Kemyss and Flint
[2008] FMCAfam 833
•14 August 2008
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| KEMYSS & FLINT | [2008] FMCAfam 833 |
| FAMILY LAW – Children – relocation – 3 year old child – mother seeking to relocate to New Zealand – father seeking that child remain in Australia – mother undisputed primary carer of child. |
| Family Law Act 1975 ss.4, 60B, 60CA, 60CC, 61DA, 65D, 65DAA, 65DAB |
| Goode & Goode, [2006] FamCA 1346, (2006) 36 Fam LR 422, (2006) FLC 93-296 U v U, (2002) 191 ALR 289, (2002) 29 Fam LR 74, (2002) FLC 93-112 Bolitho v Cohen, [2005] FamCA 458, (2005) 33 Fam LR 471, (2005) FLC 93-224 Powell & Ptolemy, [2005] FamCA 1032, (2005) FLC 93-239, sub nom. P & P, (2005) 34 Fam LR 340 A v A: Relocation Approach [2000] FamCA 751, (2000) 26 Fam LR 382, (2000) FLC 93-035 AMS v AIF; AIF v AMS, [1999] HCA 26, (1999) 199 CLR160, (1999) 26 Fam LR 382, (1999) FLC 92-852 C & T, [2006] FamCA 1198 M & S, [2006] FamCA 1408, (2006) 37 Fam LR 32, (2006) FLC 93-313 Godfrey & Sanders, [2007] FamCA 102 Morgan & Miles, [2007] FamCA 1230, (2007) 38 Fam LR 275, (2007) FLC 93-343 |
| Applicant: | MR KEMYSS |
| Respondent: | MS FLINT |
| File number: | PAM 540 of 2006 |
| Judgment of: | Halligan FM |
| Hearing dates: | 14 June 2007, 16 & 17 July 2008 |
| Date of last submission: | 17 July 2008 |
| Delivered at: | Parramatta |
| Delivered on: | 14 August 2008 |
REPRESENTATION
| Counsel for the Applicant: | N/A |
| Solicitors for the Applicant: | Norwest Family Law |
| Counsel for the Respondent: | Mr Perry |
| Solicitors for the Respondent: | Stidwill Solicitors |
ORDERS
All prior parenting orders in relation to the child [X] born in 2005 are discharged.
The parents shall have equal shared parental responsibility for the child.
The child shall live with the mother.
The mother is restrained from changing the child’s place of residence to a place outside the Sydney metropolitan area without the father's prior written consent.
The child shall spend time with the father as follows:
(a)Until the child commences school-
(i)From 6.00 pm Friday until 6.00 pm Sunday on the first weekend in every three, commencing on the second Friday after these orders are made;
(ii)From 6.00 pm Friday until 6.00 pm Monday on the second weekend in every three, commencing on the third Friday after these orders are made;
(iii)For five consecutive days and nights during school holidays at the end of Terms 2 and 3 in 2009, at times as agreed between the parties, and failing agreement commencing at 6.00 pm on the day after the end of the school term and concluding at 6.00 pm on the fifth day thereafter;
(iv)For one week during the Christmas 2009 school holidays as agreed between the parties and failing agreement from 5.00 pm on Boxing Day 2009 until 5.00 pm on 2 January 2010;
(v)For half of each school holidays commencing with the holidays at the end of Term 1, 2010, as agreed between the parties and failing agreement, for the first half of school holidays commencing in 2010 and each alternate year thereafter and other wise in the second half.
(b)From when the child commences school-
(i)During school terms, from after school Friday until before school Tuesday each alternate week, commencing on the second Friday of the school term if the child spends time with the father for the second half of the preceding school holidays and otherwise commencing on the first Friday of the school term;
(ii)For half of all school holidays as agreed between the parents, and failing agreement for the first half of school holidays commencing in 2010 and each alternate year thereafter and otherwise for the second half.
Despite anything contained in Order 5-
(a)The child’s time with the father under Order 5(a)(i) and (ii) is suspended during school holidays at the end of Terms 2 and 3 in 2009, and all school holidays commencing with the holidays at the end of Term 1 2010;
(b)The child shall spend Mother’s Day with the mother and shall spend Father's Day with the father;
(c)The child shall spend time with the mother from 5.00 pm Christmas Eve to 5.00 pm Christmas Day in 2008 and each alternate year thereafter, and 5.00 pm Christmas Day to 5.00 pm Boxing Day in 2009 and each alternate year thereafter;
(d)The child shall spend time with the father from 5.00 pm Christmas Eve to 5.00 pm Christmas Day in 2009 and each alternate year thereafter, and 5.00 pm Christmas Day to 5.00 pm Boxing Day in 2008 and each alternate year thereafter;
(e)The child shall spend at least 2 hours with the mother on her birthday and with the father on his birthday, as agreed between the parties and failing agreement from 5.00 pm to 7.00 pm;
(f)The parent with whom the child is not living or spending time on the child’s birthday shall spend at least 2 hours with the child on the child’s birthday, as agreed between the parties and failing agreement from 5.00 pm to 7.00 pm.
Changeovers for the purposes of Orders 5 and 6 shall occur at the [C] Contact Service, or if that service is not available, at Westfield, unless otherwise agreed by the parties.
Each of the parties shall arrange within seven days, and shall attend, the earliest available intake interview with the [C] Contact Service, and shall comply with the terms and conditions of any service agreement entered into with that Service, and shall comply with all reasonable requests or directions of staff of that Service.
From the child’s fourth birthday, the father may have telephone communication with the child up to three times each week at reasonable times.
Each party shall keep the other informed of his or her current address and telephone number.
Each party shall promptly inform the other of the details of any illness the child has, and of any medical appointment or treatment for the child, while the child is in his or her care.
Each party shall inform the other promptly of any school interview or orientation day the child is to attend before commencing school, of the first day the child is to attend school, and of any notices, reports, school photo order forms or other written communications received from the child’s school.
Each party shall keep the other informed of all details of any extra curricular activities the child is involved in, including advice in advance of dates, times and places of attendances by the child to participate in the activity.
IT IS NOTED that publication of this judgment under the pseudonym Kemyss & Flint is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT PARRMATTA |
PAM 540 of 2006
| MR KEMYSS |
Applicant
And
| MS FLINT |
Respondent
REASONS FOR JUDGMENT
Introduction
The parties to these proceedings have a three year old son. The mother has been the child’s primary carer since birth. The parents have separated, and the mother wishes to return to live in New Zealand, where her parents and extended family live, and proposes the father spend time with the child there until the child turns five. The father wants the child to remain in Australia living with the mother and spending time with him. These proceedings concern what parenting orders are in the child’s best interests in those circumstances
The parents commenced cohabitation in March 2003 and separated on 2 February 2006. Their son [X] was born in 2005.
The father was born in 1968, and is now 40, and the mother was born on in 1973, and is now 34.
The mother came to Australia from New Zealand with her parents in 1999 or 2000. Her parents returned to live in New Zealand in November 2003.
The father has three other children, [Y] aged 21, [Z] aged 18, and [K] aged 15. It seems the father has never had a relationship with [Y] or [Z], and his paternity of them is apparently not acknowledged by their mothers. He sees [K], who lives in Queensland, in NSW, paying for her flights. He has seen her twice in 2006 and twice in the first half of 2007, on each occasion for about two or three days. There is no evidence whether he has seen her since.
Delay in concluding hearing
This matter was initially listed for final hearing on 21 November 2006 as a two day hearing, with an order that both parties file and serve all further affidavit evidence by 27 October 2006.
On 21 November 2006, the parties believed that there may have been a Department of Community Services investigation on foot, and the matter was adjourned for a month to determine whether there was, and if so, its progress.
In December 2006, the question of any DoCS investigation having been resolved, the matter was listed for hearing with priority on
14 June 2007as a 2 day matter.
At the beginning of the second day’s hearing on 15 June 2007, the mother sought to rely on a further affidavit containing significant fresh evidence. This was opposed by the father unless the proceedings were adjourned to give him an opportunity to meet the mother’s changing case.
Because the fresh evidence the mother wished to rely on could have significantly influenced the assessment of the child’s best interests, and despite the lack of any satisfactory explanation for not having filed the evidence in a timely fashion, I acceded to the mother’s request, but on the condition the father sought. I adjourned the hearing to
27 November 2007to conclude the second day of the two day hearing and ordered a Supplementary Family Report limited to whether the further evidence to be filed by the parties affected the opinions expressed by the Family Consultant in the Family Report.
On 27 November 2007 the hearing was further adjourned to permit the mother even more time to obtain still further evidence in support of the orders she sought. It was also in circumstances where the estimate of the time necessary to conclude the hearing had increased to two days, and the Court calendar did not permit of the matter being run to completion on 28 November 2007. The hearing was then listed on
16 and 17 July 2008, and concluded on the latter date.
Credit of lay witnesses
There were significant issues of fact raised on the evidence. It is appropriate to make some general comments about the credit of the lay witnesses.
The father
The father at times gave conflicting answers to questions in cross-examination. To some extent this seemed explicable by the fact the father, with due respect to him, was not particularly articulate. His literacy and numeracy were very limited. However, it was apparent that he was prepared to exaggerate criticisms of the mother and her parents, elevating his criticisms of drug and alcohol abuse by the mother and her parents to the Family Consultant who prepared the Family Report to a level clearly unjustified by his subsequent evidence. He also failed to acknowledge until he was cross-examined about it, that he bought marijuana for the mother to use on two occasions during the latter stages of the parties’ cohabitation, a period when he was critical of the mother’s drug use.
Thus, some general caution is warranted with the father’s evidence, although I was not satisfied his credit generally was destroyed.
The mother
The mother too showed a propensity to exaggerate her criticisms of the father in her later affidavit evidence. The great expansion of her evidence critical of the father from her earlier two affidavits filed before the scheduled commencement of the hearing on 14 June 2007, to the content of the two subsequent affidavits, was not satisfactorily explained. However, that does not warrant an adverse finding as to her credit.
What was of concern was the mother’s over-zealous attempt to ultimately make a wide range of criticisms of the father, some of which equally applied to her, a fact she failed to acknowledge until cross-examination. I also had some concerns about the mother’s evidence concerning her proposed arrangements for the child if permitted to relocate. While aspects of this evidence raised questions about the mother’s appreciation of the child’s needs, and her ability to separate her wants and needs from the child’s needs, I was nonetheless left with the impression that the mother was to some extent prepared to say what she thought would best advance her case regardless of its accuracy.
As with the father, I formed the view that while the mother's evidence warranted being treated with some caution, her credit as a witness had not been generally destroyed.
The maternal grandmother
The maternal grandmother denied in cross-examination having heard her daughter swear at the father, although she said she would not be surprised to hear that she did, and nor would it surprise her to hear her daughter had been abusive of the father.
I am troubled by this evidence. The maternal grandparents came from New Zealand to be with the mother around the birth of [X], and to spend Christmas 2005 with the parties and [X]. The maternal grandmother remained in Australia to assist the mother after [X]’s birth for a short time after the maternal grandfather returned to New Zealand. She was thus in the parties’ home longer than the maternal grandfather. The maternal grandfather admitted hearing his daughter swear at and abuse the father. It is highly improbable that the maternal grandmother did not hear the swearing and abuse by her daughter if her husband did.
The maternal grandmother denied in cross-examination that her daughter has a temper, and denied that she would throw something in anger. She said that when she saw the mother throw the torch during the incident on 24 December 2005, the mother definitely did not throw it in anger. In fact she denied the mother threw the torch case, but simply “tossed” it. She said she was not critical of the mother for throwing the torch but was critical of the father for subsequently throwing a plate, because the objects were of different sizes. She said that she saw the father throw the plate during the incident on
24 December 2005, and was adamant that the father threw it at the mother.
The mother admitted having thrown the torch in anger, and said that the father did not throw the plate at her.
I am satisfied the maternal grandmother was not being truthful in these aspects of her evidence. This untruthfulness seems to have been driven by a misguided desire to assist her daughter by representing the father in the worst possible light and her daughter in the best possible light.
The mother relied on the evidence of the maternal grandmother to corroborate aspects of her evidence critical of the father. Because of my view of the maternal grandmother’s untruthfulness, I do not accept her as a reliable witness in relation to matters adverse to the father, and do not accept her evidence as sufficiently reliable to corroborate the mother’s.
The maternal grandfather
The maternal grandfather impressed as a truthful witness. He readily made the concession that his daughter swore at and abused the father, and was not shaken in any way in his evidence during cross-examination. I accept him without qualification as a reliable and truthful witness.
The evidence
As previously adverted to, both parties made a number of disputed allegations against the other said to reflect adversely on the other parent’s parenting capacity. For example, the father sought to represent to the Family Consultant who prepared the Family Reports that the mother had a serious drug problem and was preoccupied with obtaining and using marijuana to an extent that rendered her an unfit mother. The mother ultimately made a wide range of criticisms of the father, including that he was verbally and physically abusive and highly controlling and domineering of her, and that he jeopardised the child’s safety and teased the child for his own amusement.
Yet, each proposed an involvement of the other with the child that seemed wholly inconsistent with their respective allegations. The father proposed that the mother continue to be the child’s primary carer until he turned five or the mother obtained employment, with an equal time arrangement to then commence. The mother proposed that the father spend significant block periods with the child. Neither proposal is consistent with the criticisms the party putting forward the proposal makes of the other party. Either the parties have made false or exaggerated allegations, or neither is able to provide a safe environment for [X]. While I am satisfied the former is the more likely explanation, I will nonetheless consider each of the significant relevant factual issues raised on the evidence. I will also summarise the evidence in relation to other relevant and less controversial matters.
Child care before separation
After [X] was born, the father continued to work full time and the mother was a full time homemaker and parent. While the father normally worked a five day week, because he worked in the building industry he on occasion would not work during the week because of rain, machinery repairs, etc. The father said he assisted with the care of the child when not at work, but said the mother was the main caregiver. I find that the mother was the primary carer of the child before separation, and that the father had a significant though lesser involvement in the care of the child.
Child care after separation
The child remained in the mother’s care after separation. The father did not see the child until interim parenting orders were made on 13 March 2006, other than at the Local Court when an AVO was granted on
21 February 2006, despite repeated attempts by the father to communicate with the mother by phone and text message to negotiate arrangements to see the child.
On 13 March 2006, parenting orders were made that until 11 May 2006 the child live with the mother and spend time with the father each Sunday from 10am to 3pm. The father spent this time with the child. The father said, and I accept, that in addition to the time under these orders the mother agreed to the father seeing the child on some afternoons.
On 11 May 2006, parenting orders were made pending further order. By consent the child was to live with the mother. Orders were also made, not by consent, that the child spend time with the father from 3pm to 6pm each Saturday and from 10am to 5pm each Sunday, changeovers to occur at McDonald’s [W]. The father was also ordered to attend a parenting course with [B] Fathers Support Service, and the mother was ordered to undergo fortnightly urinalysis testing for illegal drugs, to continue until the mother produced four consecutive clear urinalysis results.
The mother put into evidence clear urinalysis results for tests conducted on 22 May 2006, 14 June 2006, 22 June 2006, 19 July 2006, 9 August 2006 and 22 August 2006. She thus has not produced four consecutive fortnightly clear urinalysis results, and has given no evidence why the tests were not conducted fortnightly.
Neither has the father complied with the requirement to attend a parenting course. He suggested he rang [B] twice and attended their offices once about enrolling in such a course, but was not offered a course. He suggested he was told the courses had been suspended or cancelled through lack of sufficient interest. He said he was advised to continue ringing about the availability of a course, but did not continue calling after the first two calls.
From 11 May 2006 to November 2006, the father has generally spent time with the child in accordance with the orders of 11 May 2006. There were several occasions, between April and October 2006 according to the mother, when she allowed the child to spend time with the father on weekdays, that is, on occasions not provided for in the orders. There were two weekends when the child was ill and on medical advice the mother did not make the child available to spend time with the father. There were also occasions when the father did not spend time with the child after the mother’s motor vehicle was repossessed in July 2006. The mother did not have ready access to private transport for a time after the repossession, it was an unreasonably long distance for the mother to wheel the child in a pram or stroller from the railway station to McDonalds, and the father refused the mother’s request to alter the changeover point to Liverpool.
On 21 November 2006, orders were made by consent varying the contact orders of 11 May 2006, to provide that the duration of the father’s time with the child would increase to six hours, from 12 noon to 6pm, on three consecutive Saturdays, then revert to the three hours provided for in the May orders. The changeover point was also changed to Westfield shopping centre.
The father said, and I accept, that after the November 2006 orders, the mother brought the child to him earlier than the orders require on some occasions. On one occasion, he became unwell and had to ask the mother to attend to collect the child early, and on four occasions the mother agreed to the father seeing the child mid week on the basis he performed some repair work on her car. The mother too referred to additional occasions when she asked the father to care for [X] at times outside those provided for in the orders, including once when she was moving house, and on two occasions when she wished to visit a sick friend.
On 27 November 2007, further interim consent orders were made. The parents were to have equal shared parental responsibility, and in lieu of the time the father was to spend with [X] under the May 2006 orders, the father was to spend time with [X] from 8am Saturday to 4pm Sunday, extending to 4pm Monday if a public holiday, for the first two of every three weekends. The mother was also permitted to take the child to New Zealand for two weeks in February 2008, the father to purchase the tickets for the mother and [X] or pay the mother $850 towards the cost of tickets. The father has generally spent time with [X] since November 2007 in accordance with these orders.
In summary, then, apart from about the first month of separation, the father has had regular time with the child, usually once a week from March to May 2006, and thereafter usually twice a week on weekends, moving to overnight time two weekends out of three in November 2007, although there have been some occasions when weekend time did not occur, and there have been times when the father spent time with the child midweek and otherwise in excess of the time provided for under Court orders.
I am satisfied that since separation the mother continued to be the child’s primary carer, and the father continued to have a regular involvement with the child, apart from the first month or so after separation. Based on paragraphs 28 and 29 of the Family Report, Exhibit A, and this finding as to the parents’ involvement in the child’s care, I find that the child’s primary attachment figure is the mother, and that the father is also a significant attachment figure for the child. The mother conceded that after her, the father is the most important person for the child.
Family violence
The mother has consistently alleged she was the victim of family violence. The father has consistently denied being violent to the mother except for pushing her on the day of separation. I will deal with each specific allegation of family violence by the mother in turn.
For the purposes of the Family Law Act, family violence means:
“conduct, whether actual or threatened, by a person towards, or towards the property of, a member of the person’s family that causes that or any other member of the person’s family reasonably to fear for, or reasonably to be apprehensive about, his or her personal wellbeing or safety” (s.4, Family Law Act 1975).
Verbal abuse, denigration and swearing
The mother said the father was first verbally abusive to her three weeks after they started going out together, swearing at her and crudely belittling her. She said that the father’s verbal abuse continued until the parties separated on 2 February 2006.
The mother’s parents both gave evidence of having heard the father verbally abuse, denigrate and swear at the mother when staying with the parties in May 2005 around the time of [X]’s birth, and at Christmas time 2005.
The father’s evidence was that the parties had many arguments during which each verbally abused and swore at the other. As he put it, each of them gave as good as they got.
In cross-examination the mother admitted swearing quite a bit herself. However, she asserted that when she did it, she did not consider it abusive of the person she was talking to, but that nine times out of ten when the father swore at her he was being abusive.
The maternal grandfather admitted hearing his daughter swear at and abuse the father, contradicting the mother’s denial that while she swore at the father, this was not abusive.
Based on the evidence of the father and the maternal grandfather, which I prefer over that of the mother and the maternal grandmother where it is inconsistent, I am satisfied that during their cohabitation the parties regularly engaged in heated arguments during which each swore at and was verbally abusive of the other. On the evidence I am not satisfied this amounted to family violence, except where accompanied by other conduct during specific incidents identified later in these reasons.
Incidents at hospital around [X]’s birth
The mother said that when she was admitted to hospital shortly before the birth of [X], the father asked to stay with the mother overnight and the nursing staff refused. She said the father was verbally aggressive to the nurse, swearing at her. The father denied the mother’s evidence of being verbally aggressive to or swearing at the nurse. In cross-examination he said that while he was unhappy when told he could not stay the night, he was not upset, and denied swearing or using offensive language to the nurse as alleged by the mother.
The mother also said that when she was being shown by two midwives how to breast feed a few hours after [X]’s birth, the father intervened, loudly swearing at and abusing the mother, and grabbing her breast, squeezing it and trying to force it into the baby’s mouth, hurting the mother.
The father denied loudly swearing at or abusing the mother, but admitted telling the mother she was not listening to what she was being told by the hospital staff trying to assist her. He said the mother was more focussed on how cute the baby was and not listening to the advice being offered to her. He said that the midwife told him he needed to get involved and help the mother with the correct method of breast feeding. He denied that a midwife told him he was hurting the mother. In cross-examination he denied grabbing the mother’s breast and trying to force it into the baby’s mouth. He said that it was the midwife who did this and hurt the mother.
I find it difficult to reconcile the father’s assertion in his evidence in chief that the midwife told him he needed to get involved and help the mother with the correct method of breastfeeding and his suggestion that it was the midwife who squeezed the mother’s breast hurting her. On the other hand, putting aside the mother’s assertion of the father denigrating her, it is possible that in an effort to assist the mother feed the baby, the father may have squeezed too hard hurting the mother unintentionally.
Having heard the parties give their evidence on this and other matters, and having regard to the evidence overall, I find it is more likely than not that both parties became somewhat frustrated and angry on this occasion in the effort to initiate breastfeeding with the newborn baby, that the father perhaps a little too vigorously sought to assist as he saw it, and in the process unintentionally hurt the mother. I am also satisfied that it is more likely than not that the father spoke to the mother in a less than gentle, reassuring or encouraging way. The use of profanities in normal conversation seems to be usual for both parties, and particularly for the father. I am on the evidence unable to be satisfied it is more likely than not that the father used profanities derogatorily to the mother on this occasion or otherwise verbally abused her.
I am not satisfied either of the incidents at the hospital involved family violence.
Knife throwing incident
The mother said that on 5 September 2005, after she ignored the father when he was yelling about something, a kitchen knife passed her head and struck a door, the blade penetrating to the other side of the door. The mother said this was the first time she feared for her life.
In cross-examination the mother agreed that the knife had not been thrown at her. She made no mention of the knife throwing incident in any of four statements she made to police, nor in the first two of her four affidavits in these proceedings. She did mention it to the Family Consultant during her interview with him on 9 November 2006.
The mother said there were two witnesses to this incident, but she did not call them in her case. She said this was because they declined to get involved when she asked them to give evidence for her. She said she was aware she could subpoena them as witnesses.
I also note that in the mother’s first police statement, made on the day the parties separated, the mother related the argument and pushing incident that occurred earlier that day and stated that she felt scared for her safety in this incident, and that she had felt scared “for a long time as this kind of incident has happened before but not to the extent of today” (emphasis added). It is difficult to reconcile this statement with her contention that the knife throwing incident made her fearful for her life. She did not call the police when the knife was thrown.
The father denied this allegation, calling it a complete fabrication. He denied ever having thrown a knife at the mother, at the door, or anywhere else in the house. The mother brought a diary to Court on the first day of the hearing. In his affidavit sworn on 10 October 2007, the father said he had never seen that diary before. He said that during cohabitation the mother kept a daily diary for [X]. He said it was a large blue book. He did not mention any other diaries. In cross-examination he denied having ever seen a blue diary the mother had at Court during their cohabitation. He said during cohabitation the mother bought two identical black diaries, one for each of them. He repeated that the blue diary produced by the mother at court was a fabrication, and it was not the one she had during cohabitation. When challenged about his affidavit evidence that the mother had a blue diary during cohabitation, he said that was the baby’s diary and that the mother had many diaries during cohabitation, and then said the mother had one diary for herself and one for the baby.
In re-examination, the mother identified a diary inside a black personal organiser cover that she said she kept during the parties’ cohabitation, and identified an entry for 5 September 2005 that she said related to this incident. That entry became Exhibit I, and refers to a knife thrown at the bathroom door, with the comment that it was “scary”, it was “a side of [Mr Kemyss] I haven’t seen before”, and that it “really scared me”.
I was not satisfied with the father’s evidence about the mother’s diaries. It was internally inconsistent. He said the mother had a black diary, and the diary she produced is black. I am satisfied that the mother’s evidence about the knife throwing was not a recent invention as the father alleged. Nor am I satisfied the diary she tendered is a fabrication as the father alleged.
I accept the mother’s evidence and find that the father did throw a knife near, but not at, the mother on this occasion. This was a stupid action by the father and showed a culpable disregard for the mother's safety. The father's action clearly endangered the life of his infant son’s mother. The father never gave any explanation for his action, simply denying it occurred. It reasonably engendered fear in the mother for her personal safety, and I am satisfied it was an incident of family violence.
Glass throwing incident
The mother said that on 22 September 2005, during an argument, the father picked up a glass and threw it at her. The mother avoided the glass which hit an ornamental statue, breaking it.
In his affidavit evidence, the father said that on one occasion he threw a glass ashtray, breaking an ornament. He denied [X] was in the room, or that the broken ornament was anywhere near the mother. He did not volunteer any explanation why he threw the ashtray. In cross-examination he said he could not recall the incident alleged by the mother or any incident involving an ashtray breaking a statue. He then said there were occasions when the parties each threw ashtrays, but denied throwing anything at the mother.
The mother alleged the father threw objects on three occasions. This is the only occasion she said the father threw the object at her. The father admitted throwing objects, but denied he threw them at the mother. He offered no explanation why he threw the item on this occasion
As with the knife throwing incident, whether the father threw the item at the mother or not is not the major issue. The throwing of objects, and breaking or damaging property, during arguments in circumstances that reasonably engender fear in another person is family violence. I am satisfied this was an incident of family violence by the father on the mother.
Punching lounge room wall
The mother said that on 6 October 2005, during an argument and while the mother was sitting on the lounge holding [X], the father punched a hole in the wall above the mother’s head. [X] began to cry.
The father admitted punching a hole in the wall during an argument with the mother. He said he punched the wall about a metre away from the mother’s head. He said it was the only time he had ever done such a thing. In cross-examination, he accepted that his action would have made the mother scared.
I am satisfied this was an incident of family violence by the father against the mother.
Punching cupboard door
A few weeks later, the mother said that the father swore at her, swung around and punched a hole in the hallway cupboard door.
In cross-examination, the mother denied that the cupboard door would swing open when someone passed it. When pressed, she then conceded that it would swing open “a little bit”, but not worth complaining about. She then admitted that she had in fact made a written complaint about the door to the managing estate agent, but only under pressure from the father. She remained adamant that the father hit the door in anger.
The father denied the mother’s version of this incident. He said that the door to a cupboard in the hallway was faulty and would swing open whenever anyone walked past it. It was a defect present from when the parties occupied the home that had been reported to the managing agent but had not been repaired. He said on one occasion the door swung open as he passed it and he “palmed” it closed and the door “cracked”. He denied there was any hole in the door, but it was “dented”. He denied punching the door. He denied he was angry or arguing with the mother when this occurred. In cross-examination he said he hit the door a bit too hard with the palm of his hand and he cracked a piece out of it. He denied putting his fist through the door.
Having regard to the inconsistencies in the mother’s evidence about the condition of the door, I prefer the father’s evidence over the mother’s about this incident, and am not satisfied it was an incident of family violence.
Pushing incident
The mother said that on 20 October 2005, the father swore at her and threatened to hit her. The mother said “Go on then”, and the father pushed her against the wall. The father denied this allegation, saying the only time he pushed the mother was on the day they separated.
In cross-examination it was put to the father that he had grabbed the mother by the throat and held her against the wall, which the father denied doing. This is not what the mother alleged occurred. The father was adamant that he had never laid a hand on the mother until he pushed her on the day they separated.
I am unable to discern any basis for preferring one party’s evidence over the other’s in relation to this incident, and hence I am not satisfied it occurred as the mother contends.
Mutual object throwing incident
On 24 December 2005, during an argument between the parents, the mother said the father slammed the fridge door and a torch fell off it smashing on the ground. The mother then threw the case of the torch at the internal wall of the garage. The father in turn threw a plate down a hallway down which the mother was walking. The maternal grandmother was present during this incident and gave evidence consistent with the mother's version of events. However, for reasons already given, I do not accept the maternal grandmother’s evidence critical of the father as sufficiently credible to be capable of corroborating the mother's evidence.
The mother agreed in cross-examination that the father did not throw the plate at her. She said she did not throw the torch at him.
The father denied the mother's explanation of the genesis of the parent’s argument on this occasion. However, the maternal grandfather corroborated the mother’s version of the cause of the argument, having been present when it commenced during a shopping trip immediately before the object throwing occurred in the parties’ home. I accept the version of the genesis of the argument in the mother's case and reject the father’s explanation of it.
Whatever its genesis, in his evidence in chief the father said that during the argument the mother picked up a torch on top of the fridge and threw it at him. He said that the torch struck him causing a gash in his hand. He said he reacted by picking up a plate, saying “You want to start throwing things [Ms Flint]”, and throwing the plate on the floor. He denied throwing the plate in the mother’s direction. He said he threw it in the opposite direction to the mother, who was behind him with the maternal grandmother when he threw the plate. He said he threw the plate down a short distance in front of himself.
In cross-examination on the first day of the hearing, the father said he threw the plate down the hallway, and that the mother was in the lounge room. In cross-examination on the second day of the hearing, the father said the mother was in the bedroom when he threw the plate down, but remained adamant that he did not throw the plate at the mother. The father also asserted that this occurred before [X] was born, and denied it was around Christmas time, even though he said the plate he threw was on a Santa figure. He did not accept that the maternal grandparents’ first Christmas visit was in the year [X] was born. Both the mother and the maternal grandparents’ assert it was, and I accept that evidence.
The father gave conflicting evidence as to where the mother was when he threw the plate. I do not accept his evidence as to the genesis of the argument that culminated in each party throwing objects. I do not accept the father’s evidence that the maternal grandparents did not first come to visit for Christmas in the year [X] was born.
Nonetheless, I am concerned that in the same way the father sought to minimise his actions in this incident, the mother and maternal grandmother sought to minimise the mother’s actions and to inflate the seriousness of the father’s actions.
The mother was the first to throw an object. She threw it through a doorway through which the father had exited immediately before she threw the object. The attempts by the mother, and particularly the maternal grandmother, to trivialise the mother’s actions did neither any credit. Nor did the father do himself any credit in his evidence about the incident.
This incident reflects poorly on both parties. It appears typical of their volatile relationship, and of their disregard for the effect of their behaviour on [X]. It seems to be an example of the type of argument the father described as typical, each giving as good as they got, rather than the type of argument the mother described as typical, of her being the constantly downtrodden and subordinated party. While the incident reflects poorly on both parents, I am not satisfied that either parent reasonably feared for, or reasonably was apprehensive about, his or her personal wellbeing or safety. Hence, I am not satisfied this incident involved family violence.
Shoulder butting incident
A few days after Christmas Day 2005, the mother said the father “shoulder butted” her as they passed in a doorway. The mother said she swore at the father when asking why he did it, and he swore back at her. The father denied the mother’s version of events, saying that in fact the mother bumped him with her shoulder as they passed in the door way.
In fact, a third possible explanation for this incident exists, and it is at least as likely in my mind as either of the party’s versions. I am satisfied it is entirely possible that the parties inadvertently bumped each other passing through the doorway, and in the heat of the argument, each interpreted the action as maliciously and deliberately caused by the other.
I am unable to prefer the evidence of one party over the other in relation to this incident, and am unable to make a finding as to what in fact occurred. I am not satisfied this was an incident of family violence.
Incident at separation
On 2 February 2006, during an argument between the parents, the father, while holding [X], pushed the mother in the shoulder causing her to fall over backwards, grazing her arm on a door frame. During this argument, I am satisfied that the parents were verbally abusing each other in the child’s presence without any regard for the possible effect on the child. This incident reflects poorly on both parents, but the father’s recourse to physical violence on the mother is the more reprehensible.
I am satisfied the mother reasonably feared for her and the child’s wellbeing and safety as a result of the father’s action in pushing her during a verbal argument, and this was an incident of family violence by the father on the mother.
Phone calls and text messages after separation
The father after separation made a large number of phone calls and sent a very large number of text messages to the mother. Between
2 February 2006and 8 March 2006, he sent 328 text messages to the mother, and left 74 phone messages for the mother. The mother asserts that in this period she received 108 “withheld calls”, some from the parties’ former home in which the father remained after separation. She does not say how many were from the former home.
I note that orders for the father to spend time with the child were made on 13 March 2006, and up to this time the mother was not permitting the father to see the child and was not returning the father’s phone or text messages.
The mother said, and I accept, that from 5 April 2006, after parenting orders were in place, until 21 October 2006, she received a total of 136 text messages from the husband. She also said, and I accept, that from 5 April 2006 to 26 August 2006, she received a total of 225 phone calls from a withheld phone number. She asserted these would have come from the father, but gives no basis for this belief.
In a police statement the mother made on 27 February 2005, the mother said that some of the father’s phone calls or text messages were threatening. However, she also said that police declined to prosecute the father for breach of the AVO granted shortly after separation for the phone calls and text messages he was making and sending to the mother because they were not of a threatening nature, contradicting her assertion that some were.
In a police statement the mother made on 6 September 2006 in relation to an application to vary the AVO, after saying that since the AVO was made in February 2006 she has received constant unwanted phone calls, the mother said “The phone calls are not specifically threatening however by volume and content I find them harassing and unnecessary”.
The mother gave evidence of the content of many of the text messages she received, and many of those contain offensive and derogatory language directed at the mother. However some, albeit relatively few, are polite and courteous. Some relate to the child, and others relate to other issues, real or perceived, between the parties in consequence of the breakdown of their relationship. The only threats in messages the mother gave evidence of receiving from the father were of taking issues between the parties to court or to the police. She gave no evidence of any threat of harm against her.
I am satisfied that the mother sought to exaggerate the nature of these phone calls from the father in alleging they were threatening in the context of her allegations of family violence. I am satisfied that the calls were oppressive in number and content, I am satisfied they were on many occasions offensive to the mother, but I am not satisfied they amounted to family violence.
Findings as to family violence
I am satisfied there were four incidents of family violence by the father against the mother, namely-
·on 5 September 2005 when the father threw a knife near, but not at, the mother;
·on 22 September 2005 when the father threw a glass at the mother;
·on 6 October 2005 when the father punched a hole in the wall near the mother’s head; and
·on 2 February 2006, the day of separation, when the father pushed the mother causing her to fall over backwards.
All these incidents occurred after [X] was born. None have occurred since separation.
Despite the mother’s attempt to paint a picture of the father as an aggressive, verbally and physically abusive, and controlling individual of whom she was rightly fearful, she agreed in cross-examination that since separation-
·she has attended the father’s home voluntarily on occasions unconnected with the father’s time with [X] under court orders;
·she attended with the father and [X] on “family outings” on one or two occasions;
·she messaged the father regularly about matters unconnected with arrangements about the father seeing [X], and that could have been 88 times in the first six and a half months of 2008;
·she telephoned the father about matters unconnected with [X] spending time with the father in addition to the text messages she had sent him;
·whether she was scared of the father on any occasion depended on the father’s mood at the time, not on his past history; and
·the father had not threatened her with harm since separation, although he had continued to verbally abuse her.
Taking all this evidence into account, and noting the opinion of
Dr W that the mother “strongly relies on others, looking to them to meet her emotional needs”, and “has a poor sense of self”, and considering the relative social isolation of the mother and her limited support network, I am satisfied that during the parties’ cohabitation the father was the dominant party in the relationship, and I am satisfied he has sought to maintain that dominance since separation. I am satisfied the father has verbally abused, denigrated and belittled the mother both before and after separation.
While I am satisfied the mother has done the same to the father, I am also satisfied that the father is far more resilient than the mother, and relatively little affected by the mother’s abuse of him, while the mother is significantly affected by the father’s abuse and denigration. I am satisfied that the mother finds the father’s verbal abuse oppressive, and the requirement to directly interact with him to transact the father’s time with [X] disempowering, despite the frequency of her voluntary contact with the father.
I am satisfied that these matters have impacted emotionally on the mother, although not to the extent she asserted. I am not satisfied their impact has affected the mother’s emotional availability to [X] to an extent that has had any discernible adverse effect on him. I am satisfied that if the mother was empowered to control whether or not she had direct communication or contact with the father, her emotional stress would be reduced. This may be achieved by requiring contact changeovers to be at a contact centre, an option that the mother warmly embraced when it was put to her in cross-examination, although she did not concede that the option would alter her wish to relocate.
Father's attitude to child
The mother made a series of allegations about the father’s attitude to and treatment of [X].
The mother said that during cohabitation the father would sometimes snatch toys that [X] was holding and laugh when [X] cried. The maternal grandmother also said she had seen the father teasing [X] by taking things from him and when [X] got upset saying “Look, he’s got the shits” and laughing. The father denied these allegations. For reasons already given I do not accept the maternal grandmother’s evidence critical of the father as credible and capable of corroborating the mother’s evidence. There is no basis for preferring the mother’s evidence over the father’s on this point. Thus, I cannot be satisfied on the evidence that the father mistreated the child in the manner alleged by the mother.
The mother said that the father insisted on [X] sleeping in the parent’s bedroom, but also insisted on the television remaining on during the night, disturbing the child’s sleep. The father did not deny having the television on during the night but said that it was the mother who insisted on the child sleeping in the parent’s room. He said that the television did not disturb the child. He said that based on statements the mother made to him, the child had continued to sleep in the mother’s bedroom after separation. This assertion was unchallenged. Again, the mother has failed to satisfy me that the father’s behaviour in relation to [X] warrants any censure.
The mother said that the father told the mother to leave the bedroom to feed the baby during the night, and not to feed the baby in their bed as it disturbed his sleep. The father did not deny this allegation. I note the father was the family breadwinner. I also note that feeding a baby in bed may expose the baby to the risk of suffocation if the mother falls asleep and rolls onto the baby. I am not satisfied this behaviour by the father warrants censure.
The mother said that when the baby would awake, the father would insist on the mother attending to the baby even if he was next to the bassinet. The father denied this allegation, saying he was usually the first to pick up the baby when he woke up if he was home. I cannot prefer one parent’s evidence over the other on this issue and am not satisfied the father behaved in the way the mother alleges.
The mother said that the father, over her objection, insisted on the baby being placed in too much clothing or wrapping. The mother said she raised the issue with the nurse when she visited about 10 days after [X]’ birth, and showed her what the father was wrapping the child in. The nurse said the child was at risk of overheating and rang the father about it, and he subsequently told the mother the nurse had rung him and said they had been overheating the baby. The father denied putting too much clothing or wrapping on the baby, did not know what the mother had showed the nurse, and maintained that the mother, who he said did not feel the cold, under-dressed the baby. I cannot be satisfied on this evidence that the father’s behaviour was culpably inappropriate.
The mother said that on 12 May 2007 and on 25 May 2007 she had gone to the father’s home with [X], and the father had ridden on an earthmoving machine with [X] in his lap, after the mother had objected on safety grounds to the father doing so on the first occasion. The father said the cabin of the machine was enclosed, the machine only moved at walking pace, he drove the machine with [X] on his lap from the front of his property to the rear, and this was something he did as a child and enjoyed. On the totality of the evidence, while the father’s actions may have been unwise, I am not satisfied that the child was exposed by the father to a significant risk of harm, as the mother alleged.
The mother said that she saw the father pushing a trolley with [X] on his shoulders in a shopping centre on one occasion in 2008. She offered the father help which he declined. She then asked him to take [X] off his shoulders and the father refused. The father then travelled down an escalator with [X] on his shoulders, during which [X] slid to one side and, according to the mother, almost fell off the father’s shoulders. When the father got off the escalator he took [X] off his shoulders.
The father was not cross-examined about this incident, and considering the exaggerations that marked other parts of the mother’s evidence critical of the father, I am not satisfied there was anything untoward in the father giving his son a ride on his shoulders. In fact, this incident in my view shows the mother attempting to turn a perfectly normal, natural interaction between a father and son into something potentially harmful to [X]. In my view, it speaks more of the mother’s attitude to the child’s relationship with his father than the father’s attitude to the child.
The mother said that the father continues to give [X] blue “Poppers” drinks despite having asked him not to. The effect of the mother’s evidence, including photographic evidence, was that when the boy, who apparently is not yet toilet trained, defecates in his nappy, he has loose motions that leak into his clothing staining it dark blue, and she cannot get the stains out, ruining the clothing. The father did not dispute this evidence, and I accept it. In my view it demonstrates an irresponsible and vindictive attitude by the father towards the mother, rather than demonstrating any inappropriate treatment of the child, the mother not suggesting the child was harmed in any way by having the particular drink.
I am therefore not satisfied that the mother has shown the father to be irresponsible, reckless or cruel in his treatment of [X], or to put [X]’s health or safety at risk, or to have an inappropriate attitude to him, in any of the ways alleged.
Father’s drug and alcohol abuse
The father used amphetamines on a regular basis up to about six years ago. He used marijuana but found it made him ill. On one occasion since the parties’ commenced cohabitation, the father took an ecstasy tablet. He says the mother took one at the same time. The mother suggested the father had used amphetamines on occasions during their cohabitation. I am not satisfied by her evidence that he did.
The father also used to drink alcohol to excess. There is no suggestion that his alcohol consumption has been a problem since before the parties commenced to cohabit. In fact, the maternal grandfather agreed that the father now disapproves of alcohol consumption, including by others, and would absent himself if he, his wife and the mother were having a drink.
I am not satisfied there are any current concerns about the father’s drug or alcohol use.
Mother’s drug abuse
The mother used marijuana before the parties commenced their relationship. The father represented to the author of the Family Report that the mother’s marijuana use was a serious cause for concern in relation to her ability to care for the child, and in cross-examination he maintained his position that he held serious concerns for the mother’s present ability to care for the child due to marijuana use. This does not sit well with his proposal that the mother continue as the child’s primary carer.
The father’s evidence of the mother's marijuana use since the parties’ commenced cohabitation was that up to [X]’s birth, the mother had used marijuana about three times. He said that from December 2005 until separation in early February 2006, the mother used marijuana on a frequency he variously described as every day, just about every day, most of the time, and then back to every day. But whatever the frequency of her alleged use, the father said he had obtained the marijuana for the mother at her request. The father conceded that if consumption of marijuana by the mother was a significant problem in relation to the child’s wellbeing, it must be equally a problem in relation to his actions in supplying her with the marijuana.
There is no evidence that the mother has used marijuana since separation. The evidence does not satisfy me that the mother’s past marijuana use is such as to now raise any significant concerns for her ability to care for [X].
Drug and alcohol use by the maternal grandparents
The father sought in his affidavit evidence to correct an error in the Family Report about drug use by the maternal grandparents. He said he did not intend to give the Family Consultant the impression that the maternal grandparents were heavy marijuana users. He said that in fact there was a single occasion the mother told him about marijuana use by the maternal grandparents, and one occasion when he said he was present and observed the maternal grandmother approach the mother and say she would not mind a puff, which he took to be a reference to marijuana. He did not directly indicate what he had told the Family Report author which lead to this suggested misunderstanding.
He also said that he has observed the maternal grandfather “drink himself to sleep most days”, and that the maternal grandmother drinks whisky and he has seen her well affected by alcohol “quite a few times”.
The maternal grandmother in her affidavit evidence said that she and her husband consume a very moderate amount of alcohol and do not take illicit drugs. The maternal grandfather did not address the father’s allegations against him and his wife in his affidavit.
Neither of the maternal grandparents was cross-examined about their drug or alcohol use. I therefore accept the evidence in the mother’s case that neither of the maternal grandparents’ consumption of either drugs or alcohol is a relevant issue in relation to [X]’s welfare.
Father's criminal record
The father gave evidence of having several criminal convictions for various offences relating to “directing a person to buy drugs, possession of stolen goods, various driving offences and some other matters”. He suggested that while in relation to most of the offences “I was entitled to be convicted”, the possession of stolen goods conviction came about “in part” because of his reluctance to give evidence against the persons whose accommodation he shared.
The father’s criminal history from Queensland was tendered and became Exhibit J. It shows convictions for possession of goods, drug and firearms offences. He has received full time custodial sentences on eight occasions. The earliest conviction was in August 1987, the latest in October 2001.
The father admitted that he had at least one, and possibly two, warrants outstanding for his arrest in Queensland. He said he had unsuccessfully applied for a passport during the parties’ cohabitation, and understood his application was unsuccessful because of these outstanding criminal matters. He said he would eventually deal with these matters, but not before the child begins school. He gave no explanation for this. There is no direct evidence that there are outstanding warrants for the father, and certainly no evidence of what may happen to the father if there are and he goes to Queensland to deal with them.
Father’s ability to obtain passport
As just mentioned, the father suggested he had been unable to obtain a passport because of outstanding warrants. At another point in his evidence he suggested that a driving disqualification in Queensland may have been the reason.
There is no direct evidence of any reason why the father may have previously been denied a passport. There is no evidence as to the father’s current entitlement to a passport. I am not satisfied on that evidence that the father could not obtain an Australian passport if he applied for one.
Child support
The mother said that from 22 September 2007 to June 2008, the father paid no child support to her. Between 5 May 2007 and 22 September 2007, she said she received five payments of child support totalling $660, in amounts ranging between $70 and $300.
The mother said that occasionally the father bought [X] clothes and told her that it was her child support. She said that this clothing was not needed. The mother seemed to be suggesting that the father was obtaining credit from the Child Support Agency in relation to his child support liability for purchases of unnecessary clothing without her agreement.
In cross-examination, the mother identified a document she was shown as a child support statement for May 2008 showing that the father’s child support was being satisfied by credits he had been given. She nonetheless maintained her evidence that the Child Support Agency had told her they were pursuing the father about arrears of child support.
When cross-examined on 14 June 2007, the father said he last paid child support on 26 May 2007. When cross-examined on 16 July 2008, he said as far as he knew, his child support was up to date, although he had made no payments after March 2008. This he explained on the basis that the Child Support Agency had advised him he was ahead in his payments after forwarding receipts he received from the mother for direct payments he made to her that were to be treated as child support, and he believed he was still ahead in his payments.
I am satisfied the father has met his assessed child support obligations by a combination of payments direct to the mother on occasions for which he was given credit by the Child Support Agency and by payments to the Child Support Agency.
Cost of travel between Australia and New Zealand
The father said in cross-examination that he believed air fares between Australia and New Zealand were $800 each way. He based this on the travel costs when the mother had wanted to save the fares during cohabitation. The mother said she believed return airfares for herself and [X] between New Zealand and Australia would be about $1,400. If she was unable to stay with a friend while in Australia, the mother said the cost of fares and accommodation would be about $3,000 per trip.
Evidence of psychiatrist
The mother relied on an affidavit by Dr W, a Consultant Child and Family Psychiatrist. Dr W was not required for cross-examination. I accept his evidence, noting however that he did not see the child and that his evidence must be considered in light of the evidence of the Family Consultant.
Dr W saw the mother for assessment on 17 June 2008. He did not see the child. He relied on a history obtained from the mother, and a letter of instructions from the mother's solicitors that quoted paragraphs 31 and 32 of the Family Report Exhibit A, and paras 13 and 14 of the Supplementary Family Report Exhibit F.
Dr W expressed the following opinions-
·There was no evidence that the mother had ever displayed sufficient psychiatric symptoms to meet the criteria for any recognized disorder.
·There have been times the mother has felt miserable and distressed, particularly following her brother’s suicide, which occurred before she met the father, and “during the time she was living with” the father. It is possible that during the bereavement she would have met the criteria for a diagnosis of Major Depressive Disorder, and during the relationship with the father Dysthymic Disorder. It would seem that this opinion can be reconciled with the previous opinion only on the basis that Major Depressive Disorder and Dysthymic Disorder are not recognised psychiatric disorders.
·There have been dysfunctional aspects of the mother’s personality functioning.
·As a child the mother displayed separation anxiety, and as an adolescent had fragile confidence and self-esteem, features known to be associated with anxiety disorders and depression in adult years, as well as personality disorder.
·The mother displays Dependent Personality Disorder with aspects of Borderline Personality Disorder, strongly relying on others for her emotional needs. The mother “probably” has emotional lability, but it is unlikely she ever becomes violent. Again this opinion can be reconciled with the first mentioned opinion only on the basis that Dependent Personality Disorder and Borderline Personality Disorder are not recognised psychiatric disorders.
·The mother has “basically coped” since separation. The support of her counsellor “may have been” important in this. “Nevertheless, it is likely that she has remained somewhat stressed and fearful, and somewhat socially isolated”.
·While not clinically depressed, the mother “is not loving and relaxed. Indeed the degree of dysphoria may even be at a level to result in some anxiety in a dependent child”.
·The mother’s emotional state “would improve” if she returned to New Zealand, and she “would be” more emotionally available to [X]. Dr W “assumed” [X] would benefit from close relationships with his mother’s family.
Dr W’s report focussed on the mother, in accordance with the instructions he was given. It seems from the final opinion referred to above that Dr W was of the opinion that the mother’s emotional availability to the child was less than it might be. He stated that he was not in a position to comment on the likely effects of any weakening of [X]’s relationship with his father that a move to New Zealand may cause.
The mother said she hade been having counselling with a psychologist on and off since about early 2006 for assistance with what she described as the stress of the isolation she feels. Although he opined that the mother’s counsellor may have been important in the mother coping since separation, there is no indication Dr W sought any information from the mother’s psychologist in the preparation of his report.
Family Reports
The Family Consultant prepared a Family Report dated 16 November 2006 and a Supplementary Family Report dated 25 October 2007. He was not challenged in relation to the opinions he expressed in cross-examination, and I accept his evidence.
Family Report
To prepare the Family Report, the Family Consultant interviewed the parents and the child on 9 November 2006, and had access to the court file.
In the Family Report, the Family Consultant expressed the following opinions and observations-
·[X] has a close and affectionate relationship with both parents.
·[X] is attached to his mother.
·[X] was clearly comfortable with and happy to be with the father.
·When [X] initially encountered the father in the waiting area, the child quickly went to him, and cried when the mother was asked to take him from the father and place him in child care, although [X] settled quickly in child care.
·
Despite the mother’s assertion the father took a minor role with the child, [X] was clearly at ease with, and reassured by, his father. (This was when [X] was aged about 18 months, and was
7 months after separation.)
·While the mother may have been the child’s primary attachment figure, nothing emerged to suggest the father was not important to the child, and “therefore a continuing relationship with the father is an important feature of [X] development”.
·Developmentally, attachment processes become significant at about 6 months of age and taper off by about four or five years. At [X]’s then age (about 18 months), attachments gather strength and importance. If the mother was [X]’s primary carer, leaving aside the father’s allegations of marijuana abuse by the mother, she would have become [X]’ significant attachment figure.
·But, given the father’s proximity to the child, it was probable by the time of separation that the father would also have become an attachment figure.
·Following separation, as indicated by the observed interaction of the child with his father, the child’s attachment to his father was maintained and possibly increased.
·The potential existed for [X]’s attachment to his father to follow a “normal developmental course” and become an enduring aspect of the father/son relationship. [X]’s attachment to his father would create a basis for a close bond with the father and, as the child advances into later years, “enhance his confidence and his capacity to interact successfully in a general social context”.
·At [X]’s then age, where memory had not developed a mature level of retention, strategies that ensure frequent and consistent involvement between the child and his father are important, provided the father “is not found to represent a violent exemplar for [X]”.
·“If (the mother) were to live in New Zealand, then [X]’s opportunity to retain cognitions and emotions related to his father would render continuation of the attachment process impossible”.
·The mother’s proposals for block periods of contact between [X] and his father “fails to recognise the possibility of the child’s separation anxiety”. [X] would be away from the mother for long periods, “and he may become distressed at being in the care of his father who would have become only a vague memory to him”.
·It would be more appropriate for the mother to seek to relocate to New Zealand “when [X] is about three or four years old, assuming he has had substantial involvement with his father and attachment processes are nearing completion”.
·If the mother were not permitted to relocate, her mental health becomes an important variable:
“If the Court finds that (the father) represents a threat to (the mother), that she fears for her safety, and that she needs the support and protection of her parents, then her ability to provide [X] with a stress free environment would be compromised. [X] would not receive the benefit of her complete care and attention. Conversely, if the Court finds that she is emotionally absent and gives priority to drug and alcohol use, and that her parents are a threat to the child, as alleged by (the father), then the need for [X] to remain in close proximity to his father is of significance. But when observed with [X] and when interviewed (the mother) did not appear detached from her son.”
The Family Consultant was of the opinion that “bearing in mind the claims and counter claims of the parties, a clear recommendation does not emerge from this assessment”.
Supplementary Family Report
As earlier mentioned, when the mother obtained an adjournment of the hearing to file further affidavit evidence detailing allegations of family violence during cohabitation, the Family Consultant was ordered to prepared a Supplementary Family Report indicating whether, and if so how and why, the additional affidavit evidence to be filed by both parties affected the opinions he expressed in the Family Report.
The Family Consultant expressed the opinion in the Supplementary Family Report that if the Court found the father to be as violent as the mother contended, then concerns arise as to his parenting capacity and his ability to provide [X] with an appropriate role model. However, bearing in mind that the mother was willing to allow [X] to be with the father for two blocks of school holiday time, it seemed to the Family Consultant that notwithstanding the mother’s assertions about the father’s violence that she was prepared to expose [X] to the father for extended periods. The Family Consultant also noted that the father had participated in an anger management course, which may indicate either that he believes he has some problems with anger control, or he wants to comply with expectations. On the other hand, he opined that if the father’s assertions about the mother were correct, the mother’s mental health was an issue and her ability to accurately interpret her world is called into question.
Ultimately, the Family Consultant indicated that he still held the opinion expressed in the Family Report that no clear recommendation could be made. However, he noted that:
“empirically, it can be argued that (the father) was observed to interact appropriately with [X], [X] knew his father and was comfortable with him, and (the father) has been a significant adult figure in [X] life. If [X] does not have regular involvement with his father the strength of his relationship with (the father) will diminish”.
On the other hand, the mother is highly motivated to return to New Zealand, has no support in Australia, and her mental health is an important factor:
“If it can be established that her capacity to care for [X] is affected by emotional instability, then her return to New Zealand could be justified, but at the cost of a diminution in the strength in [X]’s relationship with his father. It was not apparent, when interviewed, that (the mother) was afflicted by poor mental health beyond the feeling of isolation and loneliness”.
The Family Consultant was therefore of the opinion that a mental health expert may be of value in commenting on the mother’s emotional state and on the father’s level of impulse control. While the mother ultimately submitted the affidavit of Dr W in relation to her mental health, there was no expert evidence submitted by either party about the father’s level of impulse control.
Family Consultant’s evidence in cross-examination
In cross-examination, the Family Consultant said that the history of violent, abusive and controlling behaviour the mother alleged did not necessarily touch on whether [X] should now have a relationship with the father on a weekly, fortnightly or block holiday basis, as it appeared not to have continued after separation. He said that while it was an unfortunate history, it did not necessarily impact on the outcome now.
When paragraphs numbered 1 to 10 under the heading “Opinion” at the end of Dr W’s report were read to the Family Consultant, he expressed the opinion that it seemed that Dr W had comprehensively articulated the state of the mother’s mental health and the potential for it to deteriorate if she remains isolated from her family. He said that from his perspective, the mother needs to be with her family for her mental health but the child needs a substantial relationship with his father. He could not say that the mother’s mental health would deteriorate to the extent that her parenting of [X] would be compromised, although it seemed from what was read to him from Dr W’s report that it would be.
I note that the Family Consultant did not see Dr W’s report but only had parts read to him in cross-examination, the cross-examination being conducted by phone. Dr W’s opinion was that in Australia the mother’s emotional state would not be optimal for parenting, the degree of dysphoria “may be” at a level to result in some anxiety in a dependent child, it is likely the mother’s emotional state would improve if she relocated, and that as a result she would be more emotionally available to the child, although he was not in a position to comment on the likely effects of any weakening of [X]’s relationship with his father.
In relation to his concern expressed in the Family Report, when [X] was about 18 months of age, at the effect of attempting week long block time after significant gaps in the child’s contact with the father, and noting [X] current age of three years and three months when cross-examined, the Family Consultant said that the issue he raised was not as critical now but was still important. He said the attachment process continues to about age five, and to interrupt it may be detrimental to the child who needs regular involvement with the father.
In relation to Dr W’s opinion that the mother’s level of dysphoria may be at a level to result in some anxiety in a dependent child, the Family Consultant said that while he had seen the parties and the child some considerable time before Dr W saw the mother, he saw no anxiety in the child consistent with what Dr W was referring to. In fact, he said that his observations of the mother and child suggested the mother was dealing with and caring for the child appropriately.
The Family Consultant said that if the mother relocated and there was no contact with the father until [X] was five, his memory of the father would reduce, he would still recognise the father but his “image” of the father would be diminished. If there was no contact for a year and then the father saw him for a week, there may be a negative impact on [X].
If the mother goes to New Zealand, the Family Consultant’s opinion was that there needs to be involvement of the child with the father every month or two.
Based on what he understood from the passages of Dr W’s report read to him, he believed that the mother would suffer emotionally if not allowed to return to New Zealand. The child’s relationship with the mother is more important than his relationship with the father, and so the mother’s relocation would be in the child’s best interests if he was able to have a continuing relationship with the father. He said no contact between the father and child would create a sense of loss in the child.
In relation to the mother’s agreement to [X] spending block periods with the father commencing immediately, the Family Consultant was of the opinion that this might not be in the child’s best interests, but that there should be a gradual increase in time up to a week or a week and a half over three to six months. He also said [X] is too young for effective electronic communication with the father, and face to face time should occur as an ideal.
If the mother relocated and the father disappeared from the boy’s life, the impact on him would depend on the way the mother and her family dealt with the boy’s loss. If the mother and her family were unlikely to promote the boy’s relationship with the father, if they did not give him photos of his father and talk to him about his father and give him phone contact, the adverse effect would be greater.
I am concerned at the mother’s commitment to maintaining [X]’s relationship with the father if permitted to relocate. She clearly indicated a preference to sever that relationship. She demonstrated a difficulty separating the boy’s needs from her needs and wants. I am satisfied that the maternal grandmother was prepared to be untruthful on oath to support her daughter in attempting to paint the father in the worst possible light. I therefore am not satisfied the mother and her family would positively promote the boy’s image of his father, and hence I am satisfied that the more adverse effects on the boy of a total loss of personal time with the father that the Family Consultant referred to are more likely.
In relation to the degree of the mother’s emotional availability to [X], referred to by Dr W, the Family Consultant said the extent of that availability is significant. It is important that the primary carer be available to the child, and he repeated that the relationship with the primary attachment figure, the mother, is more important than the relationship with the father. However, the degree of any reduction in emotional availability is relevant.
The Family Consultant was of the opinion that any present impact on [X] of any current emotional unavailability of the mother would be discernible. If the mother became distant from the child, the child would show signs of anxiety, would seek comfort from others, would show excessive need for reassurance, would commence bed wetting, and display aggressive behaviours. Such behaviour would be apparent to the child’s carers. If neither parent reported such behaviours, in his opinion there would be few signs of anxiety and it would indicate that the child was being cared for and nurtured appropriately.
The mother said that on 2 February 2008, when [X] went to the father to spend time with him, the boy had difficulty separating from her, grabbing her leg, saying he did not want to spend time with the father, and calling to the mother in a distressed manner as the father walked away with him. This evidence is contained in the mother’s last affidavit, sworn by the mother on 25 June 2008. This is the only time the mother has suggested the boy had any difficulty separating from her. There is no other evidence from either parent of [X] displaying any other of the behaviours the Family Consultant said would be indicative of an anxiety reaction to the emotional withdrawal of a primary attachment figure.
The mother has been seeing a counsellor since early 2006 for the effects on her of the isolation she says she feels. She has wanted to relocate for some time now, and that wish has been frustrated for the past two and a half years. If the mother’s sense of isolation were to cause her to be emotionally unavailable to [X], it could reasonably be expected that it would already be occurring. If it was, and it was having an adverse effect on [X], based on the evidence of the Family Consultant, that would be noticeable, in the observable behaviours he referred to. Yet the only evidence of any such behaviours is one incident in February 2008 of separation anxiety in the child.
The practical difficulty and expense of the child spending time with and communicating with a parent and whether that difficulty or expense will substantially affect the child’s right to maintain personal relations and direct contact with both parents on a regular basis (s.60CC(3)(e))
It was conceded on behalf of the mother that there is no evidence to support a conclusion that the parties between them could afford the frequency of trans-Tasman travel necessary to maintain [X]’s present attachment and relationship with the father, which would be significantly impaired, and may be lost, if the child were to live with the mother in New Zealand. Thus, the cost of spending time with the father if the mother and child lived in New Zealand would substantially affect the child’s right to maintain personal relations and direct contact with his father on a regular basis in circumstances that would have a significantly adverse effect on his welfare.
The capacity of (i) each of the child’s parents, and (ii) any other person (including any grandparent or other relative of the child) to provide for the needs of the child, including emotional and intellectual needs (s.609CC(3)(f))
The mother is presently meeting [X]’s needs, and in a way that suggests she has been able to shield him from any significant effects of her frustration and disappointment at being so far unable to relocate to New Zealand. I am satisfied she can continue to do so in the future.
I am also satisfied the father can meet [X]’ needs. The only qualifications in relation to each party are the matters referred to above in relation to their willingness and ability to facilitate, and encourage, a close and continuing relationship between the child and the other parent.
The mother relied on the opinions of Dr W to suggest that her ability to meet [X]’s needs would be impaired as a result of emotional unavailability caused by her emotional distress if not permitted to relocate. Dr W relied on the history presented by the mother in formulating his opinions. I am satisfied the mother exaggerated the father’s faults and the effects on her of his behaviour towards her, and I am satisfied the mother exaggerated the extent of her distress if not permitted to relocate.
The Family Consultant was not prepared to say that the mother's mental health would deteriorate to the extend that her parenting of [X] would be compromised, while Dr W, based on the mother’s exaggerated history, expressed the opinion that it might. However,
Dr W did not have the advantage the Family Consultant had of having seen the mother and child interact. The Family Consultant was of the opinion that there was no indication of any emotional withdrawal from the child by the mother. There was no evidence of the child exhibiting the behaviours the Family Consultant said would be indicative of emotional unavailability of a primary attachment figure. I am therefore not satisfied there is a risk of the mother's parenting capacity being significantly impaired if not permitted to relocate.
The maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the child and of either of the child’s parents, and any other characteristics of the child that the court thinks are relevant (s.60CC(3)(g))
I accept the evidence of the Family Consultant that the current age of the child is particularly significant to the mother’s proposal to relocate. I have already referred to the need for [X] at this age to have regular and frequent direct interaction with the father to continue the development of the close parental bond that has been forming. I have also referred to the fact that if that interaction reduced to less than every month or two, that relationship would be significantly harmed, and the child’s normal development jeopardised.
Any family violence involving the child or a member of the child’s family (s.60CC(3)(j))
I have previously dealt with the issue of family violence in detail.
Any family violence order that applies to the child or a member of the child’s family, if (i) the order is a final order, or (ii) the making of the order was contested by a person (s.60CC(3)(k))
There is no evidence of any current family violence order.
Whether it would be preferable to make an order that would be least likely to lead to the institution of further proceedings in relation to the child (s.60CC(3)(l))
It is not apparent that any of the alternative care arrangements for the child will be less likely than any other to lead to further litigation between the parents.
Relevant considerations other than the child’s welfare.
The mother’s right of personal freedom of movement is a relevant consideration. Her evidence is that if [X] is not permitted to relocate to New Zealand, then she will remain in Australia with him. However, as mentioned in the authorities cited earlier, where giving effect to a parent’s right of freedom of movement does not best promote the child’s interests, the parent’s right must give way to the child’s best interests.
Parental responsibility
It is appropriate first to consider what parental responsibility order will best promote [X]’s interests, because of the effect a shared parental responsibility order has in triggering the operation of s.65DAA.
As mentioned, the father seeks an equal shared parental responsibility order while the mother proposes no order in relation to parental responsibility. Nor were any submissions made on her behalf as to parental responsibility.
The findings I have made that the father perpetrated family violence on the mother means that the presumption under s.61DA(1) that equal shared parental responsibility is in the child’s best interests does not apply (s.61DA(2)). Whether an equal shared parental responsibility order should be made therefore falls to be determined by reference to the relevant considerations under s.60CC.
In my view, an equal shared parental responsibility order is in the child’s best interests for the following reasons:
·Requiring the mother to consult with the father about major decisions concerning the child will force her to communicate with a former partner who has visited family violence on her and who has consistently been verbally abusive and has denigrated and belittled her. I am not satisfied there is any ongoing risk of family violence but I am satisfied there is a risk of further verbal abuse and denigration, and the requirement of parental consultation under an equal shared parental responsibility order may increase the mother’s exposure to such behaviour. However, I note the significance of this negative consideration is reduced by the mother’s propensity to voluntarily communicate with the father in circumstances not required by any court order. Further, the consultation need not be verbal. It can be in writing, including via text message sent by phone, thus limiting the extent of the mother’s exposure to the father’s verbal abuse and denigration.
·By involving the father equally with the mother in decision making about the child’s welfare, the father will be more fully involved in the life of the child, and this may foster and enhance the development of a meaningful relationship between the father and the child, and the benefits to the child of such a relationship. This is so in my opinion whichever of the living arrangements for [X] that are under consideration is preferred.
·An equal shared parental responsibility order would be consistent with the first object of Part VII of the Act, by helping to ensure [X] has the benefit of both his parents having a meaningful involvement in his life (s.60B(1)(a)), and I am satisfied it can occur without compromising [X]’ best interests.
Advantages and disadvantages of mother’s proposals
Under the mother’s primary proposal, she would be free to relocate to New Zealand, as she wishes. She would be happier, she would be far removed from the father and any concern at further verbal abuse or denigration, her emotional state would be likely to improve, she may be more emotionally available to [X], and [X] would have an opportunity to see much more of the maternal grandparents, and apparently other members of the mother's extended family.
However, this would be at a great cost to [X] in the significant reduction, if not the total loss, of his close relationship with his father. He is still too young to maintain a close parental bond and relationship with the father without regular and frequent personal interaction. It was conceded for the mother that the evidence is insufficient to support a finding that the parties between them could afford six or more trans-Tasman trips each year, the minimum the Family Consultant believed necessary to be able to maintain [X]’s relationship with his father at this age. The dimming of [X]’s memory of his father would mean that the mother’s proposed block periods of time for the father to spend with the child may not be in [X]’ best interests. The mother’s suggestion in cross-examination that she be present for the first day of two of the father’s block time with [X] did not seem to be a considered response, and in light of the mother’s criticism of the father’s treatment of her, did not seem to be in [X]’ best interests.
If not permitted to relocate to New Zealand, the mother proposed to remain in Australia with the child, the child to live with her and to spend time with the father in accordance with the present interim orders until the child turns five, that is from 8am Saturday to 4pm Sunday, or 4pm Monday if a public holiday, two weekends out of three. After [X]’s fifth birthday, the mother proposed he spend time with the father on alternate weekends from 5pm Friday to 5pm Sunday and half school holidays. This would preserve [X]’s care with his primary attachment figure, and provide regular and frequent direct interaction with the father, enabling the close attachment that has been developing between father and son to continue to develop during the remainder of the critical early years of [X]’s life.
However, it would come at the cost of exacerbating the mother’s sense of isolation, frustration and disappointment at not being able to relocate. While this may adversely affect the mother’s emotional availability to [X], I am not satisfied such a result is inevitable. In any event, considering the lack of any discernible adverse impact on [X] of the mother’s sense of isolation and frustration at her inability to relocate over the past two and a half years, and the reduction in the mother’s emotional stress that moving changeovers to a contact centre would achieve by reducing the mother’s exposure to the father’s verbal abuse, I am not satisfied there is a significant risk of any adverse impact on [X] of any emotional unavailability of the mother under her alternative proposal, or under any of the other options that involve the child living in the Sydney area.
The mother’s alternative proposal also suffers from the disadvantage that [X]’s time with the father would remain relatively limited into the indefinite future. It would not involve the child spending substantial and significant or equal time with the father, and hence would limit the father’s ability to become involved in a more meaningful way in [X]’s everyday life as he grows older. It would be thus somewhat limiting of the benefit [X] may derive from his meaningful relationship with his father.
Advantages and disadvantages of father’s proposal
The father's proposal until [X] commences school or the mother commences employment broadly has the advantages and disadvantages of the mother’s alternative proposal.
In proposing equal time when [X] commences school or the mother commences employment, the father's proposal has the advantage of providing a better opportunity for [X] to be more fully involved in each parent’s life, and they in his. But the disadvantage of this aspect of the father’s proposal is the potential for the equal time arrangement to commence in the near future if the mother obtains employment, even limited part time employment. The Family Consultant was of the opinion that [X] should not move immediately to spend a week at a time with the father, but should move gradually to such an arrangement, spread over three to six months. A further, significant, disadvantage of an equal time arrangement is that the father gave no evidence of the care arrangements he proposed for [X] while he was at work.
However, if an equal time arrangement was phased in, it would have the advantage of accommodating [X]’s stage of development, and when implemented, would maximise the child’s opportunity to develop equally close relationships with both parents, but with the disadvantage just mentioned that the father's care arrangements for [X] while he is at work are unknown.
While it is likely the father could adjust his working arrangements to care for [X] on the occasional weekday, I am not satisfied he could do so for half the time. In the absence of any evidence of the father’s proposed care arrangements, I could not be satisfied any arrangement involving the child spending more than the occasional weekday in the father’s care would better serve his interests than the child remaining predominantly in the tried and true care of the mother.
Advantages and disadvantages of a substantial and significant time arrangement
As I intend making an equal shared parental responsibility order and do not intend making an equal time order, I must consider the option of substantial and significant time. Neither party formulated a proposal that would entail substantial and significant time with the father. Such an arrangement might involve alternate weekends or two weekends in three, plus holiday time, and separate time mid week, or it might involve weekend time being extended to include one or more mid week days with holiday time.
Such an arrangement is only viable if the child lives in the Sydney area. Hence, it involves the disadvantages arising from frustration of the mother's wish to relocate previously referred to. However, it would maintain the majority of the child’s time with his primary attachment figure, while at the same time increasing the father’s time with the child in a way that enables the father to be more fully involved in the child’s everyday life, but to an extent that does not raise as a significant negative issue the father’s failure to articulate any care arrangements for the child during the working week. It would thus afford an enhanced opportunity for [X]’s relationship with the father to grow, while preserving the foundation of his primary attachment to his mother.
Decision
A care arrangement involving a child moving a significant distance away from one parent must impact on the way the child’s relationship with the distant parent is maintained and developed, and will often involve some diminution in the time the child can spend with the absent parent. The issue is the extent of the effect on the interests of the child of that diminution in time spent together. While an older child may be developmentally able to retain a rich memory of the absent parent during protracted absences, and may be able to engage in meaningful communication electronically to help sustain the relationship during those absences, a very young child may not. The issue is what is in the best interests of the particular child in the circumstances of the particular case.
This case has been presented as a stark contrast of risks to the child’s welfare of the parties’ primary proposals, a contrast between, on the one hand, the risk to the child of his most important relationship with his primary attachment figure, his mother, being significantly compromised by the mother becoming emotionally unavailable to him if the child were to remain living in Sydney, with, on the other hand, the risk to the child of his second most important relationship, with his father, being significantly compromised by being unable to see the father often enough to sustain it if the child were to live in New Zealand.
The child’s relationship with the mother is the more important to him, and hence a lesser impairment of that relationship than of the relationship with the father may still indicate it would be in [X]’s best interests to preserve it at the cost of his relationship with his father. However, as I have previously indicated, I am not satisfied the risk to [X] attachment to and relationship with his mother would be significantly jeopardised under an arrangement involving the child living in Sydney. On the other hand I am satisfied that there would be very significant and probably irreparable damage to [X]’s attachment to and relationship with the father under any arrangement involving the child living in New Zealand now or for the next few years.
I am therefore satisfied that the mother’s primary proposal is not in [X]’s best interests.
As mentioned, I raised the option of [X] living with the mother in Sydney until [X] is about five, and then living with the mother in New Zealand. Such an arrangement would enable the completion of the attachment process the Family Consultant said continued until about five years of age. [X] being older and with a stronger and more resilient attachment to the father, and being somewhat better able to retain a memory of the father over longer periods, he would be better able to retain a relationship with the father than he could now.
However, the mother’s counsel, after taking specific instructions, made no submission on this option. I am left then with the mother’s first preference being to live with [X] in New Zealand commencing immediately, and her second preference being to live with [X] in Sydney permanently. On behalf of the father it was put that on the present evidence it was difficult to determine when a deferred relocation might be appropriate, and it would still involve a significant risk to [X]’s relationship with the father as it is quite uncertain how often [X] would in fact see the father.
While in the Family Consultant’s evidence there is an indication that a relocation when [X] is about five may avoid the risk to the very important attachment process that occurs in a child’s early years, it remains quite uncertain on the evidence how often he might see his father if living in New Zealand. That uncertainty is such that I am not satisfied [X] would see his father often enough to benefit from any meaningful relationship he might develop with his father before relocating, and I am not satisfied a deferred relocation to live with the mother in New Zealand would be in his best interests on the current evidence.
I am satisfied that the arrangement that will be in [X]’s best interests is one where the boy remains living primarily with his mother, in the Sydney area, and sees his father on a regular basis for periods of time that gradually increase to include both weekend and week day time, and some block holiday time. This will provide [X] with a good opportunity to continue to develop his relationship with his father, it will give the father and child an opportunity to be meaningfully involved in each other’s lives, it will retain the child’s primary attachment figure as his primary carer, and I am satisfied it will not expose the child to any significant risk to his relationship with his mother though the mother’s emotional distress at not being able to relocate resulting in any marked reduction in her emotional availability to him. Changeovers should occur at the [C] Contact Centre unless the parties otherwise agree, thus empowering the mother in having fuller control over the circumstances in which she has face to face dealings with the father, and reducing the risk of her being exposed to the father’s verbal abuse.
I certify that the preceding two hundred and fifty-five (255) paragraphs are a true copy of the reasons for judgment of Halligan FM
Deputy Associate: A. Morris
Date: 14 August 2008
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