KADLEC & OLANDER
[2020] FCCA 70
•22 January 2020
FEDERAL CIRCUIT COURT OF AUSTRALIA
| KADLEC & OLANDER | [2020] FCCA 70 |
| Catchwords: FAMILY LAW – PARENTING – Father applying for a change of residence for a child aged 7 – second round of litigation – where the child is primarily attached to his mother – whether the child is at risk of harm in the mother’s care – whether the mother has parenting capacity issues which mean that the child would be better living with the father – whether the child’s relationship with the father will be at risk if he continues to live with the mother – where the answer to all these questions is no – where the mother has greater availability to care for the child – where the mother has health issues and where there is a higher risk of further proceedings if the child remains with the mother but where on balance it is in the child’s best interests to live with the mother – dispute about parental responsibility – where the presumption in s.61DA applies and where there is no evidence which would support a finding that the presumption should be rebutted – where the previous consent orders provide for the parents to have equal shared parental responsibility save for matters concerning religious instruction and for the child to live with the mother and spend time with the father – similar orders now made. |
| Legislation: Family Law Act 1975 (Cth), ss.60CC, 61DA |
| Cases cited: Reston & Jarry [2019] FamCAFC 241 Rice & Asplund (1979) FLC 90-725 |
| Applicant: | MR KADLEC |
| Respondent: | MS OLANDER |
| File Number: | NCC 27 of 2016 |
| Judgment of: | Judge Terry |
| Hearing dates: | 15, 16, 17 & 18 December 2019 & 20 January 2020 |
| Date of Last Submission: | 20 January 2020 |
| Delivered at: | Newcastle |
| Delivered on: | 22 January 2020 |
REPRESENTATION
| Counsel for the Applicant: | Mr Graham |
| Solicitors for the Applicant: | Birtles Legal |
| Counsel for the Respondent: | Mr Guyder |
| Solicitors for the Respondent: | Moin Morris Schaefer |
| Counsel for the Independent Children’s Lawyer: | Mr Davies (save for 20 January 2020) |
| Solicitor Advocate for the Independent Children’s Lawyer: | Ms Wooi (on 20 January 2020) |
| Solicitors for the Independent Children’s Lawyer: | Krstina Wooi Lawyer |
ORDERS
Subject to Order 2 the mother and the father shall have equal shared parental responsibility for the child [X] born … 2012 (“[X]”) except in relation to religious instruction for which the mother shall have sole parental responsibility.
The mother is at liberty to enrol [X] in Town A Public School.
[X] shall live with the mother.
[X] shall spend time with the father at all times as agreed between the parties and in the absence of agreement as follows:
(a)Each alternate week during school terms from 4:30pm on Thursday until 5:00pm on Sunday commencing in the first week of each school term.
(b)In 2019/2020 and all odd numbered years thereafter for the second half of the NSW Christmas school holiday period from 9.00am on the middle Saturday until 5.00pm on the last Sunday.
(c)In 2020/2021 and all even numbered years thereafter for the first half of the NSW Christmas school holiday period from 9.00am on the first Saturday until 5.00pm on the middle Sunday.
In addition to the time provided for in Order 4 the father shall spend time with [X]:
(a)In all odd numbered years from 12 noon on Christmas Eve to 12 noon on Christmas Day.
(b)In all even numbered years from 12 noon Christmas Day to 12 noon Boxing Day.
(c)If Father’s Day falls on a weekend that [X] is not spending time with the father [X] shall spend time with the father from 5.00pm on the Saturday immediately preceding Father’s Day to 5.00pm on Father’s Day;
In all even numbered years [X] shall spend time with the mother from 12 noon on Christmas Eve to 12 noon on Christmas Day.
In all odd numbered years [X] shall spend time with the mother from 12 noon on Christmas Day to 12 noon on Boxing Day.
If Mother’s Day falls on a weekend that [X] is not spending time with the mother the father’s time with [X] shall be suspended and [X] shall spend time with the mother from 5.00pm on the Saturday immediately preceding Mother’s Day to 5.00pm on Mother’s Day.
If the mother is required to be absent from Town A on any school day with the result that the child is not able to attend school that day she shall give the father notice by email at least seven days’ prior to her required absence except in the event of an emergency in which case the notice shall be given as soon as reasonably practicable and ask whether he wishes to have [X] in his care during her absence. If within 24 hours of the mother giving the father this notice he indicates a willingness to have [X] in his care while the mother is absent from Town A then [X] shall spend time with the father while the mother is absent from Town A.
[X] shall communicate with the father by telephone for not more than 30 minutes between 4.30pm and 6.00pm each Wednesday, and Saturday when he is not spending time with the father, and for the purpose of this clause the father shall telephone the mother’s mobile telephone number.
[X] shall communicate with the mother by telephone for not more than 30 minutes as follows:
(a)Between 4.30pm and 6.00pm each alternate Saturday during the father’s spend time with, and
(b)Between 4.30pm and 6.00pm each Wednesday and Saturday during school holiday periods that he is spending time with the father and for the purpose of this clause the mother shall telephone the father’s mobile number.
For the purpose of [X] spending time with the father unless otherwise agreed between the parties should changeover not occur at [X]’s school changeover shall occur at the McDonalds Restaurant in B Street Town A.
Each party is to advise the other party and keep the other party advised of their current address and contact telephone numbers and advise the other party of any changes to these details within seven (7) days of such change occurring.
Each party shall communicate with the other at the earliest practicable time within 24 hours of any hospital consultation or consultation with a medical practitioner or any serious illness, accident or emergency relating to [X].
The parties shall keep each other fully informed of all matters concerning the health of [X] including names of medical practitioners and health practitioners who attend him from time to time.
The mother is restrained by way of an injunction from allowing [X] to come into contact with or to have any communication with Mr CMr C.
For the purposes of communication in relation to [X] unless otherwise agreed between the parties they shall communicate by text message or other electronic means or by way of a communication booklet.
Pursuant to s.65DA(2) and s 62B of the Family Law Act 1975, particulars of the obligations that these orders create, particulars of the consequences that may follow contravention of these orders, and details of assistance to comply with these orders are set out in the attached Fact Sheet, which forms part of these orders.
All outstanding applications are otherwise dismissed.
IT IS NOTED that publication of this judgment under the pseudonym Kadlec & Olander is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT NEWCASTLE |
NCC 27 of 2016
| MR KADLEC |
Applicant
And
| MS OLANDER |
Respondent
REASONS FOR JUDGMENT
Introduction
Pursuant to final parenting orders made on 19 June 2017 [X], aged 7, lives with his mother and spends time with his father.
By application filed on 6 August 2018 the father sought a change of residence. It was his case that if [X] remained living with mother he would be at unacceptable risk of harm, would be at risk of losing his relationship with his father and would receive inadequate parenting. He based his case on the following:
i)Prior to the 2017 orders being made the mother formed a relationship with Mr C, a person of concern, and she continued to associate with him after the orders were made and brought [X] into contact with him in breach of an order restraining her from doing so. That placed [X] at risk of harm and the father was unconvinced that the relationship had ended.
ii)The mother continued to believe that he had indecently touched [X] in 2015 and [X] has taken this on board as a fact and raised it with the father and others from time to time and called the father a naughty father. This was emotionally abusive of [X] and placed him at risk of losing his relationship with his father.
iii)The mother had physical and mental health issues which impacted on her parenting capacity.
iv)The family report writer was of the view that the mother was addicted to Fentanyl which also impacted on her parenting capacity.
v)The family report writer was of the view that the child had been educationally neglected by the mother.
At the commencement of the hearing the orders sought by the father were that [X] live with him, that he have sole parental responsibility and that [X] spend no time with the mother for eight weeks and then spend supervised time with her for two hours per fortnight at Town A Children’s Contact Centre indefinitely.
During final submissions the Independent Children’s Lawyer handed up a Minute of Order which provided for [X] to live with the father, for the father to have sole parental responsibility and for there to be an eight week moratorium on his time with his mother. However she proposed that thereafter the mother spend unsupervised time with [X] each alternate weekend, beginning with six hours on one weekend day and ending with time from Friday to Sunday. She proposed that after 32 weeks the child commence spending half of the school holidays with the mother.
The father’s counsel adopted this proposal during his final submissions.
The mother opposed a change of residence and submitted that the 2017 orders should continue in force. The matters she relied on were that:
a)She was [X]’s primary attachment figure and he would be very distressed by a change of residence (something which the father conceded).
b)She has ended her relationship with Mr C.
c)She did believe that the father had done something inappropriate to [X] in 2015 but she had not encouraged [X] to repeat the allegations. She had made no report to police or any other authority about the issue since 2015 and did not assert that [X] was currently at risk of harm from the father. [X] had spent time regularly with the father for the last 2 ½ years save for a period of eight weeks in August/September 2018 which commenced with the father withholding him and he had clearly not lost his relationship with him.
d)While she did have some health issues she was nevertheless able to properly care for [X].
e)The family report writer did not have the expertise to express an opinion about her Fentanyl use. She had been prescribed Fentanyl after she had a medical procedure and chemotherapy. There was no evidence that she had ever misused it and she was cooperating with the recommendation by her doctors that she be weaned off it and look for other methods to deal with her pain.
f)She had not educationally neglected [X]. He had missed a good deal of school in 2018 and 2019 but aside from the absences in August/September 2018 which were during a period when the father withheld the child and she recovered him this was largely due to him being ill. In December 2019 [X] had an operation in which his tonsils and adenoids were removed and grommets inserted in his ears and her expectation was that his inability to attend school due to illness would greatly diminish as a result.
Although final orders were made in 2017 no party raised a Rice & Asplund[1] issue and it was common ground between the parties that it was appropriate for parenting arrangements for [X] to be considered afresh. The 2017 orders were made largely by consent without evidence being tested,[2] the mother subsequently breached one of the orders and the father raised concerns about risk of harm issues and the mother’s parenting capacity which needed to be investigated.
[1] Rice & Asplund (1979) FLC 90-725
[2] Some of the orders about the time the father was to spend with the child were made by the court and the Independent Children’s Lawyer neither consented to nor opposed the orders as a whole being made but it is convenient and in my view not misleading to refer to the 2017 orders as consent orders.
The evidence
The father relied on his affidavit filed on 15 November 2019 and the affidavits of his mother Ms D Kadlec filed on 15 November 2019 and his sister-in-law Ms E Kadlec filed on 4 November 2019.
The mother relied on her affidavit filed on 21 November 2019.
A Family Report was prepared by Ms F who was a family consultant at the time the report was prepared. She also prepared a family report for the proceedings which were on foot between 2016 and 2017 and that was in evidence before me.
During cross-examination Ms F mentioned that she had conducted a Child & Parents Intake Assessment (CAPIA) during the earlier proceedings. It is referred to in the 2016 family report but it was not put before me as a separate piece of evidence.
All of the witnesses were cross-examined.
In consultation with the solicitors for the mother and father the Independent Children’s Lawyer prepared a bundle of material extracted from subpoenas and it was tendered at the commencement of the trial. It took me many hours to read the tender bundle and make notes but in this complex case it was a necessary and useful exercise.
Background
Up to the consent orders being made
The mother and father commenced a relationship in early 2006 when they were 32 and 28 respectively. The mother had a daughter [G] who was born on … 2002. [G]’s father has never had any role in her life and she lived with the parties throughout their relationship.
The parties’ only child [X] was born on … 2012.
The parties lived in a number of different locations during their relationship but at the time of separation they were living near Town A and they have both lived in Town A since separation.
The parties separated on 13 February 2015 when [X] was still under 3. He remained with the mother and by agreement between the parties spent time with the father each alternate weekend and for a short period each Wednesday overnight.
[G] was 12 when the parties separated. She remained in the mother’s care and did not spend time with the father. The mother told the report writer in 2016 that this was the father’s wish but this issue was not explored at trial.
In March 2015 [G] made allegations that the father had touched her inappropriately on three occasions between about 2010 and 2014. She was interviewed by police but in a document included in the tender bundle they noted that the alleged inappropriate touching had occurred when [G] and the father were sleeping in the same bed and that leaving aside anything else because she was unable to confirm if the father was awake or asleep a defence of automatism would be available to him.
Police noted that the mother could not cast any light the issue of whether the father was awake or asleep and that she did not believe the allegations. They further noted that [G] had provided conflicting accounts of what had occurred.
In April 2015[3] police informed the mother that there was insufficient evidence to prosecute. They told her that an application could be made for an ADVO but she told them that she did not think that the father would attempt to contact [G] and no application was made.
[3] Tender Bundle page 367
The father said that he was never questioned by the police about [G]’s allegations and he vehemently denied having inappropriately touched her.
In July 2015 [X] began telling the mother that the father had touched his wee wee and began engaging in certain behaviours which aroused her concern. She ceased making [X] available to spend time with the father and reported the matter to the police.
[X] was only three but he was interviewed at length. The record of interview is in the tender bundle and it reveals that [X] usually said nothing in response to questions or attempts to engage him. When he did answer he used only three words during the interview: “No”, “Yeah” and on one occasion “Roar”.
The father was interviewed about the allegations concerning [X] and denied any wrongdoing.
Police were of the view that there were no grounds for a prosecution. They noted that the father made no admissions, there was no forensic or medical evidence, the mother had obtained information from [X] by asking leading questions and [X] was very young.
They suggested to the mother that they could apply for an Apprehended Domestic Violence Order (ADVO) and an interim ADVO was made. However the father contested the application for a final ADVO and it was dismissed on 6 January 2016.
On 8 January 2016 the father commenced family law proceedings and on 21 March 2016 an order was made for [X] to spend time with him for two hours per fortnight supervised at Town A Children’s Contact Centre.
That time did not commence. There was some delay in the intake process being completed but the main problem was that at a child orientation session held on 4 July 2016 [X] physically and verbally expressed opposition to seeing the father and the contact centre noted on 15 July 2016 that the case was on hold because of child rejection.
In June 2016 [G] told the mother that the father had touched her on several other occasions besides the ones she had disclosed earlier. The mother reported this to the police but they did not change their view that there was insufficient evidence for a prosecution.
A family report was ordered and interviews took place on 20 December 2016. By the time of the family report interviews [X] had not spent time with the father for nearly 18 months. The mother and father both told the family report writer that they had agreed to work with the contact centre to see if time between the father and [X] could be facilitated with the intervention of the paternal grandparents but that the contact centre had not progressed this.
The father informed the family report writer that he was content for [X] to live with the mother but was seeking regular unsupervised time with him and she recommended that this occur provided that the court was satisfied that [X] was not at risk of harm from the father.
The report was released on 23 December 2016. The family report writer noted that the mother and father both told her that the paternal grandparents would be suitable supervisors of time between [X] and the father and on 31 January 2017 interim orders were made by consent for [X] to spend time with the father in the presence of the paternal grandparents.
This time did not immediately commence because the orders provided for the contact centre to facilitate the handovers and they would not do so but shortly afterwards the parties agreed to an alternative changeover location and this time commenced.
The matter was listed for final hearing before Justice Austin commencing on 19 June 2017 but on that day the parties settled the matter and final orders were made. They provided for [X] to live with the mother and spend unsupervised time of increasing length with the father, starting with four hours each alternate Saturday and Sunday and ending with each alternate weekend from 4.30pm on Thursday to 5.00pm on Sunday.
Once [X] commenced school in 2018 he was to spend half of the school holidays with the father, with time in the Christmas holidays to initially be week about.
The orders provided for the parties to have equal shared parental responsibility save for decisions about religion which was to be the province of the mother and contained a provision that the mother was restrained from allowing [X] to have any contact or communication with Mr C.
Mr C
The mother told the family report writer that she had met Mr C at church. She said that she was aware that he had an extensive criminal record but felt that he was a changed person. It is unclear to me when they met but during cross-examination at the trial before me the mother said that she and Mr C were in a relationship from 18 August 2016 to 7 September 2016 when they decided they weren’t right for each other and ended the relationship.
Mr C accompanied the mother to the family report interviews on 20 December 2016. She told the family report writer that they were not in a relationship and said that she was in the midst of treatment for cancer and was feeling unwell and that Mr C had accompanied her as a friend for support.
The family report writer decided not to interview Mr C because the mother told him they were not in a relationship but subpoenas had been issued in respect of him and she devoted two and half pages of her report to setting out his extensive criminal history.
It commences in the Children’s Court when he convicted and he was subsequently convicted of a vast number of offences of dishonesty. He also has convictions in other years for possessing and using an illicit substance and he has numerous convictions for driving offences, some for exceed speed limit/speed dangerous but mostly for being an unlicensed or disqualified driver or for driving an unregistered uninsured motor vehicle.
He also has convictions for contravening ADVO’s in 2004, 2005, 2007 and 2008.
The family report writer noted that concerns about Mr C perpetrating family violence appeared in some COPS and FACS records up to May 2009 and that subpoena material suggested that he had a history of illicit drug use and had been prescribed Suboxone to deal with opiate (heroin) addiction.
Mr C has four children and the family report writer summarised information about him which had been obtained from FACS (the Department of Family & Community Services, now the Department of Communities & Justice or DCJ) and attached to her report an eight page document prepared by a senior psychologist attached to H Hospital in late 2000 soon after the birth of Mr C’s oldest child Mr I which raised serious concerns about his personality, functioning and parenting capacity.
At the time of the family report interviews in December 2016 Mr C’s last conviction was for breaches of ADVO in March and April 2008 for which he had received a community service order. However in September 2016 police began investigating complaints that he had been obtaining money from vulnerable individuals by deception in the course of his employment with Employer J and had also obtained a significant sum from one man unconnected with this employment. He was dismissed from his employment and on 11 May 2017 he was charged with a number of offences of dishonesty and I infer from looking at the way he was later sentenced that he was remanded in custody.
Charges in relation to incidents concerning his employment at Employer J were later dismissed but in 2017 he was convicted of obtaining property by deception from a named individual and was sentenced to imprisonment, backdated to … 2017. This was reduced to 9 months imprisonment on appeal.
The trial directions made by the Family Court on 13 January 2017 for the hearing which was to commence on 19 June 2017 included an order that the mother file an affidavit from Mr C who was described as her partner. She did not do so and on 19 May 2017 her then solicitor sent a letter to the father’s solicitor and the Independent Children’s Lawyer stating that the mother was no longer in any sort of relationship with Mr C and was unable to file an affidavit from him.
The family report writer recommended that a restraint be placed on [X] coming into contact with Mr C and Order 14 of the orders made on 19 June 2017 provided that:
The mother is restrained by way of injunction from allowing [X] to come into contact with or to have any communication with Mr CMr C.
Mr C was released from jail in 2018. Corrective Services records in the tender bundle suggest that he had his own place to go to in Town A but the mother had kept in touch with him by telephone while he was in prison and from around May 2018 he spent time at her home including sleeping there. Doctor’s records and hospital records show that he sometimes accompanied her to medical appointments and was variously described as her husband or partner.
The 19 July 2017 orders did not prevent the mother continuing a relationship with Mr C or prevent him ever being at her home but they did restrain her from allowing [X] to come into contact with him and there was no dispute that the mother did not adhere to that restraint. [X] can be heard in the background in at least one of the telephone calls the mother made to Mr C in prison and Mr C called out to him and they spoke, and after Mr C began to stay at the mother’s home in May [X] saw him frequently.
4 August 2018 and following
The father had some suspicions that this might be the case and on 4 August 2018 when [X] was spending the weekend with him [X] revealed to him that he had been seeing Mr C.
On 5 August 2018 the father sent the mother a text message to say that [X] had told him that Mr C was living in the house and that [X] would be staying with him in the immediate future. He also said that Police and FACS had been informed.
On 6 August 2018 the father filed an initiating application in this court seeking orders that [X] live with him and spend time with the mother as determined by the court.
The father kept [X] home from school on 6, 7 and 8 August but sent him to school on 9 and 10 August.
On 9 August the mother sent the father an email asking if they could meet and talk about the situation and try and work things out instead of going back to court. The father informed the mother that this would not be happening.
On 10 August 2018 the mother collected [X] from school at lunchtime and thereafter did not send him to school. She said that [X] was distressed and anxious and refused to go to school in case his father collected him and there is corroboration for this in a letter Dr K sent to the school.[4] She also did not send [X] to spend time with the father in accordance with the orders.
[4] Letter from Dr K dated 20 September 2018.
On 28 August 2018 the father received a call from a lady called Ms L from Community Service M. She proposed that [X] immediately resume spending some time with him (although not strictly in accordance with the orders) and said that she hoped that this would also facilitate the child returning to school. She said however that for this to occur she needed him to tell her and to tell [X] that he would definitely return him to his mother at the end of the time. She informed the father that Mr C had ceased living in the mother’s house and would not be coming back.[5]
[5] Father’s affidavit paragraphs 45 to 48
The father told Ms L that he had difficulty believing that Mr C had ceased living in the mother’s home and that he refused to assure her or [X] that if [X] spent time with him he would return [X] to the mother.
At trial a letter sent the same day from the father’s solicitor to N Solicitors was tendered. In the letter it was proposed that the mother sign an undertaking that Mr C was not living at her house and in exchange the father would adhere to the current orders until the matter came before the court on 2 October 2018.
The mother said and I accept that Mr O was not engaged as her solicitor and that she did not receive the letter.
The father tried to keep in telephone contact with [X] but said that [X] came on the phone and told the father he did not want to speak to him.
The matter was brought forward from 2 October 2018 to 24 September 2018 when I was on circuit in Town U and on 24 September I made an order that the parties resume adhering to the existing orders and an order restraining the father from collecting [X] from school except in accordance with the orders.
The only variation I made to the orders was that the first changeover, on 29 September 2018, happen at the Contact Centre. They would not facilitate that changeover but shortly afterwards time resumed in accordance with the 19 July 2017 orders and when the trial commenced on 13 December 2019 [X] had been spending time with the father in accordance with the orders for nearly 15 months.
The practical aspect of the parties’ proposals for the care of [X]
The father
The father has not re-partnered and lives alone. He is a tradesman employed by Employer P and he works 5 days a week and on Saturdays in the week [X] is not in his care.
The father said that if it was ordered that [X] lived primarily with him he would take some time off work to help him settle and would reduce his working hours to 30 hours a week so that he was only working in school hours. He said that he had discussed this with his employer who was fine with it.
When the father was cross-examined about the practicality of this given that he was proposing that the mother spend only two hours per fortnight with [X] indefinitely it became apparent that he did not really expect the mother would have such a limited role in [X]’s life and that he envisaged being able to go back to work more extensively once the mother was spending regular time with [X]. He said that he thought this might be feasible around May 2020 and that it would involve the mother spending the same time with [X] as he was currently doing.
It also became apparent when the father was cross-examined that notwithstanding whether this occurred or not he did not intend to work reduced hours indefinitely and it became clear when his sister-in-law and the paternal grandmother were cross-examined that he had discussed with them providing him with assistance with [X]’s care.
The paternal grandmother lives in Town Q. She travels to Town A to help the father out when he has [X] during school holidays under the existing orders as he is entitled to 6 weeks school holidays and has only 4 weeks holiday from work; alternatively the child spends time with the paternal grandmother in Town Q. During the Term 3 2019 school holidays he spent most of the working week with the paternal grandmother and saw the father on the weekend prior to and the weekend at the end of that time.
The mother
The mother is in receipt of a Disability Support Pension. She is engaged in home duties and is available full time to care for [X]. She liaises with his school and takes him to medical appointments and occupational and speech therapy appointments.
The mother lives in a three bedroom home supplied by the Department of Housing. In his affidavit the father was critical of the mother over the dogs at her home but this was not mentioned at trial. He was also critical of her for living in a less desirable part of Town A. This was not explored at trial.
[X] currently attends Suburb R Public School but the mother proposed that she be permitted to enrol him at Town A Public School which was a 10 minute walk or a 2 minute drive from her home. She said that Suburb R Public School was a 20 minute drive from her home. The father challenged this and said the drive took about 14 minutes but nevertheless it involves the mother in travel of about 60 minutes each day as opposed to travel of about 10 minutes each day.
The mother asked the father to agree to this change when she moved to her current housing in February 2019. He would not do so but I cannot blame him for that given that the proceedings on foot and it is an issue I will need to decide if I make an order that [X] lives with the mother.
The indecent touching issue as it has arisen in respect of [X] since 19 June 2017
The police determined in 2015 that there was insufficient evidence to prosecute the father in respect of the allegations about [X] and on 19 July 2017 the parties settled the parenting dispute and orders were made for the father to spend extensive unsupervised time with [X].
The consent orders contained the following notation:
E.Pursuant to Rule 10.15A of the Family Law Rules, the parties and the Independent Children’s Lawyer mutually submit that allegations of child abuse were made in these proceedings by the mother, and the mother accepts that the evidence available at trial was probably insufficient to vindicate her allegation that the father posed an unacceptable risk of harm to the child.
It is clear from this that the mother did not resile from her belief that something might have happened and in his trial affidavit the father said as follows:
Ms Olander has continued throughout these new proceedings [words must be missing] that I have sexually abused both [G] and [X].[6]
[6] Father’s affidavit paragraph 82
Whatever the missing words may be that is not an accurate representation of the situation. The only people who have raised this issue persistently during the new court proceedings have been the father and the Independent Children’s Lawyer.
Their concern legitimately arises however out of the fact that [X] has continued to mention the allegations since the court orders were made.
The first occasion was on 20 July 2017 when [X] had not yet commenced school and accompanied the mother to a medical appointment with Dr S. Dr S said in her notes that at the end of the consultation [X] told her that he did not want to go to his father’s house because his father touched his wee wee. She said that he denied that his father touched him inappropriately but was scared he would do it again.
The mother was present when this occurred. It was not followed by her making any report to any authority or by any interruption to [X]’s time with the father.
The father claimed that in January 2018 [X] began saying that he had touched [G] and that his mother told him that he had also touched [X].[7] He was not challenged about this evidence but he did not give any evidence about the context in which it occurred, he did not raise it with the mother or anyone else at the time and it did not cause any disruption in his time with the child.
[7] Father’s affidavit paragraph 82
On 22 August 2018 the mother took [X] to see Dr K at Medical Centre T because [X] was anxious and was refusing to attend school.
[X] told Dr K that he had given his father 10 chances to become better but was not giving him another chance because he was naughty. Dr K asked him why the father was naughty and he said that he touched his and his sister’s wee wee’s. Dr K asked the mother if she knew about this and she said that it was in 2015 and she took it to JIRT but nothing was proved.
The father said that during his next telephone call with [X] on 16 September 2019 [X] said he did not want to speak to him and was scared of him and when he asked [X] why [X] said it was because the father had touched his wee wee when he was baby. The father told [X] that he knew that wasn’t true and asked him two other questions. [X] again said that he did not want to talk to the father and hung up.
In early October 2018 [X] resumed attending school following orders being made in Town U restraining the father from removing him from school and also resumed spending time with the father.
On or about 20 November 2018 [X] was interviewed at school by workers from the Department of Communities & Justice. The issues they said they were investigating partially mirror the comments [X] made to Dr K (a mandatory notifier) in August 2018 but the report they subsequently prepared suggests that they had been asked to investigate other issues including alleged psychological abuse of the children by the mother.
DCJ workers reported that when speaking of his father [X] said that he wanted to kill him and “hated him – he touched my willy.” When asked further about this [X] said that Dad did something to him when he was a baby and that it was when he was “5, 1, no 3 years.” [8]
[8] Tender Bundle page 171
After interviews with the mother and [X] and after observing [X] and [G] with the mother DCJ prepared a Safety Assessment Decision Report. The date of the assessment is given as 29 November 2018 and the date of the report is 14 December 2018.
The workers stated that the mother had not hindered the investigation and that she spoke honestly and freely with case workers on 20 November 2018. It was noted that:
Ms Olander was confused over the new reports pertaining to psychological harm of the children, however worked cooperatively with Facs Staff.[9]
[9] Tender Bundle page 171
Child protection workers noted that the children were clean and well dressed, that there was no evidence of inadequate food and that the issue of [X]’s school attendance was being addressed by the school. They could not see any sign that the mother’s medication use was an issue of concern. They noted that the mother was attentive to the children during the interviews and spoke highly of them. They noted that concerns about the mother coaching the children had been raised and set out some evidence which might tend to support that but did not reach a conclusion about it.
At the end of the report they said this:
No, there is no evidence in the report or investigation that the mother has any emotional, psychological and any other condition/disability that impairs her ability to care for [X] or [G]. Danger not identified. The mother has significant mental health concerns, she has been accessed (sic) counselling services.[10]
[10] Tender Bundle page 173
It is of considerable concern to me and greatly affects the weight I can place on the recommendations in the 2019 family report that the report writer inaccurately reported the content of the Safety Assessment Decision Report in the family report. She set out at length some of the material which is in the report but she also included material which is not in the report tendered to me and she replicated at length entries which reflected poorly on the mother and failed to mention any of the entries which cast the mother in a positive light.[11]
[11] Family Report pages 12-15
That is to digress however. The final paragraph of the Safety Assessment Decision Report said:
No, there is no evidence in the report or investigation to suggest previous ill treatment of [X] or [G]. Danger not identified.[12]
[12] Tender Bundle page 174
[X] has not again mentioned the allegations.
[X] is too young to remember an incident that happened four years ago when he was just over 3 and it seems highly likely that something has been said to him which has kept the allegation alive in his mind.
It was put to the mother in cross-examination that she had done so. She denied it and said that she thought that the father had mentioned the allegations to [X]. The father denied this and his counsel said that it was an absurd suggestion but the fact that the allegations were made in 2015 clearly still rankles with the father and paternal family and I cannot exclude the possibility that [X] has heard them talking about it.
It would be concerning if the mother was keeping the allegations alive in [X]’s mind but her answers in cross-examination about the issue suggest that she is doing her best to ensure that [X] moves past it. In answer to one question she said:
He’s got to start visiting his father and the last thing he needs is that in his head if he’s going to be visiting his father
When the mother was pressed further she said:
He has this stuff on his mind all the time. I was trying to get help and a counsellor and I wasn’t allowed to do it. He said it happened ages ago.
She was asked if she was concerned that [X] kept mentioning it and she said:
Yes, and I came up with a way for [X] to move on past that as well. Several times I said “You don’t remember what happened, you’ve told me that. I’m not saying mummy doesn’t believe you but I think that we need to move past it and give Daddy a chance as you say and if it happens again or if you need to talk about that again then Mummy will get you a special person to talk to about that, but now, there’s no need for you to keep talking to people about this until you remember.
Maybe not in those exact words but I tried to make it simple and as far as I know he’s never brought it up again.
The father’s counsel challenged the mother about whether this was appropriate and she responded:
I’m not going to tell him he’s a liar if he says it to me because I’ve been told by my counsellor that you don’t tell them that they are a liar and that you just try and get it so they can move past it, same with [G].
I cannot make a finding about why it is that [X] keeps repeating the allegation about the father touching him but I cannot find on the balance of probabilities that it is because he is being encouraged or coached by the mother to do so.
It might be because he has heard the mother and/or [G] talking about it but it is significant in my view that it only seems to flare into life when [X] is stressed. The last time [X] mentioned it was when talking to child welfare officers in November 2018. The father agreed that he had heard nothing more from [X] about the allegations since time resumed in October 2018.
In summary I am satisfied of the following:
(i)I cannot find that the father ever did anything inappropriate to [X]. There are no external indicia which suggest that he is prone to child abuse and there is a very high risk that in the fraught situation after separation and in circumstances where [G] had made allegations about the father the words and actions of a three year were given a sinister connotation when other interpretations were open.
(ii)There is no evidence that the mother has coached or coerced [X] to make the allegations.
(iii)I am satisfied that the mother is doing her best to sensitively deal with the situation of [X] repeating the allegations.
[X]’s best interests
Any orders I make about [X] must be orders determined by treating his best interests as the paramount consideration and s. 60CC(2) and (3) of the Family Law Act contain the matters to which I must have regard in order to determine [X]’s best interests.
S. 60CC (2) contains the primary considerations and the first of these is the benefit to the child of having a meaningful relationship with both of his parents.
[X] will benefit from having a meaningful relationship with both of his parents.
The father is employed and has no drug, alcohol or mental health issues. [X] has been spending time with him regularly for the last 2 ½ years and benefits from having a father in his life. Through his father [X] is able to maintain a relationship with his paternal grandparents and his large extended paternal family including cousins he enjoys playing with.
In her case outline document the Independent Children’s Lawyer said that one of the issues in the case was the mother’s capacity to facilitate a relationship between the child and the father and her concern arose out of the fact that since the orders were made on 19 June 2017 [X] has on several occasions made statements to the effect that the father “touched his wee wee” in 2015.
However the reality of what has happened with the father spending time with [X] since the consent orders were made suggests that the occasional mention of the allegations is having no impact on [X] spending time with or maintaining a good relationship with him.
The father did not give evidence of a single occasion between 19 June 2017 and 4 August 2018 when there were changeover difficulties or difficulties with [X] fitting into his home and save for his evidence about the January 2018 statement he did not suggest that [X] had said a single negative thing about him let alone a negative thing which might have emanated from the mother.
[X]’s time with his father was interrupted between 10 August 2018 and early October 2018 but that had absolutely nothing to do with [X] making allegations that the father had touched him in 2015.
Since early October 2018 [X] has spent time with the father in accordance with the orders. He was observed to have a good relationship with him at the family report interviews in May 2019. The father and his family said that [X] was happy and settled when he spent time with the father. The father did not complain about any reluctance by the child to spend time with him or about the child making any negative comments which might have emanated from the mother and there have been no changeover difficulties.
[X] has been spending time with the father in accordance with orders for 2 ½ years save for disruption of about 8 weeks in August/September 2018 and he has a good relationship with him. On the occasions since 19 June 2017 when he has mentioned the indecent touching allegation in the mother’s presence the mother has either ignored it and done nothing with it or has taken steps to divert [X]’s attention.
There is simply no basis for finding that because the mother cannot completely dismiss the allegations from her mind she lacks the capacity to facilitate a relationship between the father and the child or that the child’s relationship with the father will be under threat if he continues to live with the mother.
[X] will also benefit from having a meaningful relationship with his mother. There was intense focus at trial on the mother’s shortcomings as a parent but she has been [X]’s primary carer for his entire life and as I observed during submissions her face lit up whenever she was asked to talk about him.
There was evidence about her taking [X] to his speech and occupational therapy appointments, arranging his adenoids, tonsils and grommets operation, offering to give the father her left over Nit treatment solution if it would make it easier for him to treat [X]’s hair, building an elaborate structure at her home to celebrate Halloween in 2019, going to a plant sale to obtain plants to beautify the home and having plans in place so that [X] and [G] would get the most out of their visit to Newcastle when they came down for the family report interviews.
[X] should not lose his relationship with his mother and I have some concerns about the father’s capacity to facilitate a relationship between [X] and the mother.
At the commencement of the hearing the father was seeking an order that [X] live with him, that he have sole parental responsibility and that [X] spend no time with the mother for eight weeks and then spend time with her for two hours once per fortnight supervised at Town A Children’s Contact.
It is impossible to understand why the father made an application for the child to spend supervised time with the mother once per fortnight at Town A Children’s Contact Centre indefinitely and it became clear when the father was pressed about the inconsistencies between that proposal and his answers in cross-examination about the appropriate time for [X] to spend with his mother that the events of 2015/16 still rankled, because he said:
I don’t want the mother to not see him for two years just as I didn’t see him for two years.
The paternal grandmother will be spending a significant amount of time with [X] if orders are made for him to live with the father including for lengthy periods during the school holidays. When she was asked in the witness box about the good things about the mother she had extreme difficulty bringing herself to answer the question and in the end said:
Well she’s his mother.
When the paternal grandmother was pressed about whether an order for long term supervised time with his mother would be a good outcome for [X] she said:
Well that’s what the father had.
The mother’s counsel put to the father that what was behind the proposal in his amended application was a desire to punish the mother for what happened during the last proceedings. He denied it but it was clear from his spontaneous response that he does harbour some resentment toward her for what happened previously and I am concerned that he may have difficulty putting that aside and considering what might be appropriate for [X] if he has concerns about the mother’s parenting in the future.
When the (legitimate) concern about Mr C arose in August 2018 the father’s response was not to discuss it with the mother but to withhold the child. When the mother asked to talk to him to try and work something out he refused to meet with her. This led to two months of disruption in the child’s life including a disruption to his education. When the father was asked during cross-examination if he thought he could have handled things better he would not concede this.
I have some concerns that the father will find it difficult to foster a good relationship between the mother and [X] and that there is a risk that he may act rashly in the future and “shoot first and ask questions later” and withhold the child without thinking carefully about whether there are alternative options.
This may simply cause distress for [X] and not damage his relationship with his mother but there is a risk that if [X] lives with the father and spends limited time with the mother that over time his attitude to her could be affected by the attitude of the father and paternal grandmother to the mother.
The second primary consideration is the need to protect the child from physical or psychological harm from being exposed to or subjected to abuse, neglect or family violence.
There is nothing to suggest that [X] is at risk of being exposed to or subjected to any of those things in the father’s care.
In her outline of case document the Independent Children’s Lawyer said that an issue in the case was safety concerns in the mother’s household. The father’s counsel took up this theme and submitted that the child was at unacceptable risk of harm in the mother’s care but there is not a shred of evidence to suggest that [X] is unsafe in the mother’s care in that he may be exposed to or subjected to abuse, neglect or family violence.
The definition of “abuse” in the Family Law Act includes causing a child to suffer serious psychological harm including but not limited to when the harm is cause by the child being exposed to or subjected to family violence. If I understand the father’s case correctly he was arguing that the mother was abusing [X] by keeping the 2015 alive in his mind but there is no evidence which would allow me to find that the mother has caused [X] serious psychological harm by coaching or coercing him to repeat the allegations about the father. To break it down, there is no evidence that she has coached or coerced him and no evidence that he has suffered serious psychological harm from any source.
The family report writer suggested that the mother had exposed [X] to “educational neglect” but this issue is better considered in the context of assessing the mother’s parenting capacity. The mother has certainly not neglected his needs for housing, clothing, food or medical treatment and I am not satisfied that [X] would not be at risk of neglect in the mother’s home.
I will need to consider later the evidence about Mr C’s convictions and issues with his children. However there was no evidence that Mr C had ever behaved violently to the mother or exposed or subjected [X] or [G] to harm. [X] and [G] both liked Mr C. He would be an exceptionally poor role model for them but that is another issue.
At the commencement of his cross-examination of the mother the father’s counsel asked her about an incident at Halloween 2019 in which Molotov cocktails were thrown at her home causing a small fire and the attendance of police and the fire brigade. He referred to it in submissions but never came out and explained what inferences he wanted me to draw from this. He did not suggest to the mother during cross-examination that it might have been a revenge attack by Mr C because the mother had ended their relationship. There is nothing to suggest anything other than that the mother was the victim of a random attack from person or persons unknown.
I must then make findings about the additional considerations in s. 60CC (3) and I am going to start by briefly mentioning a few which do not assist me.
The father pays child support and it was not suggested that child support was a relevant issue.
Both parents have taken the opportunity to spend time with the child, communicate with the child and be involved in decision making about the child. I have a concern about the extent to which the father has left decision making about medical issues to the mother but that is better discussed in the parenting capacity section of the judgment.
Both parents live in Town A and there will be no practical difficulty and expense in [X] spending time with or communicating with each parent on a regular basis.
Making findings about the child’s maturity, sex and background will not assist me; issues to do with his health, development and education will be separately covered.
The father identifies as Aboriginal but there was no suggestion that this was a determinative factor in the matter.
There were no allegations of family violence between the parties. A family violence order was made for [X]’s protection in 2015 when sexual abuse allegations were on foot but it was dismissed after a hearing in January 2016 and there have never been any other family violence orders in respect of the child or a member of the child’s family.
The first of the additional considerations and also the first one which is relevant is 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 to be given to those views.
[X] was very distressed when the father withheld him in August 2018 and the father told the family report writer in May 2019 that [X] would be distressed and “miss his mum terribly” if there was a change of residence.
[X] was interviewed by the family report writer in May 2019 and she said as follows:
When asked whether he thought parenting arrangements should stay the same or change [X] said “I think it should change, I think it should just be with mum” (Q. Why do you think that?) “it would be more funner, at least then I wouldn’t be scared because I won’t be with dad”. [X] said it “would be scary” for him if he lived with his dad.
…………………..
[X] was asked how he felt about participating in an observation session with his dad. He said it would be “good. I do like playing with dad but you won’t tell him that I said all that stuff will you?” and “You are not going to tell him about what I said are you” (Q. What worries you about him knowing?) “because I still love him. Actually I think I will just stick with having time with both mum and dad because I love them both basically”.
……………….
In conclusion the writer summarised and checked [X]’s thoughts about his living arrangements “at first you thought you wanted to live with mum and not see dad but now you’ve changed your mind and you do want to see them both”. [X] said “yes because I do actually love both. Because it’s a really hard decision because I love them both”. [13]
[13]Family Report paragraphs 154, 155, 159
The father was asked in cross-examination how he thought [X] would react to an order that he live with him. He said that [X] would be “upset and a bit angry”. He also said:
He’ll have a tough time dealing with it, he will miss his Mum and his sister greatly.
I am satisfied based on all of the above evidence that [X]’s preference is to live with his mother and spend time with his father and not to change residence. However he is only seven and is not able to judge what is best for him based on a mature understanding of his own long term best interests. His views are relevant but they do not determine the case.
I must consider the nature of the child’s relationship with each of his parents and any other person including a grandparent of the child.
The mother has always been [X]’s primary carer and she is his primary attachment figure. The comments from the father referred to above demonstrate that the father recognises this.
The family report writer expressed the view that [X] had an enmeshed relationship with his mother. She did not provide any explanation for why she came to that conclusion and I cannot place weight on that evidence.
[X] has a good relationship with his father. The mother did not dispute this and in the 2019 report the family report writer commented on their warm interaction during the observation session.
There was no dispute that [X] has a good relationship with his sister [G]. The mother described a range of activities which they did together and I have no reason to doubt that evidence. Another window in is that in the 2016 family report the report writer mentioned that [X] was reluctant to stay with her without his mother and [G] being present but when the mother left he settled happily with just [G] who could clearly understand the majority of his chatter.[14]
[14] 2016 Family Report paragraph 56
[X] also has a good relationship with his paternal grandmother and members of the extended paternal family.
I must consider the likely effect of any change in the child’s circumstances including the likely effect of his separation from either of his parents or any other child or person including any grandparent or other relative of the child with whom he has been living.
It was common ground that [X] would be unhappy with a change of residence. The father’s case was that he would adjust and that the change would be beneficial because he would be living with a parent who would be attentive to his educational needs, did not have health or drug dependence issues, did not have a history of forming relationships with people with troubling histories and would overall be an excellent role model for him.
I will only be able to assess those claims and make a finding about the likely effect of a change in [X]’s circumstances after making findings about the remainder of the relevant s. 60CC (3) matters.
I must consider the capacity of each of the child’s parent and any other person including a grandparent or relative of the child to provide for the needs of the child including his emotional and intellectual needs.
I intend to start by making findings about the mother in this regard.
The father in his affidavit and the family report writer in her report were highly critical of aspects of the mother’s parenting. However early in cross-examination the following exchange occurred between the mother’s counsel and the father:
Will you describe [X] as a happy child? Yes
As a confident child? Not overly but yes
As an endearingly cheeky little boy? Yes
Who aside from some health issues is generally travelling well? Yes
Do you give the mother any credit for [X] being like that? Obviously.
She’s doing a good job with [X] isn’t she? She’s doing a respectable job with him, yes
Notwithstanding the above exchange I am satisfied that the father does have concerns about the mother’s parenting capacity arising out of:
i)The mother’s health.
ii)The opinion of the family report writer that the mother is addicted to Fentanyl.
iii)The mother’s relationship with Mr C.
iv)The opinion of the family report writer that the mother had subjected the child to educational neglect.
v)The mother’s parenting of [G].
vi)The mother’s criminal charges.
The mother’s health
The family report writer said as follows:
The father stated that he has some concerns in relation to the mother’s physical capacity to care for the children noting that she appears to be constantly unwell and attending the doctor. As an alternative to the mother being genuinely unwell the father wondered whether the mother used illness as a strategy to gain attention and support from others.[15]
[15] Family report paragraph 120. Two middle sentences which relate to [X] omitted.
A claim that the mother might be feigning illness to gain attention and support from others was a bold claim for the father to make when the mother was diagnosed with cancer in 2016, had medical procedures and then chemotherapy in 2016 and 2017, suffered significant pain as a result which required the prescription of strong drugs, had an allergic reaction to some of the drugs prescribed for her, requires regular check-ups to make sure that the cancer had not returned and would understandably be vigilant for any physical signs that it may have done so, and at trial he did not run such a case.
The mother undoubtedly has issues with her physical health and she also has mental health issues. She has had some dark moments when she has presented at the hospital with suicide ideation although she has never been sectioned or remained there as an inpatient. She takes a range of medications including some to deal with anxiety and depression and she sees a psychologist and a psychiatrist.
During cross-examination the father said that his concerns about the mother’s health in the context of her parenting were the psychological effect on [X] of the mother spending a lot of time at surgeries and that her ill-health resulted in [X] being late for school sometimes.
He also said that he had observed the mother using a stick for support at a court event earlier in 2019 and he was concerned that she would not be able to chase after [X] if he ran onto the road.
This last is simply fanciful but the mother’s health issues do have some implications for [X]. She said that some of [X]’s late arrivals at school in a certain period were due to the fact that she could not get out of the car in the carpark and walk him to the door and sought permission to park in the bus zone. She was given that permission but had to wait until the buses left and this made [X] a few minutes late for class.
A reason given on one occasion for [X]’s absence from school was that he had to attend a doctor’s appointment with the mother.
However there is simply no evidence that the mother’s physical or mental health is otherwise impacting on her capacity to care for [X]. He presented as a well-cared for well-fed child when he was interviewed by DCJ workers in November 2018 and the mother also presented well at the interviews and did not say or do anything which gave rise to concern about her mental health.
She also presented well at trial. She was perfectly rational in the witness box and answered all the questions put to her during a lengthy cross-examination by the father’s counsel.
The father said that she was doing a respectable job parenting [X] and he has left her in sole charge of dealing with his medical issues and she made good decisions about them.
I cannot find that [X] is being psychologically harmed because the mother has to go to doctor’s surgeries frequently or that she lacks the physical capacity to care for [X].
The mother was asked in cross-examination about telling the family report writer that she sometimes struggled to get out of bed. She agreed that she had said that but went on to say that nevertheless she always did and I accept her evidence.
The mother’s Fentanyl use
In the father’s case outline document he stated that one of the issues in the case was:
The mother’s ongoing prescription drug addiction to the drug Fentanyl.[16]
[16] Exhibit A
The mother was prescribed Fentanyl in 2016 to deal with pain arising from the effects of chemotherapy. Throughout the time she has been prescribed Fentanyl she has been a patient of Medical Centre T. She has frequently seen Dr K but she has also seen numerous other doctors in the practice, a situation over which she has no control.
Subpoena material from Medical Centre T was examined by the family report writer who formed the view as a result of reading it that the mother was addicted to Fentanyl. She expressed concern about this because of what appeared to be her own research about the nature of the drug.
The family report writer is not a medical practitioner and has no expertise when it comes to assessing the mother’s Fentanyl use and the implications of it. In addition some of information included in the family report is not an accurate reflection of what is in the subpoena records from Medical Centre T. The report writer said as follows for example:
There are repeated Doctors’ records about the mother being persistent “demanding” in seeking that Fentanyl be prescribed (13/2/2018; 3/4/2018; and on 4/5/2018.).
I cannot find an entry for 3/4/2018 and the word “demanding” is not used in the entries on 13 February 2018 and 4 May 2018.[17]
[17] Tender Bundle pages 84 and 86.
The entry on 13 February 2018 is a note by Dr K which states that the mother was very resistant to the idea of Fentanyl not being suitable for her pain and noted that it had been prescribed “couple of times due to cancer”. The doctor noted that the mother thinks she is the only doctor who will not prescribe it and said that she was in lots of pain from medical procedures. Dr K said that she prescribed Fentanyl as the mother was distressed.
The entry on 4 May 2018 refers to the mother leaving a message for Dr K requesting that Fentanyl be prescribed without an appointment. Dr K declined to do this and said that the patient had had an allergic reaction to the drug and that she would not prescribe until the patient had a review.
The report writer said that in October 2018 one of the Medical Centre T doctors said that the mother had informed him that Town A F Rehabilitation Service said that she was able to stay on Fentanyl but when TIPS were contacted the mother had not attended F Rehabilitation Service and F Rehabilitation Service had not provided her with any such advice.[18] There is no such entry. In an entry made on 29 October 2018 Dr V states that the mother “says that F Rehabilitation Service said she can stay on them” and goes on to say “No response from F Rehabilitation Service”. The entry on 1 November 2018 also says that F Rehabilitation Service were unable to be contacted.[19]
[18] Family Report paragraph 73
[19] Tender Bundle page 90
The family report writer noted that the mother had reported lost prescriptions. This is referred to in the mother’s medical notes but the entry read in whole does not carry a sinister connotation.[20]
[20] Tender bundle page 92
In my view an accurate summary of the situation is as follows.
Dr K raised a concern with the mother about using Fentanyl to deal with pain on 13 February 2018 but continued to prescribe it. No further concern is expressed in the mother’s medical notes until she saw a different doctor in the practice on 27 October 2018. His notes record a concern about the prescription of Fentanyl because the mother did not have active cancer, was not in palliative care and did not fulfil the MBP criteria for fentanyl lozenges.
Dr V, who was also treating Mr C, then became involved and organised a meeting with Dr K to discuss her ongoing prescription of Fentanyl for the mother and doctors began to pressure the mother to become engaged with F Rehabilitation Service to explore being weaned off Fentanyl and finding other methods to manage her pain.
It was clear at trial that the mother was still is very concerned about the pain she might have to endure if she was weaned off Fentanyl. When the she was asked in cross-examination about why she was resistant to ceasing Fentanyl use she said as follows:
Why am I so resistant? They couldn’t come up with another solution for my pain. I’m allergic to a lot of medication and I knew for a fact that I couldn’t just stop it. They have to wean you off it.
It is also clear from the medical records from October 2018 onward in particular that the doctors at Medical Centre T are concerned about the risk of addiction and about ensuring that they do not prescribe a drug which has restrictions on its use unless there is justification for doing so. However there is absolutely nothing in the material to found a conclusion that the mother has a prescription drug addiction or even that she is engaged in “drug seeking behaviour” a phrase which Dr V but none of the other doctors in the practice including Dr K use in their notes.
The mother does not engage in doctor shopping. There was no suggestion anywhere in the material included in the tender bundle nor was it put to the mother during cross-examination that she was feigning pain to secure prescriptions of Fentanyl. There are a couple of references in the Medical Centre T records to the mother’s doctors asking her to undergo a urine test. There is no suggestion that this has ever revealed a misuse of Fentanyl.
The family report writer said in her report that one of the urine test results was concerning because it did not show Fentanyl or the derivatives thereof in the mother’s system and she also referred to “lost prescriptions.” I cannot locate the reference to the urine test (although that may simply be due to inadvertence and the volume of material) but if the family report writer was intending to imply that the mother might be obtaining prescriptions for Fentanyl and not using them herself the doctors notes do not support such a conclusion and this was not put the mother in cross-examination.
The mother attached to her affidavit a letter from Dr K dated 24 July 2019 in which Dr K said as follows:
Ms Olander has been prescribed with Fentanyl patches due to ongoing chronic pain worsened following receiving treatment for cancer. She has been on time with her prescriptions and picks up new patches upon handing the dated old patches to the chemist. Our long term plan is ultimately taper to discontinue this pain medication as also Ms Olander is keen on, for which we have seeked advice from pain management team at Town A base hospital and currently Ms Olander is on waiting list for an appointment in September.
Currently there is no concern in regards to misuse of the Fentanyl patches and Ms Olander has been stable and functioning better while on medication. She hasn’t been experiencing any side effect with this medication.
In the past we had done a urine drug test for Ms Olander to rule put using any other drugs as part of our clinic’s policy which has been negative. For court purpose and as a proof that Ms Olander has been using the Fentanyl patches herself, today we have requested for a specific Fentanyl test.
At this stage I don’t have any concern in regards to misuse of Fentanyl patches and Ms Olander is following an agreed treatment plan and has been regular with her appointments and follow ups with me and other specialists as well as her psychiatrist.[21]
[21] Mother’s affidavit page 73.
The mother also attached a copy of her dispensing history with Chemist W from early November 2018 (exact date obscure) to 25 June 2019. It did not suggest anything out of the ordinary about the supply of Fentanyl to the mother. [22]
[22] Mother’s affidavit page 75.
There is no evidence on which I can safely place weight that the mother is addicted to or is misusing Fentanyl.
There is evidence that since the family report was released the mother has engaged with F Rehabilitation Service. On 12 June 2019 she attended a 90 minute understanding pain information session and was placed on a waiting list for further appointments. She attended an active pain management workshop by teleconference on 4 September 2019 and it is noted that the F Rehabilitation Service team have assessed the mother and made a pain recovery plan and do not recommend long term opioid use for chronic pain. On 12 September 2019 Dr Y discussed the rationale behind this with the mother and recommended that the mother discuss a reduction plan with her GP.
On 24 October 2019 the mother attended session two of five of a course at F Rehabilitation Service and did a one hour catch up for the first session. It was noted that she participated well and that her engagement was optimal.
All this has of course been done under the eye of the court and there is a risk that the mother will cease to engage after the court proceedings are over. However this is not a case where the mother has been abusing Fentanyl i.e. obtaining it for a recreational purposes rather than a pain relief, she has only ever attended one doctor’s surgery and is under intense scrutiny there and perhaps most importantly there was no evidence that the mother’s use of Fentanyl was impacting on her capacity to care for [X] or was placing [X] at risk of harm.
Toward the end of the trial the father’s counsel sought to tender an extract from MIMS which contained information about the side-effects of Fentanyl. The mother’s counsel objected and I refused to receive the document. It would not have assisted me to have a document listing the possible side-effects of Fentanyl.
Mr C
I am concerned about the decision of the family report writer to include in the first family report a psychologists report about Mr C from 2000 suggesting that he may have psychopathic traits and was a danger to his new born son and his partner (who had her own significant issues). I am also concerned about the inclusion of selected extracts from FACS material in which the mother of those children made allegations about Mr C in 2005.
Part of my concern is due to the fact that some of the FACS material about the mother was inaccurately included in the family report which gives rise to a concern about the accuracy of the material about Mr C, but I am also concerned about it because reports made to child welfare authorities can be quite wrong or misleading. A report to FACS included in the tender bundle contained a complaint that the mother was telling people [G] had Z disease when by implication she didn’t and [G] does indeed have Z disease.
It would be unsafe for me to have regard to that untested material to make findings about Mr C’s parenting capacity, mental health or propensity for violence. However Mr C’s criminal record gives ample ground for concern. He has a very lengthy criminal record for offences of dishonesty and he committed serious offences of dishonesty while he was in a friendship or relationship with the mother and she risked being drawn into this activity as evidenced by the telephone conversation between them in 2017.
Mr C also has a drug use history and has convictions for drug offences and there is reference in notes made by Dr V which are included in the Medical Centre T records in the tender bundle to Mr C using after his release from jail.
Mr C was not involved in the criminal justice system between 2008 and 2016. He obtained employment with Employer J so he was obviously able to convince people that he had turned over a new leaf. The mother said that she saw a different side of him and I accept that she may have done. However Mr C was arrested in May 2017 and spent the following 9 months in jail.
The mother should not have allowed [X] to have anything to do with Mr C after the 2017 orders were made and should not allow him have anything to do with Mr C in the future. He is a criminal who would be an entirely inappropriate role model for [X] and could lead him astray. The mother’s failure to appreciate that gives rise to a serious concern about her parenting capacity.
The mother did not end her relationship with Mr C after the matter returned to court in 2018 but she said that she thereafter fully complied with the order that [X] have no contact with him. There is nothing to gainsay this and there are snippets in the DCJ records and the Medical Centre T records which support it and I accept the mother’s evidence.
At trial the mother said that she had ceased her relationship with Mr C in August 2019 and had had nothing to do with him since. She said she valued her relationship with [X] above her relationship with Mr C.
The mother ended her relationship with Mr C fairly recently and the father remains suspicious that he may be lurking somewhere in the background ready to step back into her life and he cannot be blamed for that given the mother’s failure to adhere to orders and her deception about whether [X] was coming into contact with Mr C.
However the mother and Mr C do not have a child together or own property together or have anything which might bring them together. The mother is acutely aware that she would instantly lose [X] if she brought him into contact with Mr C and I do not consider that there is an unacceptable risk that the mother will resume her relationship with Mr C or again breach the order about [X] having contact with him.
The family report writer described the mother as vulnerable but I cannot find on the evidence available to me that there is an unacceptable risk that she will enter into another problematic relationship.
Educational neglect
[X] has missed a substantial amount of school since he started kindergarten in 2018.
In 2018 he had 80 whole absences. However 36 of those absences were the result of the father withholding him and then the mother taking him back and the blame for these absences cannot be sheeted home solely to the mother. The father did not send [X] to school for three days when he first retained him. On 28 August 2018 the mother tried to reach an agreement with the father which would see [X] returning to school on the basis that the father agreed not to collect and retain him but the father would not do so.
The mother said that [X] was stressed and anxious about going to school during this period and I accept this. The father agreed that [X] was distressed about being withheld and resisted speaking to him on the phone when he was back with the mother, Dr K saw [X] and said that he was anxious and the child more than once during this period said that the father.
In those circumstances it is a bit rich for the father to simply rely on the family report writer’s analysis of the school absences which makes no distinction between the absences arising from this event and other absences.
Another problem with the analysis by the family report writer is she did not mention that [X] was marked absent on nine occasions when he was at AA Hospital with the mother and [G] and attended the Children’s School there rather than his usual school.
That leaves 35 absences which equate to 7 weeks and is a substantial amount of lost school time but it does not equate to [X] missing “nearly the whole of kindergarten” which was the colourful expression used by the family report writer.
Broken down [X] was absent on three consecutive days in February 2018, two separate days in March 2018, one day in April 2018, two separate days in May 2018 and then commencing on 31 May 2018 twenty one days ending on 29 June 2018.
The only absences marked unjustified by the school were one in March, one in April and four at the end of June.
[X] had an unjustified absence on 6 July and left school early to attend medical appointments on 27 July 2018 and 1 August 2018.
There is no evidence that at any time during this period the school contacted the mother or the father expressing concern about [X]’s school attendance.
The absences as a result of the child being withheld began on 6 August and on 28 August the school sent a letter to the mother about the child’s absences.
He then had two absences on the first two days of November, three absences on the last two days of that month and two absences in December. None were marked as unjustified by the school.
In 2019 [X] had 39 absences from school up to 30 October 2019. Only two were marked unjustified. Most of the others have explanations against them including tonsillitis, gastric, temps and vomiting.
The mother’s case was that now that [X] has had his operation he would suffer fewer episodes of ill health and have fewer absences and in light of the evidence about his health which I will come to in a moment I cannot discount that possibility.
[X] has also had numerous partial absences arising from the need to attend speech and occupational therapy and that may not change but the need to attend other medical appointments may reduce.
The mother said that on occasion [X] attended her early medical appointments with her as he was not allowed to attend school prior to 8.55am as the school did not provide supervision which resulted in a partial absence and that is also something that may not change.
It is important to note that while the father raised the issue of the child’s school attendance at trial there was nothing to suggest that he actively involved himself in the issue during 2018 and 2019.
The mother did not name the father on the child’s school enrolment form but she noted that [X] lived in a shared care arrangement (her words) with his father. The father knew where [X] was going to school and said that he had gone to look over the school. The school knew about the father. He was in contact with them during the period [X] did not attend in August/September 2018.[23]
[23] See for example text message exchange father’s affidavit page 20
Pursuant to the 2017 orders the father has equal shared parental responsibility for [X] in all matters except religion. He was entitled to receive school reports which would have provided information about the child’s absences. He was entitled to go to the school and discuss [X]’s progress and attendance with the school. There is nothing in either the father’s affidavit or the school records to suggest that he ever contacted the school about [X]’s absences prior to the events of August /September 2018 and nothing to suggest that he ever did so during 2019.
I asked the mother to read a passage from the family report. She read it very slowly and managed most of the passage but could not manage the word “responsible” and hesitated over “scheduled”.
After that it was requested that the Disability Support worker read a number of passages to the mother when she was out of the witness box to ensure that she properly understood what she was being asked.
In light of this the mother’s claim that she did not properly understand the 2017 orders has a ring of credibility.
However I have mixed feelings about whether I should accept that because it is clear from things [X] said to both the father in August 2018 and to DCJ workers in November 2018 that he was acutely conscious of a need to keep hidden from the father that he was coming into contact with Mr C.
It is possible that the mother wanted to keep this hidden simply because she knew that the father did not approve of Mr C but I cannot discount the possibility that she wanted to keep it hidden because she knew that the court order was being breached.
Another concern is that the mother did not fully comply with the order if she thought that was what it meant, because in a recorded jail conversation between the mother and Mr C he called out to the child at the end of the conversation and the child answered.
On a positive note the mother has shown a good attitude to the child and the responsibilities of parenthood in the way she has handled his health and developmental issues and the father has been remiss in this regard but I have considered that issue at length in another section of the judgment.
I must consider 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.
Court proceedings about [X] were on foot between January 2016 and June 2017 and have again been on foot between August 2018 and the present and it is highly desirable that orders are made which are least likely to lead to further proceedings.
Court proceedings are stressful for parties and for children. They can place parents under financial stress because they have to pay for a lawyer, take time off work or incur expense attending court events in distant locations. While parties are involved in court proceedings they may hoard up complaints for future use rather than immediately raising them with the other parent and resolving them. Sometimes children make allegations not because they are true but because they want to ensure that the court makes the orders they would like.
There is a risk of further proceedings if I make the orders the mother proposes. I consider it unlikely that she would enter into another problematic relationship; she does not have a history of doing so and she values her role in [X]’s life highly. However her health may decline, her optimism about [X]’s health improving after the operation in December may be unfounded meaning that there are ongoing problems with his school attendance or problems with [G] might arise which make it difficult for the mother to properly meet the needs of both of her children just to name a few potential issues.
There is much less likelihood that issues will arise with the father which will result in further proceedings. My only concern is that the father may over react to perceived issues with the mother and unreasonably prevent the child spending time with her which could cause the matter to return to court.
Parental Responsibility
At the commencement of the judgment I set out the parties proposals about parental responsibility as they stood when the hearing commenced. No submissions were made in support of those proposals on 19 December 2019 and I relisted the matter on 20 January 2020 so that I could receive submissions about the issue.
That was partly because I wanted to be clear about the mother’s proposal. In her amended response she sought an order for equal shared parental responsibility subject to the exception about religion but in two separate paragraphs in her affidavit she proposed that if no agreement could be reached about a major long term issue she should have the final say.
It was also because I was considering making an order for equal shared parental responsibility and as no party appeared to be seeking that I needed as a matter of procedural fairness to give the parties a chance to make submissions about it.
On 20 September 2020 the father’s counsel said that the father’s position had changed and that he now proposed an order for equal shared parental responsibility save that he sought an order that he have sole parental responsibility for decisions about the child’s education. The father’s counsel submitted that the father needed to have sole parental responsibility for education to ensure that the child’s woeful attendance record was turned around.
The mother’s counsel said that his client also sought an order for equal shared parental responsibility save that she wanted sole parental responsibility for making decisions about education. He said that the mother wanted sole parental responsibility for decisions about education because she wanted to be able to change the child’s school.
The Independent Children’s Lawyer said that she continued to seek an order that the father had sole parental responsibility. She submitted that the court should be particularly concerned about the child’s school absences and about the mother’s attitude to education as exemplified by her permitting [G] to do distance education contrary to advice but should also be concerned about her capacity to make good decisions in light of her Fentanyl use and her health issues.
Pursuant to s.61DA of the Family Law Act I am required to apply a presumption that it is in the child’s best interests that his parents have equal shared parental responsibility for him absent a finding that one of the parents has engaged in abuse of the child or family violence.
Nobody cavilled with the fact that the presumption applied in this case. However the father’s counsel pointed out that it could be rebutted if there was evidence that it would not be in the child’s best interests for it to apply.
The Full Court has recently stressed that a court needs to very carefully assess whether there is evidence which supports the presumption being rebutted when the effect of that is that one parent is removed from having a say about major long term issues until the child turns 18.[28]
[28] Reston & Jarry [2019] FamCAFC 241
The parents in this matter have equal shared parental responsibility at present save for matters to do with religion. It has never caused any issues. They have been able to communicate respectfully and the evidence about the arrangements made for the child to be assessed for and then have an operation in relation to his tonsils, adenoids and ears is a prime example of them being able to productively reach agreement.
The mother arranged the appointments and told the father about them. He was content for her to take the child to the appointments and did not feel the need to attend. The operation took place at H Hospital. The mother appropriately arranged for [X] to stay at DD Charity for recuperation. He was there at the time of the trial.
The parties have had their disagreements. They had a disagreement about whether the father should provide evidence of his aboriginality to the mother and about whether the mother should provide a copy of the child’s birth certificate to the father but disagreements such as those do not alter my view that the parties have demonstrated an ability to productively discuss and reach agreement about major long term issues.
They could not resolve the issue of whether the child should change schools following the mother moving to a new address but they discussed it respectfully and it was understandable that they could not reach agreement about it when the issue of where [X] should live was in dispute.
It is frankly incomprehensible to me why the father and the Independent Children’s Lawyer sought an order for sole parental responsibility. The parents are able to communicate. They are not inhibited from doing so by hostility emanating from one of them or fear that communication will be abusive. The mother is appropriately responsive to the child’s needs and has made good decisions about his health and need for speech and occupational therapy.
In the end the father stepped back from his proposal that he have sole parental responsibility and sought only that he have sole parental responsibility for decisions about education but such an order would not solve the problem of the child missing school due to illness.
I do not accept that the mother does not value [X] attending school and I cannot rule out the very real possibility that now that the child has had his operation (at the mother’s instigation) the situation with his school attendance will turn around.
I do not need to give the mother sole parental responsibility for decisions about education in order to deal with the issue of whether the child should change schools; that can be dealt with by making a discrete order.
[X] has two valuable parents who are for the most part able to cooperate and ensure that appropriate decisions are made for him. They each bring something different to the table which is beneficial for him and I am satisfied that regardless of which parent the child lives with the only appropriate order is an order for equal shared parental responsibility with the exception in relation to religion to continue.
The family reports
A family report was prepared in 2016 when the issue in dispute was the time the father should spend with [X]. The report writer recommended that time occur unless the court was satisfied that the child was at risk of sexual harm in the father’s care and on 19 June 2017 the parties settled the matter.
A second family report was prepared after interviews in May 2019 and the recommendations made in that report were as follows:
A judicial decision is required in relation to the allocation of parental responsibility.
If the Court were to find that the child is not at risk of sexual harm in the care of the father then it is recommended that the child live with him.
If the Court established that the father poses a risk of sexual harm to the child then it is recommended that FaCS be invited to intervene and that FaCS be advised of information relating to the mother’s history of Fentanyl abuse.
A judicial decision is required as to the child’s schooling arrangements.[29]
[29] 2019 Family Report paragraphs 178 to 181.
The report writer is a social worker who at the time of preparing both reports was employed as a family consultant and she has considerable experience preparing family reports. However I have significant concerns about this particular report.
I raised one issue earlier, the inaccurate reporting of the content of a Safety Assessment Decision Report with no reference to positive comments about the mother.
Another issue is that there are inaccurate statements in the Family Report such as:
Collateral material supports that there have been concerns relating to difficulties in maintaining the father/child relationship since the Final orders made in June 2017.
The collateral materials relied on were not identified and there is no foundation for this statement in any of the material available to me.
If the report writer was relying on the following passage in her report then she was misled by the father:
The father agrees that things have improved with him now able to see [X] regularly, and that the mother appears to have shifted in her attitude towards facilitating [X]’s relationship with him since FaCS intervention. He remains concerned, however, that the mother will revert to an obstructive attitude towards him seeing [X] when the scrutiny of the Court is no longer present. He pointed out that shortly after the last proceedings were finalised the mother reverted to making reports to FaCS. The father reported that his past experience of the mother was that things can settle for a while and then escalate rapidly. He described the mother as a compulsive liar.[30]
[30] Family Report paragraph 123
A further issue is that the family report writer expressed an opinion about the mother’s Fentanyl use which she was not qualified to give.
In the evaluation section of her report the family report writer said as follows:
It is evident that for many years the mother has held and expressed the strong view that [X] is at risk of sexual harm in the care of the father and it is assessed that she has engaged in a deliberate pattern of behaviour with the intention of limiting and/or disrupting the father’s time with the child. This has included her actively seeking to undermine the relational foundation between [X] and his father through influence, coercion and coaching of [X]. This pattern of behaviour by the mother continued to be evident as recently as the inception of these proceedings.[31]
[31] Family Report paragraph 164
There is meagre foundation in the information included in the family report for the conclusions by the family report writer that the mother has engaged in a deliberate pattern of behaviour with the intention of limiting and/or disrupting the father’s time with the child; that she has actively sought to undermine the relational foundation between [X] and his father through influence, coercion and coaching of [X]; and that this pattern of behaviour by the mother continued to be evident as recently as the inception of these proceedings, and there is no foundation for them in the evidence available to me.
The family report writer also said as follows:
This assessment supports that [X] has been subjected to emotional harm in the care of the mother. Specifically, it is apparent that the mother has utilised the parent/child relational dynamic to nurture dependency and enmeshment between her and both children in her care. This has provided the foundation for the mother to place loyalty demands on [X] with a view to coerce and coach him to make allegations of harm by the father and to influence [X] to become highly dysregulated at changeovers with his father.
There is no foundation for these conclusions within the report and such findings are not open to me. Among other things there is no evidence that the mother has coached, let alone coerced, [X] to make allegations of harm by the father and there is no evidence that [X] becomes highly dysregulated at changeovers with his father, let alone that his mother has influenced him to do so.
As a result of these issues I cannot place weight on the recommendations in the report in coming to a conclusion about the outcome which is in [X]’s best interests.
Conclusion
If the only issue I had to decide was whether [X] would be safe and properly cared for by the father if he was placed in the father’s sole care then the matter would be an easy one. [X] relates well to the father and the father has the capacity to provide for his day to day needs. I have some concerns about his empathy for the child and his social attitudes but this would not disqualify him as the child’s carer if he was the only parent available. He is a sensible adult who cares about his son and if he was required to do so it is reasonable to suppose that he would take steps to acquaint himself with [X]’s medical needs and his need for speech and occupational therapy, would commence engaging with [X]’s school and would ensure that the child attended appointments, assessments and therapy recommended by the school and treating health professionals.
However that is not the issue I have to decide. The issue I have to decide is the appropriate parenting arrangements for [X] in circumstances where he has two parents who have alternative proposals before the court.
I cannot place any weight on the father’s claim that the child’s relationship with him would be at risk if the child lived with the mother or that the child is at risk of harm in the mother’s home and that for this reason his proposal should be preferred.
The mother’s continued association with Mr C after he was arrested in May 2017 was a serious error of judgment on her part and while her breach of the court orders about [X] being brought into contact with him may not have resulted in [X] being harmed by Mr C it led to a world of trouble, anxiety and distress for him and to missed time with his father and a good deal of missed school. However I cannot find that the mother has allowed [X] to see Mr C since August 2018 or is continuing to see Mr C herself or that there is an unacceptable risk that she will do so in the future or enter into a future problematic relationship.
I cannot find that the mother has educationally neglected the child. At this stage there is a very real possibility that his attendance has been affected by his health issues and that the situation will turn around now that he has had his operation.
There are nevertheless many good arguments which could be made for why it would be preferable for [X] to live with the father.
The father does not have any issues with either his physical or mental health and absent unforeseeable accident or misadventure he will be available to care for the child until the child turns 18, whereas there is always a risk that the mother may not be. The mother has illnesses which mean that she has frequent visits to the doctor and sometimes has to visit the hospital and for the sake of her own health she needs to deal with her Fentanyl use. The child has occasionally been late for school due to the mother’s health issues.
The father does not have a young person living in his home who has issues with her physical and mental health, issues which sometimes mean that [X]’s needs have to be subservient, for example when the young person has to go away to hospital.
It is highly desirable that there are no further court proceedings and if the child lives with the father there is a smaller risk that the matter will come back to court.
I am concerned about the father’s proposal about the child’s time with the mother but I am not be bound by the parties’ proposals and I could ask the parties to make further submissions about that issue and after hearing those submissions could make different orders about the time the child spent with his mother.
However although there would be some positives for [X] in making an order that he live with the father there would also be negatives.
On the father’s own admission an order that [X] live with him would cause the child considerable anger and distress. The family report writer conceded in cross-examination that if [X] was physically and emotionally safe there was a clear benefit to him in living with his primary attachment figure. She went on to say:
If he’s not unsafe I don’t think the child should be removed.
I cannot find that [X] is unsafe in the mother’s care. I cannot find that the mother’s health issues or her Fentanyl use are impacting on her capacity to provide for [X]’s day to day care and the father conceded that she was doing a respectable job looking after him. She has been dealing alone with his medical issues and has been taking him to speech and occupational therapy.
It is hard to reconcile the father’s expressed concerns about the mother’s parenting capacity with his decision to leave all the running to her in regard to the child’s health, therapy and education in the last two years and hard to reconcile his expressed concerns about the child being permitted to have a relationship with him with the reality of what has happened in the last two and a half years.
I cannot find that [G]’s health issues are impacting adversely on [X] save for the fact that in both 2019 and 2018 he accompanied the mother to Sydney when [G] has been required to attend hospital. That has the potential to impact on his education even if he attends the children’s school, but I can deal with that by making a discrete order that in future [X] remain with the father in Town A if this occurs so that he can continue to attend his usual school.
I cannot find that the way the mother has dealt with [G]’s issues and the decisions she has made for her mean that [X] is at risk of a less than satisfactory upbringing in the long term if he lives with the mother.
There is a higher risk of further court proceedings if orders are made that [X] lives with the mother. There is also a risk that if [X] becomes stressed and angry he may again refer to the historic child abuse allegations but this needs to be kept in perspective. He has never made any fresh allegations and the father can divert his attention from it just as the mother does.
The mother has greater availability to care for the child, she has to date been exclusively and appropriately dealing with his medical needs and issues concerning his speech and hearing and [X] strongly wishes to remain with her.
The mother is far from a perfect parent. She made a serious error of judgment continuing her association with Mr C and the fact that she breached the order about [X] spending time with him deserves strong condemnation. However she has strengths as well as weaknesses and the father is also not a perfect parent. He has some blind spots about his parenting responsibilities and a questionable attitude to people less fortunate than him.
The father’s application is not without merit but in all the circumstances of the case I am satisfied that it is in [X]’s best interests to leave him where he prefers to be and make an order that he lives with the mother.
The mother proposed that the father spend time with [X] in accordance with the 2017 orders. They provide for the father to have substantial and significant time with [X] and the father did not ask the court to consider making different orders if [X] remained with the mother.
With two changes I therefore intend to make orders very similar to the orders made in 2017.
The first change is that I intend to order that if the mother is required to be absent from Town A during term time either for her own medical needs or [G]’s medical needs or for any other reason with the result that [X] cannot attend school then she is to contact the father by email and offer him the opportunity to look after [X] while she is absent.
The second is that because I intend to make an order that the child lives with the mother I intend to make an order that she be permitted to enrol him at Town A Public School.
The mother has long term Department of Housing accommodation in Town A and Town A Public School is the school [X] is now zoned to attend. It is a short drive and only a 10 minute walk from the mother’s home.
The father takes [X] to school only one morning a fortnight and picks him up on two afternoons per fortnight. He is in a much stronger financial position than the mother and the extra travel involved in taking [X] to and picking him up from Town A should not be an imposition on him. On the other hand it will make a big difference to the mother if her travelling time each day is something in the vicinity of 10 minutes rather than 60 minutes.
The father was asked if he had any difficulty with Town A Public School and said “not entirely but I would like to meet the Principal and see the school”.
It is in [X]’s best interests that the mother has liberty to change his enrolment to Town A Public School.
Other than that I intend to replicate as far as I can the orders made on 19 June 2017 omitting only some orders which are no longer relevant because time has passed since the 2017 orders were made.
I say as far as I can because there is a conflict in the 2017 orders about the time [X] is to spend with the father during the 2019/2020 school holidays. I have used one version rather than the other in the orders I have made but if the parties are using the other alternative they should keep using it because these holidays are almost over.
I certify that the preceding three hundred and fifty six (356) paragraphs are a true copy of the reasons for judgment of Judge Terry
Associate:
Date: 22 January 2019
Key Legal Topics
Areas of Law
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Family Law
Legal Concepts
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Injunction
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Procedural Fairness
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