Lavery and Dunbar
[2017] FCCA 1465
•4 July 2017
FEDERAL CIRCUIT COURT OF AUSTRALIA
| LAVERY & DUNBAR | [2017] FCCA 1465 |
| Catchwords: FAMILY LAW – Parenting – competing applications – child to live with mother and spend significant and substantial time with father – best interests of child. |
| Legislation: Family Law Act 1975, ss.60B, 60CA, 60CC, 61DA, 65D, 65DAA |
| Applicant: | MR LAVERY |
| Respondent: | MS DUNBAR |
| File Number: | PAC 4741 of 2013 |
| Judgment of: | Judge Newbrun |
| Hearing dates: | 27, 28 March 2017 |
| Date of Last Submission: | 28 March 2017 |
| Delivered at: | Parramatta |
| Delivered on: | 4 July 2017 |
REPRESENTATION
| Counsel for the Applicant: | Ms Druitt of Counsel |
| Solicitors for the Applicant: | Stanfords Solicitors |
| Respondent: | Self-represented |
| Counsel for the Independent Children's Lawyer: | Mr Livingstone |
| Solicitors for the Independent Children's Lawyer: | John Spence & Associates |
ORDERS
All prior parenting orders are discharged.
The parents shall have equal shared parental responsibility for the child X born (omitted) 2008.
The child shall live with the Mother.
The child spend time with the father as follows:
(a)on a two week cycle as follows:
(i)In Week 1, from after school Friday, or 4.00pm Friday in the event that the child does not attend school, until before school following Monday, or 9.00am the following Monday in the event that the child does not attend school;
(ii)In Week 2, from after school Wednesday, or 4.00pm Wednesday in the event that the child does not attend school, until before school following Thursday, or 9.00am the following Thursday in the event that the child does not attend school;
(b)on the child’s birthdays as follows:
(i)where such birthday falls on a school day, for a period as agreed, but failing agreement, from the conclusion of school, or 3.30pm in the event that the child does not attend school, until 5.30pm;
(ii)where such birthday falls on a non-school day, for a period as agreed, but failing agreement, from 9.00am until 2.00pm;
(c)for a period as agreed for Christmas, but failing agreement as follows:
(i)from 2.00pm Christmas Eve until 2.00pm Christmas Day in each odd numbered year;
(ii)from 2.00pm Christmas Day until 2.00pm Boxing Day in each even numbered year;
(d)for half of each shorter School Holidays
(i)from the conclusion of school on the last school day until 10.00am on the middle Saturday of the holiday period in each odd numbered year;
(ii)from 10.00am on the middle Saturday of the holiday period until the commencement of school on the first school day of the next Term in each even numbered year.
(e)for the Christmas School Holiday period as agreed but failing agreement from 10.00am on 1 January until 10.00am on 15 January each year.
(f)on Father’s Day from 5.00pm on the day preceding Father’s Day, until before school or 9.00am the day following Father’s Day.
(g)with the exception of Christmas Day or Boxing Day, in the event that the father’s time with the child is preceded or followed by a public holiday, that the father’s time with the child is extended from conclusion of school the day prior to the public holiday, and for father’s time to extended until the commencement of school the day after the public holiday.
That for the purposes of changeover where the father’s time with the child is due to commence at the conclusion of a school day or conclude at the commencement of a school day changeover is to occur at the child’s school, and at all other times changeover is to occur at the mother’s residence.
That each party shall be at liberty to telephone the child on a nominated phone number, and in the event that such nominated telephone is a mobile phone then the other party must ensure that the mobile phone is switched on and fully charged for the purpose of such telephone call.
That each party shall inform the other party of their address and contact telephone number and advise the other party in writing within 48 hours of any change in these details.
That the parties shall not denigrate the other party in the presence or hearing of the child, and that each party shall ensure that no third party denigrates the other parent in the presence or hearing of the child.
That the parties be restrained from consuming any illegal substance when the child is in their care, and 48 hours prior to the child coming into their care.
That the mother is restrained from causing the child’s enrolment at his current school and day care to be varied without the prior written consent of the father.
That each party shall do all things necessary to ensure that the child attend any appointments scheduled with counsellors, doctors or other health professionals and that the child undertake any treatment or other activities prescribed and directed to be undertaken by their counsellors, doctors or other health professionals.
That in the event of any child suffering a medical emergency requiring medical attention while spending time with or living with either parent:
(a)The other parent is to be notified as soon as practicable
(b)That the other parent is to be provided with the full details of the practitioner or medical facility upon which the child attends as soon as practicable
(c)That the medical practitioner or medical facility be advised that the other parent has access to the child’s medical records and the information obtained with them upon request
That the mother shall make arrangements at the child’s school(s) to ensure that the father can obtain the following information and document as his own cost:
(a)A copy of all school reports and school photo order forms for each child;
(b)Notification for school activities that he may decide to attend, such activities being those that parents are ordinarily entitled to or invited by the school to attend;
(c)Notification of parent/teacher nights and the school is informed that it is the father’s desire to attend such events;
(d)In the event of any child being taken from the school for an emergency, remedial or correctional treatment that the father be informed as soon as practicable;
That the mother shall take, do all things necessary to ensure that the father is recorded at the child’s school(s) as a person permitted to deliver and collect the child from that school(s) and that the father is recorded as an emergency contact person at the child’s school(s).
For the purposes of these Orders, any reference to “school” or “school(s)” or “schools” shall be deemed to include primary schools, high schools, day cares, child cares and pre-schools.
That each party shall ensure that the child attend any extracurricular commitments at which attendance is compulsory or generally expected as part of the enrolment or participation in said activity, including but not limited to cultural, sporting and social events, and that the father may attend any extracurricular activities or commitments that parents are ordinarily entitled to or invited to attend.
That the parties shall consult on any extracurricular commitments for the child for which attendance is compulsory or generally expected as part of the enrolment or participation in said activity where such attendance falls at times the child lives with and spends time with each party, including but not limited to cultural, sporting and social events.
That the parties shall only be permitted to travel with the child, allow a third person to travel with the child, allow the child to travel outside the Commonwealth of Australia where they comply with the following:
(a)Provide the other party with 28 days’ notice of such intended travel;
(b)Provide the other party with an itinerary for such intended travel;
(c)Provide the other party with contact of an operable mobile telephone number that the travelling party will carry on person during such travel, e-mail address and address for all places at which the child will stay during such travel;
(d)Provide the other party with copies of all travel tickets or bookings, and in particular, a copy of the return travel ticket;
(e)Provide the other party with confirmation of travel insurance for the purposes of treating medical emergencies for the child, as well as providing the other party a copy of such travel insurance policy.
By consent, the parties shall refrain from exercising corporal punishment on the child, and in particular, neither party shall smack the child.
Neither party shall permit the child to come into contact with the father’s uncle, Mr E.
IT IS NOTED that publication of this judgment under the pseudonym Lavery & Dunbar is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT PARRAMATTA |
PAC 4741 of 2013
| MR LAVERY |
Applicant
And
| MS DUNBAR |
Respondent
REASONS FOR JUDGMENT
Introduction
This was the final hearing of competing parenting proposals in relation to the child X born (omitted) 2008 (‘the child’).
The parties commenced their relationship in (omitted) 2004 and separated on a final basis in June 2009.
As at the hearing date, the child was spending time with the father in accordance with the interim consent orders of 10 November 2016 which provided, inter alia, during school term times, in week 1, from after school Friday, or 4PM Friday in the event that the child does not attend school, until 7PM Sunday, and in week 2, from after school Wednesday, or 4PM Wednesday in the event that the child does not attend school, until 7PM Wednesday; for half of each of the shorter school vacations and any Easter vacation separate from school holidays; and for the Christmas school holiday period for two separate one week periods.
Competing proposals
The father set out his proposed orders in his case outline (Exhibit A). The proposed orders are as follows:
1. That the parties shall have equal shared parental responsibility for the long term care, welfare and development of the child X born (omitted) 2008.
2. That the child shall live with the mother.
3. That the child shall spend time with the father as follows:
a.on a two week cycle as follows:
i. In Week 1, from after school Friday, or 4.00pm Friday in the event that the child does not attend school, until before school following Monday, or 9.00am the following Monday in the event that the child does not attend school;
ii. In Week 2, from after school Wednesday, or 4.00pm Wednesday in the event that the child does not attend school, until before school following Thursday, or 9.00am the following Thursday in the event that the child does not attend school;
b.on the child’s birthdays as follows:
i. where such birthday falls on a school day, for a period as agreed, but failing agreement, from the conclusion of school, or 3.30pm in the event that the child does not attend school, until 5.30pm;
ii. where such birthday falls on a non-school day, for a period as agreed, but failing agreement, from 9.00am until 2.00pm;
c.for a period as agreed for Christmas, but failing agreement as follows:
i. from 2.00pm Christmas Eve until 2.00pm Christmas Day in each odd numbered year;
ii. from 2.00pm Christmas Day until 2.00pm Boxing Day in each even numbered year;
d.for half of each shorter School Holidays
i. from the conclusion of school on the last school day until 10.00am on the middle Saturday of the holiday period in each odd numbered year;
ii. from 10.00am on the middle Saturday of the holiday period until the commencement of school on the first school day of the next Term in each even numbered year.
e.for the Christmas School Holiday period as agreed but failing agreement from 10.00am on 1 January until 10.00am on 15 January each year.
f.on Father’s Day from 5.00pm on the day preceding Father’s Day, until before school or 9.00am the day following Father’s Day.
g.with the exception of Christmas Day or Boxing Day, in the event that the father’s time with the child is preceded or followed by a public holiday, that the father’s time with the child is extended from conclusion of school the day prior to the public holiday, and for father’s time to extended until the commencement of school the day after the public holiday.
4. That for the purposes of changeover where the father’s time with the child is due to commence at the conclusion of a school day or conclude at the commencement of a school day changeover is to occur at the child’s school, and at all other times changeover is to occur at (omitted) Shopping Centre outside Coles.
5. That each party shall be at liberty to telephone the child on a nominated phone number between 5.30pm and 6.30pm each Tuesday, Thursday and Sunday that the child is not otherwise in their care, and the other party shall facilitate such calls by ensuring the availability of the child and the availability of a telephone and telephone line for such purpose, and in the event that such nominated telephone is a mobile phone then the other party must ensure that the mobile phone is switched on and fully charged for the purpose of such telephone call.
6. That each party shall inform the other party of their address and contact telephone number and advise the other party in writing within 48 hours of any change in these details.
7. That the parties shall not denigrate the other party in the presence or hearing of the child, and that each party shall ensure that no third party denigrates the other parent in the presence or hearing of the child.
8. That the parties be restrained from consuming any illegal substance when the child is in their care, and 48 hours prior to the child coming into their care.
9. That the mother is restrained from causing the child’s residence to be changed or varied more than 10 km from (omitted) Public School.
10. That the mother is restrained from causing the child’s enrolment at their current school and day care to be varied without the prior written consent of the father.
11. That each party shall do all things necessary to ensure that the child attend any appointments scheduled with counsellors, doctors or other health professionals and that the child undertake any treatment or other activities prescribed and directed to be undertaken by their counsellors, doctors or other health professionals.
12. That in the event of any child suffering a medical emergency requiring medical attention while spending time with or living with either parent:
a.The other parent is to be notified as soon as practicable
b.That the other parent is to be provided with the full details of the practitioner or medical facility upon which the child attends as soon as practicable
c.That the medical practitioner or medical facility be advised that the other parent has access to the child’s medical records and the information obtained with them upon request
13. That the mother shall make arrangements at the child’s school(s) to ensure that the father can obtain the following information and document as his own cost:
a.A copy of all school reports and school photo order forms for each child;
b.Notification for school activities that he may decide to attend, such activities being those that parents are ordinarily entitled to or invited by the school to attend;
c.Notification of parent/teacher nights and the school is informed that it is the father’s desire to attend such events;
d.In the event of any child being taken from the school for an emergency, remedial or correctional treatment that the father be informed as soon as practicable;
14. That the mother shall take, do all things necessary to ensure that the father is recorded at the children’s school(s) as a person permitted to deliver and collect the children from that school(s) and that the father is recorded as an emergency contact person at the children’s school(s).
15. For the purposes of these Orders, any reference to “school” or “school(s)” or “schools” shall be deemed to include primary schools, high schools, day cares, child cares and pre-schools.
16. That each party shall ensure that the child attend any extracurricular commitments at which attendance is compulsory or generally expected as part of the enrolment or participation in said activity, including but not limited to cultural, sporting and social events, and that the father may attend any extracurricular activities or commitments that parents are ordinarily entitled to or invited to attend.
17. That the parties shall consult on any extracurricular commitments for the children for which attendance is compulsory or generally expected as part of the enrolment or participation in said activity where such attendance falls at times the children lives with and spends time with each party, including but not limited to cultural, sporting and social events.
18. That the parties shall only be permitted to travel with the child, allow a third person to travel with the child, allow the child to travel outside the Commonwealth of Australia where they comply with the following:
a.Provide the other party with 28 days notice of such intended travel;
b.Provide the other party with an itinerary for such intended travel;
c.Provide the other party with contact of an operable mobile telephone number that the travelling party will carry on person during such travel, e-mail address and address for all places at which the child will stay during such travel;
d.Provide the other party with copies of all travel tickets or bookings, and in particular, a copy of the return travel ticket;
e.Provide the other party with confirmation of travel insurance for the purposes of treating medical emergencies for the child, as well as providing the other party a copy of such travel insurance policy.
In the final submissions, the father resiled from his proposed Order 5 relating to telephone time with the child, and instead, submitted that he was content to adopt the interim order of 10 November 2016 in relation to telephone time:
“That each party shall be at liberty to telephone the child on a nominated phone number, and in the event that such nominated telephone is a mobile phone then the other party must ensure that the mobile phone is switched on and fully charged for the purpose of such telephone call.”
The mother initially sought final parenting orders as set out in her Response filed 24 July 2014.
The mother then proposed orders that the child spend time with the father as set out in paragraph 156 of her trial Affidavit filed 23 March 2017, as follows:
On a final basis I am seeking for X to spend time with his father
a.On alternate weekends from 9am Saturday until 7pm Sunday
b. For half of the Easter School holidays.
c.Father’s Day the day of.
d.Alternate Christmas from 24 Dec from 2pm until 2pm Christmas day. Or 2pm Christmas day until 2pm Boxing day.
e. 1 week during January school holidays.
f. X's Birthday – By agreement with a maximum of 4hours alternate years.
I am also seeking that Mr Lavery be the sole carer at all times during X’s time spent with the father.
In final submissions the mother amended her above proposal such that the child spend time with the father on alternate weekends from 4PM Friday until 7PM Sunday, and Wednesdays in the off week from 4PM to 7PM.
The parties were in agreement that the child should live with the mother, and that they have equal shared parental responsibility for the child.
Material relied on
The father relied on the following documents:
a)His Affidavit filed 5 November 2016;
b)His case outline: Exhibit A;
c)Affidavit of Ms C filed 9 November 2016 (the paternal grandmother); and
d)Affidavit of Mr D filed 2 February 2017 (the paternal grandfather).
The mother relied on the following documents:
a)Her Affidavits filed on 6 December 2013 and 23 March 2017.
The following documents were tendered and became exhibits in the proceedings:
a)Exhibit A: father’s amended case outline;
b)Exhibit B: Family Report of Ms L dated 6 August 2015;
c)Exhibit C: Mother’s Response filed 27 July 2014;
d)Exhibit D: Case Summary of the Independent Children’s Lawyer;
e)Exhibit E: Sleeve 10: (omitted) Public School;
f)Exhibit F: Two pages of text messages annexed to the Father’s Affidavit filed 4 November 2013;
g)Exhibit G: NSW Police sleeve 6: Green tab marked A (page and half) page 5 and 6 of 8;
h)Exhibit H: NSW Police sleeve 6: (yellow tab) F1.6;
i)Exhibit I: Sleeve 1: (omitted) Family Centre for Children (enrolment form – Applicant Father ), and the email from the mother and X to the centre re: X not returning to the centre; and
j)Exhibit J: Sleeve 8: Catholic Care, 10 January 2014 Intake form.
Evidence
Following the child’s birth, the father assisted the mother with the daily care of the child.
During the relationship, the paternal grandparents often visited the family home and spent time with the child and the parties.
When the parties separated in June 2009, the child was about 10 months old. The mother and child remained living in the former matrimonial home and the father moved into rental accommodation. The father paid the family bills, the mother’s car insurance and her (omitted) credit card until February 2013.
Following the parties’ separation during 2009, the father disclosed to the mother that he was sexually abused by his uncle Mr E from when he was a baby up until about 12 years of age. The mother supported the father in reporting the abuse to the police. The uncle was charged with indecent assault on a person aged under 16 years and committal proceedings were commenced in the District Court at Parramatta. The uncle pleaded guilty to the charges, and was given suspended sentences.
In December 2012, the father commenced attending upon a psychologist, who was a trauma counsellor for Victims of Crime NSW. The father has not seen his uncle since the criminal court proceedings in November 2013.
Following separation, the mother did not allow the father to spend extensive time with the child. The mother would only allow the father to see the child for less than an hour at a time and the mother supervised all his time. The mother usually allowed the father to spend time with the child when he attended the former matrimonial home to mow the lawns and attend to the general maintenance of the home.
In 2010, there was an incident at the former matrimonial home in (omitted), when the father was sitting down on the lounge in the lounge room. The child was in the near vicinity. The mother stood in front of the father and was yelling at him. The mother kicked the father in the ankle multiple times. The child was crying and went to his bedroom. There was another incident in 2010 at the same address when the mother and the father were arguing. The child was in his bedroom at the time. The father observed the mother becoming frustrated and the mother first punched the father followed by repeated kicks. The father pushed the mother onto the lounge to distance himself from her abuse. The police were called by the mother. The father gave statements to the police.
Following these incidents, the father had requested more time with the child on his own but the mother would not allow it or agree but then would cancel his time.
In December 2012, the father sought to spend time with the child; however, the mother decreased the child’s time with the father from the father’s proposal of 4 hours to 2 hours.
In about 2012, the father asked the mother the whereabouts of the child’s preschool, however the mother would not disclose such details. The mother refused to update the father on the child’s progress at preschool and did not invite him to any activities the parents would normally attend.
In January 2013, the father attended and completed a Parenting After Separation course. He learnt a lot from the course and found it very informative.
During January 2013, the father commenced a relationship with Ms S.
In February 2013 the parents sold the former matrimonial home. When the mother vacated the premises, she did not advise the father of the address of the child’s new home, despite the father’s requests.
When the child was four years of age, he commenced playing (hobby omitted), and the father asked the mother on numerous occasions to spend time with him at his (hobby omitted) matches in practice, without success.
In April 2013 the father attended one of the child’s (hobby omitted) matches. The father bent down to receive a hug from the child in the presence of the mother, and the child pulled away from him. The child then left the parties to play his (hobby omitted) game. The father verbally abused the mother. In cross examination, the father agreed that he could do better in terms of having a respectable relationship with the mother than his actions on that occasion.
The father agreed that on the 1 June 2013, on the telephone, he verbally abused the mother, inter alia, calling her a liar, and accused her of using the child as a tool. In cross examination, the father agreed that arguments between the parents need to be kept to a minimum to protect the child. The father stated that he now communicates via text message with the mother and he tries to be civil and to stick to the point. He stated that since June 2013, with a view to improving communication with the mother, he is not aggressive in front of the child.
In August 2013, the father asked the mother if he could spend time with the child on his birthday. Despite the father answering all of the mother’s questions about his plans for the child, she did not allow the father to spend time with the child on his birthday.
In October 2013 the parties met. The mother stated that the child needed the father in his life and the parties needed to come up with some arrangement for that to happen. The father asked to spend time with the child. The mother stated that this could not occur until he built a relationship with the child. The mother told the father that he could start off with telephone calls with the child.
The mother did not consult the father about the child’s enrolment at school and he did not receive any notifications or enrolment forms from the mother.
In October 2013 the mother told the father that the child was seeing a psychologist because of, inter alia, the father’s alleged abandonment of the child. The mother did not disclose to the father the psychologist that the child was attending.
In October 2013 the father spoke to the child over the telephone for 30 minutes and the father considered the child was happy to speak to him.
On (omitted) 2013 the father organised a birthday card for the child and gave it to the maternal grandmother in a stamped envelope, for delivery to the child. The father then received a text message from the mother stating, inter-alia:
“You know Mr Lavery after 11 weeks and at last minute, buying a card and present from the newsagency, addressing it to my parents house, not sending it, dropping it to their house all at last minute. Nothing has changed from nearly a year ago with the way in which requests (I won’t call them rules) are in place. This clearly is an effort for you and your not giving 100%, your actions speak louder than your words this is deflating and not acceptable now or before. It’s as if you’re doing everything you know is not right in the way things have been requested of you knowing you’ll rock the boat so you can say you’ve tried again. I made it clear and concise to you on our meeting on Friday, you have taken no note of any and on your first attempt went against most if not all. I have no faith or trust your doing this because you want to, you haven’t even responded to my last text with not even an apology, nothing, or a text from you to explain anything, you haven’t changed in the slightest, your not making this easy like it should be and I’m reconsidering the contact you have with (the child) as your action are clearly noted and this is totally and completely unacceptable.”
The father responded with a text messages follows:
“I’m glad (the child) is happy to get his card. I wanted to be sure he got it as last time it was not redirected to your current address as you already know.”
The mother responded with her text message as follows:
“Stop your nonsense, you left it till the last minute and I’ve told you he gets everything else that’s sent to him but that… for some reason, your word means nothing, I told you that. Liar you didn’t even try! Don’t bother I don’t need your bullshit in my or my son’s life. You really don’t give hoot do you?”
On 26 October 2013, the father’s new partner’s (hobby omitted) game coincided with the mother’s (hobby omitted) game. The father observed the mother and child walking towards him. The father noticed the child and the child came over to the father and gave him a hug. The mother then pulled the child away. The paternal grandparents gave the child a hug and kiss. The mother set up some chairs within a few metres of the father and his parents. The mother said to the father, “How dare you interfere?” The mother repeated those words about four times in the presence of the child. The father then kissed the child before walking to his partner’s team’s field. Later, at the end of the (hobby omitted) game, the father was walking towards the car park. The mother then approached the father and said to him, words to the effect, “How dare you leave without saying goodbye to your son?” The father went to the child and picked him up, as he was crying, and held him in his arms. The father said to the child words to the effect, “I would always love you.” The mother continued to repeat words to the effect, “Unbelievable. How can you not say ‘goodbye’ to your son?”. The child was present when the mother made these comments.
Two days later on 28 October 2013, the father contacted the mother and asked to speak to the child. The mother refused. She said to the father, “You won’t ever speak to or see your son ever again due to you, your family and the (omitted) team’s actions [fiancé’s team] on Saturday.”
The next day on 29 October 2013, the father received several voice messages from the mother. She stated, inter alia:
“So basically, you’re being exactly the same person, you’re getting to continue to play your games. You don’t belong anywhere in his life. You say one thing and do another. Be a man. What you have done to upset my son not and say goodbye to him and blame me for the outcome. Your son is mortified. You need help…. I am his protector. You never experienced support, protection in any shape or form. You’re just ridiculous, your worthless, you don’t want to deal with anything…. Come to reality and don’t live in your delusional state of mind. She (the fathers partner) looks like a bloke, you must feel comfortable about that. Grow up…. the most important part is that (the child) does not want to talk to you. (The child) thinks your girlfriend is rude. (The child) does not want to talk to you. We had a good conversation between us. You have caused my son a good cause of grief. (The child) does not want to speak to you. Or your girlfriend who is nasty. I’m sorry for that, but don’t bother. Unless you want a fight through court….. I’ve never expected to be reimbursed a cent-you do not take responsibilities or anything to do at all with your child. So waste your time. You’re completely ignorant. Don’t bother me. Don’t bother my child. Stay out of our life. You’re not welcome. You don’t contribute anything worthy. You don’t act in the appropriate manner. You don’t care at all about your son. It’s very, very clear. Live your life with your boyfriend, oh sorry Ms S, and live your life happily. Just continue to do what you’re doing. Stay out of our life. I’m done. There is nothing here for you. Nothing. Everything has been taken care of.”
By this time, the child was five years of age, and the father could not get a commitment from the mother about having regular and frequent time with him. He commenced proceedings with this Court on 4 November 2013.
On 9 December 2013, the parties reached some interim agreed consent orders. On a without admissions basis, the parties agreed to the child spending time with the father at a Contact Centre at (omitted) for one day a week. The father agreed to this arrangement to re-establish his relationship with the child and to secure spending time with him.
In January 2014, the father attended the local bowling club. He observed that the child was at the same restaurant with the maternal grandmother. He was invited by her to sit with the child. The father greeted the child and he came up to the father and gave him a hug and a kiss. The father commenced spending time with the child at the Contact Centre at the end of January 2014. The Contact Centre advised the father that his time with the child would be for 2 hours on two occasions a month.
On 20 June 2014, the proceedings were mentioned before the Court. Further consent orders were made. The parties agreed for the father’s time with the child to continue with a Contact Centre, and otherwise for the continuation of the other orders of 9 December 2013. The father continued to spend time with the child at the Contact Centre.
On 23 October 2014, when the proceedings were before the Court for interim hearing, further interim consent orders were made. Until mid-November 2014, the child was to spend time with the father each alternate Saturday from 10AM to 4PM and in the alternating week on the Friday from after school until 7:30PM.
On 25 October 2014, the child spent time with the father and his paternal family. The child later told the father that he had had a lot of fun.
On 31 October 2014 the child spent time with the father at his home. The father told the child he was excited for him to meet his new partner. The child told the father, inter-alia, that he did not like her, she was not a nice person, and she was a horrible person.
Following the child’s tonsil operation in early November 2014, the child recommenced spending time with the father in late November 2014.
In early January 2015 the father and his new partner announced that she was pregnant.
On 15 December 2014 the mother told the father that she had made an appointment for the child to see a mental health specialist. The father sought further details from the mother but he was told by the mother that he was harassing her and he had been told everything he needed to know. Thereafter the child saw a counsellor. The father was not involved in that counselling process.
On 20 February 2015, the mother told the father that she was taking the child to the hospital in relation to a suspected head injury. Later the mother told the father that a doctor had advised that the child was fine and just to monitor him. The next day the father collected the child from the usual changeover location. Later that afternoon, the mother phoned the father and arguments ensued in relation to the child being given Panadol. The mother demanded that the father give the child Panadol immediately. As the father did not have any Panadol at his home he proceeded to go to the chemist. He advised the mother. The father went to the chemist leaving the child in the care of his new partner. The father drove to the chemist. The mother drove up behind him and was screaming at him. The father ignored the mother and the mother angrily drove off.
When the father arrived at his home he saw the mother pulling out of the driveway with the child in her car. The father was advised by his new partner that the mother had come to the front door of their home. She was asked to leave. The mother started banging and yelling at the door and windows. She screamed out to the child telling him to come outside. The mother kept informing the father’s new partner that the child was not allowed to be left alone with her and that the child wasn’t safe with her. The father’s new partner allowed the child to go and see the mother so that the child would not get more upset. The mother then took the child and left. About 20 minutes later, the mother came to the father’s home and returned the child. It took the child about half an hour to relax and look calm.
On (omitted) 2015, the father’s new partner had a stillborn baby.
On 13 November 2015, further interim consent orders were made by the Court. The mother agreed to the child spending fortnightly weekend time with the father from 10AM Saturday to 5PM Sunday, with such time to commence on 28 November 2015.
The father and his new partner separated in December 2015. The father has observed since his separation from his former partner, that the mother has improved her communication with him and he feels that she has displayed a more positive attitude towards him.
On about 5 February 2016, following mediation, the mother agreed to extend the child’s time with the father to each alternate weekend from 9AM Saturday to 7PM Sunday, and in the alternating week, Wednesday from after school until 7PM. The mother also agreed to holiday time being 4 days during the April 2016 school holidays, and for the second week of the second and third term school holidays. Since this agreement, the mother generally permitted the father to spend the increased time with the child. The mother has generally maintained a positive attitude towards the father, and they are able to have civil conversations without any sort of confrontation or argument.
During the July 2016 school holidays, the child’s maternal cousin, A, had a birthday party during one of the father’s weekends. The party was at the maternal grandmother’s home. The mother and her family were present. The father attended with the child and felt welcomed by all of the mother’s family. He observed the child to enjoy his time with all his cousins.
During the April 2016 school holidays, the father spent 4 days with the child. He observed the child to enjoy the extra days with him and he did not appear sad or distressed being away from the mother for this period of time.
In the July 2016 school holidays, the child spent a whole week with the father. The father took the child to (omitted) and he had the chance to meet and spend time with his cousins there.
The child and the father attended the school’s Father’s Day barbecue on 1 September 2016, which they enjoyed.
The parties have been able to be flexible with their weekends. In early October 2016, the mother asked to swap a weekend so that she and the child could attend her brother’s 40th birthday down the coast. The father agreed, and they were able to swap weekends during October 2016.
During the September/October 2016 school holidays, the child again spent seven days with the father during these holidays. The father observed the child to enjoy the extra days with him, and he did not appear sad or distressed being away from the mother for this period of time.
As at the date of the filing of the father’s trial Affidavit on 5 November 2016, the child was spending time with the father as follows; each alternate weekend from 9AM Saturday until 7PM Sunday; on the alternating Wednesday from the conclusion of school until 7PM; and for one half of the last two school holidays; and the father also takes the child to (hobby omitted) every second weekend and watches him every week.
The Court refers to the consent interim parenting orders of 10 November 2016. Those consent orders provided, inter alia, that the child spend time with the father on alternate weekends from after school Friday to 7PM Sunday, and alternate Wednesdays from after school to 7PM.
The father resides in rental accommodation at (omitted). It is a three-bedroom home. The child has his own bedroom. There are no other individuals in the home. The mother also resides in the same suburb. It is about 1.5 km between their homes. The child attends the (omitted) Primary School, being in year three in 2017. The child is generally doing well at school. The father is presently employed on a full-time basis as a (occupation omitted) at (employer omitted), and has been employed there for the last 16 years.
The father is currently assessed by the Child Support Agency to pay $930 per month. He pays such child support to the Agency. He is up-to-date with his payments.
The father has a close and loving relationship with the child and they have a strong bond.
The paternal grandmother, during the parties’ relationship, occasionally assisted in caring for the child. When the child was 12 months old, the mother broke her ankle and during her recovery, the paternal grandmother took time off work to assist with the care of the child while the mother was recovering. When the mother was in hospital, the paternal grandmother took the child see the mother in hospital. On a later occasion, when the mother travelled to (country omitted) for a week, the paternal grandmother took a week off work and cared for the child.
After the parties’ separation in 2009, the paternal grandmother did not see the child until October 2014. The paternal grandmother, in the last few years, has been able to spend time with the child when he’s been in the father’s care. On those occasions she has observed the child to enjoy his time with the paternal grandparents. The paternal grandmother has observed the child and the father to have a close bond.
The paternal grandfather’s Affidavit evidence was generally supportive of the Affidavit evidence of the paternal grandmother. He referred to the incident on 26 October 2013 in relation to the mother’s behaviour at the (hobby omitted) game. He referred to the mother not being happy to see the paternal family at that game. He referred to the mother yelling out in a loud angry voice, in the presence of the child, “Unbelievable… Unbelievable.” At one point after the paternal family left a certain area of the field, the mother yelled out, “Yeah, go and spend time with your new family.”
The paternal grandfather has a shed at the back of his home where he builds (hobbies omitted) and (hobbies omitted), as well as fixes broken items. He has observed the child to develop an interest in this hobby. When the father and the child visit the paternal grandparents at their home, they spend a lot of time together in a shed making (hobbies omitted).
The paternal grandfather has also observed the father and the child to have a close bond.
The paternal grandfather stated that during December 2016, the child and the father stayed at his home for one night. He stated that the mother had raised concern that the father had left the child in the sole care of the paternal grandparents. The paternal grandfather stated that on that particular occasion, that father had slept in as he had not been sleeping well. The father was asleep in a bedroom with the door closed. The door was not locked. The child woke up early that day. The paternal grandmother made breakfast for the child and the child spent the morning playing with his Lego. The paternal grandfather stated that the child did not seem scared or worried at the time.
The paternal grandfather stated that he had observed the child to enjoy his time with the paternal grandparents. He had not observed the child be scared or anxious around them.
The court accepts the evidence of the paternal grandparents.
In cross examination, the father stated that he has had communications with the child’s counsellor at his school, has spoken with the child’s teacher, and has participated in parent teacher interviews.
The father stated the child plays Oz tag at his school and that he is interested in sport.
The father stated that, in relation to his proposed order 18, that the parties be permitted to travel with the child outside Australia, the travel would be a good idea. The father stated his belief that the child would be prepared to travel overseas with him. The father stated that he could sort out the travel details with the mother and he had in mind travelling to countries such as (country omitted) and (omitted). He referred to the parties’ previous travel to (country omitted) with the child after the separation. The father stated that he was not saying that it was a good idea to take the child overseas immediately. He stated that things needed to settle down and there be routine.
The father stated that recently the parties reached an agreement with the mother, outside court orders, to spend some time with the child, which was a positive development for the child.
In relation to the father’s proposed order 9, seeking to restrain the mother from causing the child’s residence to be changed or varied more than 10km from his school, the father agreed that such a limitation of 10km would place an unnecessary burden on the mother, and it was not really necessary for him to impose such a restriction on her movement. The father was unsure as to whether a 60 km restriction was appropriate, which might result in lengthy driving.
The father agreed that he had received the child’s recent school reports. He observed from a report that the child could do better in reading.
The father stated, in relation to the child’s tonsil operation, that he believed that if he had expressed concerns to the mother, the mother would have given him a chance to ask questions of the child’s doctors or of the mother.
The father confirmed that he pays monthly child support of $945. He stated that he has paid a half of the child’s (hobby omitted) fees and half the cost of the child’s clothing for (hobby omitted).
The father stated that should the Court permit him to return the child to school on Monday morning (in week one), he would have more time with the child, and be able to be more involved in the child’s life in different ways. He was confident that he could get the child ready for school on the Monday morning.
The father stated that he would agree to a Court imposed injunction regarding the non-smacking of the child.
The mother completed the Circle of Security course on about 27 June 2016.
The mother stated that the child’s contact with Uniting Care commenced for the Anchor program. The child attends on fortnightly Monday mornings at the (omitted) office. The child has already attended 3 to 4 appointments.
The mother stated that she now communicates in a different manner with the father compared to her earlier text messages to him. When asked whether she agreed that her text messages to the father previously were unacceptable and inappropriate the mother stated that she had reacted in a way that she wouldn’t do normally.
The mother stated that she does want the father to be more involved in the child’s education.
The mother disagreed with the opinions of the family report writer. She stated she was truthful in her statements to the family report writer.
The mother stated that in about 2013 she had not told the child that the father was trying to see him. She stated that she did not think it appropriate to tell the child this fact and that the child did not need to know. However she had told the child that the father loved him.
The mother was cross-examined in relation to her proposed final parenting orders set out in her Response filed 24 July 2014. The mother did not agree that proposed orders 18, 19, 22, 24, 25 were excessively controlling orders.
The mother stated that the child has told her positive things about his time spent with the father. She confirmed that that she had told the family report writer that in the last three visits, the child had become more positive about the relationship with the father because the father had given the child one to one attention and they had gone out together by themselves, without Ms S.
The mother was cross-examined in relation to her statement to the family report writer that the father was ignorant of the emotional needs of the child. The mother stated that the father was now only so ignorant to a small degree.
The mother was cross-examined as to whether she had told the child that the father was a silly man (paragraph 48 of the family report). The mother confirmed that she had stated that to the child. She stated that she had sought to defuse the child’s concerns of the father by saying that the father was a silly man. The mother stated that she did not think her stating this to the child would affect the child. She thought it might have helped at the time.
The mother agreed that it was not in the best interests of the child to see conflict between the parties.
The mother stated that a 10km relocation restriction upon her would restrict her in the rental market.
The mother confirmed that she is caring for a young girl, A, known as A, who was born in (omitted) 2015, and came into the mother’s care in (omitted) 2015. This child has serious health issues.
The mother confirmed that she did not want the child to spend time with the father in the shorter school holidays. She stated that she wanted the child to spend time with A; the child had wet his bed in 2016; he had come home distressed from the father’s care; he didn’t do a lot with the father, and the child had missed his family.
In relation to the Exhibit I, an email to the child care centre prepared by the mother and stated to be signed by her and the child, the mother did not agree that this letter, including the signature, was a further sign that herself and the child have an enmeshed relationship.
The mother agreed that it would be most healthy for the child to have a good and fulfilling relationship with the father.
The mother was cross-examined in relation to her last Affidavit (see paragraphs 43 to 45) relating to the child’s rash on his penis in late 2010, and on another occasion when the child was about 2 years of age (in 2010). The mother stated that when the child was 5 years of age, she was teaching him how to clean his genitalia. The mother alleged that the child had told her at this time that when the father had pulled his foreskin back it hurt him. In cross examination, the mother stated her concern as to possible sexual abuse by the father, noting the father had suffered sexual abuse himself as a child. The mother’s attention was drawn to Exhibit J being the Catholic Care Children’s Contact Service application form completed by the mother on 10 January 2014, where the mother had been asked the question, “Has your child been sexually abused?”, And the mother had answered “no” “tho father has”. In this context, the mother was cross-examined as to whether when she completed this form she knew she had an obligation to answer the document carefully, to which the mother replied that she was not sure; the Court does not accept this evidence of the mother and finds that she was telling the truth when she completed the document being Exhibit J.
In re-examination, the mother stated that her concerns regarding possible sexual abuse of the child by the father were the reason for the imposition by her of restrictions on the child’s time with him. The Court does not accept that the child was ever sexually abused by the father, and finds that the mother’s previous accusations made against the father of having sexually assaulted the child was likely made by the mother to keep the child close to her and to distance the father from the child; the family report writer’s views are consistent with these findings.
Family Report
A family report was prepared by the regulation 7 Family Consultant, Ms L (the family report writer), and her curriculum vitae was attached to the family report on page 29.
The family report writer interviewed the parties, the child and the father’s former partner Ms S, on 3 August 2015.
The family report writer noted the issues in dispute, and the issues arising during the course of the family report assessment to be:
a)whether it is in the child’s best interest to commence spending overnight time with the father;
b)if there are any risks to the child in spending overnight time with the father;
c)whether the mother has been and remains a restrictive gatekeeper of the child’s time with the father, without compelling safety or well-being reasons for doing so;
d)whether the child is having significant difficulties in being able to process and emotionally deal with any loyalty conflicts he may be experiencing as a result of the mother’s attitude and behaviours over time;
e)whether the child is aligning himself with the mother in a way which could lead to him rejecting the father in the future, without good reason;
f)whether observations of the child and the father suggest the child enjoys his time with the father, and which may contradict the child’s stated views about the father and the quality of their relationship;
g)addressing dilemmas inherent in trying to encourage the child’s relationship with the father in the future, in a way that does not cause the child overt emotional distress.
The family report writer interviewed the father.
The family report writer stated that the father presented as a quietly spoken man with a polite manner and a calm demeanour. While he expressed considerable frustration with the situation and what he views as the relative lack of progress that has been made in the last two years, he did so in measured language. He was thoughtful and reflective in his analysis of the situation.
The father stated that the years between when he disclosed his history of childhood sexual abuse (in 2009) and the matter being resolved in court (in 2013) were emotionally challenging ones for him, but that he never stopped wanting to spend time with the child. The father said that, in retrospect, he was an emotional wreck because the mother would not let him spend time with the child.
The father stated that he had probably tried too hard to keep the peace with the mother and to go along with what she wanted from him, but in the end, it was never enough.
The family report writer raised with the father the mother’s view that the child suffers from significant trust issues because of the way he perceives that the father abandoned him early in his life. The father stated that if the child has trust issues, they have been caused by the actions of the mother and the way she has engineered it so that the child has spent as little time as possible with the father, while the mother makes out that she is doing everything possible to try and get them together.
The father stated that he realised very quickly after he began spending time with the child that the child is very cautious about how he interacts with the father because he needs to make sure that he doesn’t do or say anything that might make the mother unhappy.
The family report writer interviewed the mother.
The family report writer stated that the mother presented as a tense and brittle woman with low-level irritation. Her manner was brusque and her body language was closed and she was difficult to engage on a reflective basis. She answered questions politely as they were put to her but at times during the interview when she felt challenged, she became defensive and hostile.
The mother stated that the interim orders needed to remain in place, or even be reduced, because the child was finding it quite hard to cope with the visits with the father.
The mother stated that the child’s trust issues stemming from the lack of involvement of the father in his early life, has had major effects on him, and the way he relates to adults. The mother stated that the child will often tell her that, “I don’t trust dad with my feelings.” When the family report writer queried this phraseology (as being quite a strange thing for a young child to say) the mother looked perplexed. She stated that she knows exactly what the child means, which is that he does not feel he can be honest about his feelings with the father.
The mother stated that in the last three visits, the child has become more positive about the relationship with the father because the father has given the child one-to-one attention and they had gone out together by themselves without the father’s former partner.
The mother expressed the belief that the father does not really care that much about the child because if he did, he would be more child focused. The mother stated that the father is ignorant of the emotional needs of the child. When asked to give examples and to explain further, the mother stated that, “well it’s just everything. Stuff that I say is shot down.” The mother stated that when the father introduced his former partner to the child in 2014, “he didn’t care about (the child’s) needs at all, he just opted to stick to the orders.”
The mother stated that she is opposed to the child spending any overnight time with the father in the near future. She stated that she has spoken to the child about this, and the child has told her that he would be “scared and uncomfortable” to do so, and as far as the mother is concerned, the child’s views must take precedence.
The mother told the family report writer that the child was currently seeing a counsellor. To date, commencing in April 2015, the child has attended six sessions with the counsellor. The mother stated that this counselling was assisting the child to articulate his thoughts and feelings in order to build his confidence and self-esteem. A further six sessions have been planned. The mother stated that the child had previously attended another counsellor from December 2014 to early April 2015, however this ceased for logistical and financial reasons.
The family report writer interviewed Ms S. Ms S was stated by the family report writer to be pleasant and polite and answered all the questions put to her fully and in a considered and thoughtful manner.
The family report writer interviewed the child.
The child presented to the family report writer as a quietly spoken and serious young man with an intense manner. He was easily engaged and articulate, as long as he was colouring in, which he said was his favourite activity. Many of the child’s phrasings had an adult and “rehearsed” quality to them, according to the family report writer.
The child was asked how he thinks the mother feels about him spending time with the father. The child stated, “She says he is a silly man and I agree.” The child was asked what sort of silly things his father does. He looked somewhat taken aback by this question and shrugged and said, “I don’t know how to explain it.”
The child stated that he does not like the father’s former partner because she spends all her time playing on her phone and, “Mum says she is not a nice person.” The child said that the father’s former partner “treats my mum badly and she is weird. Dad’s whole family is weird.” When the child was asked for examples of how these people are weird, he looked confused. He said, “My Mum says they are all weird.”
The child was asked if the mother had said anything to him about spending time with the father. He said, “Yes, she doesn’t want me to see my dad. She is more happy if I don’t see him. I want my Mum to be happy. My Dad’s not that important to me. I’ve only seen him a few times. My Mum is more important to me.” The child said that it makes him feel sad that his father does not love him. When the child was asked how he knows this he said, “Because he doesn’t act like it. He needs to be honest and do what I want to do. Like Mum does.”
The child was observed with the father by the family report writer.
The child engaged well with the father. Ultimately he remained on the father’s lap for the observation session. It was clear to the family consultant, who left the observation room to conduct an interview with the mother, that the child was having a great deal of fun with the father.
The family report writer observed that when the mother and the child were preparing to go home, the child appeared to become noticeably more distant from the father, standing close to the mother and cuddling her closely. The father was cheerful and casual with the child and they waved goodbye to each other.
The family report writer observed that over the course of the afternoon, the mother was observed to be very closed in her body language. She did not smile, except at the child. At one point she was observed to have had physically turned her whole body away from the father and his former partner. The child was noted to studiously not approach the father if the mother was in close proximity.
In the family report writer’s “Evaluation” she stated that the case was a complex matter.
The family report writer stated inter alia, that the mother presented as a brittle and angry woman with a sense of righteous confidence in her own views. The father presented as almost the polar opposite in temperament to the mother. He was quiet and unassuming, softly spoken and self-reflective. The family report writer opined that it was likely that the parties’ co-parenting history had been less of a “push/pull” one of equals and more of a dynamic where the mother held the power closely and exercised it firmly, and the father made mostly futile attempts to exercise his rights as a parent.
The family report writer stated that her interview with the child indicated that the mother had extremely poor and possibly enmeshed boundaries with the child and he has simply taken on the mother’s views about the father and made them his own. The family report writer stated that this was very concerning. She stated that the marked dissonance between the ways that the child talked about his father compared to the way that the child interacted with the father supported this view.
The family report writer stated that this dissonance indicated that the child was subject to an intense loyalty conflict between the parents. She stated that the mother feels so strongly about the father, and the child is so highly attuned to the mother’s emotional state and the need to keep her happy (because it is inextricably linked to his own emotional stability and well-being) that he is unable to fully enjoy the time he spends with the father, except what he is completely in the moment (and briefly forgets about the mother). The child is acutely aware of what he needs to say and do to make the mother happy; and most of these things involved being highly critical of the father and telling his mother how unhappy he is at his father’s, and how much more he loves her. The child’s lived experiences though, are likely that of having a father who was warm, and responsive and unconditional in his love. This would confuse and unsettle the child immensely.
The family report writer referred to the risk to a child who was caught up in this type of intense loyalty conflict being well-documented. They included problems with learning, socialising and emotional regulation.
The family report writer stated that the mother’s stated reasons for not wanting the child to commence any overnight time with the father were not in the least compelling; they appeared to be somewhat of a desperate measure to keep the child close to the mother and to maintain the father at a manageable distance. The family report writer stated that it was telling that the child believed that the mother does not want him to spend any time at all with the father.
The family report writer stated that one of the positives in the case was that the child clearly loves the father and does, overall, enjoy the time he spends with him. This is something that needs to be nurtured, in spite of the child’s protestations that he would be “uncomfortable” with overnight time. It indicates that the father’s parenting of the child has been of a good enough quality to at least partially ameliorate the impact of the mother’s views on the child’s relationship with the father.
The family report writer stated that the mother had indicated that the child had been receiving counselling. The family report writer referred to the fact that the father had not been involved in the counselling process. She stated,
“It is curious that (the child’s) current counsellor does not appear to have made contact with (the father), given that (the mother) has said that the counsellor is working on issues to do with (the child’s) feelings about (the father). This means that the counsellor is attending to help (the child) with only (the mother’s) perspective on matters (and of course, (the child’s) views which are at best, unreliable).”
The family report writer opined that the child requires specialist post-separation counselling to assist him to deal with the loyalty conflict issues caused by the mother’s behaviour, and the particular challenges that will arise for him when he commences any overnight time with the father. The focus of the counselling will be on assisting the child to love both his parents freely and without any emotional constraints. In order to do so, the child needs, in essence, to be given true psychological permission by the mother to love the father and value the relationship.
The family report writer stated that it is in the child’s best interests to have a meaningful relationship with both of the parents and this requires each parent to fundamentally accept the other parent’s inherent value to their child and ensure that their actions are truly facilitative of good quality relationships rather than token, often contradictory gestures, which only cause confusion and distress for the child.
Under the heading “Recommendations”, the family report writer recommended that the parties equally share parental responsibility for the child; that the child live with the mother; that the child spend time with the father:
a)for 3 months following the next Court date; each alternate weekend, from 9AM on Saturday until 4PM on Sunday;
b)thereafter, from after school on Friday until 4PM on Sunday, for a period of no longer than six months;
c)thereafter, from after school on Friday until before school on Monday; and in the other week, from after school on Wednesday until before school on Thursday;
d)in NSW school holiday periods: for one week over December/January 2016; thereafter, one week in each school holiday period up to a maximum of four weeks per calendar year;
e)Special days by agreement between the parties, but failing that from 12PM on Christmas Eve until 12PM on Christmas day, reversing on alternating years; and on the father’s birthday for a minimum of six hours; and on the child’s birthday, for a minimum of four hours.
It was recommended that the child be referred as soon as possible to the Anchor program run by Unifam in (omitted), and both parties do whatever is necessary to cooperate and engage with the allocated counsellor as requested, and ensure that the child attends each appointment.
It was recommended that if either party has difficulty in complying with any orders that may be made in the future, the parties be mandated to attend the “Parenting Orders Program” run by Unifam. It was recommended that if the parties have not already done so, they should both attend a course such as Keeping Kids in Mind or similar.
The family report writer was not cross-examined by any party or the Independent Children’s Lawyer. The mother was clearly informed by the Court of her right to cross-examine the family report writer and the possible implications of her declining to do so, but she chose not to cross-examine her.
The Court accepts the unchallenged evidence of the family report writer, subject to any qualification expressed by the Court in relation to that evidence and as discussed later in these Reasons. As submitted by the Independent Children’s Lawyer, there was a consistency between the mother’s behaviour and the family report writer’s views as to, inter alia, the child’s intense loyalty conflict between the parents and the mother’s extremely poor boundaries with the child, including Exhibit I (the letter completed by the mother and stated to be signed by her and the child), and Exhibit J (where the mother had denied the child had been sexually abused), yet she had accused the father of sexually assaulting the child but had never followed up her accusations in this context.
Further evidence: the Exhibits
Exhibit E, being the subpoenaed records from the child’s public school, indicates that during the period 27 January 2015 to 27 March 2017, the child had 71 partial absences, and 36 whole absences. His school reports for 2015 and 2016 were positive.
Exhibit F, being a series of text messages passing between the parties from 24 December 2012 to 14 June 2013. In a text message from the mother to the father on 19 May 2013, the mother states:
“Seems again I’ve tried to talk to you about (the child) and your inability to function normal in this situation has failed you yet again. Thanks also for your attempt and continuous games you play… (The child) is in a really good place and I won’t have you coming into his life for the wrong reasons and not taking into consideration his needs or wants, he made it clear on the phone on Friday night in his own words. So please give him space at (hobby omitted) and don’t turn up this weekend.”
Exhibit G, being a police entry for an incident on 12 September 2009 involving the mother. According to the police entry, the mother suffered an injury to her ankle in a hotel bar. The entry states that police were of the belief that the injury occasioned to the mother was a direct result of her intoxication and occurred when she was off balance attempting to strike a third party. The entry also records the police observing the mother lying on the bar floor, being extremely aggressive and appearing to be well affected by alcohol. The entry states that when the ambulance personnel arrived and were treating the mother, she was seen to strike the female ambulance officer a number of times. She was then supplied painkillers and this calmed the mother down. (There is also a reference to an incident involving the mother on 9 August 2007 in which she was intoxicated, arrested by the police, attempted to break free of the police, and physically assaulting a police officer).
Exhibit H, being a police entry for 1 January 2013, refers to an argument between the parties. It is recorded that the mother began yelling at the father about personal issues and about how much of a bad father he was because he didn’t respond to her text messages.
Exhibit I, being a copy email from the mother to the (omitted) Family Centre for Children, dated 9 October 2013, in which the mother states, inter alia:
“I am disappointed that no communication between myself or any teacher informed me that the centre would not be running normally thru the coming weeks of the school holidays…. the email below indicates that your assuring me that all will stay the same, sorry but if all was remaining the same then (the child) would not have been pinched by a younger child, not have slept like a younger child would be expected to, his work would have been corrected with the normal attention given… I will not be incurring costs for the days (the child) was not attending school during this period. (The child) will not be returning to your centre and has not since last date 25th Sept. Regards Ms Dunbar and X” (the court’s italics).
Exhibit J, being the Catholic Care Children’s Contact Service Application Form Part B, dated 10 January 2014, completed by the mother. In this document, the mother has answered the provided questions. Under the heading “Child well-being”, a question is asked: “Does your Child have any mental health/behavioural issues?” The answer given by the mother is “no”. Further questions are asked as to whether the child has experienced or been exposed to family violence, and the answers given are “no”. Another question asked is “has your child been sexually abused?”, And the answer is “no”, with the added words, “tho the father has”. A further question is asked, “Has your child received counselling to address any of these issues”, and the answer given is “no”. The last question asked is, “Does your child need a referral for counselling/psychological assessment?” And the answer given is “no”.
Relevant legal principles
Section 60B of the Family Law Act 1975 (Cth) (“the Act”) sets out the objects of Part VII of the Act relating to children that inform the making of parenting orders.
In deciding whether to make a particular parenting order in relation to a child, a court must regard the best interests of the child as the paramount consideration: section 60CA of the Act.
To determine what is in a child’s best interests, the Court must consider the matters set out in subsections (2) and (3) of section 60CC. Firstly, the Court must consider the primary considerations, being:
(2)(a) The benefit to the child of having a meaningful relationship with both of the child’s parents; and
(2)(b) The need to protect the child from physical or psychological harm from being subjected to or exposed to abuse, neglect or family violence.
In applying these considerations, as per section 60CC(2A), greater weight must be given to the ‘need to protect’ the child over the benefit to the child of a meaningful relationship with the parents.
When making a parenting order in relation to a child, the court must apply a presumption that it is in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child: section 61DA of the Act. When the court is making an interim order, the presumption applies unless the court considers that it would not be appropriate in the circumstances for the presumption to be applied when making that order: section 61DA (3).
If the presumption of equal shared parental responsibility in relation to the child applies, and is not rebutted, the court must firstly consider whether the child spending equal time with each of the parents would be in the best interests of the child and reasonably practicable.
If equal time is found not to be in the child’s best interests, or impracticable, as a result of consideration of one or more of the matters in section 60CC, the court must consider making an order that the child spends substantial and significant time (as defined in section 65DAA (3)) with the parents, unless contrary to the child’s best interests as a result of consideration of one or more of the matters in section 60CC, or impracticable.
If neither equal time nor substantial and significant time is considered to be in the best interests of the child, or impracticable, then the court may make such orders in the discretion of the court that it thinks proper, being orders that are in the best interests of the child, as a result of consideration of one or more of the matters in section 60CC: sections 60CA, 60CC, 65D.
The Best Interests of the Child
Section 60CC Considerations
Subsection (2a) - the benefit to the child of having a meaningful relationship with both of the child’s parents: a primary consideration.
The child has a meaningful relationship with both parents and would benefit from a continuance of those relationships.
The Court refers to the consent interim parenting orders of 10 November 2016 providing for the child to spend time with the father, inter-alia, on alternate weekends from after school Friday to 7PM Sunday, and alternate Wednesdays from after school to 7PM.
In the view of the Court, the mother’s proposed orders that, inter alia, the child only spend time with the father on alternate weekends from 4PM Friday until 7PM Sunday, and Wednesdays in the off week from 4PM to 7PM, together with half of the Easter school holidays, no time during the shorter school holidays, and only one week during the January school holidays, would carry the significant risk that the child’s meaningful relationship with the father would not be maintained and enhanced; the evidence including recommendations of the family report writer are consistent with this view. In particular, to adopt the mother’s proposals would carry the significant risk that the child’s intense loyalties to the mother would be further entrenched with consequential adverse emotional disturbance outcomes for the child.
Should the child spent time with the father in accordance with the father’s parenting proposals, the child’s meaningful relationship with the father is likely to be maintained and enhanced.
The Court gives significant weight to this meaningful relationship primary consideration.
Subsection (2b) - the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.
Not applicable.
Section 60CC(3) - Additional Considerations
(a) Any views expressed by the child and any factors (such as the child maturity or level of understanding) that the court thinks are relevant to the weight it should give to the child’s views
The Court refers to the evidence of the family report writer. In particular, her view that the mother has extremely poor and possibly enmeshed boundaries with the child, and that the child has simply taken on the mother’s views about the father and made them his own, which was very concerning. The Court refers to paragraphs 67 to 69 in particular of the family report in this context. The family report writer stated that the child was subject to an intense loyalty conflict between the parents. She stated that the child is acutely aware of what he needed to say and do to make the mother happy; and most of these things involved being highly critical of the father and telling the mother how unhappy he is at his father’s and how much more he loves the mother. She stated that the child’s lived experiences though, are likely that of having a father who was warm and responsive and unconditional in his love for the child, which would confuse and unsettle the child immensely. Accordingly, the Court discounts the child’s views in relation to the father as expressed by him to the family report writer and to the mother.
(b) The nature of the relationship of the child with each of the child’s parents; and other persons (including any grandparent or other relative of the child)
The Court refers to the meaningful relationship primary consideration discussed above.
(c) The extent to which each of the child’s parents has taken or failed to take the opportunity; to participate in making decisions about major long-term issues in relation to the child; and to spend time with the child; and to communicate with the child
Prior to the Court’s interim parenting orders in respect to time to be spent by the child with the father, the father has sought to spend time with the child but his efforts in this regard were unreasonably thwarted by the mother.
(ca) The extent to which each of the child’s parents has fulfilled, or failed to fulfil, the parent’s obligations to maintain the child
Both parents have fulfilled their obligations to maintain the child.
(d) The likely effect of any changes in the child’s circumstances, including the likely effect on the child of any separation from either of his or her parents; or any other child, or other person (including any grandparent or other relative of the child), with whom he or she has been living
Should the child spend time with the father in accordance with the father’s parenting proposals, the child’s meaningful relationship with the mother should not be detrimentally affected.
(e) The practical difficulty and expense of a child spending time with and communicating with the parent and whether that difficulty or expense will substantially affect the child’s right to maintain personal relations and direct contact with both parents on a regular basis
Not applicable.
(f) The capacity of each of the child’s parents; and any other person (including any grandparent or other relative of the child), to provide for the needs of the child, including emotional and intellectual needs
As discussed by the family report writer, the mother, prior to the Court’s interim parenting orders relating to the child spending time with the father, inter alia, had for no discernible reasons sought to distance the child from the father to serve her own needs to posit herself to the child as the only parent who truly cared about him. Otherwise, both parents would appear to have such capacities.
(g) The maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the child and of either of the child’s parents, and any other characteristics of the child that the court thinks are relevant
Not applicable.
3)(h) If the child is an Aboriginal child or a Torres Strait Islander child: the child’s right to enjoy his or her Aboriginal or Torres Strait Islander culture (including the right to enjoy that culture with other people who share that culture); and the likely impact any proposed parenting order under this Part will have on that right
Not applicable.
(i) The attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child's parents
The Court refers to the family report writer’s evidence relating to the mother’s extremely poor and possibly enmeshed boundaries with the child, including her unreasonable behaviour in restricting the child’s time with the father. Otherwise, both parents have demonstrated appropriate attitudes to the child and to the responsibilities of parenthood.
(j) Any family violence involving the child or a member of the child's family.
The Court refers to the incident that the former matrimonial home in 2010 involving a physical altercation between the parents.
(k) If a family violence order applies, or has applied, to the child or a member of the child’s family – any relevant inferences that can be drawn from the order, taking into account the following: the nature of the order; the circumstances in which the order was made; any findings made by the court in, or in proceedings for, the order; any other relevant matter.
Not applicable.
(l) Whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to the child.
The father’s parenting proposals would be least likely to lead to the institution of further proceedings, as compared to the mother’s proposals; the Court refers to its discussion above under the meaningful relationship primary consideration.
m) Any other fact or circumstance that the Court thinks is relevant.
The father sought an order that the mother be restrained from causing the child’s residence to be changed or varied more than 10km from the (omitted) Public School.
The mother had stated that a 10km relocation restriction upon her would restrict her in the rental market. The father agreed that such a restriction was not necessary.
There was otherwise insufficient evidence before the Court to justify the Court making the father’s proposed relocation order. The Court declines to make such an order.
In relation to the father’s proposals for time with the child during school holidays, the Court notes the family report writer’s recommendation that the child, following the December/January 2016 school holiday period, spend one week in each school holiday period with the father up to a maximum of four weeks per calendar year. The Court is of the view that the father’s proposals in relation to spending holiday time with the child will be in the best interests of the child, and the Court would not adopt the school holiday time recommendation of the family report writer. The Court notes in this context that the family report writer’s recommendation was made on 6 August 2015, and since that time the father has spent increasing time with the child, including for block periods during school holidays. The Court does not accept the mother’s contention that the child’s best interests will be served by not spending time with the father during the shorter school holidays because the child will be able to spend increased time with his sibling; on the father’s proposals for holiday time with the child, the child will still be able to spend significant time with his sibling in the school holidays, and the child is likely to enjoy his time with the father during those holidays to the extent proposed by the father.
The Court is of the view that the father’s proposal for telephone time with the child will be in the best interests of the child. Again, that proposal was:
That each party shall be at liberty to telephone the child on a nominated phone number, and in the event that such nominated telephone is a mobile phone then the other party must ensure that the mobile phone is switched on and fully charged for the purpose of such telephone call.
Such proposal, as compared to the mother’s proposal for telephone time, being, “That each party shall be at liberty to phone the child on a nominated phone number at any reasonable time the child is not in their care”, will likely be less intrusive upon the time that the child is spending with the other parent and less likely to result in conflict between the parties; the Court agrees with the Independent Children’s Lawyer’s submission that the current state of the parties’ relationship, being a relationship still marked by significant distrust and inconsistent levels of positive communication between the parties, does not justify the more extensive proposed telephone time order sought by the mother.
The Court is of the view that its proposed parenting orders (see below) relating to the child spending time with the father, during school term times, in a two weekly cycle, comprising in total 4 nights per fortnight, will beneficially spread the child’s time with the father over such two weekly cycle period.
As to the family report writer’s recommendations for a gradual increase in the child’s time with the father, the Court notes that the family report was written on 6 August 2015, and since that time, by reason of the Court’s interim parenting orders, the child has been spending increased time with the father.
As to the father’s proposed order 10, “That the mother is restrained from causing the child’s enrolment at their current school and day care to be varied without the prior written consent of the father”, the Court notes that such order was an interim consent order of the Court on 10 November 2016. The parties both live in (omitted). The child attends the (omitted) Public School. In view of the mother’s previous actions historically in acting unilaterally in relation to the child, including not disclosing to the father details relating to his pre-school and school enrolment, the mother and child’s new address, and limiting the child’s time with the father, it will be in the best interests of the child to make the father’s proposed order 10.
As to the mother’s proposed parenting order that the father be the sole carer at all times during the child’s time spent with him, the Court notes the existence of order 15 of the Court’s interim orders of 23 October 2014 providing, “That the father be and is hereby restrained from leaving the child in the sole care of the paternal grandparents.” The Court does not accept the mother’s contentions that the paternal grandparents would be unable to identify any significant risk to the child if the child happened to be in their care during any period that the child was spending time with the father.
In this context, the Court refers to the Affidavit evidence of the paternal grandparents which was not, in the view of the Court, successfully challenged by the mother in her cross examination of the paternal grandparents. Indeed the Court notes that the mother did not expressly cross-examine the paternal grandparents in relation to any alleged risk issue. In the view of the Court, it will not be in the best interests of the child to make a parenting order that the father be the sole carer at all times during the child’s time spent with him, and further, it will be in the child’s best interests for that previous interim parenting order 15 of the Court’s interim orders of 23 October 2014 be discharged (indeed the court proposes to discharge all prior parenting orders).
As to changeover, the mother sought a continuation of the interim consent order of 10 November 2016 that changeovers occur at school or otherwise at the mother’s residence. She contended that at least since that order the changeovers had occurred without problems. The father sought a neutral changeover but did not dispute that changeovers, where they have occurred at the mother’s residence since that interim order, have proceeded without problems. It will be in the best interests of the child to make a final order embodying the parties’ agreed interim order of 10 November 2016.
Equal shared parental responsibility: section 61DA(1) and (2)
The parties both sought an order that they have equal shared parental responsibility for the child. The Court is of the view that it will be in the best interests of the child to make such an order.
Neither party sought an equal time parenting order. Whilst it would appear that the parties’ significant historical conflict has lessened to some extent in recent times, there still remains a significant lack of trust between them, and guarded communication between them, and the Court is of the view that an equal time parenting order would carry the significant risk of increased conflict between the parties, and such an order would not be in the best interests of the child.
The father’s proposed orders to spend time with the child would likely constitute substantial and significant time under the Act, and would be in the best interests of the child.
Summary
Evaluating the above discussed considerations under section 60CC of the Act, the Court is of the view that it will be in the best interests of the child to make final parenting orders as follows:
(1) All prior parenting orders are discharged.
(2) The parents shall have equal shared parental responsibility for the child X born (omitted) 2008.
(3) The child shall live with the Mother.
(4) The child spend time with the father as follows:
(a) on a two week cycle as follows:
(i) In Week 1, from after school Friday, or 4.00pm Friday in the event that the child does not attend school, until before school following Monday, or 9.00am the following Monday in the event that the child does not attend school;
(ii) In Week 2, from after school Wednesday, or 4.00pm Wednesday in the event that the child does not attend school, until before school following Thursday, or 9.00am the following Thursday in the event that the child does not attend school;
(b) on the child’s birthdays as follows:
(i) where such birthday falls on a school day, for a period as agreed, but failing agreement, from the conclusion of school, or 3.30pm in the event that the child does not attend school, until 5.30pm;
(ii) where such birthday falls on a non-school day, for a period as agreed, but failing agreement, from 9.00am until 2.00pm;
(c) for a period as agreed for Christmas, but failing agreement as follows:
(i) from 2.00pm Christmas Eve until 2.00pm Christmas Day in each odd numbered year;
(ii) from 2.00pm Christmas Day until 2.00pm Boxing Day in each even numbered year;
(d) for half of each shorter School Holidays
(i) from the conclusion of school on the last school day until 10.00am on the middle Saturday of the holiday period in each odd numbered year;
(ii) from 10.00am on the middle Saturday of the holiday period until the commencement of school on the first school day of the next Term in each even numbered year.
(e) for the Christmas School Holiday period as agreed but failing agreement from 10.00am on 1 January until 10.00am on 15 January each year.
(f) on Father’s Day from 5.00pm on the day preceding Father’s Day, until before school or 9.00am the day following Father’s Day.
(g) with the exception of Christmas Day or Boxing Day, in the event that the father’s time with the child is preceded or followed by a public holiday, that the father’s time with the child is extended from conclusion of school the day prior to the public holiday, and for father’s time to extended until the commencement of school the day after the public holiday.
(5) That for the purposes of changeover where the father’s time with the child is due to commence at the conclusion of a school day or conclude at the commencement of a school day changeover is to occur at the child’s school, and at all other times changeover is to occur at the mother’s residence.
(6) That each party shall be at liberty to telephone the child on a nominated phone number, and in the event that such nominated telephone is a mobile phone then the other party must ensure that the mobile phone is switched on and fully charged for the purpose of such telephone call.
(7) That each party shall inform the other party of their address and contact telephone number and advise the other party in writing within 48 hours of any change in these details.
(8) That the parties shall not denigrate the other party in the presence or hearing of the child, and that each party shall ensure that no third party denigrates the other parent in the presence or hearing of the child.
(9) That the parties be restrained from consuming any illegal substance when the child is in their care, and 48 hours prior to the child coming into their care.
(10) That the mother is restrained from causing the child’s enrolment at his current school and day care to be varied without the prior written consent of the father.
(11) That each party shall do all things necessary to ensure that the child attend any appointments scheduled with counsellors, doctors or other health professionals and that the child undertake any treatment or other activities prescribed and directed to be undertaken by their counsellors, doctors or other health professionals.
(12) That in the event of any child suffering a medical emergency requiring medical attention while spending time with or living with either parent:
(a) The other parent is to be notified as soon as practicable
(b) That the other parent is to be provided with the full details of the practitioner or medical facility upon which the child attends as soon as practicable
(c) That the medical practitioner or medical facility be advised that the other parent has access to the child’s medical records and the information obtained with them upon request
(13) That the mother shall make arrangements at the child’s school(s) to ensure that the father can obtain the following information and document as his own cost:
(a) A copy of all school reports and school photo order forms for each child;
(b) Notification for school activities that he may decide to attend, such activities being those that parents are ordinarily entitled to or invited by the school to attend;
(c) Notification of parent/teacher nights and the school is informed that it is the father’s desire to attend such events;
(d) In the event of any child being taken from the school for an emergency, remedial or correctional treatment that the father be informed as soon as practicable;
(14) That the mother shall take, do all things necessary to ensure that the father is recorded at the child’s school(s) as a person permitted to deliver and collect the child from that school(s) and that the father is recorded as an emergency contact person at the children’s school(s).
(15) For the purposes of these Orders, any reference to “school” or “school(s)” or “schools” shall be deemed to include primary schools, high schools, day cares, child cares and pre-schools.
(16) That each party shall ensure that the child attend any extracurricular commitments at which attendance is compulsory or generally expected as part of the enrolment or participation in said activity, including but not limited to cultural, sporting and social events, and that the father may attend any extracurricular activities or commitments that parents are ordinarily entitled to or invited to attend.
(17) That the parties shall consult on any extracurricular commitments for the child for which attendance is compulsory or generally expected as part of the enrolment or participation in said activity where such attendance falls at times the child lives with and spends time with each party, including but not limited to cultural, sporting and social events.
(18) That the parties shall only be permitted to travel with the child, allow a third person to travel with the child, allow the child to travel outside the Commonwealth of Australia where they comply with the following:
(a) Provide the other party with 28 days’ notice of such intended travel;
(b) Provide the other party with an itinerary for such intended travel;
(c) Provide the other party with contact of an operable mobile telephone number that the travelling party will carry on person during such travel, e-mail address and address for all places at which the child will stay during such travel;
(d) Provide the other party with copies of all travel tickets or bookings, and in particular, a copy of the return travel ticket;
(e) Provide the other party with confirmation of travel insurance for the purposes of treating medical emergencies for the child, as well as providing the other party a copy of such travel insurance policy.
(19) The parties shall refrain from exercising corporal punishment on the child, and in particular, neither party shall smack the child.
(20) By consent, neither party shall permit the child to come into contact with the father’s uncle, Mr E.
I certify that the preceding one-hundred and ninety-two (192) paragraphs are a true copy of the reasons for judgment of Judge Newbrun
Date: 4 July 2017
Key Legal Topics
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Family Law
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