 2020 when the applicant mother spent time with the child by agreement. The applicant mother’s dedication to pursuing a relationship with the child given the difficult circumstances and allegations that have been levelled against her since she filed her Initiating Application could not be challenged.
I find that whilst there were discussions in relation to major long term issues such as the child’s schooling the ultimate arbiter of any such decision was the respondent mother. The final orders will reflect what has been the arrangement thus far.
(ca) the extent to which each of the child’s parents has fulfilled, or failed to fulfil, the parent’s obligations to maintain the child
There is no dispute on the facts that the applicant mother does not pay Child Support for the child to the respondent mother. The evidence supports a finding that the respondent mother is fully responsible for maintaining the child save and except for the periods when the child spends time with the applicant mother pursuant to court order.
(d) the likely effect of any changes in the child’s circumstances, including the likely effect on the child of any separation from: (i) either of his or her parents; or (ii) any other child, or other person (including any grandparent or other relative of the child), with whom he or she has been living
The current orders provide for the child to spend time with the applicant mother on each third weekend for the conclusion of school Friday to 7:00pm Sunday. That order has been in place since were made “not by consent but not opposed” on 21 September 2021. The orders that I propose making will not substantially affect the child’s circumstances as they relate to the pattern of time spending. I find that it is in the child’s best interests that there be a modest increase in this time on a gradual basis. Otherwise, there will be no change to the child’s circumstances in relation to her housing or school given that the respondent mother has now returned to reside in the Adelaide metropolitan area and has enrolled the child at the S School.
(e) the practical difficulty and expense of a child spending time with and communicating with a parent and whether that difficulty or expense will substantially affect the child’s right to maintain personal relations and direct contact with both parents on a regular basis
Not relevant
(f) the capacity of (i) each of the child’s parents; and (ii) any other person (including any grandparent or other relative of the child) to provide for the needs of the child, including emotional and intellectual needs
Each of the parties are able to provide for the child’s day to day needs whilst the child is in their respective care. There is apparent limited capacity on behalf of the respondent mother to support the child’s emotional needs or connection with the applicant mother. I do not accept the respondent mother’s evidence that her inability to support the relationship is due to her “lived experience of family violence”. Rather, I find that the respondent mother underestimated the applicant mother’s desire to be involved in the child’s life. The applicant mother’s presence is an inconvenience to the respondent mother, who is otherwise used to entering and leaving personal relationships without consequence.
The respondent mother’s case at Trial is to eliminate the applicant mother from the child’s life. I find that the respondent mother has placed barriers in terms of the child’s ongoing relationship with the applicant mother including the allegation of bruising which resulted in a cessation of time for a period of six weeks in 2020, the unilateral relocation to R Town, the alleged concerns in relation to time spending occurring with the applicant mother during the COVID-19 pandemic and the allegation of child exploitation, which saw a cessation of time for many months.
Mr McQuade argued that the impact on the respondent mother if time orders are made needs to be considered. However, no evidence was called on this topic and the Court cannot simply assume that because orders are made contrary to one party’s stated position that they will therefore be unable to cope.
The respondent mother stressed on several occasions during her oral evidence that she will comply with orders of the Court in relation to time spending. It was the respondent mother’s evidence that she has always complied with orders of the Court and that she would continue to do so. There has been no further difficulties with respect time spending since orders were made on 21 September 2021 and in light of the respondent mother’s assurance to the Court that she will comply with the orders. I am satisfied any orders made by the Court will not compromise the respondent mother or the child ‘s emotional and psychological needs.
(g) the maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the child and of either of the child’s parents, and any other characteristics of the child that the court thinks are relevant
Not relevant
(h) if the child is an Aboriginal child or a Torres Strait Islander child
Not relevant
(i) the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child’s parents
I find that each of the parties have exhibited a positive attitude to the child. The responsibilities of parenthood have been largely discharged by the respondent mother. This is not to undermine the applicant’s aspirations to share in that role. However, historically it has been the respondent mother who has discharged the responsibilities of parenthood involving selecting her school.
(j) any family violence involving the child or a member of the child’s family
For the purposes of the Act, family violence is defined in section 4AB(1) of the Act as meaning:
violent, threatening or other behaviour by a person that coerces or controls a member of the person’s family (the family member) or causes the family member to be fearful.[68]
[68] Family Law Act 1975 (Cth) s 4AB(1).
Section 4AB(2) of the Act then goes on to set out examples of behaviour that my constitute examples of behaviour that may constitute family violence.
Section 4AB(3) of the Act 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 effect of family violence.[69]
[69] Ibid s 4AB(3).
The applicant mother in this case made appropriate concessions in relation to her behaviour during the course of the relationship which would fall within the definition of “family violence” as provided for in the Act. This family violence took the form of loud and aggressive yelling. The behaviour took place in the presence of the child and was directed towards the respondent mother. Ms Hughes gave evidence that the respondent mother had confided in her of a concern about the applicant mother’s yelling the presence of and the impact upon the child.
The applicant mother however has sought appropriate treatment with Ms Y at Z Service. I accept the submission of Mr McQuade on behalf of the respondent mother that the approach for treatment was made late. Regardless, it has now happened and Ms Hughes who I accept as a witness of truth gave evidence that her daughter now has significant insight into her behaviour and the impact on others and has sought to implement other strategies.
I also accept the evidence of the applicant mother that she has now developed strategies to deal with the previous behaviour which resulted in aggressive outbursts.
I find on the evidence available that the family violence in the form of yelling between the parties was “situational” and is unlikely to feature as an issue in the parties’ care of the child post Trial.
(k) if a family violence order applies, or has applied, to the child or a member of the child’s family
The respondent mother obtained an interim Intervention Order against the applicant mother on 28 September 2020. The respondent mother is named as the only Protected Person on the interim Intervention Order. The said Intervention Order is said to prevent contact or communication either directly or indirectly between the parties, save and except pursuant to an order of a Court exercising jurisdiction under the Act.
At the date of Trial, the interim Intervention Order was being contested by the applicant mother and was listed for Trial. Even if the interim Intervention Order is subsequently confirmed on a final basis I am satisfied that given that the Intervention Order is subject to an order of this Court it does not prevent me from making the orders I propose making as part of final orders in this case.
(l) whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to the child
Mr McQuade argues that there should be no orders for time. One of the bases for this is said to be the strident opposition of the respondent mother and her family to ongoing time spending. Mr McQuade put to Dr G that ongoing orders would place the child at the centre of an ongoing conflict between the parties. Dr G considered that it was more important to focus on positive attitudes to move the matter forward rather than proceeding on the basis of time spending being undermined as a foregone conclusion. I accept the evidence of Dr G in this regard.
However, the Court is cognisant of the strongly held views of Ms F and the respondent mother to any time spending arrangements. It appeared evident by the time the child was interviewed for the addendum report that she was observed as being more reserved with the applicant mother. There may have been a number of reasons for this, including but not limited to the fact that the child had been living in the home of the maternal grandparents for a period of nearly nine months at the time of interview.
The hostile environment in the respondent mother’s home should not be a contra-indicator to a relationship of any sort between the child and the applicant mother. Rather, in my view it impacts on the actual length of time spending orders to be made on a final basis.
Given the mother’s evidence that she has and will continue to comply with orders of the Court, I will proceed to make orders for time spending as pronounced at the start of this Judgment.
(m) any other fact or circumstance that the court thinks is relevant
Not applicable.
CONCLUSION
For the reasons set out herein, I propose to make the order for parental responsibility as promoted by the Independent Children’s Lawyer.
The child continuing to live with the respondent mother is not in dispute.
I propose to make orders for the current overnight time spending regime which commenced in October 2021 to continue until the start of Term 2, 2022. Thereafter, overnight time will increase gradually as recommended by Dr G to an end point of four consecutive nights in each third week coinciding with the applicant mother’s work roster. I am not persuaded on the evidence that any longer periods are in the child’s best interests unless the respondent mother consents to same. Four nights is enough for the child to maintain a relationship with and enjoy the company of the applicant mother. It is a period of time which does not challenge the respondent mother’s primary role and it results in less communication between required between the parties.
I am satisfied that it is in the child’s best interests to enjoy and share special occasions with each of the parties as sought by the applicant mother.
I propose that in the event the applicant mother is on annual leave during school holidays, then the term time arrangements applicable at that point in time are to apply. The parties are able to agree other arrangements or longer periods if they are able to.
The handover location reflects the current orders. If not at school, then handover will continue to occur at the Suburb C McDonald’s, which is close to the parties’ respective homes.
The orders for communication between the parties will continue in the previous manner adopted by the parties. It provides a record of such communications as well.
The mutual injunctive orders are in the child’s best interests and supported by Ms Olsson on behalf of the Independent Children’s Lawyer.
I decline to make mandatory injunctions against the respondent mother in relation to her place of residence and the child’s school, given that I have considered it appropriate to make an order for sole parental responsibility in her favour. Section 61B of the Act confers all of the powers, responsibilities and authority which by law parents have in relation to children to the respondent mother. However, I find that it is in the child’s best interests for both of the parties to advise the other in the event that they intend to move from their current homes, given what occurred in February 2021 when the mother unilaterally relocated with the child to R Town. This will give sufficient time to bring an urgent application before the Court if the change of address is opposed by the other party.
For all of the above reasons, I make the orders as set out at the commencement of this Judgment.
I certify that the preceding two hundred and forty-six (246) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Dickson. Associate:
Dated: 4 March 2022
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