Knill and Beckett
[2019] FamCA 862
•21 November 2019
FAMILY COURT OF AUSTRALIA
| KNILL & BECKETT | [2019] FamCA 862 |
| FAMILY LAW – PARENTING – where there is an application for the Mother to relocate to Tasmania – where the Father opposes the relocation – where the Mother alleges family violence – where not all of the allegations of family violence are made out – where there is deep conflict between the parties – where the Father is unable to control his aggressive and combative manner – where the Mother experiences mental health difficulties – where there are prospects for improved mental health if the Mother moves to Tasmania – considerations as to the impact of the Mother’s mental health on her parenting – where there can be no confidence that the Mother will support the child’s relationship with the Father – where it is uncertain what time the Father will be able to spend with the child if the Mother relocates – where the best interests of the child are the paramount, but not the sole consideration – where the freedom of movement of the Mother is an important consideration. |
| Family Law Act 1975 (Cth) ss 60B, 60CA, 60CC, 61DA |
| Adamson & Adamson [2014] FamCAFC 232 AMS v AIF [1999] HCA 26 Babcock & Wadell [2019] FamCAFC 129 Devries & Anor v Australian National Railways [1993] HCA 78 Donaghey & Donaghey (2011) 45 Fam LR 183 Morgan v Miles (2007) FLC 93-343 MRR v GR [2010] HCA 4 Phillips & Hansford [2019] FamCAFC 165 Sayer & Radcliffe (2012) 48 FamLR 298 Taylor and Barker [2007] FamCA 1246 U & U [2002] HCA 36 |
| APPLICANT: | Mr Knill |
| RESPONDENT: | Ms Beckett |
| INDEPENDENT CHILDREN’S LAWYER: | Mrs A. Evans |
| FILE NUMBER: | CAC | 712 | of | 2016 |
| DATE DELIVERED: | 21 November 2019 |
| PLACE DELIVERED: | Canberra |
| PLACE HEARD: | Canberra |
| JUDGMENT OF: | Gill J |
| HEARING DATE: | 10 - 12 October 2018; 15 - 19 October 2018 |
REPRESENTATION
| COUNSEL FOR THE APPLICANT: | Mr G. Howard |
| SOLICITOR FOR THE APPLICANT: | Neilan Stramandinoli Family Law |
| COUNSEL FOR THE RESPONDENT: | Ms A. Petrie |
| SOLICITOR FOR THE RESPONDENT: | Phelps Reid Foster Johnson |
| COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: | Mrs A. Evans |
| SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: | Evans Family Lawyers |
Orders
IT IS ORDERED:
That all previous Orders be discharged.
Parental Responsibility
That the Mother have sole parental responsibility for the child, B born in 2015 (“B”).
Living Arrangements
That B live with the Mother and the Mother is at liberty to move B’s place of residence to the Tasmania region of Tasmania.
Time with the Father prior to the Mother’s move to Tasmania
Unless otherwise agreed in writing by the parties, B shall spend time with the Father prior to the Mother’s move to Tasmania as follows:
a)During ACT school term time, each alternate weekend from 3.00pm Friday until 9.00am Monday, commencing 29 November 2019;
b)During ACT school holiday time, as provided for below in respect of following the Mother’s move to Tasmania, save that references to the Tasmanian school holiday periods are to be read as if they were references to the ACT school holiday periods;
c)Handovers occurring prior to the Mother’s move to Tasmania are to be effected in the following manner:
i)If the time coincides with time that B is at school or day care, then at the school or day care;
ii)Otherwise at the McDonalds at Suburb N, in which instance the Father must, unless excused in writing by the Mother, conduct the handover through a third party.
d)This Order (Order 4) will not apply if and when the Mother moves to Tasmania.
Time with the Father following the Mother’s move to Tasmania
Unless otherwise agreed in writing by the parties, B shall spend time with the Father following the Mother’s move to Tasmania during Tasmanian school term time as follows:
a)Handover to the Father for the commencement of time is to occur at the Hobart Airport at 5.00pm on Friday, and handover is to occur at the Hobart Airport to the Mother for the end of the time at 8am on Monday, on the 3rd, 6th and 9th weekends of the first and fourth school terms, and on the 3rd and 9th weekends of the second and third school terms; and
b)Handover is to occur to the Father at the Canberra Airport immediately following the arrival of the next reasonably available flight from Hobart after the end of school on Friday and handover is to occur to the Mother (or her nominee) at the Canberra Airport on the following Sunday for B to catch the last flight to Hobart, or the flight to Hobart occurring soonest after 5.00pm ACT time, whichever is earlier, on the 6th weekends of the second and third school terms.
Unless otherwise agreed in writing by the parties, B shall spend time with the Father following the Mother’s move to Tasmania during Tasmanian school holiday time as follows:
a)For the second half of the term 1, 2 and 3 school holidays, commencing on the Saturday closest to the midpoint of those holidays and ending on the Sunday closest to the commencement of the new term;
b)For the long summer school holiday periods:
i)In 2019, for a period of two weeks commencing on 23 December 2019;
ii)In even numbered years for a period of three weeks ending the Sunday immediately prior to the recommencement of the new school year;
iii)In odd numbered years for a period three weeks commencing on 23 December.
In relation to Order 5 unless otherwise agreed in writing:
a)The time provided for in Order 5(a) will only take place in the event that the Father advises (in writing and 28 days in advance) of his election to exercise the time with B in accordance with the Order;
b)The Father may, at his election made in writing fourteen days in advance, make the time for delivery to him of B later and or the time for B’s pickup from him earlier than otherwise provided for in Orders 5(a) and 5(b).
Once B is permitted by the airlines to travel on an unaccompanied basis:
a)The delivery to the Father at the Hobart Airport pursuant to order 5(a) may be to an airline at the Father’s written direction given 14 days in advance;
b)The return to the Canberra Airport in order 5(b) and 6(a) and (b) may be to the relevant airline on which B is travelling.
In relation to Order 6, unless otherwise agreed in writing:
a)Handover is to occur for Orders 6(a) and (b) to the Father at the Canberra Airport immediately following the arrival of the next reasonably available flight from Hobart after midday ACT time and handover is to occur to the Mother (or her nominee) at the Canberra Airport for B to catch the last flight to Hobart, or the flight to Hobart occurring soonest after 12.00pm ACT time, whichever is earlier.
The Mother is solely responsible for the costs associated with travel where the obligation is to handover B in Canberra.
The Father is solely responsible for the costs associated with travel where the obligation is to handover B in Hobart.
IT IS NOTED:
The Mother consents to an application being brought by the Father for a departure Order in relation to the administrative assessment of child support payable by the Father due to the cost of travel.
IT IS ORDERED:
That, except for in an emergency or to provide imminent handover information in which events the parties may communicate by text message, the Mother and Father will communicate about B via email.
That the Mother and Father keep each other informed of the mobile telephone number and email address on which they may be contacted in regards to B.
That the parents are to authorise in writing the principal or alike at the school attended by B to supply both parents with copies of school reports, progress reports, notices relating to pupils attending the school, school letters, invitations to carnivals, sporting or social functions, notices of and any invitations to parent teacher interviews and any other notices directed to the parents of a child attending such school.
That the Mother and the Father advise each other as soon as reasonably possible in the event of the following:
a)B being injured or falling ill such that attendance on a health practitioner is reasonably required;
b)B requiring urgent medical treatment by a doctor or ambulance crew; or
c)B being admitted to hospital.
That the parents authorise in writing B’s medical and dental practitioners to provide any information the other parent may require;
That the Mother and the Father will not denigrate each other or the other parent’s family in the child’s presence nor allow another person to do so.
The parties may depart from the arrangements for B provided for by these orders by agreement in writing.
Note: The form of the order is subject to the entry of the order in the Court’s records.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Knill & Beckett has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).
| FAMILY COURT OF AUSTRALIA AT CANBERRA |
FILE NUMBER: CAC 712 of 2016
| Mr Knill |
Applicant
And
| Ms Beckett |
Respondent
REASONS FOR JUDGMENT
Introduction
The Applicant Father in these proceedings is Mr Knill; the Respondent Mother is Ms Beckett. The parties have one child, B, born in 2015. The parties commenced a relationship in 2012 and commenced cohabitation in 2015 following the birth of their child B. The relationship ended in approximately 2015, although the parties are in disagreement about the date.
In May 2016, the Father commenced parenting proceedings in the Federal Circuit Court of Australia and the matter proceeded on an ex parte basis on 5 September 2016. On that date, Orders were made for the Father to have sole parental responsibility and that B live with the Father and spend time with the Mother as agreed between the parties. On 12 September 2016, Orders were made, by consent, for the Mother to spend supervised time with B. On 30 September 2016, Orders were made for the parents to have equal shared parental responsibility and that B live with the Mother and spend time with the Father. The matter was also transferred to the Family Court of Australia on this date.
In December 2017, I made interim orders that provided for B to live with the Mother and spend time with the Father, including fortnightly overnight time.
In July 2018, I made further interim orders by consent that provided for B to spend time with the Father including weekly overnight time.
The orders now sought by each of the parties are attached to this judgment at Appendix 2. By way of summary, the Mother seeks that she have sole parental responsibility (this order was amended at the end of the hearing; the Mother originally sought equal shared parental responsibility). The Mother’s primary position is that B live with her and that they be permitted to relocate to Tasmania. If the Mother is to relocate with B, she seeks that B’s time with the Father increases up to two weekends each month, with time occurring on an alternating basis between Canberra and Tasmania. If B is not permitted to relocate, the Mother says that B should then live with her in Canberra and that B should spend time with the Father each week, including overnight time and holiday time.
The Father opposes the Mother’s relocation. He seeks equal shared parental responsibility and that B live with the Mother. The Father seeks that B spend overnight time with the Father each week, in a manner that increases with B’s age. The Father sought that B’s time with him occur on alternate weekends from Friday until Monday, with a night overnight in the alternate week, along with school holiday periods and time for special occasions.[1]
[1] Written Submissions on Behalf of the Applicant Father, filed 8 January 2019, [3].
The Independent Children’s Lawyer (“the ICL”) submits that it is in B’s best interests for the Mother to have sole parental responsibility and that she be permitted to relocate to Tasmania with B. The ICL also submits that it is in B’s best interests to spend significant and substantial time with the Father.
Legal principles
The paramount consideration in determining what parenting order should be made is, pursuant to s 60CA of the Family Law Act 1975 (Cth) (“the Act”), the best interests of the child. That is to be determined on a consideration of the matters set out at s 60CC of the Act, and in accordance with the objects and principles set out in s 60B and the reasoning process set out at s 65DAA.
The objects and principles contained at s 60B provide that:
(1)The objects of this part are to ensure that the best interests of children are met 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.
(2)The principles underlying these objects are that (except when it is or 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).
In the light of the above objects and principles, in order to determine what is in a child’s best interests, the Court is required to consider the two primary considerations and the additional considerations, to the extent that they arise in a case, as set out at s 60CC. In Phillips & Hansford, Strickland, Ainslie-Wallace and Aldridge JJ explained that the considerations in s 60CC are “not a mantra to be recited in every case”.[2] Rather, their Honours said that “only those that are in issue in the proceedings require detailed consideration”.[3]
[2]Phillips & Hansford [2019] FamCAFC 165, [43].
[3] Ibid.
The Court is required, pursuant to s 61DA, to presume that it is in the best interests of the child for the parents to have equal shared parental responsibility unless the presumption is rendered inapplicable, inappropriate (in interim proceedings) or rebutted.
If an order is to be made for equal shared parental responsibility then the Court is to follow the reasoning process set out in s 65DAA and described by Boland J in Morgan v Miles as “the careful exercise of a structured discretion to determine the appropriate order to be made”.[4] That process calls for the sequential consideration of orders for equal time with the parents, followed by orders providing for substantial and significant time with a parent prior to a consideration of other options.
[4] Morgan v Miles (2007) FLC 93-343, [75].
Where an order for equal time is considered, proper consideration must be given both to best interests of the child and to reasonable practicability of such an order, as the unavailability of either will prevent an order for equal time or substantial and significant time being made.[5] Issues of reasonable practicability often become significant in a case involving relocation.
[5]MRR v GR [2010] HCA 4, [13].
The Court is obliged to take proper account of the positions of the parties, the evidence led and the arguments pursued, while remembering that these do not set the boundaries for making a decision as to what is in a child’s best interests, those boundaries being set by the objects and considerations set out in the legislation.[6]
[6]U & U [2002] HCA 36, [80].
Here, the Mother’s case involves a proposal that she and B move to Tasmania. While there is no separate category of relocation cases, cases involving a proposal that one party will move with (or without) a child, pose hard questions with difficult consequences. Often a move will be of great importance to the party who wishes to move. Often the moving party will be the parent who has the primary care of the child. Often a move will result in fundamental changes in the way in which a left behind parent may be involved in a child’s life. The preferred approach is not to deal with the relocation as a discrete issue but, where possible, “as just one of the proposals for the child’s future living arrangements”.[7]
[7]Taylor and Barker [2007] FamCA 1246, [53].
In determining such cases Kirby J, in AMS v AIF noted that:[8]
First, each case depends on the application of the governing legislation which, in turn, is in a constant state of amendment and re-expression. … Necessarily, the facts of each case are unique. Those facts call forth a “careful and delicate analysis”, which renders previous decisions of limited assistance, except in so far as they offer illustrations which may tend to promote a general consistency of approach. (references omitted).
[8]AMS v AIF [1999] HCA 26 [142] (per Kirby J).
Since AMS v AIF there have been significant legislative changes. Morgan & Miles was determined in the context of the Act being largely in its current form. Justice Boland there observed that:[9]
[9]Morgan & Miles, [80].
It follows from my exposition of the legislation, that earlier core principles:
– that the child's best interests remain the paramount but not sole consideration;
– that a parent wishing to move does not need to demonstrate “compelling” reasons;
– that a judicial officer must consider all proposals, and may himself or herself be required to formulate proposals in the child's best interests; and
– the child's best interests must be weighed and balanced with the “right” of the proposed relocating parent's freedom of movement,
remain valid.
In dealing with the parties’ proposals, the comments of Gaudron J (although in dissent) in U v U must also be borne in mind:[10]
It must be acknowledged that it is likely that, in very many relocation cases, a mother will concede that, if she has to choose between relocation and having her child live with her, she will choose to have her child live with her. That being so, she runs the risk that her interests will not be properly taken into account. To avoid that possibility, it is essential that, in relocation cases, each competing proposal be separately evaluated. That is so whether it is the mother or the father who wishes to relocate. So much was made clear in AMS v AIF. (references omitted).
[10]U v U, [37] (per Gaudron J).
At the same time, and in the same case, Gummow and Callinan JJ determined that the parties’ positions do not set the boundaries for the determination of the case:
[80] We do not doubt that the Family Court is obliged to give careful consideration to the proposed arrangements of the parties. .. But the Court is not, on any view, bound by the proposals of the parties. The Court has to look to the matters stated in s68F (now s60CC) and elsewhere in the Family Law Act in coming to a decision about the residence of a child, and the objective is always to achieve the child's best interests.
[81] It is to that overarching issue that the primary judge applied his mind. In doing so he did not overlook the appellant's entirely reasonable desire, to return to...
In Babcock & Wadell Strickland J adopted what had previously been said by the Full Court in Sayer & Radcliffe (2012) 48 FamLR 298 that:[11]
A requirement in relocation cases is that judges faced with a parent wanting to relocate must consider the competing proposals of both parents. It is not simply a matter of comparing the relocating party’s proposal against the status quo and allowing or denying relocation. Rather the court must consider each party’s proposal on its merits, in accordance with the prescribed legislative pathway.
[11]Babcock & Wadell [2019] FamCAFC 129, [48].
Again in Babcock & Wadell, Aldridge J emphasised what he described as a “fundamental freedom” established by Kirby J in AMS v AIF (supported on this point by Gleeson CJ, McHugh and Gummow JJ) in which Kirby J wrote of the “high importance to freedom of movement and the right of adults to decide where they will live.”[12]
[12]Babcock & Wadell, [127]; AMS v AIF, [145] (per Kirby J).
This was a point also emphasised by the Full Court in Adamson & Adamson:[13]
the right of freedom of mobility of a parent, only defer to the paramount consideration of a child’s best interests where those interests would be so adversely affected as to justify such interference; and then the interference is legitimate only to the extent that it is necessary to avoid such adverse effects.
[13]Adamson & Adamson [2014] FamCAFC 232, [66].
That is to say, as a matter of law the right to the freedom of mobility of a parent is a necessary consideration (whether specifically raised by the parties or not) in a case dealing with relocation. It may be supposed that often it will be the case that the best interests speak strongly enough in a particular direction to mean that the paramount consideration displaces the consideration of this freedom. However, at the very least in a finely balanced case where it is not so displaced, the above case law means that freedom of movement is a matter that requires real consideration, and may well tip the balance.
Further, on the manner of consideration, in Morgan & Miles Boland J noted that the Court will:[14]
[14]Morgan & Miles, [79].
• Be guided in its determination by the objects and principles underpinning the legislation. This requires a judicial officer when considering the primary and additional considerations to inform that consideration against a background of the objects including having regard to both parents having a meaningful involvement to the maximum extent consistent with the best interests of the child.
…
• Will careful weigh and balance the primary considerations and the additional considerations in respect of the competing proposals. Depending on factors such as the age of the child, the wishes of the child, the relationship between the child and a parent, the proposals of the parties, or the proposal found by the judicial officer to be in the child's best interests, make such order which may provide:
– that the child lives with the parent who wishes to relocate and spends time with, and communicates with, the other parent;
– that the child lives with the non-relocating parent and spend time with, and communicates with, the other parent;
– that the child lives equally with the parents in the existing locale, or lives with one parent and spends substantial and significant time with the other parent in the existing locale;
– the non relocating parent moves to the venue chosen by the relocating parent, and the child lives equally with the parents or lives with one parent, spends time with the other parent.
• Because each case presents different facts and issues for determination no precise indicia can be categorically laid down as mandatory requirements requiring more or less weight in a relocation case, but developing law should provide general guidance.
The parties’ positions
The current proceedings largely focused on the wide ranging criticisms each of the parents had for the other. Those criticisms were made in the context of the parties’ shifting cases made in pursuit of changing orders being sought. For example, the Father’s case changed during the litigation from seeking that B live with him, to accepting that B should live with the Mother and spend time with him. The most significant of the issues pursued by the parties as to B’s best interests can be distilled to the following:
a)The nature of the relationship between the parties’ and the nature of their communication;
b)Allegations of sexual abuse of B, made by the Mother against the Father;
c)Allegations of family violence, made by the Mother against the Father;
d)The mental health of both the Mother and the Father;
e)The practicalities of the Mother’s proposed relocation to Tasmania.
In his written submissions, the Father said that his case centres on the likely loss of the relationship between B and himself if the Mother is permitted to relocate to Tasmania.[15] The Father says that this loss of relationship is likely to occur for a range of reasons, primarily: (1) the Mother’s negative attitude toward the relationship between B and the Father; (2) the allegations made by the Mother against the Father; and (3) the impracticality of time occurring if the Mother is permitted to relocate (due to cost and distance).
[15] Written Submissions on Behalf of the Applicant Father, filed 8 January 2019, [2].
In her written submissions, the Mother focused upon the following:
a)Family violence including that the Father “is abusive, intimidating, controlling and engages in coercive behaviour towards the [Mother] and third parties related to B’s care.”[16]
b)The Father’s mental health, including that “the Father was not candid in the proceedings about his mental health and that he did in fact threaten to kill or otherwise harm the Mother.”[17]
c)The benefits of the Mother’s proposal to relocate to Tasmania;
d)The parties’ dysfunctional relationship; and
e)The Father’s negative attitude towards the Mother.
[16] Outline of Argument on Behalf of the Respondent Mother, filed 30 November 2019, [106].
[17] Outline of Argument on Behalf of the Respondent Mother, filed 30 November 2019, [118].
Although there had been, during the litigation process, the spectre of an allegation that the Father sexually abused B, the Mother specifically did not pursue a case that the Father had sexually abused B,[18] although it may be seen that she still harbours suspicions about that matter.
[18] Transcript, 18 October 2018, p. 744.
In her written submissions, the ICL focused upon the conflict between the original orders sought by the parties and some of their arguments.[19] For example:
a)The conflict between the Father’s order that sought for B to live primarily with the Mother and his argument that the Mother would manufacture evidence or harm B to implicate him; and
b)The conflict between the Mother’s order that sought for the Father to spend substantial and significant time with B and her suspicion that the Father sexually abused B.
[19] Written Submissions on Behalf of the Independent Children’s Lawyer, [25].
The evidence of the parties
Before moving to an analysis of the evidence given by the parties in relation to the various factual matters that they each relied upon to establish their cases, it is necessary to make some observations about matters that bore upon the credibility of each of the parties, and also the significance of the manner in which evidence was given during the hearing.
The Father’s evidence
I was asked, by the Mother and the ICL, to make an assessment of the Father's credibility in a general sense. A range of factors lead to there being a wariness as to reliance upon the Father's credibility to support his case. Those factors fall into a number of categories; being the Father's failure to answer questions despite consistent warnings and directions to do so; the Father's evidence at times being internally inconsistent; and the Father's prevarication in his answers, and the Father’s demeanour.
The Father's evidence was replete with examples of failures to answer the questions that he was asked. On a number of occasions he was warned that a failure to answer questions may call his credibility into question.
Despite such warnings, and despite repeated directions to answer the particular question that he was asked, there were numerous occasions where the Father either failed to answer the question at all, or supplemented his answer with an account as to other matters that he considered were important. This leads to the conclusion that in a general sense the Father was an evasive witness.
The second issue that arose was that, at times, the Father's evidence was at odds with other evidence that he had given. For example, there was a dispute between the parties as to their date of separation, the Mother asserting that it had occurred in December 2015 when she travelled to Tasmania with B, and the Father asserting that it did not occur until he was served with a Domestic Violence Order from the Mother in February 2016. Little initially appeared to turn on this point. The Father explained that he thought the parties were having time apart from December until February 2016 but that he did not regard the relationship as at an end until the service of the order. His evidence was that the relationship was intact up until the service of the Domestic Violence Order.
However, other aspects of the Father’s evidence lead to a conclusion both that this was untrue and that the Father knew it to be so. During the period of time that the Mother was in Tasmania and the Father remained in Canberra he reported to his general practitioner that the parties’ counsellor had recommended separation and that he regarded the Mother as delusional. During this time he also sought counselling for himself. Further to that, on his account, he reported the Mother to the Tasmanian welfare authorities and to the ACT welfare authorities for what he perceived to be the Mother neglecting B. While perhaps these matters could not be seen as being conclusive as to the breakdown of their relationship, they certainly tended against a conclusion that the relationship was still intact. There was, however, further action on the part of the Father during this period of time that undermined his assertion that the relationship was still intact. That is, during this period, he sought family dispute resolution and obtained a s 60I certificate. Under those circumstances it was difficult to understand how he could maintain the relationship was still intact until the service of the Domestic Violence Order.
The third category that led to concerns in a general sense about the Father's credibility was his prevarication in relation to various matters. A selection of some examples of his prevarication (which form a less than complete list) are as follows.
The Father was questioned as to whether or not in August 2017 he had made threats directed to members of the Australian Federal Police.[20] He had told the police that he wanted the Mother arrested for making false allegations. The Father also told the police that if they did not do their jobs (and arrest the Mother) when the matter went to court, and the allegations were not proven, their jobs would be on the line. When the Father was questioned about this assertion to the police he initially denied that this was a threat, then amended his answer to describe it as an "empty threat".[21] While on its own, this may have raised some cause for concern in respect of prevarication, it was given additional weight by the further evidence the Father gave about the matter. The Father subsequently accepted that, in the days prior to giving evidence (where he denied threatening the police), he had himself concluded his conduct did in fact constitute a threat. This concession on his part added to the gravity of the prevarication.
[20] Transcript, 11 October 2018, p. 208.
[21] Transcript, 11 October 2018, p. 208.
A further example of prevarication involved an exchange between the Father and the ICL while being cross-examined in respect to B’s food intolerances or allergies.[22] In an apparently aggressive manner, the Father reprimanded the ICL for reference to “allergies and/or intolerances”, saying “So they were intolerances. Let’s get this really straight. They’re intolerances. They are not allergies.”[23] Subsequently, he was forced to accept that B had in fact been allergic to dairy products. He attempted to explain the previous assertion (that B did not have allergies) by suggesting that the allergy was also an intolerance. Even if the question of allergy or intolerance was not important, the manner of the reprimand of the ICL, from which the Father subsequently had to resile, was an example of prevarication that bore upon the question of his reliability.
[22] Transcript, 12 October 2018, pp. 303-304.
[23] Transcript, 12 October 2018, pp. 303.
A third example in respect of prevarication involved cross-examination about the attendance by the Father at the KK Hospital with B in order to have a genital examination performed upon B.[24] He accepted that he had taken B to hospital to ensure that she did not have bruising, nor a red inflamed vulva, as had been claimed by the Mother, and that she had not been sexually assaulted. He then denied that his attendance was for the purpose of genital examination but then later accepted that he was seeking for the medical professionals to examine her genitals.
[24] Transcript, 13 October 2018, p. 405.
In this case, examples of prevarication and conflict within the Father's own evidence point to some general caution being exercisable in respect of assessment of the Father's credibility.
Additionally, credibility issues arose as a result of the Father’s demeanour in giving his evidence. In Devries & Anor v Australian National Railways Deane and Dawson JJ noted:[25]
Judges are increasingly aware of their own limitations and of the fact that, in a courtroom, the habitual liar may be confident and plausible, and the conscientious truthful witness may be hesitant and uncertain. In that context, it is relevant to note that the cases in which findings of fact and assessments of credibility are, to a significant extent, based on observation of demeanour have possibly become, if they have not always been, the exception rather than the rule.
[25]Devries & Anor v Australian National Railways [1993] HCA 78 (“Devries”), [1].
That is, it is right for a trial judge to be cautious in relying upon demeanour in assessing credibility. At the same time, the context of that quote in Devries was the acceptance that in assessment of the trustworthiness of witnesses “allowance must be made for the advantage which the trial judge has enjoyed in seeing and hearing the witnesses give their evidence”.[26]
[26] Ibid.
That is, caution as to the limitations of the assessment of demeanour does not equate to a refusal to take demeanour into account at all or to the removal of the importance of the assessment of demeanour.
One aspect of demeanour and credibility arises from the combination of the Father’s aggressive manner of giving evidence coupled with the persistent failure to answer questions. This combination leads to a stronger conclusion (than the failure to answer questions alone) that the Father was an evasive witness. The consequence of these considerations is that significant caution should be exercised as to the Father's evidence, and that there should be wariness in accepting his evidence as reliable where it relates to a controversial matter and is otherwise absent adequate support.
A further issue, not simply related to credibility, but rather about inferences in relation to parenting capacity, arises from the manner in which the Father gave his evidence. His evidence was given in a consistently combative manner. Some of that was seen in the evasive nature of his answers or failure to answer questions but also in his direct conflict with counsel. In assessing this aspect of his evidence I am acutely aware that people respond differently when they are subjected to challenge. A person may instinctively argue back or fight back when the subject of challenge as the Father was when being questioned by the lawyers in the case. When a person is frustrated or the subject of allegations, it may be instinctive for them to engage in verbal combat. However, the Father’s manner, raises particular concerns about the Father, his capacity to control himself,[27] and his resort to aggression outside the courtroom.
[27] Transcript, 12 October 2018, pp. 240, 277.
Specifically, the Father was warned:
HIS HONOUR: Mr Knill, almost invariably, when you’re asked a question, you add further to the answer than the question requires?---Okay.
Your consistency in doing that could lead me to the conclusion that either you’re not able to control yourself, or you have difficulty understanding what people say to you. It can lead me to those conclusions. It might lead me to other conclusions. Your barrister might say I’m wrong about even thinking about those things. But I’m placing you on notice that your manner of answering the questions - - -?---Okay.
- - - what appears to be hostility in answering the questions can have a bearing on the way that I assess your evidence - - -?---Okay.
- - - and assess your parenting?---Sorry. Sorry. I will – I will try to answer just the question.
And Mr Knill, in doing so, I understand that that’s a difficult thing to do. I understand there will be times when people lapse. Court is a difficult process. Difficult for me is your consistency in doing those things will cause me to ask myself those questions. I don’t know what the answer will be, but I’m placing you on notice that that’s a problem that’s being caused to me. All right?---Okay. Thank you for that.[28]
[28] Transcript, 12 October 2018, p. 240.
In Donaghey & Donaghey, in dealing with the manner of answering questions, the following was noted:[29]
Plainly, as the passage quoted by counsel makes clear, judges should always be circumspect about the use of “demeanour” where assessments of credibility are “to a significant extent” based upon it. Indeed, as their Honours point out, this has always been the case. However, even then, as the passage, seen in the entire context of what their Honours there said makes clear, its use, and the extent of its use, must depend upon (among other things) the “class of case” and “a consideration of the content of [the] evidence”. In my view, parenting cases, where emotion is high, and often raw emotions are on display, can be a “class of case” where demeanour is important in assessing credibility. The United Kingdom’s Justice Wilson’s comments in describing unrepresented litigants are apposite:
… I have reluctantly to admit that there are benefits for the judge in the appearance in person of a parent, let us say for convenience, a father. One sees him in action throughout the case, not just when produced by the advocate for his performance in the witness box. One sees him when he is tired and under stress and whether he fails with good humour to cope with minor irritants such as the mislaying of a document. Furthermore, one sees him cross-examine the mother. Although the problem must be more acute in prosecutions for sexual offences, family judges have to guard against barbarity which sometimes effects the exercise. But, even if he is misusing the cross-examination in order to harass the mother, the father provides the judge with a valuable insight. There is no better way to discern the quality of their dealings outside court, for example, whether handovers of the child between them would proceed sensibly, and to study their language including of the body, towards each other in that unenviable situation.
(Wilson J, Atkin Lecture, The Misnomer of Family Law, 2002 & Donaghey (2011) 45 Fam LR 183.
The conclusion I draw from the Father's consistently aggressive and combative style of answering questions is that, even considering that such a characteristic may have been accentuated by the proceedings themselves (including due to the subject matter, the spectre of being accused falsely and being subject of challenge), if the Father is unable to control himself when subject to the direction and scrutiny of the Court room, that he would tend to conduct himself in such a manner when otherwise exposed to challenge, particularly when dealing with the Mother.
The Mother’s evidence
There are also reasons to adopt a cautious approach to the Mother’s evidence. The Mother’s credibility was undermined, in particular, by an assessment of her evidence in relation to two incidents where she was highly critical of the Father, but where her criticism was not borne out by reference to more objective elements of the evidence. The two key examples concern an incident at the HH Medical Centre on 14 December 2016, where the Mother’s evidence was contradicted by an independent witness, Mr R, and at a consultation involving the Mother and Father with a Dr H, the consultation being recorded by the Father.
Appointment with Dr H
On 1 November 2016, the parties attended upon immunologist Dr H to discuss B’s food intolerances/allergies. The Mother makes several allegations about the Father’s behaviour during this appointment. The Mother described this appointment as follows:
This appointment was one of the most distressing events of my life. Mr Knill was extremely aggressive for the entirety of the appointment, frequently shouting over the top of me, and attempting to intimidate me.[30]
[30] Affidavit of Ms Beckett filed 2 November 2017, [399].
The Mother said that when she was speaking to Dr H, the Father would interrupt her and yell over the top of her.[31] She said that following the appointment she “felt anxious for the rest of the day, having had to sit in the room with him and experience such an extreme verbal attack”.[32]
[31] Affidavit of Ms Beckett filed 2 November 2017, [399].
[32] Affidavit of Ms Beckett filed 2 November 2017, [404].
The Mother outlined several specific examples of the Father’s behaviour. For example, she said that when Dr H was explaining the risks of restrictive diets for children the Father interpreted this as meaning that the Mother was giving B an eating disorder. The Mother said:
Mr Knill’s eyes lit up however, and he interrupted me again, urgently pressing the doctor with: “So what you’re saying is that Ms Beckett is giving B an eating disorder? How can I prove this?”[33]
[33] Affidavit of Ms Beckett filed 2 November 2017, [401].
The Mother also said that during the appointment the Father “launched into an accusative rant against me …” The Mother said that at this point Dr H interrupted the Father saying “That’s enough! Or you can leave!”[34]
[34] Affidavit of Ms Beckett filed 2 November 2017, [399].
The Father recorded the appointment without the knowledge of Dr H or the Mother. While it may be noted that the Mother had become aware that the Father was frequently recording the parties’ interactions, it was not established that she knew about this occasion at the time. The Mother was provided with a copy of the Father’s recording of the appointment by December 2016.
During the hearing, several sections of the Father’s recording of the appointment were played and the transcript was provided as an aide memoir. The Mother was cross-examined about the appointment, the Father was not.
The Mother was taken to sections of the recording that appeared to be in conflict with her description of events. The Mother accepted:
a)That she had at times interrupted the Father;
b)The Father’s voice sounded calm at various points on the recording;
c)The Father did not yell or shout at the Mother or Dr H;
d)The Father did not say that the Mother was giving B an eating disorder, nor did he ask how he could prove it. However, the Mother said that the Father’s body language made her believe that his comments about eating disorders were accusative statements.
The Mother explained that her description of the appointment in her affidavits was based on her recollection.
The Mother was seeking to convey to the Court that the Father was aggressive throughout the entire appointment,[35] that he was shouting, that he was shouting over her through the entire appointment, that he interrupted on multiple occasions, that Dr H threatened to make him leave, that he was obstructive, argumentative and attacking the Mother and at every opportunity he interrupted or contradicted the Mother's answers. These criticisms were not borne out by the recording. The Mother’s evidence about the Father was wrong.
[35] Transcript, 17 October 2018, p. 645.
When considering the relevance of the parties’ conduct with Dr H, it must be noted that the Mother was not aware that the Father was recording the appointment, while the Father was aware. This may mean that the Father was consciously regulating his behaviour.
HH Medical Centre incident
The Mother says that on 12 December 2016 B returned from time with her Father indicating that she was sore in the front of her nappy, saying “sore mummy!” The Mother says that she observed that her vulva, in particular her left labia and mons pubis were very red and quite swollen. She says that there was also a large 5 cm bruise on B’s back. The Mother says that she tried but was unable to photograph the phenomenon.[36]
[36]Affidavit of Ms Beckett filed 2 November 2017, [33] and following.
The Mother took advice the following day about having B examined. On the basis that the swelling to the vulva was all but gone and the bruising on the back was barely noticeable, she did not.
That evening the Mother emailed the Father advising that she had noticed that the vulva was swollen and that B had bruising on her back following the visit to the Father.
The Mother provided B to the Father the following day in accordance with the orders. Almost immediately thereafter she was advised by the Father that he had made an appointment at the HH Medical Centre for 12:30pm that day and that the Mother could attend. The Father had done this in response to what he took to be an accusation of sexual abuse being levelled against him by the Mother, by reference to B’s swollen genitalia. The Mother did attend and indicated her disagreement with the consultation taking place.
There is diverging evidence as to what then took place in the waiting area of the medical practice. What is uncontroversial is that the Mother, in the presence of people in the waiting area and B, said that the Father was a serial rapist.[37] Controversially the Mother says that B had run to her saying “mummy” gesturing that she wanted to be picked up. She says that Ms JJ (the Father’s sister) lunged towards B and “forcibly wrenched B roughly out of my arms.”[38] She says that B was forcibly removed from her arms the second time by the Father and Ms JJ, who, she said, shoved her in the chest.
[37] Transcript, 15 October 2018, p. 550.
[38] Affidavit of Ms Beckett filed 2 November 2017, [42].
The Father and Ms JJ denied that such physical altercations had taken place. Their evidence was corroborated by an independent third party, Mr R, who had witnessed the event.
The Mother then asked for the police to be called and the parties waited for their attendance. The police were unable to resolve the issue. Shortly after, the parties attended with B at the KK Hospital, where B was examined. The Mother again said that she did not consent to such an examination taking place.
Conclusions relating to the Mother’s evidence
In terms of the Mother’s credibility, the above two instances demonstrate instances where the Mother is significantly wrong in her description of poor behaviour by the Father. This calls for caution in accepting the Mother’s testimony where it is challenged and uncorroborated, particularly where it involves allegations against the Father.
The ICL sought that a conclusion be drawn, based on the Mother’s demeanour in the witness box, that she was an honest witness. However, given the caution about doing so (as identified in the authorities above), I am not prepared to draw such a conclusion, particularly in the face of the examples of the Mother being demonstrably inaccurate in her evidence.
The nature of the relationship between the parties and the nature of their communication
As will be seen in the evidence of Dr L, the nature of the relationship between the parents, and the conflict and hostility that emerges from that relationship, is a significant adverse factor for B. Their attitudes to each other, their interactions and their allegations about each other are emblematic of their lack of capacity to cooperate, make decisions together, and how each is impacted by the conduct of the other.
Mother’s views of and attitude towards the Father
In examining the evidence in relation to this issue, it should be borne in mind that in spite of her strident criticism of the Father, the Mother seeks orders that would involve B having significant and unsupervised time with her Father even in the event that the Mother was living in Tasmania and the Father living in Canberra. Despite the orders sought by the Mother, it may be accepted that she holds an exceedingly poor view of the Father and poor view of his parenting capacity. These poor views are illustrated by her views as to whether he poses a sexual risk to B, her communication of those views to others and her criticisms of various incidents relating to his parenting.
While the Mother did not pursue the notion in her final submissions that the Father poses a sexual risk to B, and specifically stated through her counsel at the hearing that such a risk was no longer pursued in the proceedings, she says that she still harbours significant concerns, which fall short of a resolute belief that the Father poses a sexual risk to B.[39]
[39] Transcript, 19 October 2018, pp. 849, 856.
The Mother has publicly described the Father in the waiting room of the LL Medical Centre on 14 December 2016 as a serial rapist and that she suspected him of sexually abusing B.[40] Similarly, but more privately, she told Dr H in the Father's presence on 1 November 2016 that the Father was a serial rapist.
[40] Transcript, 17 October 2018, pp. 687-688.
The communication of these allegations suggests that the Mother holds the Father in extremely low regard.
Consistent with this low regard, the Mother has made a number of complaints about B’s safety while in the Father’s care.[41]
[41] Affidavit of Ms Beckett filed 2 November 2017, [117].
The first incident related to B wearing a metal cord necklace on her return from her Father on or around 9 June 2017. In her affidavit, the Mother says that she discovered it “when she [B] began pulling at it with discomfort and screaming.”[42] The Mother claimed that the necklace constituted a strangulation hazard. The Mother’s oral evidence went significantly beyond what she recorded in her affidavit about the incident, alleging that she observed B to be choking as a result of the necklace. The disparity between the Mother’s oral evidence and affidavit evidence causes me to conclude that the Mother is unreliable in relation to this matter and that she has ultimately given exaggerated evidence in support of the notion that the necklace formed a risk. I do not conclude that the necklace was a risk.
[42] Affidavit of Ms Beckett filed 2 November 2017, [117.1].
The second incident related to items put into B’s handover bag on 29 July 2017. The items were ceramic cats. The Mother said that B broke one of the cats, having removed the cats from the bag. The Mother was concerned that B could have been cut by the broken “china.” She asked that the Father let her know if breakable items were to be put into B’s bag. During cross-examination the Mother said that she thought leaving very sharp items with a toddler was concerning.
The third incident related to B having a bleeding lip on 23 August 2017. It was explained that B had cut her lip on “the metal lid of a yoghurt drink that she was holding”.[43] The Mother said that B also had some fragments of metal from the lid in her mouth. Presumably the metal being spoken of was a foil type substance, although it has not been made clear. During cross-examination, the Mother accepted that the cut itself was not concerning. The Mother said that what she saw as relevant was B being allowed to chew on sharp metal.
[43] Affidavit of Ms Beckett filed 2 November 2017, [117.3].
Again, this does not appear to represent a significant deficiency in parenting warranting the criticism.[44]
[44] Transcript, 16 October 2018, p. 502.
The fourth incident involved B on a rocking horse provided by the Father during a period of time he spent with B while he was supervised by Ms S. The Mother alleged that B had fallen from the rocking horse and been hurt.[45] The Mother alleged both that the horse was not appropriate for B’s age and that the Father had failed to adequately supervise B while she was on the horse.
[45] Affidavit of Ms Beckett filed 2 November 2017, [117.4]; Affidavit of Mr Knill filed 27 September 2017, [157(f)]; Transcript, 16 October 2018, p. 503
In relation to the fourth incident, the Father produced a video to the Court of his interactions with B and the rocking horse. If adequately supervised, there is nothing about the rocking horse that is age inappropriate. B appeared to enjoy the rocking horse immensely. The Mother was questioned as to whether, having seen the video produced by the Father, she maintained criticism that the Father had not adequately supervised B. The Mother said that she thought that the incident of the fall had been edited from the footage provided to the Court by the Father. The relevant footage was played. For the most part it showed the Father being carefully attentive to B, although at times distracted by adjusting the camera that was recording their interaction.
However, as asserted by the Mother, the footage provided to the Court ended prior to B’s fall. That is, the recording ended midway through a point where the Father was adjusting the camera and no longer paying particularly close attention to B. By this stage of the recording, B had already lost her balance on the rocking horse once, at which point the Father had instantly intervened, appropriately, recovering her balance without any difficulty. Having provided the footage to explain what happened, the Father gives no explanation as to why the seminal point of the recording was cut off.
It was in his hands to produce the footage. He did not. It may be inferred that the footage would not have supported his assertion that he was paying careful enough attention to B.
From this it may be inferred that the Mother was correct in her criticism of the Father, that B was hurt because the Father was not paying adequate attention to her.
The Mother also criticised the Father for, on the same occasion, changing a soiled nappy on the carpet of the supervisor’s home without placing something down first. The video of the incident however demonstrated the Father had placed a towel on the carpet. This did not warrant either the complaint made by the Mother or a criticism of his parenting. The Mother accepted that the reason for making the complaint was that she wished to evidence poor behaviour on the part of the Father.[46]
[46] Transcript, 16 October 2018, p. 511.
These matters, collectively, do not speak clearly to a significant deficiency in parental capacity by the Father. There will be times when even a diligent parent becomes distracted when caring for a child and a child is hurt. There will also be times when an otherwise capable parent falls short of providing adequate care to ensure the child is not hurt, such as the Father’s failure to provide such care while B was on the rocking horse. That does not here lead to a conclusion of parental incapacity or of a risk of any significance.
The raising of these matters by the Mother does indicate her application of an unreasonable standard upon the Father and also, as indicated by the necklace incident, a risk of exaggeration by the Mother in respect of the dangers posed by the Father.
The Father’s presentation of material that did not include the fall from the rocking horse undermines a favourable assessment of his candour.
The Mother's views of the significance of the Father in B’s life are also demonstrated by, post separation, the Mother's restrictions as to the time that the Father could spend with B.
The Mother imposed a requirement for supervision in February or March 2016. From then there were ad hoc arrangements for supervised time. The Father unwillingly accepted the requirements imposed by the Mother. The Mother explained to the Court that the basis for seeking supervision was she was concerned B might see outbursts, sexual assaults or altercations with the Father.[47]
[47] Transcript, 17 October 2018, p. 625.
On a number of occasions the Mother rejected the Father's proposals for supervisors even when they included the Father's work supervisor and psychologists. From time to time the Mother cancelled the time. One instance following 3 March 2016 where the Mother’s mother supervised and was caught unawares with the Father having organised a birthday party with a number of attendees. The Mother subsequently declined to provide B to the Father for time. The Mother regarded this as unsafe and described her mother as shaking and terrified. A further occasion of cancellation occurred in August 2016 when the Father, with the Mother's permission, took B to the general practitioner while under the supervision of a Ms T. Notwithstanding the presence of Ms T, the Mother insisted on her mother also attending at the doctor’s surgery in order to combat a risk that the Father may abscond with B. It is unclear why the doctor’s surgery posed such a risk particularly where it was under the supervision of Ms T, and no matters pointing to absconding have been identified. The Mother's mother was not permitted into the doctor's office. The Mother alleges that her mother was threatened.[48] The Mother cancelled further time, a position which was reversed by the Father's ex parte application which was heard on 6 September 2016, meaning that B passed into his care, and the Mother was then required to spend her time with B on a supervised basis.
[48] Transcript, 17 October 2018, p. 633.
The Father’s views of and attitude towards the Mother
In his oral evidence the Father denied that he had a negative view of the Mother. This sat uncomfortably with the tone of the Father’s evidence generally. The Father denied that he thought that she was crazy, or an unfit mother, or that he was a better parent, or that she has Munchausen’s by proxy.
Despite this, the Father said during the proceedings that he wanted the Mother to have the support of a single psychologist “that can consistently ensure that she does not harm my child.”[49]
[49] Transcript, 12 October 2018, p. 296.
Further, in his oral evidence he said that he anticipated that the Mother would make false allegations about B and abuse.[50] Despite this he repeated that he did not hold a negative view of the Mother. He then added, by way of explanation that he was grateful to the Mother because without her he would not have met his fiancé, which appeared to be an example of damning with faint praise.
[50] Transcript, 11 October 2018, p. 156.
When challenged as to the absence of positive comment in his affidavit about the Mother, he asserted that “I’m saying it now. I’m very grateful to her.”[51] Accepting that, in hotly contested final proceedings an absence of praise of the opposing party may say little, the absence here, when coupled with damning the Mother with faint praise, meant that the Father’s assertion that he does not hold a negative view of the Mother rang hollow.
[51] Transcript, 11 October 2018, p. 157.
The assertion that he did not hold a negative view of the Mother was also shown to be hollow in the Father’s later description of the Mother as “the unreasonable one.”[52] He also alleged that the Mother has exaggerated or fabricated B’s symptoms in a way that has caused her developmental delay and/or unnecessary medical interventions,[53] and further that she has placed B medically at risk.[54]
[52] Transcript, 12 October 2018, p. 249.
[53] Transcript, 12 October 2018, p. 257.
[54] Transcript, 12 October 2018, p. 258.
The point, at this stage, is not one of whether the Father’s criticisms of the Mother were well founded. What is demonstrated is that, contrary to his assertions, the Father holds a deeply critical and negative view of the Mother. His claims to the contrary are disingenuous.
Allegations of sexual abuse upon B
As noted earlier in the judgment, by the end of the litigation this no longer constituted a risk said to be presented by the Father to B, despite the Mother continuing to harbour suspicions. It was specifically disclaimed by counsel for the Mother as a part of the Mother’s case. The case will not involve any determination that the Father presents a risk of sexual abuse of B.
Some issues still flow from the manner in which each of the parties dealt with the raising of sexual abuse during the litigation process.
The Father says that initially when B came into his care, following ex parte orders that removed B from the Mother, B required comfort and so shared a bed with the Father. In order to protect himself from false allegations of sexually molesting B, the Father’s mother also shared the bed until the Father’s new partner Ms O commenced to share the Father’s bed, at which point his mother ceased to share the bed.
This explanation was challenged, initially on the basis that no allegation had been made when B was first in the Father’s care that she was at sexual risk or had been sexually abused by the Father. The Father explained that he anticipated the Mother making such a claim about him (this being said in the context where the Father alleges that a series of allegations had falsely been made about him sexually abusing the Mother). Subsequently, he says B has started sleeping in her own bed at his home.
After explaining that it was B’s need for comfort which justified her sleeping in his bed, the Father later said that he did not think B was unsettled (on the same occasion) by her Mother being taken away by the Australian Federal Police and B suddenly finding herself in the Father’s care, rather than the Mother’s. He said that he did not think that this was distressing to B and commented that B had not even called her mother’s name. Despite B still being breastfed at that point he explained that B had never asked for breastfeeding, had been provided with breastfeeding during the day by the Mother, and had not requested it during the evening.
The Father denied that it was confusing to B having the different people sleeping in the bed with B and her Father. He denied that it was confusing to B to have Ms O start sleeping in the bed. Particular confusion on B’s part was not identified.
In this context, having asserted that B needed comfort, in the context of the sudden removal of B from her primary carer, it is difficult to understand how the Father excludes this circumstance as being a driver for B seeking comfort. It does not give confidence that the Father has insight into B’s needs.
However, under the circumstances as seen by the Father, the co-sleeping was a necessary and appropriate way of dealing with the circumstances that confronted him. B being exposed to further allegations of sexual abuse would not be in her interest if they were unfounded and could be shown to be so. The steps taken by the Father in relation to co-sleeping, changing of B with a third party present, and checking her for injuries were unfortunately necessary and, although they involved third parties, did not do so in a manner that appears to have caused distress to B.
Allegations of family violence on the Mother
The Mother alleges physical and sexual assaults against her, along with coercive or controlling conduct by the Father. The Father denies such allegations.
These allegations are relevant not only to the question of whether there has been violent, coercive or controlling behaviour, but also as to the nature of the relationship between the parties and their capacity for cooperation in respect of B.
The first incident of physical violence
The Mother alleged that she had been assaulted by the Father slapping her in the face while she was sitting at the Father’s mother’s dining table in 2013. She said that she had told him that it was painful and that he had said “come on I was just playing around.” The Father denied the incident.
Later, in November 2015, to Ms U a psychologist, the Mother described that the incident had involved play fighting. Under cross-examination that explanation was clarified to indicate that the Mother meant there was a verbal exchange between the parties, the verbal exchange constituting the play fighting, followed by the slap.[55] Each party was cross-examined about the incident. The Father maintained his denial while the Mother explained further the circumstances. In this instance of oath upon oath I am unable to determine on the balance of probabilities that the Father slapped the Mother in the manner described.
[55] Transcript, 17 October 2018, p. 592.
Sexual abuse
The Mother alleges that on twenty to thirty occasions the Father continued sexual contact with her which, although initiated consensually, continued following the Mother's withdrawal of consent in a manner that would constitute a sexual assault.
She alleges that on one occasion, on 23 September 2015 there was a non-consensual sexual touching of her by the Father to her genitals, occurring while she was removing items from the car. This incident is discussed in greater detail below.
The Mother further alleges instances of sexual abuse by the Father when they attended a wedding together in 2015.
The Mother alleges that the twenty to thirty occasions of withdrawal of consent occurred in the period between June 2013 and November 2014. The Mother's allegation is that the Father would request that the Mother consent to being bound and at times blindfolded during sexual activities and that she gave that consent.
The Father accepted that he and the Mother had discussed tying her up during sexual activities. He said that the discussions about tying the Mother up commenced in early 2013 and that the activity started in mid-2013. He accepted that on occasion the Mother had also been blindfolded, which he said was done at her request.
The Mother says, however, that on her seeking the cessation of the sexual contact and seeking the release from the bindings that the Father would decline to release her promptly and continue to perform sexual activities upon her. She describes his conduct as “violent and sadistic" and that it also led to her description of him as a “serial rapist”. It should be noted that the continuation of sexual activities on a person once consent comes to an end is a sexual assault.
The Father agrees that on occasion the Mother was bound and at times blindfolded during their sexual interactions. He says that this was consensual and he denies any non-consensual contact occurring or a failure to release the Mother from her bindings promptly on her request.
June 2013 allegation of failing to untie the Mother
The Mother stated that in or around June 2013, and on several occasions after that, the Father refused to untie her from a painfully uncomfortable position and told her that she would be fine.[56] The Mother said that she would have to ask repeatedly for 15-30 minutes before she was released.
[56] Affidavit of Ms Beckett filed 2 November 2017, [178].
The Father accepted that on occasion, the Mother had asked to be untied. He denied that he had ever delayed untying the Mother when she had requested it. He said that, on her request, he would immediately untie her. He said that every time that she asked to be untied, he did so. He denied that in June 2013 he had delayed untying while she suffered from cramps, and pins and needles. He denied keeping her restrained for a period of up to half an hour after she had been asked to be released.
Allegation of using an undisclosed device on the Mother
The Mother described specific incidents of the Father introducing vibrators and other items during sex throughout 2013-2014. The Mother said that the Father would tie her to the bed and blindfold her so that she could not see or stop what he was doing.[57]
[57] Affidavit of Ms Beckett filed 2 November 2017, [179].
The Mother described an incident 2013 where the Father told the Mother that he had something new for her and refused to tell her what it was.[58] The Mother heard a louder buzzing noise than any of the Father’s other vibrators, before the Father put the item against the Mother’s body without her consent.[59] The Mother later saw that the object was a personal massager that the Father had previously used to massage his disabled father’s back and shoulders.[60]
[58] Affidavit of Ms Beckett filed 2 November 2017, [181].
[59] Affidavit of Ms Beckett filed 2 November 2017, [181].
[60] Affidavit of Ms Beckett filed 2 November 2017, [182].
The Father denies the incidents alleged by the Mother. He said that he believed that she was not blindfolded the first time the vibrator was used, and asserted that she had seen it. He accepted that there were other times that she was blindfolded but says that this was at her request. He denied using his father’s massage device on the Mother.
Allegation regarding electric shock device
The Mother said that on one occasion in approximately early 2014 the Father tied her to the bed and blindfolded her before retrieving an object from his bag and refusing to tell her what it was.[61] The Mother said that he proceeded to use an electric shock device on her and ignored her cries to stop, instead putting it on a lower setting. The Father allegedly told the Mother to “Just see if you get used to it” in response to her requests to stop. The Mother said that the Father used the device again a month later without her consent.
[61] Affidavit of Ms Beckett filed 2 November 2017, [184].
The Father denied using an electric shock device on the Mother.
Mid-2014 allegation of striking the Mother during sex
The Mother said that in mid-2014 the Father hit her on the upper thigh and buttock during sex, causing her to cry out and lose her breath for a few moments.[62] The Mother said that she told him that it “really hurt” but that he told her to “just breathe through it” and continued to hit her on the leg two or three times more.[63]
[62] Affidavit of Ms Beckett filed 2 November 2017, [185].
[63] Affidavit of Ms Beckett filed 2 November 2017, [185].
The Father denied that in mid-2014 he had struck the Mother on her buttocks in this manner or that he had continued to do so despite her protestations.
Allegation concerning last occasion of sex
The Mother said that in approximately 2014 the parties engaged in sexual relations while she was pregnant with B.[64] The Mother said that the Father brought out the massager and used it on the Mother despite her requests not to do so.[65] She said that when she asked him repeatedly to stop he would stop momentarily but would then resume and stated that “I’m going to make you come”.[66] The Mother said that she thrashed around trying to escape and that the Father only turned the massager off when the Mother experienced a physiological orgasm after about twenty minutes.[67] The Mother said that after this occasion she refused to let the Father tie her up despite his repeated requests, and that they did not have penetrative sex after this occasion. The Mother said that the Father continued to ask her for oral sex which she says she was coerced into performing.
[64] Affidavit of Ms Beckett filed 2 November 2017, [186].
[65] Affidavit of Ms Beckett filed 2 November 2017, [186].
[66] Affidavit of Ms Beckett filed 2 November 2017, [186].
[67] Affidavit of Ms Beckett filed 2 November 2017, [186].
The Father accepted that in approximately 2014 the parties engaged in sexual relations. He did not recall whether or not the Mother had been tied to the bed but agreed that it was possible. He also agreed that it was possible that a massager was used upon her. He denied that the Mother had asked him not to use the massager and denied his alleged response. He accepted that 2014 marked the last occasion where he and the Mother had sexual relations.
Matters potentially undermining the Mother’s claims
The Father points to a number of matters that he says undermine her claims. The Father notes that during the period of the alleged sexual assaults the Mother had an ongoing relationship with a psychologist, being a relationship which predated the formation of relationship between the Mother and the Father. That psychologist was Dr V.
During cross-examination, the Mother was taken through her attendances upon Dr V from July 2013 through to November 2014.[68] The notes from the Mother’s attendances upon Dr V described the relationship and how the Mother felt, in distinctly different terms to the Mother’s later description to others and to the Court. Exhibit F2 contains reports from Dr V between February 2010 to November 2014 that were sent to the Mother’s general practitioner.[69] These reports said little about the relationship but spoke of improvements in the Mother’s depression. The last report described that the Mother had plans for her and the Father to move in together. Further, the Mother was described as having consolidated her mental health gains. This description of improving mental health is to have occurred following what would have been an extended period of sexual abuse by the Father, if the Mother’s account is to be accepted.
[68] Exhibit F8.
[69] Exhibit F2, p. 286.
There was no recorded mention to Dr V of sexual assault by the Father upon the Mother. Although the Mother had mentioned sex with the Father to Dr V, the Mother had reported no sexual assaults.
Despite there being some negative comments made by the Mother about the Father recorded in Dr V’s notes, there was no mention of sexual assaults.
The Father notes that the Mother attended upon Ms U, the psychologist from the ACT perinatal mental health team on 30 November 2015. On that occasion the Mother raised allegations of family violence against the Father including the Father slapping her at the dining table in 2013 and the incident (later described) occurring on 23 September 2015. Despite describing these to Ms U, the Mother made no mention of the twenty to thirty occasions of alleged sexual assault. Rather, the Mother had described herself as feeling as “safe with him as she could with anyone.” In her oral evidence, the Mother sought to explain this as consistent with her feelings of a lack of safety with anyone.
Despite the Mother’s submissions to the contrary, it was not apparent that the allegation was raised with the Father during the relationship or with anyone else until after the relationship had ended. The references otherwise made during the relationship to sexual assault appear more likely to be references to the incident of 23 September 2015.
The first report by the Mother of the twenty to thirty occasions of sexual assaults appears to be to her mother, Ms W, on the Mother's visit to Tasmania in mid-December 2015. Ms W records the Mother as saying, “Mum I don't feel safe. He's been very aggressive, and he has raped me.” [70]
[70] Affidavit of Ms W filed 1 November 2017, [14].
The Mother says that as well as reporting it to her Mother she also reported it to an EAP counsellor.[71]
[71] Transcript, 17 October 2018, p. 598.
However, the Father notes, this allegation was not repeated in the Mother's application for a Domestic Violence Order made February 2016, despite the Mother's inclusion of the 23 September 2015 allegation.[72]
[72] Exhibit F7.
The Father also notes that the allegation was not contained in a letter sent on 28 February 2016 to the Father’s solicitors in which the Mother alleged various assaults.
The Mother alleges that she made a report to the police about these sexual assaults in March 2016 but was told by the police not to raise the allegations with anyone else.[73]
[73] Transcript, 17 October 2018, p. 603.
The Father raises a further issue that he asserts undermines the Mother's claims of the repeated sexual assaults. That issue relates to the nature of the conduct that is alleged requiring the Mother to continue to consent to be bound and at times blindfolded under circumstances where she alleges that the Father had previously refused to release her and had sexually assaulted her while she was bound and blindfolded. The Father points to the inherent improbability of such repeated acquiescence on the part of the Mother to being restrained under circumstances where, on her description, if true she must have perceived a likelihood of risk of abuse.
It may be observed that inconsistency in reporting sexual abuse, and family violence more generally, does not necessarily point to the claims being made being untrue. There are many reasons for inconsistency including, but not limited to wariness in reporting, and also failure to recognise what it is that a person is being subjected to, that is, a failure to recognise that what the person is enduring is in fact sexual abuse or family violence. The subjugation inherent in family violence may also be a factor promoting inconsistency in reporting.
However, the inconsistency here can certainly not be said to assist the credibility of the Mother's claims, but rather leads to a reasonable question as to whether or not her claims about the matter are reliable.
The allegation of twenty to thirty occasions of sexual assault is an extremely serious allegation which requires the seriousness of the allegation to be taken into account in considering whether or not it has been established on the balance of probabilities. In this case, as previously noted, I have serious reservations generally about the credibility of both of the parties. In the face of the competing accounts, and taking into account the inconsistencies in the Mother's reporting of the twenty to thirty sexual assaults alleged, the evidence is insufficient to satisfy on the balance of probabilities that the twenty to thirty occasions of sexual assault occurred.
23 September 2015
The parties accept that an incident occurred, variously described as either occurring on 23 or 24 September 2015 being an incident that the Mother promptly described as being a sexual assault by the Father.
Each of the parties has given varying descriptions of the incident. It is useful to set out firstly those given by the Mother.
At [190] of her primary affidavit the Mother deposed as follows:
On or around 24 September 2015 Mr Knill and I had been out in the car together with B. I opened the rear door and bent down to get my bag from the floor in front of B, Mr Knill came up behind me and put his hand up my skirt, roughly grabbing at my bottom and up between my legs. I jumped up in shock, and yelped. I spun around, very upset at Mr Knill, tapped him in the chest with the back of my hand to indicate he should back off, and sternly said
“Don’t do that!”
Mr Knill laughed. After a few moments I bent down to get my bag again, and once again Mr Knill put his hand up my skirt, grabbing at my bottom and genitals. I jumped up again in shock. B was still in the car, less than a foot away from me. I was very upset so I went inside to get away from the situation. I felt violated and humiliated, and started crying as I went in the house. Later in the evening I told Mr Knill I was very upset. He was very dismissive of my concerns. We started arguing about this issue and B’s sleep, and Mr Knill left to go to his mother’s house. The argument continued by text message through the night.
The Mother urged findings that there were sufficient resources to enable the time as proposed by her to occur, suggesting that the onus was on the Father to demonstrate otherwise. It is difficult to see how the Father bears such an onus, where it is the Mother who proposes such orders and asserts that such orders are in B’s best interests, presumably on the case that they are workable.
On the Mother’s proposal the Father will bear a significant portion of the responsibility for the travel, at a level of expense that is not clearly identified, and with a capacity that is also not identified. The Mother commits to funding six trips, and has the assistance of her mother.
Under those circumstances, the matter cannot be approached on the basis that there can be confidence that the regime proposed by the Mother would reflect the frequency and duration of the time that the Father would spend with B if B lived in Tasmania. The true frequency at which B would spend time with her Father should she move to Tasmania is left unclear.
While it was thought by Dr L that a move to Tasmania would reduce the conflict between the parties, this outcome is less than clear. It is true that the periods of time, and frequency of time with B would be reduced, potentially reducing some need for cooperation. However, it might be expected that significant cooperation would be required to support the interstate travel working smoothly.
It should also be recognised that the move to Tasmania, and need to cooperate with regard to interstate travel would occur in the context of a lack of genuine support for the relationship on the part of the Mother.
While it was suggested that the Father could move to Tasmania, and he received some support from his employer in relation to at least some work in Tasmania, it cannot be concluded that there is any likelihood that he would move, particularly given the presence of his family and fiancé in Canberra.
It may be concluded that the move to Tasmania would entail a significantly lesser degree of time between B and the Father than the Mother’s proposal entails. This would correspondingly result in the significant attenuation of the relationship between B and her Father. That attenuation requires consideration in the context of the benefits of relationship identified by Dr L. It would involve a marked reduction in B’s experience of a warm, comfortable and loving relationship with her Father. It would reduce her experience of involvement of the Father in different interactions. It is not the case however that she will not know him in a genuine sense and so despite the attenuation is likely to retain the benefits in relation to her identity.
The Father’s proposal
The Father’s proposal also carries benefits and detriments for B.
Under his proposal, B would have the benefit of the Father’s involvement in her day to day activities as B would see him in a regular fashion each week. He would be a regular part of her school life, when it commences, and also her non-school life. B could also have reasonable certainty about when she would be seeing her Father, with no significant gaps emerging.
She would be able to regularly enjoy the benefits of relationship with him, particularly given the positive relationship that she already enjoys with him. She would also have greater capacity to enjoy benefits coming from interaction with her extended family on the Father’s side.
This frequency would assist to maintain those benefits for B in the face of a lack of support for the relationship on the part of the Mother.
Against that, B’s primary carer, her Mother, who is mentally vulnerable, would be deprived of the support and relief expected by a move to Tasmania. That may be anticipated to have a negative impact on the Mother’s mental well-being, potentially increasing her suicidal ideation, although it is anticipated that it is a matter that the Mother would be able to cope with. That does not equate to the coping coming at no personal cost or burden to the Mother.
Weekly changeovers would require some cooperation, under circumstances that are not conducive to such. The Mother’s vulnerability and the Father’s aggression and domineering manner are ingredients for this being a poor experience for the parties, likely to involve conflict and to pass stress onto B, particularly if they are unable to be effected, as proposed by the Father, generally through childcare or school. That same dynamic also carries potential for undermining of the Mother’s vulnerable mental health.
General considerations
Arrangements that practically retain the Mother in Canberra undermine her legitimate interest in her own freedom of movement, itself a relevant consideration, albeit subservient to B’s best interests.
In a consideration of the benefits and detriments for B, it is important to pay close attention to the matter that Dr L identified as posing the greatest risk to her well-being, being conflict between the parents. It may be considered that direct exposure to such will be detrimental to B. Indirect exposure, by virtue at least of the impact that it can have, particularly on the Mother, is also contrary to B’s interests.
The question should then be posed as to what arrangements, in the context of all of the other considerations, ameliorate this detrimental influence? Given the above analysis, neither of the primary proposals put by the parents appear apt to reduce the potential for conflict. Both interstate travel, and weekly time in Canberra call for cooperation. Cooperation is not within the arsenal of these parents. That requirement for cooperation will either result in failures amongst arrangements for B’s day to day care, or for B’s time with her Father, or conflict, stress, and adverse impact on the Mother’s mental health.
In the event that it was determined that it was not in B’s best interest to move to Tasmania, the reduced frequency of time in Canberra identified by the Mother would carry with it the prospect of less need for cooperation, and hence less prospect for conflict and the adverse consequences that flow from it.
Conclusion
It may be observed that the primary positions pursued by the parties each carry significant detriments for B, as well as significant benefits.
The benefits to the Mother as B’s primary carer, and correspondingly the benefits to B, are a strong reason to adopt a move to Tasmania for B.
Strongly pointing in the other direction is the uncertainty in the nature of the relationship that will be able to be maintained under the circumstances of such a move, as opposed to a relationship in Canberra that will accommodate a more regular interaction between B and her Father, and secure for her the benefits of that relationship.
Amidst the matters that have been pursued by the parties, these are the ones that, as a matter of weight, speak loudest to B’s best interests, as the paramount consideration. They, and the other matters described leave the question of B’s best interests closely balanced.
In such a circumstance, it is well to recollect the strong emphasis placed by the High Court in AMS v AIF[153] as to parents being able to “enjoy as much freedom as is compatible with their obligations with regard to the child.” Gleeson CJ, McHugh, Gummow, Gaudron and Kirby JJ all agreed it is not for the Mother to establish compelling reasons for a move. Kirby J observed:[154]
Fourthly, the applicable legislation is enacted, and the relevant discretions exercised, for a society which attaches high importance to freedom of movement and the right of adults to decide where they will live. That is doubtless why courts have expressed themselves as reluctant to make orders which interfere in the freedom of custodial (or residence) parents to reside with the child where they wish, at least where such parent is the unchallenged custodian or has been designated the sole guardian of the child. One of the objects of modern family law statutes (including FLA 1975 and FCA 1975) is to enable parties to a broken relationship to start a new life for themselves, to control their own future destinies and, where desired, to form new relationships, free from unnecessary interference from a former spouse or partner or from a court. Courts recognise that unwarranted interference in the life of a custodial parent may itself occasion bitterness towards the former spouse or partner which may be transmitted to the child or otherwise impinge on the happiness of the custodial (or residence) parent in a way likely to affect the welfare or best interests of the child. This said, the touchstone for the ultimate decision must remain the welfare or best interests of the child and not, as such, the wishes and interests of the parents. To the extent that earlier authority may have suggested the contrary, it has now, properly, been rejected. (references omitted)
[153]AMS v AIF.
[154]AMS v AIF, [145] (per Kirby J).
These legitimate interests, Kirby J observed, occur in a “society where members enjoy a high measure of freedom of movement which is not lost by reason only of the responsibilities which go with custody and guardianship of a child.”[155]
[155]AMS v AIF, [193] (per Kirby J).
In the circumstances of this case, where the considerations pull sufficiently in different directions as to leave the best interests of B finely balanced, this “fundamental freedom” as described by Aldridge J in Babcock & Wadell, is the matter that tips the balance to B living in Tasmania with the Mother.
The orders
Whatever orders are made require certainty to reduce the scope for conflict but also, in a contradictory manner, require some flexibility to accommodate the difficulties posed by travel between Canberra and Tasmania. A framework will be put in place to seek to achieve these two objectives.
Noting the uncertainty pointed to by the Father that accompanies the arrangements for B to spend time with her Father if she lives in Tasmania, orders will need to be fashioned to meet that uncertainty. It is also not known how long it may be before the Mother relocates.
Pending that relocation orders will provide for B to spend each second weekend with the Father. Condensing the time to a single period decreases the number of handovers, and decreases the need for communication. This potentially minimises the conflict.
I have not been addressed on the availability of the professional changeover centre in Canberra, and orders will be made that are an amalgam of the alternative raised by the parties.
The school holiday orders proposed by the Mother that transition slowly in increasing time between B and the Father do not provide for adequate time for B and the Father. While in some ways a slow transition benefits B, she is better served by having additional time with her Father sooner rather than later.
While the Mother proposed that following her move the Tasmania there should be orders for school holiday time, and for twice monthly time, I was not addressed on how her proposed orders would interact with each other, and what the end result for time with B would be. What was apparent was that such an arrangement was not practically workable.
The frequency proposed by the ICL was significantly less than that proposed by the Mother.
The Father has identified that following the proposed move he will not be able to travel as proposed by the Mother, or to fund travel as proposed by the Mother.
The appropriate balance lies between that proposed by the ICL and the Mother, that is, during school term time provision should be made for B to spend time with her Father each three weeks. At least until B is able to travel unaccompanied, the bulk of this travel will rest with the Father. Given the uncertainties as to his capacity to travel, the orders will provide for his visits to Tasmania to be on his election with notice. This maximises the opportunity for B to spend time with the Father to that which he is able to support.
The Mother has asserted that, particularly with the assistance of her mother, she will be able to fund six return trips for B and herself each year to Canberra. A regime will be put into place that reflects B travelling to Canberra, funded by the Mother in the manner that she said she, with the assistance of her mother was able to. These six occasions will be directed firstly to travel each year to Canberra for the school holiday periods, and to two occasions of term time visits to Canberra. This equates to six occasions across twelve month periods.
The orders will provide in large part for changeovers to occur at either the Canberra or Hobart airport. These may be expected to provide a suitably neutral and controlled environment for such to occur, and also provides for future arrangements where the Father might choose to fly B unaccompanied to visit Canberra (or elsewhere for that matter).
Although it is important for children and their parents to be able to share special days, and if the parties together form the view that it is important enough to make happen, they will be at liberty to do so, the poor relationship between the parties, and the difficulties posed by interstate travel mean that such an order should not be made in this instance. Providing for such, as proposed by the Mother, results in changes to an otherwise regular scheme which is conducive to conflict, a result which is not in B’s interests.
Both parties sought that there be orders that support each having knowledge of medical issues and educational issues that face B. This will be accommodated even though the Mother will have sole parental responsibility.
Although it is not expected that the parties will be able to agree on alternate arrangements, the orders will allow them to do so.
I certify that the preceding three hundred and forty-six (346) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Gill delivered on 21 November 2019.
Associate:
Date: 21 November 2019
Appendix 1: Material Relied Upon
The Father relied upon the following:
e)Affidavit of Mr Knill and Exhibit book affirmed 27 September 2017;
f)Affidavit of Ms P filed 27 September 2017;
g)Affidavit of Ms Q filed 27 September 2017;
h)Affidavit of Mr R filed 27 September 2017;
i)Affidavit of Mr BB filed 27 September 2017;
j)Affidavit of Ms CC filed 27 September 2017;
k)Affidavit of Mr DD filed 27 September 2017;
l)Affidavit of Ms EE filed 27 September 2017;
m)Affidavit in Reply of Mr Knill filed 15 November 2017;
n)Affidavit (updating) of Mr Knill filed 21 August 2018;
o)Affidavit of Dr AA filed 21 September 2018;
p)Affidavit of Ms O filed 2 October 2018; and
q)A tender bundle.
The Mother relied upon the following:
a)Affidavit of Ms Beckett filed 18 September 2018;
b)Affidavit of Ms Beckett filed 2 November 2017;
c)Affidavit of Ms Y filed 1 November 2017;
d)Affidavit of Ms FF filed 1 November 2017;
e)Affidavit of Dr D filed 1 November 2017; and
f)Affidavit of Ms W filed 1 November 2017.
The Independent Children’s Lawyer (“the ICL”) relied upon the following:
g)Single Expert Report of Dr L dated 17 July 2018;
h)Single Expert Report of Dr L dated 15 December 2017;
i)Single Expert Report of Dr L dated 24 July 2017;
j)Single Expert Report of Dr L dated 18 April 2017.
It was indicated to the parties, and they accepted, that whilst the tender bundles would be accepted in their entirety, it would be a matter for the parties to direct the Court to the relevant entries, as not every entry in the tender bundle would be examined. The parties accepted this course of action.
Appendix 2: Orders Sought
Orders Sought by the Father[156]
[156] Applicant Father’s Amended Minute of Orders Sought (Exhibit F20).
Relocation:
That the Mother be restrained from relocating with the child outside of the Canberra/Queanbeyan region without the prior written consent of the Father or an Order of the Court.
Parental Responsibility:
That each of the parties have equal shared parental responsibility for the child B born in 2015 (“the child”).
That the child lives with the Mother.
That the child will spend time with her Father as follows:
a)That until 1 February 2019 (2 overnights):
i)Each week from 9am until 5pm Wednesday.
ii)On a fortnightly basis:
(1)From 9am Saturday until 5pm Sunday; and
(2)From 5pm Thursday until 1pm on Friday.
b)That from 2 February 2019 (child aged 3 years 10 months):
i)Each week from 9am until 5pm Wednesday.
ii)On a fortnightly basis (3 overnights):
(1)From 5pm Friday until 9am on Monday.
c)That from 1 February 2020 (child aged 4 years 11 months) and thereafter:
i)Each week from 3pm on Tuesday until 9am on Wednesday.
ii)On a fortnightly basis (4 overnights):
iii)From 5pm Friday until 9am Monday if it is a school day or 2pm if it is a public holiday.
That notwithstanding these Orders, on at least 4 occasions each year, the child will be permitted to travel interstate with the mother within Australia for a period of 10 consecutive nights provided that:
a)The mother provides a minimum of 1 weeks’ notice of her intended travel including dates of departure and return to the ACT area;
b)That the mother provides make up time to the father for the time that the child misses; and
c)The father has not communicated to the mother that he has made prior commitments on the days that the child would normally spend with him.
At such other times as agreed between the parents in writing.
Handovers:
That for the purposes of these Orders, and unless otherwise agreed in writing by the parties, changeover shall occur at day care/school when the child attends child care/school and on all other occasions at McDonalds in Suburb E.
Where changeover does not occur at day care/school, the father shall not do direct face to face handovers with the mother unless the mother expressly provides her consent in writing for him to do so in writing.
Christmas:
That notwithstanding these Orders the child spend time with the Father from 9am on 28 December until 1pm on 31 December 2018 (noting that the Mother intends to travel with the child to Tasmania between 13 to 27 December 2018).
Commencing Christmas 2019 and each alternate year thereafter:
a)The child spend time with the Father from 5pm on 24 December 2019 until 9am on 26 December 2019; and
Commencing Christmas 2020 and each alternate year thereafter:
a)The child spend time with the Mother from 5pm on 24 December 2020 until 9am on 16 December 2020; and
School holidays commencing in 2020 and thereafter:
That each of the parties take all reasonable steps to ensure that the child spends time with her parents during school holidays as follows:
a)With the father:
i)For the first half of all school holiday periods commencing in years ending in an even number; and
ii)For the second half of all school holidays periods commencing in years ending in an odd number; and
b)With the mother:
i)For the second half of all school holiday periods commencing in years ending in an even number; and
ii)For the first half of all school holidays periods commencing in years ending in an odd number; and
c)At such further or other times as the parties may agree in writing.
That for the purposes of clause 12 above, in the absence of any written agreement between the parties to the contrary, the following shall apply:
a)The first half of school holidays is deemed to commence at the end of classes on the last day of school;
b)The second half of the December/January school holidays is deemed to commence at 5pm the Friday in January that falls approximately three weeks after the last day of the fourth school term, of the previous year; and
c)The second half of all other school holidays is deemed to commence at 5pm on the middle Saturday of the school holidays or the middle Wednesday of the school holidays if the relevant holiday period has an odd number of weeks;
d)One half of the school holiday period be calculated by dividing the total number of days the children do not attend school by 2. If the number of days is not even, the father is to have the extra day in even years and the mother is to have the extra day in odd years.
Special occasions:
That notwithstanding the above the child spend time with the Father from 5pm on Friday 18 January 2019 until 7pm on Saturday 19 January 2019 and from 8am until 5pm on Sunday, 20 January 2019.
That notwithstanding the above:
a)Unless otherwise agreed by the parties, on the child’s birthday (which is also the same day as the Father’s birthday) each year the parent with whom the child is living shall make her available to spend time with the other parent for a period of at least 4 hours at a time to be agreed between the parents but failing agreement from 3pm (or directly after school) until 7pm.
b)If the Mother’s birthday falls on a day when the child would otherwise be living with the other parent, the following shall apply:
i)That if the mother’s birthday falls on a weekday, each of the parties take all reasonable steps to ensure that the child spends time with the Mother for a period of at least 3 hours at a time to be agreed between the parents;
ii)That if the Mother’s birthday falls on a weekend, each of the parties take all reasonable steps to ensure that the child spends time with the Mother from 9am until 5pm on the birthday.
c)The child spends time with her Mother from 9am until 5pm each Mother’s Day; and
d)The child spends time with her Father from 9am until 5pm each father’s Day.
e)The child spends time with her Father from 9am on Good Friday until 4.30pm on Easter Monday in years ending in an odd number; and
f)The child spends time with her Mother from 9am on Good Friday until 4.30pm on Easter Monday in years ending in an even number
That each of the parents are at liberty to attend the child’s school and day care events and extra-curricular activities.
Health Care:
That in relation to attending upon a General Practitioner, B is to attend upon the Suburb C Family Practice specifically save in the case of an emergency, and in relation to attendance upon a paediatrician, is to attend upon Dr D.
That each party will authorise each treating medical practitioner/specialist medical practitioner/health care provider to release information regarding the child to the other parent and to record information given by the parent regarding the child onto the child’s medical records.
That prior to attendance upon a treating medical practitioner/specialise medical practitioner/health care provider for the child, each parent is to advise the other in writing at least 72 hours beforehand:
a)The name of the treating medical practitioner/specialist medical practitioner/health care provider;
b)The time and place of the appointments; and
c)The reasons for the consultation.
That each parent is to advise the other parent of any attendance at a hospital or admission to a hospital in relation to the child as soon as practicable but not more than 2 hours after the presentation to the hospital and is to authorise such hospital to provide the other parent upon his or her request with details of medical advice or treatment provided by that hospital.
That both parents are restrained from taking the child to any counsellor (whether qualified or unqualified), agency or health professional for the purpose of counselling, investigation or therapy without the prior written consent of the other parent or the leave of the Court.
Communication
That the parents’ primary means of communication in relation to matters involving/affecting the child occur via email, with each parent to notify the other via text message or phone call in relation to imminent handover information and/or any serious illness or injury affecting the child. In relation to any non-urgent issues that parties shall not send more than one email per week to the other.
That each parent be authorised to receive a copy of child’s school/daycare reports, any other reports on school/daycare progress and behavioural issues and all school circulars in relation to the child as well as all notices received from her school/day care, including details of all functions, parent and teacher nights and other activities to which parents are invited.
Such further or other Orders as the Court considers appropriate.
Other
That the Mother do all things necessary to continue to undergo psychological/psychiatric treatment concerning her mental health and the Mother shall comply with all treatment as recommended and prescribed by her treating mental health care professionals.
Orders Sought by the Mother[157]
[157] Mother’s Minute of Orders Sought (Exhibit M10).
It be ordered:
That all previous Orders be discharged.
IF THE MOTHER’S APPLICATION TO RELOCATE IS SUCCESSFUL AND THE MOTHER AND CHILD LIVE IN TASMANIA
Parental Responsibility
That the Mother have sole parental responsibility for the child, B born in 2015 (the child).
Living Arrangements
That the child live with the Mother;
That the child spend time with the Father from the date of these Orders to 2 March 2019 as follows:
4.1.For the first weekend of each calendar month in Tasmania from 9am Saturday until 4pm Sunday;
4.2.For the third weekend of each calendar month in Australian Capital Territory from 9am Saturday until 4pm Sunday
Commencing 3 March 2019 (when the child turns 4 years of age) (2 consecutive nights):
5.1.For the first weekend of each calendar month in Tasmania from 4pm Friday until 4pm Sunday; and
5.2.For the third weekend of each calendar month in the Australian Capital Territory from 4pm Friday until 4pm Sunday.
Commencing 3 March 2020 (when the child turns 5 years of age) (3 consecutive nights):
6.1For the first weekend of each calendar month in Tasmania from after school on Friday until the commencement of school on Monday.
6.2For the third weekend of each alternate calendar month in the Australian Capital Territory from the next available flight after school on Friday until the first available flight, before school on Monday.
School holidays
Tasmanian Term school holidays (Term 1, 2 and 3)
That for the Tasmanian Term school holidays the child spend time with the Father as follow:
7.1At the conclusion of Term 1, 2020 from 4pm on the last Thursday of the school holidays to 4pm on the last Saturday of the holidays (4 nights) in the Australian Capital Territory;
7.2At the conclusion of Term 2, 2020 from 4pm on the last Wednesday of the school holidays to 4pm on the last Saturday of the school holidays (5 nights) in the Australian Capital Territory;
7.3At the conclusion of Term 3, 2020 from 4pm on the last Tuesday of the school holidays to 4pm on the last Saturday of the school holidays (6 nights) in the Australian Capital Territory
That from the Tasmanian Term school holidays commencing in 2021 and each Tasmanian Term school holidays thereafter, the child will spend time with the Mother and the Father as follows:
8.1 For the first half with the Father in the Australian Capital Territory; and
8.2 For the second half with the Mother in Tasmania.
Tasmanian Christmas school holidays
That commencing in the Christmas school holiday period 2020/2021 the child will spend time with the Father as follows:
9.1In even numbered years (commencing 2020/2021) for the second and fourth week in the Australian Capital Territory; and
9.2In odd numbered years (commencing 2021/2022) for the first and third week in the Australian Capital Territory.
That for the purpose of Orders 8 and 9 during school holiday periods, the child’s time with the Father pursuant to Order 6 is suspended.
Cost of Travel
That the child be permitted to fly as an unaccompanied minor between Tasmania and Canberra from the age of 8.
That in respect to Order 4.2, Order 5.2, Order 6.2, Order 7, Order 8.1 and Order 9 the following will apply:
12.1The Mother will accompany the child on the return airline flights to and from the Australian Capital Territory until the child in able to travel unaccompanied at the age of 8 years old.
12.2The Mother will be solely responsible for the cost of the return airline tickets for herself (until the child turns 8 years old) and the child for travel in March, May, July, September, November and January and the Father will be solely responsible for the cost of the return airline tickets for the Mother and the child for the balance of the visits and:
IT IS NOTED:
A) The Mother consents to an application being brought by the Father for a departure Order in relation to the administrative assessment of child support payable by the Father due to the cost of travel in the event that the Mother’s application to relocate with the child to Tasmania is successful.
Changeovers
That all changeovers in Canberra occur at Canberra Airport (if child travelling accompanied to Canberra or with an adult other than the Mother) or at Suburb I Child and Family Centre (Suburb I), and, in the event that Suburb I is unavailable, then the changeover will occur at McDonalds, Suburb N.
That if changeover occurs at McDonalds, Suburb N the following will apply:
14.1Changeover will occur inside the McDonalds Restaurant;
14.2The Mother may utilize a third party to effect the changeover on her behalf;
14.3The Father must utilize a third party to effect changeover on his behalf; and
14.4The Father must not be in attendance inside or outside the McDonalds restaurant for changeover.
That all changeover in Tasmania occur at the child’s day care or school and, failing changeover occurring at day care or school, then changeover will occur at a professional supervised changeover program, and in the event that a professional supervised changeover program is unavailable, then changeover will occur at the McDonalds, Suburb GG.
That if changeover occurs at McDonalds, Suburb GG, the following will apply:
16.1Changeover will occur inside the McDonalds Restaurant; and
16.2The Mother will utilize a third party to effect changeover on her behalf.
Special days
That for Christmas Day/Boxing Day:
17.1In December 2019 Order 5.2 will be suspended and the child will spend time with the Father from 4pm on 24 December 2019 until 4pm on 26 December 2019.
That for the child’s birthday in even numbered years the Mother and the Father will substitute the weekend the child spends with the Father pursuant to Orders 4, 5 and 6 to provide for the child to spend time with the Father on the child’s birthday or on a weekend closest to the child’s birthday if that is not already the case.
That for Father’s Day and Mother’s Day the Mother and the Father will substitute the weekend the child spends with the Father pursuant to Orders 4, 5, and 6 to provide for the child to spend time with the relevant ‘celebrating’ parent.
General
That, except for in an emergency, the Mother and Father will communicate about the child via email.
That the Mother and Father keep each other informed of the mobile telephone number and email address on which they may be contacted in regards to the child.
That the parents authorise in writing the principal or alike at the school attended by the child to supply both parents with copies of school reports, progress reports, notices relating to pupils attending the school, school letters, invitations to and carnivals, sporting or social functions, notices of and any invitations to parent teacher interviews and any other notices directed to the parents of a child attending such school and service of sealed copy of these Orders will be sufficient to discharge this Order.
That the Mother and the Father advise each other as soon as possible by the best available means in the event of the following:
23.1The child being injured such that attendance on a health practitioner should be reasonably required or falling seriously ill;
23.2The child requiring urgent medical treatment by a doctor or ambulance crew; or
23.3The child being admitted to hospital.
That the Mother and the Father are at liberty to obtain all medical records and to consult with the child’s medical and dental practitioners to obtain any information he or she may require and service of a sealed copy of these Orders upon such medical or dental practitioners is sufficient authority for that purpose.
That the Mother and the Father will not denigrate each other or the other parent’s family in the child’s presence nor allow another person to do so.
IF THE MOTHER’S APPLICATION TO RELOCATE IS UNSUCCESSFUL AND THE MOTHER AND CHILD MUST REMAIN IN THE ACT
Parental Responsibility
That the Mother have sole parental responsibility for the child, B born in 2015 (the child).
Living Arrangements
That the child live with the Mother;
That the child spends time with the Father from the date of these Orders to 2 March 2019 as follows:
28.1 Each week from 9am until 5pm on Wednesday; and
28.2 Each alternate week:
28.2.1 From 9am Saturday until 4pm Sunday; and
28.2.2 From 4pm Thursday until 1pm Friday
Commencing 3 March 2019 (when the child turns 4 years of age) (2 consecutive nights):
28.3Each week from 9am until 5pm on Wednesday; and
28.4Each alternate week from 4pm Friday until 4pm Sunday.
Commencing 3 March 2020 (when the child turns 5 years of age) (3 consecutive nights):
28.5Each alternate weekend from the conclusion of school on a Friday until commencement of school on the Monday.
School holidays
ACT Term school holidays (Terms 1, 2 and 3)
That for the ACT Term school holidays the child spend time with the Father as follows:
29.1At the conclusion of Term 1 2020 from 4pm on the last Tuesday of the holidays, excluding pupil free days to 4pm on the last Saturday of the school holidays (4 nights);
29.2At the conclusion of Term 2 2020 from 4pm on the last Monday of the school holidays, excluding pupil free days to 4pm on the last Saturday of the school holidays (5 nights);
29.3At the conclusion of Term 3 2020 from 4pm on the second last Friday of the school holidays, excluding pupil free days to 4pm on the last Thursday of the school holidays (6 nights);
That for the ACT Term school holidays commencing in 2021 and each ACT Term school holidays thereafter, the child will spend time with the Mother and the Father as follows:
30.1For the first half with the Father; and
30.2For the second half with the Mother.
ACT Christmas school holidays
That commencing in the Christmas school holiday period 2020/2021 the child will spend time with the Father as follows:
31.1In even numbered years (commencing 2020/2021) for the first and third week; and
31.2In odd numbered years (commencing 2021/2022) for the second and fourth week
That for the purpose of Orders 29 and 30, during the school holiday periods the child’s time with the Father pursuant to Order 28.5 is suspended.
Changeovers
That all changeovers occur at the child’s daycare or school and failing changeover occurring at day care or school, then the changeover will occur at Suburb I Child and Family Centre (Suburb I), and, in the event that Suburb I is unavailable, then the changeover will occur at McDonalds, Suburb N.
That if changeover occurs at McDonalds, Suburb N the following will apply:
34.1Changeover will occur inside the McDonalds Restaurant;
34.2The Mother may utilize a third party to effect the changeover on her behalf;
34.3The Father must utilize a third party to effect changeover on his behalf; and The Father must not be in attendance inside or outside the McDonalds restaurant for changeover.
Special days
That notwithstanding these Orders, the child spend time with the Mother and the Father for Christmas Day/Boxing Day as follows:
35.1In even numbered years from 1.00pm on 24 December until 1.00pm on 25 December with the Mother and from 1.00 25 December until 1.00pm on 26 December with the Father; and
35.2In odd numbered years from 1.00pm on 24 December until 1.00pm on 25 December with the Father and from 1.00 25 December until 1.00pm on 26 December with the Mother.
That for the child’s birthday she spend time with the parent with whom she is not already spending time from 3.00pm until 7.00pm if the birthday falls on a weekday.
That for the child’s birthday she spend time with the parent with whom she is not already spending time from 12 noon until 6.00pm if the birthday falls on a weekend or holiday.
That on Father’s Day, the child spend time with the Father from 9.00am to 5.00pm.
That on Mother’s Day the child spend time with the Mother from 9.00am to 5.00pm.
General
That, except for in an emergency, the Mother and Father will communicate about the child via email.
That the Mother and Father keep each other informed of the mobile telephone number and email address on which they may be contacted in regards to the child.
That the parents authorise in writing the principal or alike at the school attended by the child to supply both parents with copies of school reports, progress reports, notices relating to pupils attending the school, school letters, invitations to and carnivals, sporting or social functions, notices of and any invitations to parent teacher interviews and any other notices directed to the parents of a child attending such school and service of sealed copy of these Orders will be sufficient to discharge this Order.
That the Mother and the Father advise each other as soon as possible by the best available means in the event of the following:
43.1The child being injured such that attendance on a health practitioner should be reasonably required or falling seriously ill;
43.2The child requiring urgent medical treatment by a doctor or ambulance crew; or
43.3The child being admitted to hospital.
That the Mother and the Father are at liberty to obtain all medical records and to consult with the child’s medical and dental practitioners to obtain any information he or she may require and service of a sealed copy of these Orders upon such medical or dental practitioners is sufficient authority for that purpose.
That the Mother and the Father will not denigrate each other or the other parent’s family in the child’s presence nor allow another person to do so.
Orders Sought by the ICL[158]
[158] Written Submissions on Behalf of the ICL, filed 16 November 2018.
That the child live with the mother and that she be permitted to relocate to Tasmania, Tasmania
The mother have sole parental responsibility for the child;
That the child spend time with the father as per the mother’s amended minutes of orders (exhibit M10) in particular:
a)Order 4.1, 5.1 and 6.1 (excluding Order 4.2, 5.2 and 6.2)
b)Order 7, 8 and 9 inclusive
c)Order 10 to 25 inclusive.
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