KING-RAINE & RAINE
[2010] FamCA 10
•19 January 2010
FAMILY COURT OF AUSTRALIA
| KING-RAINE & RAINE | [2010] FamCA 10 |
| FAMILY LAW – CHILDREN – parental responsibility – with whom a child lives – with whom a child spends time - with whom a child communicates – allegations of family violence |
| Family Law Act 1975 (Cth) ss 60B(1), 60B(2), 60CC, 60CA, 61C, 61DA and 68B |
| APPLICANT: | Ms King-Raine |
| RESPONDENT: | Mr Raine |
| INDEPENDENT CHILDREN’S LAWYER: | Mr Harman |
| FILE NUMBER: | PAC | 843 | of | 2007 |
| DATE DELIVERED: | 19 January 2010 |
| PLACE DELIVERED: | Hobart |
| PLACE HEARD: | Parramatta |
| JUDGMENT OF: | Benjamin J |
| HEARING DATE: | 14, 15 & 16 December 2009 |
REPRESENTATION
| COUNSEL FOR THE APPLICANT: | Mr G Foster |
| SOLICITOR FOR THE APPLICANT: | Valenti & Valenti |
| COUNSEL FOR THE RESPONDENT: | Ms R Winfield |
| SOLICITOR FOR THE RESPONDENT: | Graeme J. Peters |
| COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: | Mr J Harman |
| SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: | Joe Harman, Family Dispute Resolution |
Orders
All previous parenting orders regarding the child S born … April 2004 (“the child”) are discharged.
The parties each have parental responsibility pursuant to s 61C of the Family Law Act 1975 (Cth) except in respect of issues as to which school the child attends and any major medical procedure, these issues are the subject of equal shared parental responsibility between the parents. Notwithstanding this order the wife is permitted to enrol the child in H School in western Sydney commencing January 2010.
The child shall live with the mother.
The child shall spend time with the father as follows:-
a)during school term for the school years 2010 and 2011; two weekends with the father followed by one weekend with the mother then two weekends with the father followed by a weekend with the mother and so on; such contact times to commence on the second weekend after the commencement of the 2010 and 2011 school years and the first weekend after each of the mid year school holiday periods. The times shall be after school Friday until 5.00 pm Sunday, with the father to collect the child from after school on the Friday commencing his weekends and return the child to … (“the Contact Centre”) at the conclusion of his time.
b)during school term from commencement of term 1 in 2012 onwards, each second weekend from after school on Friday to the commencement of school on Monday or the commencement of school on Tuesday if Monday is a pupil free day.
c)the first half of each of the New South Wales school holiday periods being from 10.00 am on the first Saturday of the holiday period (or the first non-school day if the holidays do not commence on the Saturday) until 4.00 pm on the middle period of that Saturday;
d)from the conclusion of school on Friday until 5.00 pm on Sunday for Father’s Day weekend in each year and provided that if Mother’s Day falls on a weekend when the child would, pursuant to these orders, be living with her father then time for that weekend shall conclude and the child shall be returned to the mother at the Centre 15 minutes after opening time on that day (Mother’s Day).
e)such further and/or other periods as are agreed by the parties from time to time.
During school term the child is to be collected by the father from school on a Friday afternoons and from term 1 in 2012 returned to school on a Monday. At all other times the child is to be collected and returned to the mother at the Contact Centre. If the Contact Centre is not open then such other public place as is agreed in writing between the parents.
a)Each party shall contact the Contact Centre within seven (7) days and:
i)arrange an appointment for assessment for suitability for supervised time;
ii)attend the assessment;
iii)comply with any appointments made by the Contact Centre for supervised time;
iv)comply with all reasonable rules of the Contact Centre; and
v)comply with all reasonable requests and direction of the staff of the Contact Centre.
b)If after the intake procedure the Contact Centre is unable or unwilling to provide supervision of time as set out in this order then each party and the Independent Children’s Lawyer has leave to restore the matter to the list on the giving of fourteen (14) days written notice to the other party and to the Court (liberty to relist the matter to apply twelve (12) months from the date of this order).
c)The Contact Centre may recommend the parties or either of them to participate in a program or programs, in any event, either party may re-list the matter for mention on the giving of three (3) days notice to the other party and to the Court (liberty to relist the matter to apply twelve (12) months from the date of this order).
d)If the centre finishes before 5pm then the return time shall be 15 minutes before the Centre closes.
The parties shall contribute equally to the cost of the Contact Centre.
Each of the child’s parents shall be entitled to communicate with the child by telephone when the child is in the care of the other parent between 6.30 pm and 7.00 pm each Tuesday, Thursday and Saturday.
In relation to the times of collection and return of the child to spend time with the father, for the period from the date of these orders until the end of the child’s first term at school on 1 April 2010:-
a)when the child is with the father they shall reside at the home of the paternal grandparents (or either of them); and
b)the collection and return of the child shall be supervised by either of the child’s said paternal grandparents or such other person as is agreed in writing between the parents but excluding Mr KA.
The father shall not use alcohol or be affected by alcohol whilst the child is in his care or under his supervision.
Each party shall keep the other informed as to their respective mobile telephone number, address and shall notify the other party forthwith upon any change of their address or telephone number provided that neither party shall attend the other’s address or contact the other by telephone save pursuant to these orders.
Each party shall ensure that the other is advised promptly of any medical emergency or significant illness suffered by or relating to the child and including sufficient details to enable both parties to be consulted with respect to and fully advised regarding such illness or condition and any treatment recommended or provided and to visit the child if hospitalised.
The parties shall each authorise the child’s school to provide the other party with notices, reports and newsletters and notes relating to the child’s school events and activities.
This Airport Watch List Order shall expire on 10 April 2016 or such other time as determined by a Court exercising jurisdiction under the Family Law Act 1975 (Cth).
a)The Court requests that the Australian Federal Police place the child on the Airport Watch List at all points of international arrivals and departures in Australia for the purpose of preventing removal of the child from Australia in breach of these orders.
b)The Marshall of the Family Court and all officers of the Australian Federal Police and the police forces of the States and Territories are requested and authorised to give effect to these orders.
c)The Independent Children’s Lawyer shall as soon as possible provide a copy of these orders to the Marshal and to the Australian Federal Police.
Neither party use nor be affected by alcohol whilst the child is in their care or supervision.
Neither party shall physically discipline the child.
Neither party denigrate the other or members of the other family in the presence or hearing of the child.
Pursuant to s 65DA(2) and s 62B, the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders and details of who can assist parties adjust to and comply with an order are set out in the Fact Sheet attached hereto and these particulars are included in these orders.
Each of the parties are enjoined pursuant to s 68B of the Family Law Act from commencing proceedings in any court exercising jurisdiction under the Family Law Act without first obtaining leave of the Court to commence such proceedings. This order is not intended to operate in relation to any application for enforcement of order nor is it intended to prevent parties from attending or being involved in family dispute resolution before commencing proceedings.
All subpoenaed documents be returned to the persons or institutions from which they emanated and all exhibits are to be returned to the person or persons who tendered the same.
The Independent Children’s Lawyer will inform the child of these orders within seven (7) days of the date of these orders.
The appointment of the Independent Children’s Lawyer be discharged six (6) weeks from the date of these orders.
IT IS CERTIFIED
Pursuant to Rule 19.50 of the Family Law Rules 2004 it was reasonable to engage counsel to attend.
IT IS NOTED that publication of this judgment under the pseudonym King-Raine and Raine is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth)
| FAMILY COURT OF AUSTRALIA AT HOBART |
FILE NUMBER: PAC 843 of 2007
| MS KING-RAINE |
Applicant
And
| MR RAINE |
Respondent
And
INDEPENDENT CHILDREN’S LAWYER
REASONS FOR JUDGMENT
INTRODUCTION
Ms King-Raine and Mr Raine lived together for about one year between January/March 2003 and June 2004. There is one child of their relationship, S, who at the date of the hearing was aged about five and a half. The parents have had in place essentially a shared care arrangement since April 2007.
The mother lives in a suburb in Western Sydney, the father lives in the central coast north of Sydney but south of Newcastle. The parties’ homes are about 110 kilometres apart by road.
The child commences full time school in January 2010 and neither party is willing to move his or her residence closer to the other. As such it is necessary for this Court to determine with which parent the child should primarily live and the time the child will spend with her other parent.
This dispute is exacerbated by a lack of trust and poor communication between the parents. A further difficulty is that presently both parties are primarily dependent on public transport. Mid week time for the non resident parent is geographically impractical and would impose a hardship on the child.
THE ISSUES
The issues are:-
·The nature of the relationship between the child and each of the parents.
·Whether the mother’s alleged lack of frankness in terms of; her move to Australia from Thailand in about 2002, her twelve year old son in Thailand, the nature of her employment (including whether she is presently employed in the sex industry) and the impact of these upon her capacity to parent.
·Whether the father is abusive of the mother, both to her directly and to the child, in such a way as to cause the child emotional harm.
·Whether the father is a violent person when drunk and has a predisposition to be intoxicated with alcohol on a regular basis.
BACKGROUND
The father is presently aged 45 and the mother is aged 43.
The mother moved from Thailand to Australia on 16 December 2002. Within a few months after that time the parties met, in circumstances where the mother was working in an adult venue and the father was a customer of that establishment. The father and the mother both hid that fact from the court for some years.
They commenced a relationship in early 2003 and they married in July 2003. The child was born in April 2004. The parties separated on 20 July 2004.
These proceedings were commenced by the father by way of an ‘emergency telephone application’ to an after hours duty Judge in July 2004.
In September 2004 the father and his parents relocated from a home in outer Sydney to the Central Coast. During their relationship, the parties had lived in outer Sydney with the paternal grandparents. The father’s relocation to the Central Coast created practical difficulties in terms of shared or joint parenting.
The child has been the subject of litigation since the time of separation. There was a four day hearing before Stevenson J in 2005. Her Honour made parenting orders whereby the child lived primarily with the mother and spent time with the father.
After a break of a few months, in late 2005 the father commenced further proceedings in the Newcastle Registry of the Family Court. These proceedings were transferred to the Federal Magistrates Court in Parramatta. The parties consented to orders in August 2006 which provided for the child to live with the father from Saturday to Tuesday in each week and the mother at other times.
In January 2007 the matter was listed for hearing before Federal Magistrate Henderson and transferred to the Family Court with orders that the parties attend at a Family Relationships Centre.
In April 2007 there was a further variation to the orders.
The father retained the child in late August 2006 for a month without the mother’s consent. The father retained the child again for one month from 28 February 2009.
In these reasons any statement of fact is to be regarded as a finding of fact unless the contrary intention is clear from the context. Further it is not the task of these reasons to touch upon every fact but it is the task of these reasons to determine the issues and make findings on the issues.
RELEVANT LEGAL PRINCIPLES TO BE APPLIED
In exercising its jurisdiction in relation to children, the Family Court is bound by the provisions of the Family Law Act 1975 (Cth) (“the Act”). This is a proceeding to which the provisions of Division 12A of Part VII of the Act applies.
The object of Act relating to children is to ensure that the best interests of the children are met. Section 60B(1) of the Act provides that this can be done by:-
(a)ensuring that children have the benefit of both of their parents having a meaningful involvement in their lives, to the maximum extent consistent with the best interests of the child; and
(b)protecting children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence; and
(c)ensuring that children receive adequate and proper parenting to help them achieve their full potential; and
(d)ensuring that parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of their children.
The principles set out in s 60B(2) that underlie those objects are that, except when it would be contrary to a child’s best interests:-
(a)children have the right to know and be cared for by both their parents, regardless of whether their parents are married, separated, have never married or have never lived together; and
(b)children have a right to spend time on a regular basis with, and communicate on a regular basis with, both their parents and other people significant to their care, welfare and development (such as grandparents and other relatives); and
(c)parents jointly share duties and responsibilities concerning the care, welfare and development of their children; and
(d)parents should agree about the future parenting of their children; and
(e)children have a right to enjoy their culture (including the right to enjoy that culture with other people who share that culture).
Each of the parents of a child has complete but several parental responsibility for their child pursuant to s 61C of the Act. This is subject to any court order and must be considered in the light of the so called presumption arising out of the operation of s 61DA of the Act. Section 61DA is part of the amendments and became operative on 1 July 2006. The section provides that a Court must apply a presumption that it is in the best interests of a child for that child’s parents to have equal shared parental responsibility[1] for the child, subject to subsections 2, 3, 4 and 5.
[1] Parental responsibility is defined by s61B to mean “all the duties, powers, and responsibilities and authority which, by law, parents have in relation to children.”
If the presumption is found to apply and is not rebutted, as not in the best interests of the child, an order must be made in accordance with s 61DA for equal shared parental responsibility. If not, the Court must make a declaration that the presumption does not apply and for reasons pursuant to the subsections within s 61DA.
The effect of an order which provides for shared parental responsibility, whether equal or not, is set out in s 65DAC.
The question of the allocation of parental responsibility generally needs to be determined before the question of with whom the child lives and/or spends time, and the degree of communication a child is to have with another person is determined (see s 64B(2)). This is because where the presumption of equal shared parental responsibility applies, the Court must consider whether it is in the best interests of the child to order equal, or substantial and significant time pursuant to s65DAA. In circumstances where s65DAA does not apply because the presumption does not apply, there still should be consideration of whether in the factual circumstances, an order for equal, or substantial and significant time is appropriate.
Should parties be unable to agree about the living arrangements of a child, a Court must, in determining whether it should make orders or in determining what orders should be made, have regard to the best interests of the child as the paramount consideration. Section 60CA the Act provides:-
In deciding whether to make a particular parenting order in relation to a child, a court must regard the best interests of the child as the paramount consideration.
How a Court determines what is in the best interests of a child is set out under s60CC of the Act. From 1 July 2006, those best interests are determined under a two tiered approach pursuant to s 60CC, that lists “primary considerations” and “additional considerations”. A Court must consider the matters set out in s60CC unless considering a consent order, in which case the Court may, but is not required to, have regard to the matters set out in ss 60CC(2) and (3) of the Act. Part of s 60CC reads as follows:-
Primary considerations
(2) The primary considerations are:
(a)the benefit to the child of having a meaningful relationship with both of the child’s parents; and
(b)the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.
Additional considerations
(3) Additional considerations are:
(a)any views expressed by the child and any factors (such as the child’s maturity or level of understanding) that the court thinks are relevant to the weight it should give to the child’s views;
(b)the nature of the relationship of the child with:
(i)each of the child’s parents; and
(ii)other persons (including any grandparent or other relative of the child);
(c)the willingness and ability of each of the child’s parents to facilitate, and encourage, a close and continuing relationship between the child and the other parent;
(d)the likely effect of any changes in the child’s circumstances, including the likely effect on the child of any separation from:
(i)either of his or her parents; or
(ii)any other child, or other person (including any grandparent or other relative of the child), with whom he or she has been living;
(e)the practical difficulty and expense of a child spending time with and communicating with a parent and whether that difficulty or expense will substantially affect the child’s right to maintain personal relations and direct contact with both parents on a regular basis;
(f)the capacity of:
(i)each of the child’s parents; and
(ii)any other person (including any grandparent or other relative of the child);
to provide for the needs of the child, including emotional and intellectual needs;
(g)the maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the child and of either of the child’s parents, and any other characteristics of the child that the court thinks are relevant;
(h)if the child is an Aboriginal child or a Torres Strait Islander child:
(i)the child’s right to enjoy his or her Aboriginal or Torres Strait Islander culture (including the right to enjoy that culture with other people who share that culture);
(ii)the likely impact any proposed parenting order under this Part will have on that right;
(i)the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child’s parents;
(j)any family violence involving the child or a member of the child’s family;
(k)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;
(l)whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to the child;
(m)any other fact or circumstance that the court thinks is relevant.
A Court must consider the s 60CC(2) considerations as “primary considerations”. This does not mean that they inevitably outweigh the “additional considerations”, but some weight must be attached to the term “primary”. A Court must consider each of the additional considerations separately. A Court should have regard to all of the matters set out in s 60CC to consider how, together, they should give effect to either or both of the primary considerations in determining the child’s best interests.
A Court also needs to evaluate the nature and quality of the parent child relationship.
THE EXPERT EVIDENCE
During the course of the various hearings in these matters three Family Reports have been prepared, one by Dr M in June 2005 (“Dr M’s report”), another by Mr L in June 2007 (“Mr L’s report”) and the third by Dr H in March 2009 (“Dr H’s report”).
Dr H and Dr M gave evidence on the first day of hearing. In having regard to Dr M’s report I note that the report is more than four years old and that she has not seen the father since that time nor has she read Dr H’s report or Mr L’s report.
No issue was taken as to the qualifications of Dr H or Dr M. Accordingly I accept that they are qualified to provide the analyses undertaken.
Dr M had spent significant time with the parties and had the opportunity of seeing and hearing from them directly and watching the interaction with each other and with the child. I accept the accuracy of her evidence in terms of her observations, at that time.
Dr H’s report is much more recent and for a significant part of the first day Dr H and Dr M gave evidence concurrently. Dr M was concerned that the father shows no insight into the stress he causes other people and the child in terms of his behaviour. In this regard Dr M said that the father’s behaviour had a characteristic pattern of domestic violence, verbal in nature and intended to be controlling and intimidating. She observed that in 2005 the mother had become fearful of the father and was fearful of the child in his care. Dr M had observed the father verbally abusing the mother in a belligerent, hostile and critical manner. I accept her evidence in that regard and having regard to the other evidence, including that of Dr H, I am satisfied that the father’s verbal abuse of the mother continues from time to time.
Both Dr M and Dr H expressed views that it was difficult to keep the father contained during the time they saw him and that he appeared keen to control the process. This must be seen in light of the fact that Dr H did not read any prior reports so that his report would not be in any way tainted.
Both Dr M and Dr H expressed their concerns as to the adverse effect of this belligerent hostile interaction on the mother.
Both experts observed that the father lacked insight into his abusive behaviour. Dr M said she had no confidence that this behaviour would change. I accept her evidence that the father’s behaviour was an entrenched pattern of behaviour and, given his age, it was unlikely he would get better and is likely to get worse. Dr M said, and I accept, that the father is a quite an abusive man with poor impulse control and limited insight. Dr H agrees with that analysis.
Dr M expressed concerns about the father’s drinking behaviour. She said that at the time she was concerned that he had a history of alcohol abuse (prior to that cannabis abuse). She was concerned at the risk of conflict, particularly for the child in early and mid adolescence. Dr M was concerned that the father had adult form of ADHD combined with depression and anxiety. She said that was four years ago. She said that people with that diagnosis often have a general reluctance to take medicine and are open to substance abuse. From the broader evidence it is clear that the father continues to have a problem in respect of his use of alcohol and continues to be in denial about that problem. He uses the rhetoric about understanding and dealing with the problem but the reality bears no resemblance to the words that he utters in that regard.
Dr M said one of the issues with people, such as the father, is that they will tend to alienate a child from the other parent and have the child decide one way or the other. That the child is now siding with the father does not come as a surprise to Dr M. She says the relationship between the father and child is not a healthy relationship. Dr H reports:-[2]
39.The significance of [the child’s] preferred living arrangements is limited by the child’s age and the fact that she voiced her preference only after recent incident at changeover although [the child] presents as a very intelligent young girl, some of the language is rather adult, suggesting that she is parroting what she heard her father say. These are signs of some sort of alliance between [the child] and [the father].
[2] Of the report dated 9 March 2009.
Dr H reports that when the child attended with him with her paternal grandparents she stated “mummy broke her heart”. Dr H said that this was more likely to be adult words rather than the words of the child.
The continuation of this pattern of behaviour by the father of endeavouring to alienate the child from the mother will impact adversely upon the child in terms of her ongoing development.
Dr M and Dr H were asked as to the impact of the child observing violence by her father and each agreed that it would have a negative impact on the child. I accept their evidence about this issue. Violence need not be physical to have such an impact.
Dr H observed during the interview that the father had the child massage his neck. Dr H was concerned that this is showed a blurring of the boundaries between the father’s parenting role and that of a partner. It was inappropriate particularly in the circumstances of the interview. Dr M’s evidence went further; she was concerned that this could lead to inappropriate contact between the father and the daughter. If the father is seeing the child at the grandparents’ home there is at least some protection with the child, there would be no protection if the child lived alone with the father.
I am satisfied on the evidence that the father continues to use negative comments in relation to the mother. I refer to my earlier mention about the comment “mummy broke my heart”. It is also significant to note paragraph 10 of Dr H’s report:-[3]
[The father] said that he telephoned [the child] every night that she is in her mother’s care in order to say goodnight to her. He critically contrasted his practice with [the mother’s] failure to call when [the child] is with him. He claimed that his daughter had once asked him “how bloody busy can she be not to ring me?
[3] Ibid.
Dr H gave evidence that this was an inappropriate comment, I agree with him.
Dr H’s view was that the mother not telephoning the child whilst she was in the care of the father was not generally a problem; it was normally the other way around. Having regard to the evidence I am satisfied that if the child expressed these views the child was reflecting a view of the father.
Dr M was cross-examined about the mother having post traumatic stress disorder. Dr M felt that if the mother had suffered that disorder that it would have been resolved at the time she saw her. It was not something noted by Dr H.
When Dr M saw the father berating the mother, albeit five years ago, she said it was a frightening thing to see. She formed the view that the father was quite an abusive man with poor impulse control who lacked insight. Dr H agreed with that assessment of the father. What is concerning is that such behaviour of the father appears not to have changed over those years.
The father lives with his parents and from time to time he and the child stay in the caravan at a caravan park. It was the view of Dr M that the caravan was unsuitable as permanent accommodation for the child and will become more unsuitable as she gets older, particularly having regard to her increasing need for greater privacy.
In cross examination of the Experts, Counsel for the mother raised an issue set out in paragraph 92 of Dr M’s report where the father had expressed a view that “he can understand why father’s kill children”. Whilst it is concerning that such a remark was made by the father, it must be seen in context it was made five years ago and there has been no sequel to it and since that time the mother has arranged for the child to spend further time with the father.
Dr H was cross-examined by the mother’s counsel as to the impact of the mother’s untruthfulness as to the mother’s occupation. He said it would not impact on the parenting but must have some impact on the history she provided.
Dr M was cross-examined by counsel for the mother in relation to her failure to have an interpreter present. Dr M said, and I accept, that the communication was sufficient for her to do the report.
The mother was criticised during cross-examination in relation to the treatment of her second son, N, who was born in 1997 and was aged 5 when the mother left for Australia. The child was left in the care of his maternal grandmother and the mother keeps in regular contact with him.
The mother came to Australia for a better life and left her other child in what she then regarded as the safe care of her mother. I accept the evidence of Dr M that the mother was open to arrangements to bring this child to Australia.
The father was concerned about the mother coming to Australia and working on a tourist visa. Whilst that was unfortunate behaviour, it does not impact on her present parenting capacity.
There was an issue about the mother’s boyfriend, “C”. The father told Dr H:-[4]
8.[The father] said that he had some concerns about [the mother’s] boyfriend named [C]. Not long ago, he said [the child] has asked him “what is a head job” telling him that she had heard [C] ask her mother for one. [The father] reported that [C] telephoned him for the first time ever on the night before the appointment. Their conversation, which was initially cordial, became heated when [the father] suggested to [C] that he be careful what he said in front of [the child]. [C] allegedly told him in strong terms that he would do whatever he wants. [The father] interpreted the telephone call as [C’s] attempt to “push a button” on the eve of the family report appointments.
[4] Ibid.
The mother says of the same incident the following:-[5]
19.[The mother] indicated she had recently begun a relationship with a man named [C], whose surname she did not know, was unable to spell or write down. She said that [C] does not live with her but spends some nights at her place. She believed that [the father] quizzes [the child] about [C], wanting to know how often he is there. Her version of the incident that occurred on the previous day was that [the father] had called [the child] when the child was out having a pizza with her and [C]. After [the child], on [C’s] advice, had told the father she would call him back, [the father] again called and told [the child] he wanted to speak to [C]. [The mother] then telephoned him back and put [C] on the phone. She claimed that [the father] told [C] that she is a sex worker and that she had AIDS.
[5] Ibid.
On balance, I prefer the factual version provided by the mother. The father’s explanation is not consistent with the way he has operated in terms of his long term dealings with the mother. The explanation of the mother is consistent with the father’s approach to her including his approach in demeaning her.
Having regard to the mother’s evidence and that of the single experts, Dr H and Dr M, I find that the father has not yet reconciled himself to the failure of his marriage to the mother. I am satisfied that the father’s approach with regard to C is an attempt by him to interfere in the mother’s life.
The mother was criticised by counsel for the father for not having C attend at the interviews for the current Family Report. Dr H, when provided with the history, said it was not necessary for C to be interviewed as he was a boyfriend, and was not living with the mother. I accept Dr H’s evidence in that regard. There is some evidence that the mother is having a romantic association with C and is reluctant to expose him to the conflict which exists between her and the father. I have had regard to this concern in coming to the conclusions that I have reached.
Dr H and Dr M both believe the child’s paternal grandparents were a great support for the child. I am satisfied that this is the case.
Dr H saw no evidence of violence between the father and the child and observed no fear of the father in the child. The child has a close and loving relationship with both of her parents. I accept this evidence.
The evidence of the mother
The mother gave evidence through an interpreter, which by its nature is difficult. She spoke partly in Thai and partly in English. She gave evidence that she has two other children, T who is aged 27 and N who is aged 12. She said she bought up T, although she lived and worked in Japan for a period of time.
She gave evidence that she misses her son and calls him by telephone every day. The child has from time to time spoken with her brother.
After separation the mother made a number of applications for apprehended violence orders. Eventually a protective order was made for two years commencing 20 June 2006. Counsel for the father suggested that the father consented to this order, the mother rejected that proposition and said it was made ex parte, I accept that evidence.
The mother was criticised, by counsel for the father, because there was an application to extend the order which the father asserted was dismissed “on merits”. The application to extend the order was made after the original protective order had expired and as such it was not possible to extend an expired order, it would have needed a fresh application to put in place the order. I am satisfied that the application to extend the order failed as a result of a legal technicality and not on merit.
The mother was cross-examined for some time in relation to her immigration status and it was put to her that she falsified her evidence about the verbal and physical abuse to facilitate her residence in Australia. The mother denied that assertion.
I accept that whilst the mother lived with the father she was subjected to emotional and verbal abuse. I am satisfied that the verbal abuse has continued since separation and that on one occasion in 2007 the father punched her in the shoulder. As to the earlier physical abuse I am unable to find that it occurred, however I am equally unable to find that it did not occur. As the onus rests with the mother I make no finding of physical abuse except as indicated earlier in this paragraph.
The mother conceded that she had worked in the sex industry before marrying the father but ceased such work after they married. She went back to that industry for a period of time after the child was born but ceased that employment in 2008. I accept her evidence in that regard. Neither the mother, nor the father, was frank with the Court in respect of earlier evidence given by both that the mother did not work in that industry. It is clear on the evidence of the mother that the mother met the father when he paid for her services in the sex industry.
In any event, I would not have been concerned about her employment in that industry except if it impinged upon her relationship with, and the parenting of, the child. There is no evidence to that effect.
As I discussed earlier the mother was cross-examined in relation to her former boyfriend C who she said she had broken up with in circumstances where an order was made for her to disclose his second name. I am not confident that she was frank with the Court in terms of that evidence.
The mother has engaged the child in swimming lessons and other activities. She has a strong approach to the child’s education and whilst the mother’s English is not fluent it is adequate and she was able to speak English on a number of occasions, in a clear and understandable way. The mother says she will learn with the child and on the evidence I am satisfied she will do so.
The mother said the father’s behaviour is such that when she telephones the child the father will sometimes answer the telephone and simply say the child does not want to speak to her, or if she does talk to the child she can hear the father in the background directing the child. The mother avoids telephoning the child as all it leads to is verbal abuse to her. I accept her evidence in that regard.
In her affidavit[6] the mother describes on one occasion buying fruit salad for the child just before the father arrived on a changeover. When the father arrived he directed the child to return the fruit salad to the mother.
[6] At paragraph 38.
Similarly the mother had bought the child a jacket. It was taken to a changeover and the father required the child to return the jacket to the mother. This is indicative of the father driving a wedge between the child and the mother and belittling or demeaning the mother’s parenting.
The mother bought the child a locket which the child took to the father’s home. The mother says the child expressed fear at raising the whereabouts of the locket with the father. I accept her evidence in that regard.
The father offered explanations in respect of these three events, however, I do not accept them and I find that his behaviour was designed by him to diminish the mother in the eyes of the child.
In considering the evidence, I am satisfied that the father endeavours to dominate the mother.
The mother was cross-examined in relation to depression and I am satisfied with her evidence that she took medication for it in 2005 having regard to the conflict that existed between the parties. There is no evidence that this is a continuing medical condition.
The mother also gave evidence that she received a telephone call on 30 October 2009 from the father when the child was with him. She said the father was slurring his words and she believed that he was drunk. She also said he was in a brothel. The child was returned to the mother late that day. I accept her evidence in that regard and I am satisfied the father was intoxicated on that night when the child was in his care.
The father is often late when he returns the child to the mother. As discussed earlier in these reasons he has at least on three occasions retained the child in his care for weeks on end with little or no regard to the relationship between the child and the mother.
During the course of the time the parties lived together the mother’s evidence was that the father isolated her including refusing to allow her to go to TAFE for English lessons. I accept her evidence in that regard.
In August 2006 the mother consented to changes in the parenting orders in the hope that she would be able to be permitted by the father to go to Thailand with the child to visit her other children and in the further hope that it would bring an end to the abuse and conflict. The father complained that the mother spent little time with the child when the child was having tests done at a Sydney hospital. These tests were arranged by the father during the time the child was with him. The mother spent some time with the child but avoided spending too much time as it left her exposed to the father and his generally poor behaviour. His approach in relation to this day was an example of his endeavours to manipulate the mother, force her to spend time with him and intimidate her.
The mother raised an issue about the father’s abusive behaviour towards her in the presence of the child and a friend on 25 February 2009 (a few days before the father retained the child for a month). The mother’s friend said she saw the verbal abuse of the mother by the father. That witness filed an affidavit but was visiting Thailand at the time of the hearing. I gave leave for this witness to be cross-examined via a telephone link. This was predicated upon an assurance that the witness could speak English fluently. However, when she was called to give evidence it was clear that her English was very limited and it would have been a denial of natural justice in terms of the father’s ability to cross-examine her. I allowed her affidavit into evidence, however, I give it no weight except it cannot be said that the mother did not try to call that witness and it cannot therefore be presumed that her evidence would not have assisted the mother.
In terms of the events that day I prefer the evidence of the mother to that of the father, that is that the mother was subjected to verbal abuse in the presence of the child.
The mother has put in place sensible arrangements for the child to go to school and for the child to be involved in swimming. I am satisfied she will provide for the needs of the child both emotionally and physically and to a better degree than that offered by the father bearing in mind the difficulties set out in these reasons.
I will not permit the changeover at the Railway Station to continue. The mother was in fear of the father in terms of that and has no other option but to use it for changeovers. She would prefer to have the changeover at the Children’s Contact Service. I will make orders in that regard. This arrangement will continue for two years and then the child can be collected from and returned to school.
The mother’s evidence was that she would teach the child to respect and love both parents and not be rude to the parents. She said she wants the child to grow up and be a good person and not say bad things about her father. I accept that evidence.
Evidence of the father
The father was not an impressive witness, he prevaricated when asked questions and from time to time was evasive and inaccurate.
An example of this was in relation to him saying that in 2008 for a period of time that he was not “living rough”. When he was removed from his parents’ home in July 2008 he set up a tent on a vacant land in outer Sydney. He gave that as his address for the purpose of the criminal proceedings. He was living rough but he would not acknowledge it.
The father raised concerns about the mother’s Australian visa arrangements. That issue is of little or no significance in terms of these proceedings. However, the father’s belief, whether accurate or not, is that the mother simply married him and had the child to solve her visa problems has adversely impacted on his view of her.
The father has a long history of alcohol related offences which include old convictions for drink driving. He also has had a history of charges in relation to the use of cannabis, although it seems that he has been clear of cannabis in recent times.
In 1997 the father was convicted of offensive conduct whilst on enclosed lands and remaining on those lands without lawful excuse. There were similar incidents in 1997 and 1998. In 1998 he was convicted of assaulting a police officer and in 2004 he was again convicted of assaulting a police officer.
In 2005 the father was convicted of common assault and later that year failing to appear in accordance with a bail undertaking. In 2008 he was convicted of intimidating a police officer in the execution of duty and destroying or damaging property.
On 16 July 2008 the father had taken the child to the movies and then went to a club with his parents and his daughter. I am satisfied that he arrived at the club without being intoxicated but was subsequently asked to leave the club as a consequence of his behaviour which was in part as a result of his use of alcohol. The report goes on to say that later in the night after the father returned to his parents’ home he grabbed his mother and his father pulled him off her. The father’s parents went outside and called the police. The police report notes that the father had punched holes in the walls. When the police arrived the father was stumbling and slurring his words. He was arrested and taken to the police station. He was aggressive to the police.
This event took place when the child was in the father’s care. The father had held the child over from the mother because of his concern for a “so called allergy to penicillin”. The father says:-[7]
… after receiving a reply from the Independent Children’s Lawyer I became convinced to return [the child].
[7] Para 127 of father’s affidavit filed 6 November 2009.
The father had sent an email to the mother’s solicitor on 15 July 2008 saying that he had lodged an application and that he would not (emphasis added) be returning the child until the mother consented to orders including; a declaration that the child is allergic to penicillin, the mother must ring the father and present the child to all medical professionals and hospitals. He went on to say that he would be willing to return the child and attend Court to sign consent orders.
The events with his parents and his intoxication on 16 July 2008 occurred the following day. Orders were made soon after that keeping the father out of his parents’ home (which was soon discharged). The child was then returned to the mother by her paternal grandparents on the following Saturday.
The police report indicates that when the father attended the police station that he:-[8]
… pulled his pants down exposing his penis to the female police officer. [The father] then turned around and pulled his “bum cheeks” apart exposing his anus to the female police officer. [The father] was not interviewed due to his high level of intoxication and aggressive nature towards police.
[8] Exhibit ICL1.
The reason the father returned the child was that he had been arrested and was no longer living at his parents home.
The father denied the extent of these events. However, he pleaded guilty to an offence of intimidation of a police officer arising from the events. Having regard to his evidence including his demeanour, I prefer that of the police report. The father’s evidence is unreliable.
The father gave evidence in accordance with his affidavit filed 6 November 2009. In terms of use of alcohol he said he does not drink alcohol and has not consumed same since June 2009. He confirmed that assertion in cross- examination.
The father says that he no longer uses alcohol. He says he will join alcoholics anonymous. The father has on occasions in the past said that he would be abstaining from alcohol or has limited alcohol consumption, on those occasions as with this, it is an expression of hope over reality.
I do not believe that the father has abstained from alcohol. In his affidavit (sworn 5 November 2009 and filed 6 November 2009) he says:-
69.I say I have greatly reduced my alcohol consumption. I was in the past having about eight binge-drinks per year, which has now reduced to 3 in the last year.
The events of 16 July 2008 reflect badly upon the father particularly in terms of his abuse of alcohol whilst the child is in his care.
Whilst I accept the evidence of the father’s parents, their evidence in respect of this incident seems somewhat through ‘rose coloured glasses’ and they endeavoured to understate his involvement in that incident.
The police report show that on 26 December 2007 there was an incident at the father’s home. The father was intoxicated and there was physical interaction between the father and his family. There was also an issue as to the extent of the physical interaction. I am satisfied that the father was intoxicated and was aggressive and abusive to the police and his parents.
The police documents reveal that on 19 July 2007 the child’s paternal grandmother alleged of the father that he had been using marijuana since age 15 and had shown signs of mental illness. The concerns were that he would damage the home, had physically assaulted his parents (this was denied by the parents) and consumed large amounts of alcohol on regular occasions. The report observes that the father was yelling and screaming at his mother.
The police documents show that on 26 May 2007 the police were called to the father’s home where there was an altercation between the father and his father, the extent of which is in issue. The father was well affected by alcohol at that time.
On 12 May 2006 the father attended a Sydney Police Station and was affected by alcohol and the report observes that:-[9]
… the [father] informed the police that he wished to complain that a person he was previously in a domestic relationship with was a non-Australian citizen, not of good character and should be referred to the Immigration Department to be deported …
[9] Exhibit ICL2.
This complaint was about the mother of the child and the father wanted her deported, in making this request the father had scant regard for the relationship between the child and her mother.
There are a number of other police events over those years indicating that the father was affected by alcohol and that police assistance was called for from time to time.
The father asserts that after his brother’s death in December 2008 there has been an epiphany in his life and that he has changed his approach to alcohol. I do not believe him.
The records of the child’s central coast Pre-School were tendered in evidence[10]. Some of the material in that report is of concern. The following was noted as at after 28 February 2009:-
… [The child] came to school upset today. She didn’t want dad to go, (which is not like her). Dad explained to me that [the child] had something very traumatic happen to her 2 weeks ago but did not elaborate on the subject, once dad left [the child] said she felt sad because mummy does not love her and mummy was supposed to read a letter and she didn’t.
[10] Exhibit ICL5.
I am satisfied that the father has encouraged the child to believe that her mother does not love her. This is consistent with the concerns raised by Dr M.
The Department of Corrective Services file was tendered[11]. I accept the accuracy of that record insofar as the events tendered in evidence. The file discloses some troubling incidents, including:-
11 August 2009 - the father rang, advised that he was unable to attend an appointment and the reporter observed that the father was slurring his words and kept repeating himself and formed the view that he was under the influence of some type of substance.
27 August 2009 - same report notes that the father admitted a relapse on 11 August 2009 but said he was managing his alcohol.
[11] Exhibit ICL3.
The file from child’s western Sydney pre-school was tendered and noted on 11 August 2009:-[12]
5.30pm- [The child’s] dad rang (clearly drunk) SK answered. He claimed he was from DOCS [New South Wales Department of Community Services] and I asked him if he would like to leave SK a message and he brought up the supoena (sic) about how he had accorded that it is not needed. I told him he would need to bring it up with SK and he said he was from Legal Services at DOCS. He said “it’s easy, I will come there and Bang Bang Bang”. I told them it sounded like [the child’s] dad and he then said he was and continued with his slurring. I told him that he is jeopardising the safety of the children as there is only one staff member here and I have to leave them to tend his calls. He then hung up.
[12] Exhibit M2.
The father said he could not recall this event nor deny it. I accept that the record is accurate and that the father was intoxicated at the time and that such record accords with the admission made by him to the Department of Corrective Services on 29 August 2009.
The father was intoxicated on 11 August 2009 and he was not frank with the Court in terms of his intoxication subsequent to June 2009.
The paternal grandparents have given evidence of the father drinking in recent times, including his mother, of one binge session in October 2009.
In June 2009 the paternal grandparents were interviewed by an officer of the Office of the Department of Community Services. I accept they said to the interviewer the following:-[13]
… [The father] has in the last 3/4 weeks been drinking 3/4 drinks and 2/3 times per week, which changes [the father’s] behaviour. He becomes agitated and sometimes added towards then becoming aggressive. … [The paternal grandfather] advised that [the father] is a con artist and answers things the way he believes people want.
[13] Exhibit ICL3 at page 17.
The father said to a suburban District Officer of the Department of Corrective Services that he “doesn’t drink when he has [the child]”[14]. He said this less than a month after he had been intoxicated and arrested for his behaviour at his parents’ home in July 2008.
[14] Ibid at page 6.
The police report of Thursday 19 July 2007 shows that the father had care of the child and the father was intoxicated.
I am satisfied that the father has a long history of abusing alcohol including a history of stating that he is free of alcohol. He was unreliable in his evidence to the Court as to his present state with regard to the use of alcohol and I find that he continues to use alcohol and that he is not alcohol free. There have been occasions when the child has been in his care when he has been intoxicated.
The father denies that he has any anger management problems. His police record and his use of language when sober is an issue. I accept the evidence of Dr M that the father had serious anger concerns at the time she interviewed him and having regard to all of the evidence his inability to manage his anger, particularly when intoxicated, has not changed.
In her affidavit[15] the mother says in February 2009 the mother said the father had said to her in the presence of the child “you come here and you suck my dick in your mouth”[16]. The father denied he any abuse and particularly that phrase. He claims he said “put a cork in your mouth”. I do not believe the father’s explanation and prefer the evidence of the mother.
[15] Filed 5 November 2009.
[16] At paragraph 28.
In the subpoenaed material from the Department of Corrective Services during an interview, on the 18 November 2008, with a District Officer of the central coast area, the following was noted:-[17]
… [The father] was difficult to interview – quite hostile – questioned why he was so hostile – he stated he has anger problems = questioned if this anger was a result of alcohol abuse – advised he is an angry person anyway.
[17] Exhibit ICL3 at page 7.
Both of the family reporters who gave evidence noted the difficult nature and approach of the father. He is an angry man and despite his denials this part of his angry nature continues.
I am satisfied that the father regularly verbally abuses the mother at changeovers. He is not in any way constrained by the presence of the child and the use of that language and the abuse by the father has continued for over five years, since separation.
The mother claims she was the subject of physical abuse in the home when she and the father were living together. She said that the child’s paternal grandfather had observed this (that was denied by him). The mother has also alleged physical violence occasioned to her at some of the changeovers. The father has denied any such allegations.
As I have indicated earlier I am not persuaded that there was physical violence to the mother, although that should not be read as I am accepting the father’s case that there was no physical violence.
I am satisfied that the father has been verbally violent to the mother during their relationship, and in many ways the evidence of the father’s parents confirm this, and has been verbally violent to her since that time. His use of abusive language and demeaning language intimidates and bully’s the mother, which in large part explains the poor communication between the parents.
It is no wonder in the circumstances that the mother has difficulties communicating with the father. The father says he cannot recall the anger he displayed to Dr M in May 2005. I accept her version.
In terms of the relationship between the father, mother and the child it is troubling that the father has a very low opinion of the mother. He was barely able to acknowledge, if he did acknowledge, that the mother loved the child.
The father retained the child for about one month in August/September 2006. On 14 August 2006 consent orders were made providing that the child spend more time with the father.
On about 25 August 2006 there was a conflict between the father and the mother at a railway station at changeover. The evidence of the parties is different. On balance I prefer the evidence of the mother. The father gave excuses that he could not contact the mother to return the child. I do not accept his evidence in that regard. He held the child for a month without any regard to the child’s relationship with the mother.
In July 2008 the father said he was distraught when he heard the mother had given the child penicillin for the second time. He asserted that the child was allergic to penicillin.
He retained the child for some time contrary to the orders and I am satisfied that he had no reasonable excuse to do so.
An arrangement was made for the parties to see a family consultant for the preparation of Dr H’s report. The parties saw Dr H on 23 February 2008.
On Wednesday 25 February 2009 the father was abusive to the mother and the issue referred to earlier arose. This was in the presence of the child and I accept that this was an abusive, intimidatory verbal attack by the father on the mother.
The child was to be returned by the father on 28 February 2009. The evidence of the mother was that she attended at the railway station and the father said that the child had a rash and that he needed to borrow some money. The mother gave him the money and she was shown a piece of paper by the father and he demanded that the mother read it.
Her evidence was that the father became verbally abusive to her in front of the child including calling her a “fucking prostitute” and “fucking bitch”. He left taking the child despite the mother’s protestation.
The father’s evidence of this was that he was placid and had taken the child to see a doctor to have some treatment for the rash. He said he asked the mother to read the instructions, in his affidavit he said it was a faxed sheet and in his evidence he said it was a note, and that note was tendered.[18]
[18] Exhibit ICL4.
The mother declined to read the note and began yelling “police police”. He said the child was distraught and crying, he picked up the child and walked away.
I do not accept the father’s evidence. I accept the evidence of the mother that the father is verbally abusive to her and took the child without the mother’s consent.
I am satisfied that the father exposed the child to the verbal violence at that time and abused the mother in the presence of the child without regard to the child’s welfare. He retained the child for one month.
The father endeavoured to say that this was done, at some levels, with the knowledge or consent of the Independent Children’s Lawyer. That is not correct, and is an example of the father’s endeavours to reconstruct history to suit his version of events.
What was clear was that on 11 March 2009, almost two weeks after he retained the child, the father reported to the Independent Children’s Lawyer that he had retained the child. He said that the child claimed on a daily basis that she was too scared to see the mother. The Independent Children’s Lawyer sent an email to the father and noted the proceedings were before the Court on 31 March 2009. He requested, on 13 March 2009, that the father immediately return the child to the mother’s care. The father did not do so until 29 March 2009, almost 2 weeks later and two days before a mention before a Judge in the Family Court.
The father does not believe the mother adequately cares for the child, he asserts that she cannot feed the child and that she has mental health issues. He complained about the way the mother looked after the child’s hair, and as I have said earlier prevaricated about whether the mother loved the child. That evidence is deeply troubling.
Evidence of paternal grandparents
The child’s paternal grandmother gave evidence in accordance with her affidavit.[19] She was a nervous and anxious witness and was worried about giving evidence. She was a partisan witness but her evidence was not seriously challenged except that it must be seen as the evidence of a mother who loves her son and is protective of her son. The paternal grandmother gave evidence that the father had last been seriously intoxicated in October 2009 and that he had been a binge drinker from time to time although he was somewhat better now.
[19] Filed 6 November 2009.
She confirmed that the child was in bed in the house when the father was acting out with his alcohol fuelled violence on 25 July 2008. The paternal grandmother says she continues to support the father. She acknowledged that she often sought help from the police in terms of the father’s behaviour and that the police took more action than she anticipated.
She is forgiving of the father’s past behaviour.
The paternal grandfather gave evidence in accordance with his affidavit.[20] His recollection of events prior to 2008 is somewhat hazy. I am satisfied he, at times, understates the culpability of his son in terms of violence and alcohol. During evidence he said that the father had only been intoxicated two or three times over the last twelve months which is different from his affidavit evidence which said about five times.
[20] Filed 6 November 2009.
The paternal grandfather conceded that the mother was a good mother and she cared for the child at changeovers.
I generally believe the paternal grandparents’ evidence is substantially accurate although somewhat partisan.
A friend of the father, Mr KA gave evidence in accordance with his affidavit.[21] He has known the father for fifteen years and has been close friends for the last five years. Much of his evidence was given as an advocate for the father and was seriously impeached by cross-examination on behalf of the mother and the Independent Children’s Lawyer. He described the father’s alcohol fuelled criminal violence in terms of him being a “party animal”. That is a gloss which I do not accept. He asserted that the father’s behaviour as a party animal was when the father was aged about 18, many years before this witness met the father, despite the witness’s prevarication subsequent to that time.
[21] Filed 11 November 2009.
He has adopted the father’s dislike of the mother and made it clear in the way he gives evidence and what he says. On one occasion he was present at handover where the husband was still expressing his love for the mother and he was critical of the mother’s response to that request.
He could give no evidence of any concerns he has of the father. I give his evidence little weight as he is closely aligned with the father and in many ways argues the father’s case. His evidence is unreliable.
Section 60CC(2) Factors
a)the benefit to the child of having a meaningful relationship with both of the child's parents; and
b)the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.
The child has a close relationship with both parents. That is clear from the evidence of the parties and the evidence of the single experts. Both single experts believe that relationship should continue. I accept that there is a benefit to the child for the relationships to continue.
I am concerned about the well-being of the child for a number of reasons. I do not accept the mother’s evidence uncritically and I am concerned that from time to time she has not been entirely frank with the Court, such as the issue of her employment and her response to some of the father’s actions and behaviours at changeovers.
However, I am more concerned about the father’s ability to care for the child. The father is an angry man, he abuses alcohol and has little insight into the impact of abusing alcohol in respect of his care of the child. He fails to acknowledge, even to himself, the impact of alcohol on his life. He has had the child in his care when he has been significantly affected by alcohol and yet subsequently denies that that has occurred.
I am satisfied, from the evidence, that the father speaks to the child about the mother and her capacity as a parent. The evidence was replete with examples in that regard including the father refusing to allow the child to take food at changeovers, making the child return clothing and using the words that the mother has broken the child’s heart.
The father does not have the insight to differentiate between the child’s needs and the father’s dislike of the mother following their relationship breakdown.
The father is verbally abusive to the mother at changeovers and is dominant of her. He has held the child back from the mother on a number of occasions in the last two and a half years and I accept the mother’s evidence that he has been late on a number of occasions or is endeavouring to be controlling of her by not returning the child when they see each other. I am concerned that the child may suffer psychological and emotional harm if left in his full time care.
The father says the child expresses views although I am not sure that those are the views of the child, I find that they are more likely to be the views of the father.
The mother has complied with the court orders.
I am concerned about the father’s reaction to this decision. He is unlikely to accept the result and may abuse alcohol, or become angry and agitated. To address that concern these reasons will be delivered on a day when the child is living with the mother and I will make orders that one or other of the father’s parents supervise the time the child spends with the father for a short to medium period of time.
Section 60CC (3) Factors
(a)any views expressed by the child and any factors (such as the child’s maturity or level of understanding) that the court thinks are relevant to the weight it should give to the child’s views;
The child has expressed views supporting the father and her time with him. The child expressed to Dr H that she “wants to live with him” [the father]. I find that these views are reflective of the views which the father has imposed upon the child.
Counsel for the father submitted that the child is “closer to the father than the mother”. I do not adopt that submission as the child is attached to both parents. The father fails to understand the impact of his behaviour in terms of the relationship between the child and the mother.
I find that such views are simply a reflection of the views of the father. Having regard to the age and maturity of the child I give such of the child’s views no weight.
(b)the nature of the relationship of the child with:
(i) each of the child’s parents; and
(ii) other persons (including any grandparent or other relative of the child);
Both parents have an excellent relationship with the child. The concern about the father’s relationship with the child has been articulated above and need not be repeated again. I repeat there were the three periods where the father has retained the child with little insight.
The two experts reflected on this and I accept their evidence in that regard. The father finds it difficult to accept that the child has a good relationship with the mother. The child also has a close relationship with her paternal grandparents, the orders I propose to make will preserve this relationship.
The father and mother are unable to communicate. The mother is intimidated and overborne by the father and the father has no insight into his continual acrimonious and virulent verbal attacks on her.
(c)the willingness and ability of each of the child’s parents to facilitate, and encourage, a close and continuing relationship between the child and the other parent;
I am confident that the mother will continue to facilitate a relationship between the father and the child. However, this can only be done with limited communication. The mother’s ability to communicate with the father is impaired by the father’s behaviours articulated earlier in these reasons.
The father sees no real value in the mother’s involvement in the child’s life and is dismissive, at best, and scathing at times as to the mother’s parenting ability. The father has no insight to facilitating or encouraging the relationship between the child and the mother. The father is, as is expressed by the single expert, enmeshing the child in the conflict and imposing upon the child a requirement to form a view as between the father and the mother.
The father has limited or no ability to facilitate and encourage a close and continuing relationship between the child and the mother. I am concerned that he will try to undermine and impeach that relationship.
The mother has accepted that the father is a significant part of the child’s life. She has endeavoured to moderate the conflict, such as her consent to changing the orders in 2006. While communication will be difficult I am satisfied that the mother will facilitate the time the child spends with the father and will encourage the relationship.
(d)the likely effect of any changes in the child’s circumstances, including the likely effect on the child of any separation from;
(i) either of his or her parents; or
(ii)any other child, or other person (including any grandparent or other relative of the child), with whom he or she has been living;
The living circumstances of the respective parties will not change by virtue of these orders. The mother will continue to reside in western Sydney and the father will continue to reside on the Central Coast. The change is the need for the child to attend full time school. This must occur in one area or the other.
Where the problem has arisen is that both parents had significant and substantial time with the child up to the date of these orders. There is clearly a good relationship between the child and each parent. The effect of these orders will mean that the father sees the child less often and the child sees the father less often. However, with the need for the child to commence primary school next year a permanent and primary home has to be found.
(e)the practical difficulty and expense of a child spending time with and communicating with a parent and whether that difficulty or expense will substantially affect the child’s right to maintain personal relations and direct contact with both parents on a regular basis;
There are some issues of practical difficulty and expense. Those expenses will remain the same, although with the constant troubles at the changeover I propose to make orders that a changeover occur at a Children’s Contact Service. Neither party is prepared to move from their principal place of residence, the mother in the western Sydney area where she has lived since the child was born and the father in the Central Coast, New South Wales which was where he moved to about a year or so after the parties separated. It is not a case where, during school term the child can reasonably spend significant or substantial time with the non primary carer. Such an approach would mean the child spends significant time in transit between western Sydney and the Central Coast. To adopt that approach would be to put the desires of one or other parent above the child’s best interests. I have considered the time the child spends with each parent in the light of the geographic circumstances of the parties and all of the other factors.
(f)the capacity of:
(i)each of the child’s parents; and
(ii)any other person (including any grandparent or other relative of the child);
to provide for the needs of the child, including emotional and intellectual needs;
I find that both the mother and father are able to provide for the child’s physical needs. The father complained that the mother did not engage the child in broader activities at all, or to the extent that he managed, and that the mother’s preparation of food was less than desirable. I am satisfied that the mother does engage in broader activities with the child and that she is well able to provide a nutritional diet for the child.
I have concerns about the father’s capacity to provide for the child’s emotional needs for the reasons set out earlier, including his anger, hostility, verbal abuse, use of alcohol, enmeshing the child in his beliefs about the mother and retention of the child.
The mother has tried to ameliorate the conflict, without success and despite the child being retained by the father, she has not retaliated. The father complained that the mother did not address the child’s allergies to penicillin, which was an overreaction by the father to a mild reaction.
I find that the mother is better able to provide for the needs of the child than the father.
(g)the maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the child and of either of the child’s parents, and any other characteristics of the child that the court thinks are relevant;
The mother was born in Thailand and the child is multi lingual. There is an issue about the mother’s capacity to teach and assist the child with education. The mother says as the child learns she will do so. Having regard to her use of English during the cross-examination by the Independent Children’s Lawyer I am satisfied that that is a reasonable expectation. The child will need to have a connection with both of her backgrounds, the Australian and the Thai culture. I am not confident that the father will allow the child to pursue her Thai culture if the child was solely in his care.
It is clear that the father does not consent to the mother taking the child back to Thailand for a holiday, it being a non convention country, and the mother has not gone back to Thailand without the child (having regard to the economic circumstances of each of the parties that is not surprising).
The mother says that she keeps in regular contact with her children in Thailand and the child from time to time speaks to the members of his family in that country.
When the child becomes a little older there will no doubt be further negotiation and discussion with regard as to the question of whether the child will return to Thailand with the mother and meet her siblings.
In the meantime the mother has maintained the child’s Thai culture and there is no reason why that ought not to continue provided the child continues to understand her Australian culture and English language.
(h) if the child is an Aboriginal child or a Torres Strait Islander child:
(i)the child’s right to enjoy his or her Aboriginal or Torres Strait Islander culture (including the right to enjoy that culture with other people who share that culture); and
(ii) the likely impact any proposed parenting order under this Part will have on that right;
This is not a relevant consideration in these proceedings.
the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child’s parents;
On the evidence I am satisfied that the mother is intimidated and bullied by the father and as such has real difficulties in communicating with him. She has been subject to verbal abuse and constant criticism of her parenting. The father sees few positives in the mother’s care of the child and, on the evidence, I am satisfied that he has doubts that the child loves the mother and the mother loves the child.
I am satisfied that the child does have a close and loving relationship with her mother and that the mother loves the child and engages the child in broader social activities.
The parties have not been able to resolve their communication difficulties in the five and a half years since separation and I anticipate it is unlikely that this will improve.
Unfortunately this child will need to endure ongoing hostility and conflict between the parents. The father has little or no insight into the impact of his approach to the mother and its impact on the child. At some levels the mother falls into the same category and has withdrawn from communicating with the father and does not have sufficient insight into the impact of that upon the child.
The father’s approach in retaining the child on at least three occasions and being difficult and intransient on a number of occasions reflects poorly on his approach to parenting. His request to the child to return a fruit salad when he saw the child, because he said he had sufficient food, and on another occasion requesting that the child return the jacket has the capacity to undermine the mother’s relationship with the child and the child’s relationship with the mother.
(j) any family violence involving the child or a member of the child’s family;
The mother raises allegations of family violence whilst she was living with the father. I have made comments on this earlier and I have had regard to those factors. The father seems to believe that violence is solely attributed to physical violence. The father has been emotionally and verbally violent to the mother since separation and prior to separation.
Even the paternal grandfather expressed concern about the father’s use of verbal violence to the mother during the course of the relationship. Dr M observed the appalling behaviour of the father at a changeover and I am satisfied that continues.
To leave the child in the primary and full time care of the father would expose the child to a continuation of that violence and a continuation of his either explicit or implicit endeavours to alienate the child from her mother.
(k)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;
There are no current family violence orders.
(l)whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to the child;
The Independent Children’s Lawyer has asked that I make an order restraining both parties from commencing proceedings for a period of years following this hearing. This is in the circumstances that proceedings commenced almost immediately after the parties separated.
In July 2005 following a two day hearing before Justice Stevenson final parenting orders were made.
Some months later, proceedings were commenced in the Federal Magistrates Court in Newcastle which were transferred to Parramatta and have led to this four day hearing. The child was aged about 14 weeks old when the proceedings were commenced and apart from a short gap at the end of 2005 has been the subject of proceedings under the Act for the remainder of her life to date. There have been three, possibly four Family Reports prepared and the parents are regular visitors to the Family Court and Federal Magistrates Court Registries. I am satisfied on the evidence before me that the child knows these proceedings are continuing.
Section 60B of the Act provides that a court has power to enjoin parties in relation to children including for the personal protection of children.
The experts have highlighted the impact of the ongoing conflict on the child including the inter parenting protection.
The Independent Children’s Lawyer submits that a “litigation free zone” be created for her to enable her to settle into infant school and complete infant school before the parents or either of them bring the matter back to court.
Having regard to the orders that I propose to make with respect to parental responsibility this seems a very sensible approach. Any such order, however, should not prevent any proceedings for enforcement of these orders from being commenced, but otherwise I intend to restrain the parties from bringing any proceedings except with leave of the Court exercising jurisdiction under the Act.
(m) any other fact or circumstance that the court thinks is relevant.
The father has not provided any noteworthy financial support to the mother in terms of the child. The mother has provided financial support for the father from time to time in relation to the child. I am satisfied that the father has not provided the financial support for the child for whom he has been able to do.
Section 60CC(4) of the Act
(a)has taken, or failed to take, the opportunity:
(i)to participate in making decisions about major long-term issues in relation to the child; and
(ii) to spend time with the child; and
(iii) to communicate with the child; and
(b)has facilitated, or failed to facilitate, the other parent:
(i)participating in making decisions about major long‑term issues in relation to the child; and
(ii) spending time with the child; and
(iii) communicating with the child; and
(c)has fulfilled, or failed to fulfil, the parent's obligation to maintain the child.
I have considered the extent to which each of the child’s parents has fulfilled or failed to fulfil their respective responsibilities which I have detailed in these reasons.
It was raised with me by counsel for the mother that the father has not fulfilled his obligations in terms of child support. Both parties live in difficult financial circumstances, albeit the father is in a significant part being supported by his parents. I am satisfied that each of the parents has financially maintained the child to the best of their ability.
I have also had regard to the circumstances that have existed since separation has occurred.
Parental responsibility
The mother seeks an order for sole parental responsibility. This is a matter where the presumption does not apply as I am satisfied that there are reasonable grounds to believe that a parent of the child has engaged in family violence (within the broad definition of family violence as set out in the Act).
Each has made significant allegations against the other of physical violence either to the other party or to the child. I do not need to make a finding in that regard, all I need to do is determine that there are reasonable grounds “to believe” that there has been family violence. Accordingly the presumption under s 61DA does not apply.
I have considered the question of equal shared parental responsibility and in the light of the matters set out in these reasons I determine that it has not worked in the past and is unlikely to work in the immediate future. It is not necessary for me to repeat all of the matters I have set out earlier in these reasons but I do note the almost complete failure of communication, the verbal abuse, the lack of trust and all of those other matters I have referred to earlier.
The parties cannot make joint decisions about this child.
I determine the father will, from time to time, make decisions for the child which reflects his needs and not the needs of the child.
An example of this type of behaviour is in relation to the child’s supposed allergy to penicillin. Any cursory reading of the doctor’s reports shows that this was not the case. Yet despite this the father was content to remove the child from the mother’s care.
Having regard to all of the factors under s 60CC I determine that this is not an appropriate matter for equal shared parental responsibility. I will be making an order that the mother has sole parental responsibility but that she keep the father informed, in advance, if available, of matters relating to the child’s health, welfare and education. In terms of the school there is no reason why the father should not receive information from the school nor should he prevented from speaking to the child’s teacher.
I will make it clear that the parental responsibility does not permit the mother to obtain a passport for the child removing the child from the Commonwealth of Australia without the father’s consent or orders of a court exercising jurisdiction under the Act.
CONCLUSION
The mother has not stopped the father from seeing the child at least in recent years.
The father complains when the mother does not telephone the child and I am satisfied interferes with calls when the mother does telephone the child.
Both the father asserted that the mother’s evidence ought to be treated as disingenuous as she did not disclose her involvement in the sex industry. Both the mother and father were less than frank with the court until recent times. The mother was embarrassed in making that admission. It does no credit to either party in failing to be frank. Apart from impacting on credit it has no other bearing on this determination.
I am satisfied the mother will promote the relationship with the father however I am not satisfied the father will promote the relationship with the mother. It is significant that Dr H observes at paragraph 42 that:-[22]
If [the father] is not able to provide such evidence, there are serious questions about his mental health and the extent to which he remains obsessed with [the mother]. It is troubling as to the father’s obsession with the mother and his desire to minimise her role in the child’s life and demean her role as a mother.
[22] Of the report dated 9 March 2009.
In terms of changeovers the father has used the informal nature of the changeovers to be verbally abusive of the mother. If the Contact Centre is open that seems the best place for changeover or the father should collect the child from school each Friday afternoon.
I had contemplated having the father return the child to school on the Monday morning however due to the geographic distance that is not available to me as it would have the child having to rise very early every second Monday morning in the first years of her school that would not be in her best interests.
I am concerned that the father will not react well to this decision. He has a capacity to act impulsively and angrily. I raised with counsel the question of whether there should be somebody present when he cares for the child for the first few months after the making of these orders. Submissions were made and I accept the submissions of counsel for the mother that the supervision should be for the first term that the child attends school.
The supervision will mean that the father will need to collect the child with a supervisor present and he should live at his parents’ home whilst the child is in his care. When he returns the child on the Sunday he should travel with his supervisor.
Hopefully, that will enable the time to pass whilst the father is at risk of acting impulsively with regard to the care of the child.
In terms of supervisors I am satisfied that the paternal grandparents or either of them can easily fulfil that role. They were frank to the Court and although their evidence was coloured by their deep love and affection they have for their son, and their granddaughter, they endeavoured to give evidence truthfully and accurately.
I raised whether the father’s friend, Mr KA could take on that role, however, after considering his evidence and his inability to see any difficulties with the father he would not fall into the category of someone who would independently monitor the child for her collection and return.
Counsel for the father submitted that the child had spent almost 50 per cent of the time with the father. That is indeed correct but there is no issue that the father was able to care for the child whilst she is in his care although as I have indicated earlier, I am not satisfied that the father’s emotional care of the child is satisfactory bearing in mind the remarks made earlier.
The father sought equal shared parental responsibility and submitted that he was primarily responsible for the child’s health needs, at least in recent years. In this regard I note the father’s submissions:-
The mother has not demonstrated the capacity to manage the child’s medical issues alone, two examples being her confusion as to medication including penicillin and her unwillingness to read the father’s note in respect of medical treatment on 28 February 2009.
By this submission the father continues to demonstrate a lack of insight into the impact of his behaviour on the mother at changeovers. At the changeover on 28 February 2009 when the mother did not comply with his request to read a note a number of things followed. Firstly the child was not returned by the father and was held back by the father for about one month. The child was clearly influenced about what had happened and complained to her pre-school about “mummy does not love me and mummy was supposed to read the letter and she didn’t.[23]
[23] Exhibit ICL5.
The father raised the issue of the medication in front of the child and significantly participated in the commencement and escalation of the conflict at that time. It was open for him to provide that material to the mother through her solicitor rather than exposing the child to continual conflict.
Some two weeks later the child was still complaining about the mother’s behaviour, I am satisfied that the father discussed this incident with the child and in doing so was affectively endeavouring to alienate the child from the mother.
On the evidence I am not persuaded that the father is the better alternative for the primary carer for the reasons set out above.
The father says that the assistance of the probation and parole after July 2008 and the impact of his brother’s death was such that he is a changed man. Notwithstanding this assertion of change the father still continues to consume alcohol and continues to deny that he consumes alcohol.
On Tuesday 11 August 2009 I am satisfied that the father, whilst under the influence of alcohol telephoned the child’s western Sydney Pre-School and made an abusive telephone call.
It is significant in accepting this information that there are two other aspects to that evidence, firstly on the same day vis 11 August 2009 it is documented on the Corrective Services Report that the father had telephoned them and the member of staff concluded that the father was under the influence of some type of substance as he was slurring his words and kept repeating himself and asking the same questions. In addition on 27 August 2009 the father claimed he had a relapse on 11 August 2009.
The father submits that if the child lived with him it is less likely to lead to further proceedings as he is more child focused and has put in place better arrangements than the mother. Having regard to the father’s approach to the mother detailed in these reasons including his retention of the child I do not accept that submission.
The father complains that the mother has not told the court about “C”. I have dealt with this earlier in these reasons and having regard to the involvement of C in the child’s life, at this stage, it is not the concern at the level which the father sees.
The father says that the child has bonded with her paternal grandparents as well as him. The effect of these orders will be that the child will spend half school holidays with the father and regular weekends during school term. It is not an optimal arrangement bearing in mind the situation of the past, but it will ensure that the child will continue her relationship with her paternal grandparents and the father.
The father complained, through his counsel, that the mother shows that she is unwilling to attend changeover or other functions to which the child is involved. It is clear that the mother avoids occasions where the father is present. Given the circumstances which she has managed over the last few years it is readily understandable why she does so.
The father claims that the mother is unwilling to promote the relationship between the child and the other parent and relies upon paragraph 275 of his affidavit.[24] In this paragraph the father says that he encourages the child to ring the mother. The father goes on, through his submissions, to say that the mother undermines the relationship between the child and the father. I find no evidence that the mother does undermine the relationship. The mother complies with the orders of the Court and ensures the child is present.
[24] Filed 6 November 2009.
The father claims that the mother is unwilling to travel for changeover and to attend at the child’s school or dancing concerts. The attendance is as I have referred to earlier. As to the changeover it makes little difference in terms of the child and I note the comments I have made earlier in relation to events at changeovers.
The father submits that the Contact Centre is only open every second Sunday. The orders I propose to make will be for changeovers at the Contact Centre, if open, otherwise at such other public place as is agreed in writing between the parents.
The father submits that the father does not engage the child in broader activities. The evidence is that the mother takes the child to swimming on Monday. I am satisfied that the mother’s approach to the parenting of the child is satisfactory.
Having regard to all of the evidence and findings and having considered all of the relevant factors I have determined that the child should live with the mother.
I certify that the preceding two hundred and forty five (245) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Benjamin
Associate: G Doyle
Date: 19 January 2010
Key Legal Topics
Areas of Law
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Family Law
Legal Concepts
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Jurisdiction
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Injunction
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Procedural Fairness
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Remedies
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