Ison and Ison

FAMILY COURT OF AUSTRALIA

ISON & ISON

[2009] FamCA 771

FAMILY LAW- CHILDREN – With whom a child lives – Relocation – With whom a child spends time - With whom a child communicates - Best interests of a child
FAMILY LAW- CHILDREN – family violence
FAMILY LAW- CHILD ABUSE – Claim by father against primary care giver mother of sexual abuse – Finding that sexual abuse claim unfounded
FAMILY LAW- CHILDREN – Parental responsibility – Domestic violence - Presumption of equal shared parental responsibility held not to apply

Family Law Act 1975 (Cth) sS 60 (B), 60(C)(A), 60(CC), 61 (D)(A), 61 (D)(AA)

APPLICANT:

Ms Ison

RESPONDENT:

Mr Ison

INDEPENDENT CHILDREN’S LAWYER:

Ms Hafey

FILE NUMBER:

PAF

1333

2006

DATE DELIVERED:

13 March 2009

PLACE DELIVERED:

Parramatta

PLACE HEARD:

Parramatta

JUDGMENT OF:

COLLIER J

HEARING DATE:

2 - 4 March 2009
13 March 2009

REPRESENTATION

COUNSEL FOR THE APPLICANT:

MR SCHRODER

SOLICITOR FOR THE APPLICANT:

MARK BROWN & ASSOCIATES

COUNSEL FOR THE RESPONDENT:

IN PERSON

SOLICITOR FOR THE RESPONDENT:

N/A

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER:

MS HAFEY

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER:

LEGAL AID NSW

Orders

That all previous parenting orders in relation to the child …, born … February 2004 (“the child”), be and hereby discharged.
That the mother Ms Ison shall have sole parental responsibility provided that:
a) The Mother notifies the Father, Mr Ison born … 1980, in writing of any school that the child attends and takes all reasonable steps to ensure that the Father is able to receive copies of all school reports, school newsletters and applications for school photographs and does not take any step to prevent the Father from attending any school event to which all parents are invited.
b) The Mother notifies the Father in writing of any significant illness or injuring affecting the child, such illness or injury preventing the child from attending school for more than 5 days and the Mother shall take all reasonable steps to provide any treating medical practitioner with any authority necessary to enable the Father to obtain copies of medical reports and/or to discuss the child’s diagnosis, treatment and prognosis with her treating medical practitioner.
That the said child shall live with the mother.
That the mother shall be permitted to relocate to Queensland provided such relocation shall not occur before 15 January 2010.
Confirmed, for the purpose of clarification, that after 15 January 2010 there is a period which enables the mother to have the child settled in to the new arrangements and during that period, the father may not spend time with the child however the father shall continue to communicate by telephone with the child during this period.
That the mother and father shall keep each other informed of current telephone contact numbers and residential addresses to be used for the purpose of telephone calls as hereinafter provided and in the case of an emergency.
That the mother and father are each restrained from denigrating the other party or members of the other party’s family in the presence or hearing of the child or allowing, causing or permitting any other person to do so.
That pending further order, the child shall spend time with the father as follows:
a) Each alternate Saturday from 9.30 am until 5.30 pm commencing the first Saturday after the date of these Orders
i)For the purpose of this Order, the Father shall take all reasonable steps to ensure that the Paternal Grandmother collects the child from the Mother’s residence at the commencement of the Father’s time and returns the child to the Mother’s residence at the conclusion of the Father’s time unless the Mother and the Paternal Grandmother agree to alternative arrangements.
ii)For the purpose of this Order, the Father shall spend time with the child in the presence of the Paternal Grandmother.
b) Each alternate Sunday from 9.30 am until 5.30 pm commencing the second Sunday after the date of these Orders
i)For the purpose of this Order, the Father shall take all reasonable steps to ensure that the Paternal Grandmother collects the child from the Mother’s residence at the commencement of the Father’s time and returns the child to the Mother’s residence at the conclusion of the Father’s time unless the Mother and the Paternal Grandmother agree to alternative arrangements.
ii)For the purpose of this Order, the Father shall spend time with the child in the presence of the Paternal Grandmother.
The Father may nominate alternate supervisors to the Mother by providing the following details in writing to the Mother:-
a)      Name;
b)      Occupation;
c)      Contact details;
d)      Relationship with child;
e)      Availability; and the Mother shall thereafter take all reasonable steps to make herself known to the proposed supervisor and provide the Father with a written response to his nomination within 3 days of receipt of his nomination and the Mother shall not unreasonably withhold her agreement to alternate supervisors.
That in the event the paternal grandmother is not available to supervise the father’s time with the child, the father shall not spend time with the child unless an alternate supervisor is in place as provided for in order 9 herein.
That the father shall communicate with the child by telephone each Wednesday between 7pm and 7.30pm. For that purpose the father is to call the child at the number provided to him and the mother, or those having the care of the child at that time, shall ensure the child is available on every occasion at that time to receive that call.
That the issues of the time the child spends with the father be stood over to be re-listed by either party or the Independent Children’s Lawyer not before 1 March 2010.
That liberty be granted to either party or the Independent Children’s Lawyer to restore the matter to the list upon giving seven days notice.
That leave be granted to the Independent Children’s Lawyer to make an oral application for costs.
That the Independent Children’s Lawyer’s application for costs be and is hereby dismissed.
That all outstanding applications and cross applications be and are hereby dismissed.
That all issues be removed from the pending cases list.
That all material produced on subpoena be returned not before fifty-six days from this date.

IT IS NOTED that publication of this judgment under the pseudonym Ison v Ison is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth)

FAMILY COURT OF AUSTRALIA AT PARRAMATTA

FILE NUMBER: PAF 1333 of 2005

MS ISON

Applicant

And

MR ISON

Respondent

REASONS FOR JUDGMENT

INTRODUCTION

This matter concerns the future of the parties' only child, a daughter, who is 5 years of age. The child presently lives with the mother and her parents, the child's grandparents. She spends time with her father each Saturday from 9.30 go 5 pm, supervised by the child's grandmother. The mother wishes to move to Queensland with the child but not until at least the end of the current school year. In her minute of order handed to me at the commencement of submissions it is made clear that the orders proposed by her are that she would have sole parental responsibility for the health and education issues of her child and that the father have no face to face time with his daughter. The mother rather suggests that the father communicate by means of cards, gifts and letters and limited telephone time.
The father's position as I understand it is that he have each alternate weekend with his daughter from after school Friday to before school Monday. As I understand it he does not seek that he have the child live with him even in the event of the mother relocating to Queensland. Rather, he is concentrating on and concerned to obtain what he sees to be proper time with his child in an unsupervised situation. In the course of submissions the father then seemed to change his position slightly to acknowledge that perhaps things needed to be done so that he was in a position to proceed further with his application to spend time with his daughter.
The independent children's lawyer has presented to me a detailed and most helpful minute of order that deals with what is to occur in virtually every conceivable situation in accordance with the parties' own applications. The minute makes provision for the mother to relocate and then makes provision for time by the father with the child both in New South Wales and in Queensland if she leaves New South Wales and further taking into account whether the father might move to Queensland in due course. There are also further orders to which I will endeavour to make reference later in these reasons concerning, for example, telephone time, transport and non denigration.
It seems to me therefore that the issues are these. With whom the child is to live and as I say there appears to be really no dispute as to this. It seems that subject to considering the matters that I must consider in accordance with the Act it is highly likely that an order will be made that the child live with her mother. The next issue that I identify is whether the mother be permitted to relocate to Queensland with the child and if so whether any restriction be placed upon the time at which that is allowed to occur. Next, the time that the father is to have with the child in any event, that is (a) if the child remains in New South Wales by virtue of any order I make or (b) if the child relocates to Queensland in accordance with any order I make and (c) the situation if the father changes the factual basis by himself moving to Queensland. These issues are of course closely inter-related.
A further issue that was raised during the course of the hearing and one that appears to me to be of more significance is whether the orders that I make can be wholly final, wholly interlocutory or interim or partly final and partly interim. I will return to that aspect later in these reasons of the judgment.

BACKGROUND

A brief background to this matter is as follows. There was not a great deal of factual dispute about the sequence of events although there was significant dispute as to what actually happened on several occasions. Accordingly, it seems to me that I can make these findings;-
·    The mother was born in 1983.
·    The father in 1980.
·    The parties married in September 2003 and the child was born in February 2004.
·    The parties separated in November 2004.
·    It appears that shortly thereafter orders were made in the Local Court providing for the child to live with her mother and for the father to spend time with the child each Sunday supervised by his mother.
·    On 21 October 2005 further orders were made in the Local Court for the child to spend time with the father each Saturday with changeover to take place with the assistance of the paternal grandmother.
·    On 20 February 2006, orders were made at the Federal Magistrates Court Parramatta for changeover at police stations. On 6 June 2006 further orders were made by a federal magistrate at Parramatta in relation to notice concerning travel and commencing the use of a communication book.
·    On 23 August 2006 the father was hospitalised at Y Hospital Mental Health Unit and remained in that hospital until 30 August 2006.
·    On 17 September 2006 there was an incident at Y Police Station, in the course of which the husband apparently swallowed body piercings and was taken to hospital and treated at Y Hospital.
·    On 27 September 2006 the father consented, as I understand it, to an apprehended violence order for one year. At the same time the father apparently pleaded guilty to a breach of an interim apprehended violence order and a charge of intimating a police officer.
·    On 25 October 2006 the father was given a community service order and a two year reconnaissance in relation to those previously mentioned matters.
·    On 11 July 2007 a further AVO was made against the father for the protection of the mother for a period of two years.
·    On 12 July 2007 orders were made concerning the father spending time with the child, dependent upon the outcome of his sentencing hearing and the possibility that he would be sentenced to a period of time to be served by way of home detention.
·    On 17 October 2007, the father was sentenced to a custodial term of four months. During that time it is the mother's case which does not seem to be contradicted that the child spent time with her grandmother whilst the father was incarcerated. At no time, as I understand it, was the child taken to see her father during that period. The father was released at the completion of his sentence on 16 February 2008.
·    On 29 September 2008, the paternal grandmother travelled overseas and during her absence the father did not spend time with the child.

the parties applications

The matter was commenced by the mother who in the hearing before me relied upon her amended application of 17 October 2006 and as I have said provided to me a minute of the orders she sought at the conclusion of the evidence. The father's initiating document was his amended response of 1 October 2006 in which he clearly asserted his position in respect of alternate weekend time.

The Affidavit material of the parties, and reports

The affidavit material of the parties was as follows. The wife in the hearing before me relied upon her affidavit of 12 October 2006 filed 27 October, her affidavit sworn 22 January and filed 22 January 2009 and the affidavit of her mother sworn the 22nd, filed 27 January.
The father for his part relief on an affidavit of 1 June 2006 and an affidavit of his mother which was filed on 12 July 2007. In the husband's case I permitted him to tender statements by himself and the paternal grandmother which became exhibits 2 and 3 before me. The husband and his mother verified the contents of those documents when they commenced their oral evidence.
In addition, there was before me the report of Associate Professor Q of 23 October 2007 who I will undoubtedly refer to as Dr Q later in these reasons even though I try to avoid it.

The hearing before me

In the hearing before me I heard evidence from the wife, her mother, the husband, Associate Professor Q and the paternal grandmother. It is obviously from that listing that Professor Q was interposed. I do not propose to set out the evidence of the parties in full. Each of them was cross-examined at some length. It is important however that I record my impression of the parties.
The wife gave her evidence carefully and in a thoughtful manner. She indicated that her daughter was a delightful child and she expressed her concern for the welfare of her daughter. It emerges that the mother has little or no time for the father and does not appear to repose any trust in him. She is of the view that there would be a minimal disruption to the life of their child if the husband is in fact eliminated from the life of his daughter.
The wife’s mother gave evidence which was supportive of her daughter. It is clear and I accept that the wife’s mother and her partner propose to move to Queensland. It is clear from the evidence I heard from both the wife and her mother that they have a situation where they job share as shop assistants and when one is working the other is available to care for the child.
The evidence of the husband has caused me considerable concern. In the report of Dr Q which I will return to shortly she makes observations concerning the husband externalising and not accepting responsibility. Much of what the husband said before me was such that it reinforced that view of Dr Q. The husband to my mind has not yet been able to accept his own shortcomings and is not prepared to accept responsibility for his actions that may have caused alarm to the wife and members of her family. It seems to me that he is always able to find somebody else at fault in relation to episodes of concern. I will briefly identify matters of concern that I believe need be dealt with.
The father was very critical of the mother because he observed bruises on the child. He asserts that the mother must have in some way ill treated or mis- treated the child for these bruises to appear. The father was, he says, so concerned that he sought to find out from the child's pre school what had happened and to this end he sough to make inquiries. He denies that there was any difficulty at the pre school, saying he merely entered the pre school to speak with people and in fact did so, on the first occasion being told he needed to put in a written application, which he says he did, and he returned to the pre school he says on a second occasion when he had not received a response. He is in total denial that anything he did or said would have caused any alarm to any member of the staff in that pre school.
Another matter which caused the husband some concern and in respect of which he has made quite serious allegations concerning the mother, is that the child sustained a cut or scratch on her labia. The wife says that this occurred in the bath when the child may have caught her toenail in her genitals. The husband seems to completely ignore this possible explanation, saying that the wife herself, as a teenager, had cut herself and this indicated that she had a predisposition to injure others in this fashion. He also asserted that the cut or scratch that he saw may well be an indicator of sexual abuse at the hands of someone, and I presume he means the mother.
I am unable to make a finding of precisely what occurred, but I am equally satisfied that this is not a case where I am in a position to make any finding that the injury to the child, and clearly there was an injury, was sustained in any improper or sexual way. Rather, on balance on the material I have heard I would say that I am satisfied that the injury was in some way self inflicted and certainly in no way indicative of any act or action by any other person towards the child.
So far as the father's situation is concerned there are a number of matters to which I would turn in no particular chronological order. One of the difficulties in this case is that the father's mother is transporting the child at the commencement of the time the father is to spend with the child on Saturday mornings. One of the reasons for this is that the father works, he says, for half of all Saturdays. His mother says he works three out of four Saturdays. A further matter of concern is that the husband has no current driver’s licence. His evidence was that he was in a position to regain his licence in approximately March 2008 at the expiration of a period of disqualification. He has chosen not to do so, and he has not offered any satisfactory explanation for this decision.
His driving record appears to contain two fairly significant episodes involving speed. In 1998 he was pursued and stopped having travelled at quite high speeds through the north western suburbs of Sydney in a manner that demanded intervention by the police. In 2006 he exceeded the speed limit by 40 kilometres. He says and I accept there was no pursuit on that occasion. He was observed and he was stopped.
A matter that causes me further concern as to his driving is that in 2008 he was dealt with for mid range prescribed concentration of alcohol. He says that he had simply gone down to the pub looking for someone, he drank and was silly enough to drive home. Clearly his manner of driving on that occasion brought him under attention. He was submitted first to a roadside alcotest and subsequently a breath analysis which produced a reading well within the mid range.
I am concerned about his admission to hospital. He makes it very clear that the notation that he was taken into the Y Mental Hospital Unit as an involuntary patient was only a matter of recording and perhaps procedure so far as the hospital was concerned. He indicated that this is what he wanted to do but for some reason it was required that he go in as an involuntary patient. He make the point strongly that he was subsequently re-classified and that he was allowed to leave hospital, as I have already said on the 30th.

During the course of his submissions to me he made mention of the fact that there was within the hospital records an indication that the hospital was satisfied that he could leave the hospital for the purpose of spending time with his daughter in accordance with orders then in force. On examining the material that the husband relied upon in this regard there was no mention of him spending time with the child as a reason for him being released. Of further interest, and I have raised this with the husband, is in the notes that he referred to me there was an allegation by him that the wife may suffer mental health problems.
I am not able to be sure as to what happened at the police station when he was subsequently arrested and ingested piercings from his own body. The episode occurred within a very short time of his release from hospital. He was released on 30 August and on 17 September he says that he was arrested outside the police station by police who acted improperly and brutally towards him. He said that all he was trying to do was have police stop hurting him and allow him to enter the police station of his own free will. He said that this was denied him, there was a struggle, there was a fall. He was placed in a cell and he was frightened and worried and the only manner in which he could think of doing something was firstly by hitting his head against railings to provide a medical condition which would require him to be removed from the cells and the station and taken to hospital. Apparently when that plan did not succeed he then ingested the items of metal from his own body being a nipple ring and an eyebrow ring. That episode coming so soon after his release, at a time when he says he had done very well in hospital and they were very pleased with his performance causes me concern.
Another matter of concern to me, which is not explained to my satisfaction by the husband is the phone call that he made to the wife in which he stated that he had hit a telegraph pole in his vehicle. He immediately proceeded to ask had the child had any medication in the last 24 or 48 hours. He says that the statement that he had hit a telegraph pole was made to ensure that he caught people's attention. There is not doubt that this happened. I am satisfied the mother endeavoured to return his call and for whatever reason the husband did not answer the wife’s call to him. Thereafter the mother, understandably, contacted the police on the basis of her belief that the husband and her daughter had been involved in a car accident. The mother formed the view, in my view completely reasonably, that the inquiry about medication indicated that the child may need medical treatment as a result of her involvement in the accident.
The police became involved and they instigated inquiries and commenced a search to see if the car could be located. Thus the husband’s actions caused police to react and to place a demand upon police resources.
The husband as I understand it seems to assert that there had been no domestic violence in the marriage or involving the child. He appears to assert that the only episode that occurred was a result of him observing marks on his daughter and remonstrating with the mother. However, it is clear that the husband was dealt with for four breaches of apprehended domestic violence orders and was sentenced to four months in respect of each of those matters such sentences to be served concurrently with each of the other sentences. There seems to have been some earlier suggestion that the husband might have been dealt with by way of home detention but clearly the sentencing magistrate did not consider that appropriate. I must accept that there has been physical violence at an extensive level in this relationship and the significance of that will become apparent shortly.
I am concerned with the husband's evidence about his present relationship. He tells me that he is in a relationship, which is a committed relationship, with a lady with whom he does not live. He spends a number of nights with her each week. I do not propose to embark upon the rights and wrongs of the benefit system in Australia other than to say I am caused real suspicion as to why this relationship follows its present form. I am concerned that I have not seen this lady, nor had any opportunity to assess her in any fashion, as a person who might be significantly involved in the life of the child if the relationship continues and if the father were to obtain the time with the child that he seeks.
There is then as a matter of real concern the husband's psychiatric health and well being. He was examined by Dr Q some little time ago. The doctor made a clear diagnosis of him as appearing at page 36 of her report. She says in the second last paragraph on that page that he has significant mental health problems, only a year ago was an involuntary patient. I do not perhaps read as much into that having regard to the father's evidence as to how that came about as I have endeavoured to set out, as might otherwise be the case. Doctor observed him remaining extremely querulous and irritable. Doctor says that what she observed possibly reflects an underlying depression. He claimed not to be depressed but the doctor says he clearly gave the impression that he was. She found he had a significant personality disturbance, an enduring pattern of maladaptive behaviour and marked affect disregulation impulsivity, aggressive outbursts, somewhat paranoid ideation and turbulent interpersonal relationships constituting a borderline personality disorder.
Doctor went onto say this:
"Of considerable concern is his difficulty in accepting responsibility for problems and his consistent externalisation which means that he has limited capacity for insight or working towards personal change."
I must say that in the evidence he gave and even during his submissions the husband demonstrated to me that he has real difficulty in accepting that his behaviour or his actions maybe the cause of concern to others indicating that it is always, in effect, someone else's fault.
Doctor went onto say at page 38 that there were certain things that the father needed to undertake before she would recommend a review of the current situation. Doctor indicated he needed counselling for alcohol use, a program of parenting after separation and particularly some form of psychotherapy or counselling aimed at dealing with his personality issues. Doctor adds the caveat that this form of therapy is not easy to access and would have to be participated in for a period of 12 months at least. Doctor has also indicated that medication by way of antidepressants should be considered and reviewed by a psychiatrist.
The father in his submissions to me says that even if those things were correct, which he does not fully accept, that he is certainly now in a situation where those things no longer apply to him or if they do apply to him are such that they are of minor significance. Regrettably, having regard to the diagnosis made by Dr Q, which I accept as accurate the very last person to make any informed decision concerning his mental health state is the father himself. It does seem to me that as the matter progressed, and by the time of submissions, he had begun to appreciate that perhaps there was some necessity for attention to the matters that Doctor set out. He initially asked for an adjournment for two months which as indicated I refused. He then indicated that he was prepared to undertake all or any of the matters that doctor recommended in relation to his situation.
It seems to me that I must accept at the moment that the father has the problems that have been attributed to him by Dr Q in her very careful report. Unless and until evidence by a properly qualified person is put before me, and this evidence may be readily obtainable, that the father no longer suffers from the matters that doctor identified, I find that his position is such that I must have real concerns about his capacity to spend time with his daughter in any unsupervised situation and notwithstanding the submissions of the Independent Children's Lawyer, in an overnight situation.
Both of the parties' mothers were endeavouring to assist their children. The paternal grandmother’s situation however went a little beyond that. She has been cast in the role of supervisor. She clearly adores her granddaughter. One of the difficulties for her as supervisor is that there must be some change or affect on the relationship that she would otherwise have with her grandchild as a grandmother, if she is placed in the role of supervisor. I am satisfied that she has fulfilled this role for an extended period of time, certainly a period of time that she did not think would be necessary. She has at all times acted entirely appropriately in the discharge of that role. I am satisfied there have been occasions where the father has chosen to criticise her and to speak to her in a tone of voice that has caused concern. Notwithstanding that, as I say, she has indeed discharged her responsibilities as supervisor in a very credible way.
Further matter of concern is that the father believes that the mother should remain in Sydney and that there should be no real consideration given to a possible move by him. I will return to that issue later in these reasons for judgment.

THE LAW TO BE APPLIED

Having performed that review of the evidence I am now required to turn to the provisions of the Act that affect applications such as this. The first of the sections with which I am concerned is section 60B which sets out both the objects of the Act and the principals underlying it. Of course it is made clear in s.60B that the objects of the Act are:
"To ensure that the best interests of children are met by ensuring children have the benefit of both parents having a meaningful involvement in their lives to the maximum extent consistent with the best interests of the child and protecting children from physical or psychological harm, from being exposed to abuse, neglect or family violence. Ensuring children have adequate and proper parenting and ensuring parents fulfil their duties."
Thus it is clear that a balancing exercise is created, the benefit of the meaningful relationship balanced against the need to protect the child.
I move on from that to the principles underlying the object and they may be recited briefly as children having a right to know and be cared for by both parents, children having a right to spend time on a regular basis with and communicate with both parents and other significant persons, parents should jointly share the duties and responsibilities concerning care, parents should agree on future parenting.
The next of the matters to which I must have reference is section 60CA which simply tells me in deciding whether to make a particular parenting order I must regard the interests of the child as the paramount consideration.
Section 60CC(2) sets out the primary considerations. They are in very similar terms to section 60B, the benefit to the child of having a meaningful relationship and the need to protect the child from harm. Clearly, once again a balancing exercise is imposed. That might which otherwise normally be considered meaningful and appropriate in circumstances of a particular case may well have to give way to the need to protect the child and of course it is in this case that the mother says that there is an unacceptable risk that the child will be harmed in the father's care.
I am assisted by the additional considerations set out in section 60CC(3). Firstly any views expressed by the child (60CC(3)(a)). The child clearly demonstrated when observed by doctor with her mother and her maternal grandmother that she has a close and loving relationship with those persons. However, it is recorded that she was much more cautious in the context of her father and his mother. She was quite vigilant and took some time to relax. I accept that with the passage of time there may have been some lessening of that effect but on the evidence I have heard I do not accept that it has been completely ameliorated.
The child has not as I understand it expressed any wish in any situation that might be taken into account here. I am satisfied that she has said on occasions that she wants to see her father.
The relationship of the child with each parent (60CC(3)(b)). The relationship of the child with each parent provides a contrast. The child has lived with her mother all her life and she has I am satisfied as Dr Q refers to at page 34, a secure attachment to her mother and to the maternal grandmother and a rather insecure attachment to her father. I am satisfied that her relationship with her mother and within her mother's immediate family is one that gives her comfort and nurture. I am satisfied that Doctor is correct when she indicates that she will be traumatised by separation from her mother other than for brief periods of contact. Clearly, Doctor also had in mind that time with the father should proceed slowly.
I am satisfied that the child has a relationship with her father which whilst in no way equalling or equating or even approximating the relationship the child has with her mother, is a relationship that is capable of being built upon and expanded for the benefit of the child if the father can appreciate that the child's needs in this respect are not identical with his needs. He must appreciate that what he wants is not simply by virtue of the fact that he wants it that which is best for the child.
The willingness and ability of each of the child's parents to facilitate a relationship with the other parent (60CC(3)(c)). The wife who has had the child with her has not done anything that I would consider to be an encouragement to the relationship between father and daughter. I am concerned however that he has on a number of occasions (highlighted by the hospital report to which I have referred) asserted that the mother suffers from a mental problem. He also says he believes the mother has abused the child. This I suspect may in future affect his ability to allow the child to have a relationship with the mother to the fullest extent possibility. Under that subsection neither party receives any credit.
The likely affect of change (60CC(3)(d)). In this case there are a number of changes contemplated. The first and most significant of those by way of change is the mother's application that she live in Queensland as and from December 2009 or January 2010 or thereabouts. This of course would mean the child would lose the contact which she has with the extended members of the father's family and that the time the father himself could spend with his daughter would be limited simply by what might be described as the tyranny of distance and expense, and finally that she would lose contact with the close and immediate group of friends that she has formed through her pre school and early school years.
The father says, as I understand it, that that is sufficient to ensure that mother should not be permitted to remove the child. I am satisfied that if the child were to move that in the short term there may be some distress, however the move would be with her mother, the person with whom she has clearly the closest relationship and bond and with whom she is secure.
The husband says that if the wife remains in New South Wales the time he is to spend with his daughter should immediately increase and supervision should cease. That is of itself a significant change.
There would be no doubt that if the child moved to Queensland the time with her father must be limited. There would be no doubt if she stayed in Sydney, and I acceded to the order that the husband proposes, that the child would spend time away from her mother that may well be in excess of the time that is considered to be appropriate and proper by Dr Q. Either of those proposals would involve matters which I am satisfied would initially cause the child some distress.
However, I am of the view that distress caused by a change to Queensland would be something that the wife would deal with appropriately, and would assist and enable the child to work through. I am not satisfied that if the father obtained that which he seeks that the child would adjust successfully to such a change.
The practical difficulty and expense of spending time (60CC(3)(e)) if the mother were to move then of course the time the father would spend with the child is as I have said dictated by distance and expense. I will return to that later.
The capacity of each of the child's parents (60CC(3)(f)) and I would couple that with the attitude to the child (60CC(3)(i)), would seem to me to fall this way. The wife save and accept in her determination that the child should not know her father at all as part of her life has a proven capacity to care for the needs of the child, at both a day to day level and an emotional and intellectual level. Her attitude to the child to my mind is proper. She has an appropriate attitude to the responsibilities of parenthood save and accept the blind spot she has to the needs for the husband to be involved in this child's life. She has clearly demonstrated her capacity to provide care for this child on a day to day and extended basis.
The father perhaps is entitled to say I have never been given the opportunity to do any of these things and I assure you that if I was given that opportunity I would discharge these matters more than adequately. I am satisfied however that the father's capacity to focus on the needs of the child is affected by the shortcomings that I have identified from the report of Dr Q.
This is not a matter where aboriginality or maturity, sex or lifestyle to my mind are of significance.
Family violence is relevant (60CC(3)(j) and (k)). The father as I say has been dealt with on four counts of breach of an apprehended violence order. That is something that I simply cannot go behind. The violence does not have to be directed to the child. Clearly the section contemplates it can be a member of the child's family. I take into account that there is in existence a family violence order that will not expire until July of this year.
The next of the subsections that I am required to consider is whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings (60CC(3)(l)). In this case I am contemplating making a suite of orders some of which will be final, some of which will be interim. That may well lead to the necessity of further proceedings being conducted between these parties at a future date. I am satisfied that if the interests of the child, having regard to these factors, indicate that that is the appropriate way to deal with the matter then to my mind that particular subsection must give way.
I then have to look at the extent to which each parents has failed to fulfil responsibilities as a parent, particularly has taken or failed to take the opportunity to be involved and has facilitated or failed to facilitate the other parent’s involvement (60CC(4)). I have spoken to the point of boredom about the mother's attitude in this. I am satisfied that the father has tried to see as much of his child as he can of recent times. I am satisfied that to that extent he has endeavoured to participate and because of the orders in force he has not been able to do so.
Whilst it is clearly the intention of the legislation that parties spend as much time as possible with their child, if time with one parent must be lessened because time may of itself pose a risk then in my view that is what must occur. That is the situation that appears to me to be in play here. Is there a situation where the risk to the child is such that time with the father should be extinguished or carefully curtailed?
To my mind there is such a risk and it has an effect in this situation of making me specially cautious of the way in which the matter proceeds from here. Section 61DA(1) deals with the questions of whether or not the parents should enjoy equal shared parental responsibility. It is clear to me from the way in which the Act is now structured that 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. Subsection (2) however goes onto say this:
"The presumption does not apply if there are reasonable grounds to believe that a parent of the child has engaged in abuse of the child or another child or family violence."

Clearly in this family there has been family violence engaged in by the father. Therefore to my mind the presumption does not apply. In the event I am wrong in that I am satisfied that in accordance with subsection (4) the evidence that I have heard as to the inability of these parents to deal with each other in a civilised fashion or to treat each other with respect or to be open to discuss and deal with the child’s schooling in an appropriate fashion indicates to me that the parties are incapable of being able to make joint decisions concerning their child’s welfare.
I am therefore satisfied that in the circumstances of this case the presumption is rebutted by the evidence I have heard.
Having dealt with equal shared parental responsibility I am then taken to section 65DAA which says that if I have found that there should be parental responsibility I must consider equal time or significant and substantial time with each parent. Whilst I have certainly not found equal shared parental responsibility which would act normally as a trigger for that section, their Honours of the Full Court in Goode v Goode[1] found that that is not the only way in which consideration of equal or significant and substantial time should be approached. Rather I must be guided by what is in the best interests of the children in reaching such a determination. In the circumstances of this case that which the father seeks is to my mind in ordinary circumstances, if there be such a thing, to be not excessive. However, that which he seeks must be looked at in the history of this matter and with respect to him his own particular shortcomings. In the circumstances of this case I am not satisfied that it would be appropriate for the child to have at this time extended unsupervised time with the father.
[1] (2006) 93-286.
Having examined this matter I have come to the conclusion that this is an appropriate matter in which I should make some orders on a final basis and some interim orders. I am satisfied that I must make final orders as to parental responsibility and the parent with who the child should live.
As to parental responsibility I have already indicated the very real difficulties that surround the parties’ relationship and capacity to communicate in this present case. In all of the circumstances I am satisfied that it is appropriate that I should order the mother have sole parental responsibility for the child. However I do propose to make orders, much as those suggested by the independent children’s lawyer, that the mother have an ongoing obligation to notify the father of certain events and things such as schooling and illness that relate to the child.
I have come to the conclusion that the appropriate order is that the child live with her mother. Indeed the father at this stage does not seek an order for the child to live with him. However, he has indicated that in future he may make further applications in respect of this. That is of course his absolute right. However in the absence of a present challenge there can be to my mind no other order open to me than that I propose to make for the child to live with her mother.
What the father does challenge is the mother's right to relocate to Queensland. The mother's case is that that will not happen until at least the end of current year, by that I mean school year. She says that she needs to do this because:
"I will be left in great difficulty if I am required to remain in New South
Wales without my parents."
I certainly accept the evidence of the wife’s mother, to use the colloquial "the move is on". If the wife were to remain in Sydney she would find herself in a situation where she would have to find accommodation for herself and she would have to find employment for herself for the support of herself and the child.
So far as the support issue is concerned I am satisfied that the father is in significant arrears of child support. Child support is required for the upkeep of the child. It is not alimony, it is not maintenance for the mother. It is an amount calculated by formula, that provides the appropriate amount that is to be paid by a non residential parent to the residential parent. The father says, and he may well be right in this, that the arrears have occurred because at various times he has not been employed, and I am aware of the period of four months when he was imprisoned. The difficulty is that he says he keeps trying to talk to someone at the Child Support Agency to sort it out and nothing happens. Once again he has not taken what I consider to be a properly proactive step to sort this out. The result might well be that the amount of arrears will be reduced and may even be eliminated. I accept he has been paying a small amount in addition to his current assessment to clear those arrears. Having dealt with that somewhat long-windedly, the situation as I say, the mother would find herself without family, without accommodation and with child support that would be less than adequate and reliable.
The father says even accepting all of that that:
"It is still more important that my daughter remain here so that I can enjoy frequent time with her, so that my mother can enjoy frequent time with her and so that she can be appropriately and effectively involved in our extended family."
I have dealt with the various matters and the considerations I am required to have regard to. The child has a closer relationship with her mother than her father. I am satisfied that the nature of the relationship is such that if the mother were to find herself distressed by the fact that she was compelled by a Court order to remain in New South Wales it would have an effect on her as a person, which effect I am satisfied must ultimately and detrimentally have an effect upon her daughter. I am not saying the determining factor in this matter is the happiness of one party or the other. But I am saying when looked at with all of the matters that I have dealt with it is clear where the child's security and attachment primarily lie. To in any way cause the mother to be less than fully capable of discharging her obligation as the parent with whom the child lives to my mind could not be seen to be in the best interests of the child.
I am aware that if the wife moves that it will be made significantly more difficult for the father to spend time with his daughter. The child, if there is to be any time with the father will have to travel, or he will have to travel to her. To my mind and having regard to a number of reported decisions that is not of itself a reason for refusing the mother's request to be allowed to go. Rather it is a matter of determining where the child should first live and having done that, to turn one's mind to what is best for the child then so far as ongoing contact with the other parent is concerned.
I am satisfied that in all the circumstances of this case it is appropriate that I order the mother be permitted to relocate with the child to Queensland.
The mother as I have said wishes the father to have no further active part in the child's life but merely that he be someone in the background sending gifts, cards and letters and a voice on a telephone. She says that this is required because of the matters to which I have referred and that when taken together they are so significant that the father should be excluded. They are to my mind weighty and serious. However, it also seems to me that the mother cannot have it both ways. She cannot rely upon what doctor says so as to criticise the father and then disregard that which doctor says when she recommends that the current regime of contact should continue until the father has done certain things. The tragedy of this matter is that those things have not been done in the period between the release of doctor's report and being here today. In fact what the father is saying is now give me an opportunity to do those things and we will see where we stand.
Having regard to the provisions of the Act as it stands, and clearly the intention of the draftsman and the parliament, that parents should be involved if at all possible and where possible in their children's lives, I am not satisfied that this is an appropriate case where I should make an order that there be no time with the father or that I should not make any order concerning time with the father. I am satisfied that the relationship of the father and child is something that has the potential to be a matter of joy to this child, without interfering with her attachment to her mother. However, before that can happen it is clear that the father needs to attend to the matters that doctor has dealt with and which, to his credit by the time submissions were concluded he seemed to be saying that he wanted to do it. Unfortunately an adjournment for two months is simply inadequate for those things to occur.
However, I am of the view that with proper time that the husband can approach and deal with the matters effecting him. When they have been attended to that then would be the appropriate time to consider the position as to what time he spends with the child. He must understand that the orders I have made for the child to live with the mother and for her to exercise sole parental responsibility are final orders. When the matter comes back those matters will not be up for discussion. The only way in which those matters can be revisited would be if he were to file an appeal against these orders or bring a fresh application stating that there has been a change in circumstances that requires me to revisit them. Rather, the purpose of the adjournment is to enable him, as I say, to deal with the matters that have been raised by the doctor.
I have given thought to whether or not I should order the father to do those things that doctor has ordered. I have decided that I will not do that. To my mind if the father is to move forward it is important that the things that have to be done are done because he wishes to do them and not because the Court has ordered him to do so. He asserts he is fully aware of the recommendations made by Doctor. Should he have any doubts the material as set out at page 38 of doctor's report will clearly identify for him the matters that he has to address. They may be summarised as to the need for appropriate counselling in respect of alcohol use, a parenting program being parenting after separation, some form of psychotherapy and counselling and a review by a psychiatrist as to his general wellbeing. It is indicated he might also benefit from antidepressants. That would be a matter for a treating doctor and that may be, as I understand it, either a general practitioner or psychiatrist. It is the review of the psychiatrist that to my mind is of particular significance because that is what will determine whether the husband has moved forward from the man that was observed by the Doctor, or whether he remains, because of his difficulties, unable to accept any responsibility simply saying it's not my fault, it is all the fault of others. Accordingly I have determined that I will not endeavour to make final orders for the husband to spend time with the child at this juncture.
However, I do propose to make orders in the meantime for the father to see the child. I have already made reference to the mother not being able to as it were adopt part of doctor's report to the detriment of the husband and disregard parts of the report that favour him. Doctor clearly having regard to all of the difficulties that she has clearly identified believes that there should be weekly time with the child and it should be supervised. I am satisfied that supervision imposes a real and significant personal cost on the paternal grandmother. However from what I have seen and heard of her with her love for her granddaughter she will continue to do everything she can to provide appropriate supervision for the benefit of her granddaughter.
To my mind the independent children's lawyer very carefully provided in minutes for alternative supervisors to be nominated and appointed. For the time being I am of the view that the father’s time with the child must be supervised and the primary supervisor is to be his mother, with such other supervisors being arranged as can best be achieved.
There was some argument late in the case as to whether the days upon which the father has time should be Saturday or Sunday. I have come to the conclusion that what I should do is provide for it be Saturday in one weekend, Sunday in another weekend. Both parties have work commitments and to my mind that is the fairest way of ensuring that the parties maximise their leisure time available for involvement with their daughter.
I also believe that there should be some telephone contact. The independent children's lawyer has prepared a minute that provides for the child to contact the father as it were her volition. I am satisfied in the circumstances of this case that would not be encouraged. The appropriate order should make provision for a minimum contact by telephone and I believe that appropriately should be between 7.00 and 7.30 each Wednesday with the father calling the mother and the mother ensuring that the child is available to receive the call.
The independent children's lawyer inserted a condition about the consumption of alcohol. Mr Schroder in the course of his compelling address indicated that the husband's danger time, if I can call it that, was in the period after he had consumed alcohol to excess and what might be called the recovery period. To my mind the appropriate order in this case is that he should not consume alcohol for 24 hours rather than 12 hours prior to time with the child.
What I will do is grant liberty to either party or the independent children's lawyer to re-list this matter after 3 March 2010 for consideration of final orders to be made for the time the father is to spend with the child. That will give the father the opportunity to undertake that which he considers he should undertake and be in a position to put before the Court as to his general wellbeing at that time. I have given real consideration as I have said to making orders about what is required of him in the meantime but for the reasons I have stated I will leave that to the husband. It is his responsibility and he must decide what he wishes to do.
I will however allow the matter to be re-listed on seven days notice in the event of any difficulties arising that require attention rather than being left until the early part of next year.

I certify that the preceding eighty-one (81) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Collier

Associate:

Date: 24 August 2009

[2009] FamCA 771

13 March 2009

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