Lynch and Black
[2010] FMCAfam 1172
•28 October 2010
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| LYNCH & BLACK | [2010] FMCAfam 1172 |
| FAMILY LAW – Parenting – living arrangements for 8 year old boy – allegations of abuse against mother’s partner found to be unsubstantiated – found in child’s best interests to continue living with his mother and spend increased time with his father. |
| Family Law Act 1975, ss.60B, 60CA, 60CC, 61DA, 65DAA, 65DAC Evidence Act 1995, s.140 |
| M and M (1988) FLC 91-979 B v B (1993) FLC 92-357 |
| Applicant: | MR LYNCH |
| Respondent: | MS BLACK |
| File Number: | MLC 1178 of 2010 |
| Judgment of: | Bender FM |
| Hearing date: | 26 October 2010 |
| Date of Last Submission: | 26 October 2010 |
| Delivered at: | Brisbane |
| Delivered on: | 28 October 2010 |
REPRESENTATION
| Counsel for the Applicant: | Self-represented |
| Solicitors for the Applicant: | Self-represented |
| Solicitors for the Respondent: | Mr Cooper - Barry & Nilsson Lawyers |
| Counsel for the Independent Children’s Lawyer: | Mr George |
| Solicitors for the Independent Children’s Lawyer: | Barbara Fox Solicitor |
ORDERS
The parents have equal shared parental responsibility for the child [X] born in 2001 (“[X]”) subject to the following:
(a)except in the case of emergency, in the event that a decision is required to be made that relates to a major long term issue in relation to [X] (for example, in relation to the health or education of [X]) then the mother shall immediately forward to the father, in writing and via e-mail, full details of the issue that has arisen and of the decision that needs to be made. The mother shall also provide the father with all information then available to her which she intends to consider in the making of a decision;
(b)the father shall then, within 14 days of receipt of the said information, inform the mother in writing and via e-mail of the decision he would make in the circumstances and of the reasons why he would make that decision;
(c)the mother, upon receipt of the father’s response, shall seriously consider the father’s response prior to making a decision; and
(d)the mother shall then make a decision and shall, immediately thereafter, notify the father in writing of the decision she has made.
[X] live with the mother.
[X] spend time and communicate with the father as follows:
(a)each alternate weekend from after school Friday to before school Monday commencing 29 October 2010;
(b)in three months from the date of these orders and in addition to the time referred to in order 3(a) herein, from after school each alternate Wednesday (or some such other day convenient to the parties and [X]) to before school Thursday (or the next day as agreed) in the week following the weekend [X] is not with his father;
(c)one half of all school holidays as agreed between the parties and failing agreement for the first half in odd numbered years and the second half in even numbered years;
(d)by telephone each Tuesday and Thursday between 4.30pm and 5.30pm;
(e)from 5.00pm Christmas Eve to 3.00pm Christmas Day 2010 and each alternate year thereafter;
(f)from 3.00pm Christmas Day to 5.00pm Boxing Day 2011 and each alternate year thereafter;
(g)from 10.00am to 5.00pm on Father’s Day (if [X] is not already spending time with the father on Father’s Day);
(h)on the birthdays of [X], the father and [Z] for three hours if the birthday falls on a school day and for four hours if the birthday falls on a weekend at times agreed between the parties and failing agreement from after school to 6.30pm and from 10.00am until 2.00pm on a non-school day (if [X] is not already spending time with the father on these birthdays); and
(i)as otherwise agreed.
Notwithstanding order 3 herein, [X] shall spend time with the mother:
(a)from 3.00pm Christmas Day to 5.00pm Boxing Day 2010 and each alternate year thereafter;
(b)from 5.00pm Christmas Eve to 3.00pm Christmas Day 2011 and each alternate year thereafter;
(c)from 10.00am to 5.00pm on Mother’s Day (if [X] is not already spending time with the mother on Mother’s Day);
(d)on the birthdays of [X], the mother and [Y] for three hours if the birthday falls on a school day and for four hours if the birthday falls on a weekend at times agreed between the parties and failing agreement from after school to 6.30pm and from 10.00am until 2.00pm on a non-school day (if [X] is not already spending time with the mother on these birthdays); and
For the purposes of changeover the father shall collect and return [X] to school and otherwise collect [X] from and return [X] to the mother’s home.
Each party shall advise the other of any serious illness or injury suffered by [X] as soon as practicable following the onset of the illness or occurrence of the injury and shall provide sufficiently detailed information and any necessary authorities to allow the other parent to obtain information directly from any treating medical practitioners.
Each party is free to be fully involved in the school life of [X], to receive copies of school reports, school newsletters, school photograph order forms and the like and to attend all parent/teacher interviews, events and functions to which parents are normally invited.
Each party and their servants and agents are restrained from abusing, insulting, belittling, rebuking or otherwise denigrating the other party to or in the presence or hearing of [X] or any of them, and from permitting any other person so to do.
Each party is restrained from using physical discipline or corporal punishment in respect to [X] or permitting any other person to do to.
The mother shall be restrained from relocating with [X] from the Gold Coast region without the written consent of the father, save and except in the circumstances that the father has ceased to reside permanently in the Gold Coast region.
There be no order as to costs.
THE COURT NOTES THAT:
A.The parties shall, within six months of these orders, confer to discuss [X] spending a further night with the father each alternate week.
IT IS NOTED that publication of this judgment under the pseudonym Lynch & Black is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT BRISBANE |
MLC 1178 of 2010
| MR LYNCH |
Applicant
And
| MS BLACK |
Respondent
REASONS FOR JUDGMENT
(Revised from transcript)
Introduction
This is the father’s Application seeking a change of residence for the parties’ son, [X] (“[X]”), who was born in 2001, which means that [X] is nearly nine. The father’s Application came about because of his belief that [X] had been and will be at risk of harm in the care of his mother because of violence perpetrated against him by the mother’s de facto partner of seven years, Mr W. The father therefore seeks orders that [X] live with him and spend alternate weekends, half holidays and special days with his mother.
The mother denies the father’s allegations that [X] is at risk of harm in her care. She seeks orders that [X] continue to live with her, spend alternate weekends with his father as well as half holidays and special days. She proposes after three months, and subject to the father’s work commitments, that [X] spend an additional mid-week night with his father in the off week and that after six months consideration be given to that additional mid-week night being extended to two additional mid-week nights. This proposal accords with the recommendations of Ms H, psychologist, who prepared two Family Reports in this matter.
The mother also sought an order that she and [X] be permitted to relocate to Victoria. During the running of the matter she agreed that she would not relocate without the written consent of the father or unless he failed to live permanently on the Gold Coast.
Background
By way of background, the father was born in 1972 and he is 38 years of age. He is currently employed as a [omitted] and has also had work as a [omitted]. He is in a relationship with Ms T. They are not living together at this time. He has an older son, [Z], who is 14 years of age. [Z] usually lives with his father but is currently living with his paternal grandparents in Melbourne.
The mother was born in 1981 and she is 28 years of age. She is self-employed as a photographer. As mentioned earlier, she has re-partnered with Mr W, and they have a daughter, [Y], who was born in 2008.
The parties commenced a relationship in or around 1999. In 2002 the father’s son [Z] came to live with the parties. The parties separated in September 2003. Following separation [Z] remained with his father and [X] remained with his mother. On 6 February 2004 orders were made by consent, which provided that [X] live with his mother and spend alternate weekends with his father as well as arrangements for special occasions.
The mother started a relationship with Mr W in late 2003, and they started living together in 2004. Their daughter [Y] was born in 2008.
In March of 2006 the father noticed bruising on [X]’s legs. It was his evidence that [X] told him he had been hit or punched by his mother and Mr W. The father photographed the bruises and took [X] to the [S] Police to report his concerns.
The mother and Mr W denied [X] had been hit by them and said that the bruises were the result of the usual falls and scrapes of an active young boy. The allegation was investigated by the Police and Child Protection Services, including a paediatric examination of [X]. At the conclusion of those investigations, a finding was made that the allegation of risk was unsubstantiated.
In September of 2008 the father, who was then working as a [omitted], got into financial difficulties when the [omitted] industry came to a halt because of the [omitted] disaster. He and [Z] moved to Melbourne to live with his parents. [X] remained living in Queensland with his mother. After the father moved to Melbourne, [X] would see him by agreement between the parties. [X] would fly down to see his father and [Z] during school holidays, or his father would come to Queensland to see him.
Whilst [X] was spending time with his father in Melbourne in the September term holidays in 2009, the father gave evidence that [X] complained Mr W had been hurting him by putting one hand flat on his head and punching his hand whilst it was still on top of his head. The father took [X] to the [K] Police Station, and they in turn referred the father to the Queensland Child Safety and Child Protection and Investigation Unit.
In relation to this incident, Mr W explained that he and [X] play a “break an egg on your head” game where each party pretends to break a raw egg on the other’s head as a joke. Queensland Child Safety investigated the complaint, including interviewing [X] at school. At the conclusion of their investigations they made a finding that the allegation that [X] was at risk was unsubstantiated.
On the weekend of 4 February 2010 the father flew to the Gold Coast to spend time with [X]. Having asked [X], “How are Mummy and Mr W treating you,” it was the father’s evidence that [X] told him not to tell the Police because he would get in trouble, but:
“Mr W has been yelling at me and grabbed me around the throat and threw me from the doorway across the room and I landed on my bed.”
The father took [X] to Queensland Child Safety at [M], and to the Child Protection Unit in [S]. The father, believing [X] to be unsafe, then unilaterally took [X] back to Melbourne with him on Sunday 7 February 2010. On his arrival in Melbourne the father rang and advised the mother of [X]’s whereabouts and he then enrolled [X] at [omitted] Primary School.
On 10 February 2010 the father commenced these proceedings in Melbourne and the matter somewhat coincidentally came before me on 23 March 2010. Before the matter came before the Court, and on the advice of her legal advisers, the mother attended at [omitted] Primary School and collected [X] and returned him to Queensland on the basis that the 2004 orders placed [X] in her care.
Child Safety Queensland and the Child Protection Unit investigated the allegations made and at the completion of their investigations they made a finding that the allegation that the child was at risk was unsubstantiated.
When the matter came before me on 23 March 2010, I made orders that transferred this matter to the Federal Magistrates Court in the Brisbane Registry on 6 May 2010. Interim orders were made on that occasion for [X] to live with his mother, and an order was also made restraining the parties from using corporal punishment in relation to [X] or permitting any other person to do so. An order was also made for the appointment of an Independent Children’s Lawyer in Queensland.
On 6 May 2010 the matter was adjourned by consent to 24 June 2010. To better prosecute his case and to be closer to [X], the father moved from Melbourne to the Gold Coast in May 2010. On 24 June 2010, interim consent orders were made that provided for [X] to live with his mother, to spend alternate weekends with his father from 8.00 am Saturday to 5.00 pm Sunday. The order restraining the parties from using physical discipline in relation to [X] or permitting any other person to do so was reinforced on that occasion.
The father’s evidence
The father is seeking orders that [X] live with him and spend alternate weekends with his mother as well as half school holidays. It was the father’s evidence that he believes [X] is at real risk of ongoing physical abuse at the hands of Mr W, and that a change of residency is required to ensure [X]’s personal safety.
Further, the father does not accept that there are innocent explanations for the incidents described to him by [X]. He is of the view that Child Safety and the Police have failed to properly investigate the incidents as reported and that their findings of unsubstantiated risk are not supported by the facts. The father is of the view that the mother is downplaying the incidents and injuries to which [X] has been subjected by Mr W. It is his belief that the mother puts the preservation of her relationship with Mr W ahead of [X]’s safety and that she would and has lied to protect Mr W.
The father does not accept the explanations of either the mother or Mr W as to the circumstances of the various incidents that have given rise to his belief that [X] is unsafe with the mother and Mr W.
It was put to the father that [X] may have exaggerated the incidents to him because of the father’s reactions to what he says, in that he gets his father’s undivided attention when he makes those statements. The father rejected that proposal.
It was suggested to the father that [X] may tell him bad things were happening in his mother’s home at the hands of Mr W because [X] thought that this was what his father wanted to hear. The father also rejected this as a possible explanation for what [X] had said to him.
The father was questioned by Counsel for the Independent Children’s Lawyer about an entry in the subpoenaed documents from Child Safety, where the case worker asked [X] whether “someone had told him to make disclosures” and [X] had nodded. It was put to the father that the only person who could have logically told [X] to make disclosures of abuse was him, the father, as it would not have been in either of the interests of Mr W or the mother to encourage [X] to say that they had been abusing him. The father denied that he had told [X] to make disclosures to the various authorities.
The father was asked whether he took any comfort that [X] would be protected because of the orders made by this Court restraining the parties or any other person from physically disciplining [X]. It was the father’s evidence this afforded him no comfort as there had been an incident in June 2010 when [X] had been running around the lounge room and had been grabbed roughly by Mr W around the waist, such that [X] complained it had hurt him.
The father did not accept the findings of Ms H in her Reports, in that she believed [X] was not at risk in the care of his mother or Mr W. It was his view that Ms H was biased in favour of the mother. When asked why [X] would be safe having unsupervised alternate weekend time with his mother and Mr W, it was the father’s evidence that [X] would be able to come home to him at the end of the weekend, where he would be safe.
It was very apparent from the father’s evidence that he was completely closed to there being any explanation for the incidents described, other than [X] was being abused by Mr W and that the mother was lying to cover this up. It was apparent that he genuinely believed that [X] was at risk in his mother’s household. It is of interest to note, however, that the father conceded he had never actually met Mr W, and was unable to comment as to the kind of person that he is.
In relation to the mother’s proposal to move to Melbourne in mid-2011, it was the father’s evidence that having moved to the Gold Coast to be closer to [X], he had been successful in obtaining well-paid employment as a [omitted] and had decided to remain in the Gold Coast region. It was the father’s evidence that his parents and [Z], together with his girlfriend, would be moving to join him on the Gold Coast at year’s end when [Z] has finished his school year.
When cross-examined for more detail on this intended move by his family, the father’s evidence can best be described as vague. He talked about the possibility of them buying a five-bedroom house or a block of land and a duplex development being constructed, of his parents selling their Victorian home, of there being certain funds available to purchase properties and the like. None of his evidence had any specificity.
Because of the father’s strongly held beliefs that the mother is lying to protect Mr W, he conceded that he and the mother do not communicate well. However, having said that, it would appear the parties have been able to make arrangements between themselves since the father’s arrival on the Gold Coast. By way of example, it would appear the parties were able to reach agreement to change weekends to enable [X] to travel with his father to Melbourne for [Z]’s birthday.
The mother’s evidence
The orders sought by the mother are set out earlier in my judgment and they are that [X] live with her, that he spend time with the father each alternate weekend from after school Friday to before school Monday, that in three months’ time [X] spend additional time with his father from after school each alternate Wednesday to before school Thursday, half school holidays and special days during the year.
The mother also sought orders that, because of the level of antipathy between the parties and because of the father’s refusal to engage with her in any meaningful way in relation to [X], an order be made for equal shared parental responsibility, but that in the event the father fails to engage in the decision-making process in relation to the major long-term issues for [X], or the parties were unable to agree, that the mother should be the one who would ultimately determine those issues.
When the mother commenced her evidence she was given leave to amend a number of paragraphs in the affidavits filed by her on 31 August 2010 and 16 September 2010 respectively. She indicated that the contents of those paragraphs were not correct. She was given leave to so amend.
The father, who had filed an answering affidavit in relation to the mother’s affidavits challenging the contents of those sections of the affidavit she was given leave to amend, challenged the mother as to the timing of her seeking to amend her affidavits. He suggested that she had only amended those affidavits on the day of the hearing as she had been caught out by him telling a lie.
It was the mother’s evidence that she had told her then solicitor at the time of the errors in the affidavits but he had told her that it was too late to change them. She explained that this was one of the reasons why she had changed her solicitors. I note that the mother obtained new legal representation only a week before this matter commenced.
It was the mother’s evidence that [X] has been in her primary care since birth, and in particular since separation in 2003. It was her evidence that [X] and Mr W have a close and loving relationship and that he has not been assaulted, nor is he at risk of being assaulted when in her care. It was her evidence that neither she nor Mr W used corporal punishment with [X] and had never hit [X] on the legs or elsewhere by way of punishment.
She gave evidence that Mr W and [X] enjoy wrestling with each other, and confirmed that they play, what I will call, “the smashed egg” game. In relation to the incident where Mr W yelled at [X] and allegedly had his hands around his throat and threw him across his bedroom to his bed, it was the mother’s evidence that she was not at home at the time of this incident. It was her evidence that when she returned home shortly afterwards, she was advised by Mr W that he had yelled at [X] and had lost his temper. She indicated that the three of them sat down, talked through what had happened, and that Mr W had apologised to [X].
It was her evidence that [X] has never complained to her of being scared of or hurt by Mr W, and that the relationship between herself and [X] is such that she believes that [X] would tell her if he was being abused in any way by Mr W or by anyone else for that matter. It was the mother’s evidence that if Mr W were to abuse [X] then she would leave that relationship.
It was clear from her evidence that the mother does not believe Mr W has abused [X] and was somewhat frustrated and stressed by the ongoing allegations of the father and his refusal to accept alternate explanations to the incidents described by him.
In relation to her wish to move to Melbourne, it was the mother’s evidence that [Y], about whom she has had concerns in relation to her development and behaviours for some time, has recently been diagnosed with global developmental delay. [Y] is currently undergoing further assessment, but if she has not improved by the age of about four or five, [Y] is most likely to be diagnosed as intellectually disabled. It was the mother’s evidence that her family and Mr W’s family are based in Victoria and that she wishes to move to Melbourne to be able to call on their support in caring for [Y] into the future.
However, in cross‑examination, it became apparent that Mr W’s family are based in [H], which is some three or four hours from Melbourne, and that her mother has moved to [A], which is some three and a half hours from Melbourne in exactly the opposite direction.
The mother agreed that it was in [X]’s best interests to be able to spend regular, ongoing time with both his parents, and indicated she would agree to orders being made that would prevent her from relocating to Victoria without the written consent of the father, or in the circumstances where he had ceased to live permanently on the Gold Coast.
The mother agreed that [X] loves his father. In fact, she referred to him idolising him. However she expressed concerns about the father being available to care for [X] if his work commitments clashed with the time he was to spend with [X] under any orders made, especially if his parents were not available to assist with the care of [X]. It should be noted that the father gave some rather vague evidence about applying for a new [omitted] job with his current employer. It apparently would be better paying, but the father was unable to say precisely what the job involved, and whether it would involve overnight or interstate work commitments.
It was the mother’s evidence that she and the father are unable to communicate. She advised that whenever they try to talk to each other they end up in an argument. She indicated the father does not listen to her and that nothing ever gets resolved, which means that they end up being incredibly frustrated with each other. She indicated that when she does try to consult the father about matters such as [X]’s school or sporting activities, he either does not respond or says “no”, and that she ends up making the decision for [X] herself.
The mother agreed it would be in [X]’s best interests if she and the father were able to communicate in relation to him. She believed electronic communication such as emails or text messages would be preferable to reduce their face to face interactions and the possibility of ongoing arguments. She too conceded, however, that she and the father had been able to adjust [X]’s time in order to enable him to go to Melbourne for [Z]’s birthday, and that during the period that the father was in Victoria they were able to make arrangements for school holidays and other visits without a great deal of difficulty.
Mr W
Mr W also gave evidence at the final hearing of this matter. Mr W is the mother’s de facto partner of some seven years. He adopted a written statement addressing the allegations of abuse, and also gave viva voce evidence.
Mr W described a close and loving relationship with [X] where they do lots of “boy things” like sport, bushwalking, fishing, camping and wrestling. In respect to the specific allegations, he denied ever hitting [X] on the legs. In relation to what I call “the egg smashing game”, it was Mr W’s evidence as follows:
“These allegations were in regards to a game I would play with [X]. My dad would do this to me as a joke when I was a kid and I thought it was funny. One day I thought I might try that trick on [X]. When I did he laughed. [X] then tried it on me, and I would act as if he did really crack an egg on my head and say “yuck I need to have a shower now”. It was a trick, “Crack an Egg on the head.” I would do this to him sometimes when we were mucking around because it became a funny joke for us.”
In relation to the incident that took place in 2009, where Mr W lost his temper with [X], he described that incident in the following terms:
“In approximately December 2009, [X] and I were home together. I had cooked Lasagne for dinner and had plated it up for him. He had been sitting at the table for quite a while without touching it. I told him to eat his dinner but he refused to eat it so I sent him to bed to sleep. An hour later I was taking some washing upstairs and saw a light on his bedroom. I opened the door and yelled at him “what are you doing?”, [X] turned around and had that “I’ve been sprung” look on his face. It made me angry. I went over to the bed and [X] rolled over on his bed to face the wall. I leaned over and grabbed him by the chin to direct his eye contact towards me.
I raised my voice at him and told him off. I took the DVD off him and took it downstairs and put it on the kitchen table. I went back upstairs, I told [X] to get off his bed. [X] got off the bed and stood against about a metre away from his bed, [X] looked down to the ground so I picked his chin up again to regain eye contact, he often looks away from you when he is in trouble. I started to yell at him again, I said that he was grounded forever and saying things like I’m going to throw all your toys out, no more playstation, no more TV, no more bikes, no more scooter. I told him if he didn’t like what I made then he could eat dog food and you can live outside with the dog if your (sic you’re) going to act like that. I was really mean to him. I then said to [X] “Get into bed and sleep where you’re meant to be” and I picked him up by the shoulders and threw him onto his queen size bed. He landed in the middle of the bed.
The throw was not forceful and at no time did I feel [X] had been hurt. I left the room and went downstairs and sat on the couch, recapping about what had happened. This was not at all my character and I was still angry at [X]. About 5 minutes later Ms Black came home and I told her to go and talk to [X] because I thought [X] may be upset because I had been yelling at him. Ms Black went up to speak to [X]. Ms Black and [X] then came down for a family meeting.
We spoke about what had happened. I apologised to [X], and he said “That’s ok”, I gave him a kiss and a cuddle and he went back to bed. The next day I sat him down and apologised again to him and tried to explain why I was angry at him but also that I should not have acted how I did. I told him I would not throw all of his things out. Again he said it was ok and we had a big hug.”
Clearly, Mr W’s actions on that evening were not acceptable. In his evidence, Mr W willingly acknowledged the inappropriateness of his behaviour on that evening.
In relation to the June 2010 incident, Mr W explained that [X] was running around the lounge room. He tripped on an empty glass and Mr W grabbed him around the waist to prevent him falling on the glass. He told [X] firmly to settle down. He says [X] did not complain on that occasion of being hurt.
Mr W was asked to describe [X]. He talked of a fun‑loving, cute little kid, who loves sport. He described him as a good kid to be around, who loved doing things and joining in, like helping Mr W work on his car. He described him as loving his baby sister, getting her out of bed in the morning and making her breakfast. He said that yesterday [X] had even got [Y] dressed.
It was apparent to me from the way he spoke that Mr W loves [X] dearly and has a deep understanding and knowledge of [X] and his personality. I found Mr W to be an open and honest witness, and I was impressed with his candour. He genuinely acknowledged the inappropriateness of his behaviour when he lost his temper with [X] in December of 2009, and I am satisfied that this incident was out of character.
Ms H
Ms H is a psychologist who, at the request of the Independent Children’s Lawyer, prepared two Family Reports in this matter, the first dated 15 June 2010 and the second dated 19 September 2010.
Ms H also gave viva voce evidence at the final hearing of the matter.
In her first Report, after Ms H saw the parties and [X] between 7 and 14 May 2010, Ms H formed the following conclusions and recommendations:
96.[X] appears to have a positive relationship with both parents.
97.It is understandable that Mr Lynch had concerns about abuse occurring in the home and wants to protect his son.
98.However, the incidents have been investigated by the appropriate authorities and no abuse has been substantiated.
99.[X] does not appear to be a child who is fearful of spending time in his current house with his mother and Mr W.
100.He is able to communicate very well and I feel he would express his concerns if he currently had any.
…
108.I do not feel that [X] is at risk of harm occurring in the house with his mother and Mr W.
109.Therefore I am recommending that [X] remain in the care of Ms Black and Mr W in Queensland and visit his father during the school holidays. I feel that relocation (sic [X] going to Victoria) is an extreme measure at this point in time.
Ms H again interviewed the parties and [X] in September 2010. She formed the following conclusion and recommendations in her second Report:
67.I do not find that there are any additional concerns regarding [X]’s safety while living with Ms Black and Mr W.
68.I feel the latest incident has been taken out of context. [X] has good communication skills and if at the time of the incident he had been harmed in any way I am confident that he would have notified his mother of this.
69.Mr Lynch is a very protective father expressing concerns for his son’s safety. If he feels that the interviews conducted by Child Safety and the report that followed left out valuable information then I would encourage him to discuss this in the court setting.
Further, in her conclusions and recommendations, Ms H stated:
77.[X] is expressing a desire to spend more time with his father. I do not find any reason why this should not occur.
78.As Ms Black has been the main carer for [X] since separation I would recommend a gradual increase to occur in order to reduce any anxiety that [X] may experience and also to give Mr Lynch the opportunity to arrange his work schedule to care for [X] over this extra time.
79.I feel that pick up and drop off can occur at the school during the school term to further minimise contact between Mr Lynch and Ms Black.
80.It is my recommendation that [X] continues to live with his mother and has contact time with his father from Friday after school to Monday drop off to school every alternate weekend. I feel this schedule should occur for three months.
81.After three months an extra night with the father on the week that he does not have contact on the weekend should occur. Again, pick up from school and drop back to school the following day. This will enable Mr Lynch to have contact with his son every week. School holidays to be divided equally between the parents.
82.Phone calls to continue.
83.Mr Lynch should have the opportunity to attend any schooling or extra curricular activities that [X] is involved in.
84.If after six months communication had improved between the parents and [X] is adapting well to the schedule, another night for Mr Lynch with [X] on the second week could be added to this plan.
The father asserted in his affidavit material that Ms H was biased in favour of the mother. He alleged she had failed to properly explore or investigate the allegations and concerns he had raised with her in his affidavits in an interview, and that this was evidenced by their omission from her Reports. Ms H was cross-examined on this issue. It was her evidence she had properly considered all the matters raised by the parties. She indicated she had perused all the subpoenaed material from Child Safety and the Police. She also indicated that where there was no corroborative evidence or the parties did not agree, she had not included those matters in her Report.
In response to specific incidences raised by the father Ms H indicated that firstly, in relation to an allegation that Mr W had held [X] over a balcony to scare him in or around 2004, Ms H indicated that the mother had no recollection of such an incident occurring and that when she talked to [X] he could not remember that happening either.
In relation to an allegation that [X] had witnessed Mr W assaulting the mother, it was Ms H’s evidence that [X]’s only comment in relation to his mother and Mr W’s relationship was that they sometimes argued, but he made no mention of any physical violence between them.
It was Ms H’s evidence that she believed that it was vitally important for [X] that he spend regular time with each of his parents and thus they needed to live in the same State. She was of the view that the mother should not move to Victoria unless both parties agree and both move there. Otherwise, Ms H confirmed the recommendations and conclusions contained in her second Report.
Best interests of the child
Part VII of the Family Law Act 1975 (“the Act”) deals with children. Section 60B of the Act sets out the objects and underlying principles of Part VII of the Act as follows (omitting for present purposes s.60B(3) which deals with Aboriginals and Torres Strait Islanders):
1.The objects of this Part are to ensure that the best interests of children are met by:
(a)ensuring that children have the benefit of both of their parents having a meaningful involvement in their lives, to the maximum extent consistent with the best interests of the child; and
(b)protecting children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence; and
(c)ensuring that children receive adequate and proper parenting to help them achieve their full potential; and
(d)ensuring that parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of their children.
2.The principles underlying these objects are that (except when it is or would be contrary to a child’s best interests):
(a)children have the right to know and be cared for by both their parents, regardless of whether their parents are married, separated, have never married or have never lived together; and
(b)children have a right to spend time on a regular basis with, and communicate on a regular basis with, both their parents and other people significant to their care, welfare and development (such as grandparents and other relatives); and
(c)parents jointly share duties and responsibilities concerning the care, welfare and development of their children; and
(d)parents should agree about the future parenting of their children; and
(e)children have a right to enjoy their culture (including the right to enjoy that culture with other people who share that culture).
Section 60ca of the Act provides that:
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 61da of the Act provides that there is a presumption of equal shared parental responsibility when making parenting orders. Subsections 1 and 2 of that section provide as follows:
1. 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.
2. The presumption does not apply if there are reasonable grounds to believe that a parent of the child (or a person who lives with a parent of the child) has engaged in:
(a)abuse of the child or another child who, at the time, was a member of the parent’s family (or that other person’s family); or
(b)family violence.
Section 61DA(4) of the Act provides that:
(4)The presumption may be rebutted by evidence that satisfies the court that it would not be in the best interests of the child for the child's parents to have equal shared parental responsibility for the child.
Clearly in this case and central to the father’s Application is his serious allegations that Mr W, who lives with [X], has abused [X]. However, the father made no submissions on the issue of shared parental responsibility and my findings in relation to the father’s allegations will be set out subsequently in my decision.
Section 65dac of the Act states that where an order is made for equal shared parental responsibility and the exercise of that responsibility involves making a decision about major long-term issues in relation to the child, then those parents are required to consult the other in relation to the decision, to make a genuine effort to come to a joint decision about this issue.
Set out earlier in my judgment is the mother’s evidence that the parties are unable to speak to each other without arguing and that her efforts to engage the father in the important decisions for [X] are met with a failure by him to engage, and that she inevitably ends up making these decisions on her own.
It was conceded by the parties however that it would be best for [X] if they did consult each other on the major issues affecting [X].
In her second report at paragraph 78, Ms H made the following recommendation:
78.Currently communication between Mr Lynch and Ms Black is difficult. It would be recommended that contact regarding [X] and decisions related to [X] occur through emails to assist in discussing the issue and not the past.
It was submitted on behalf of the Independent Children’s Lawyer that the Court should make an order for equal shared parental responsibility, though it was suggested that any such order contain a process for consultation by the parties utilising email and that in the event the father failed to respond or the parties were unable to agree, that the mother ultimately determine the issue in dispute.
Having considered the evidence, I am satisfied that in all the circumstances of this matter an order for parental responsibility in the terms suggested by the Independent Children’s Lawyer would be in [X]’s best interests.
Where parents have equal shared parental responsibility for their child, section 65daa of the Act requires the court to consider the child spending equal time or significant and substantial time. Section 65daa of the Act provides as follows:
1.If a parenting order provides (or is to provide) that a child’s parents are to have equal shared parental responsibility for the child, the court must:
(a)consider whether the child spending equal time with each of the parents would be in the best interests of the child; and
(b)consider whether the child spending equal time with each of the parents is reasonably practicable; and
(c)if it is, consider making an order to provide (or including a provision in the order) for the child to spend equal time with each of the parents.
Sections 65daa (2) and (3) of the Act provide as follows:
2.If:
(a)a parenting order provides (or is to provide) that a child’s parents are to have equal shared parental responsibility for the child; and
(b) the court does not make an order (or include a provision in the order) for the child to spend equal time with each of the parents;
the court must:
(c)consider whether the child spending substantial and significant time with each of the parents would be in the best interests of the child; and
(d)consider whether the child spending substantial and significant time with each of the parents is reasonably practicable; and
(e)if it is, consider making an order to provide (or including a provision in the order) for the child to spend substantial and significant time with each of the parents.
3.For the purposes of subsection (2), a child will be taken to spend substantial and significant time with a parent only if:
(a) the time the child spends with the parent includes both:
(i) days that fall on weekends and holidays; and
(ii) days that do not fall on weekends or holidays; and
(b)the time the child spends with the parent allows the parent to be involved in:
(i) the child’s daily routine; and
(ii) occasions and events that are of particular significance to the child; and
(c)the time the child spends with the parent allows the child to be involved in occasions and events that are of special significance to the parent.
Neither party is seeking orders for [X] to spend equal time with them at this time. Given the parties’ high level of antipathy, given their inability to communicate easily with each other and given the father’s entrenched views of the mother and Mr W, such an order at this time would not be appropriate in any event.
The mother’s proposal is for [X] to spend significant and substantial time with his father, though I note the father’s proposal does not necessarily have [X] spending substantial and significant time with the mother as is defined under the legislation.
When determining what arrangements should be put in place for a child, the Act requires that the orders must be in the child’s best interests. In order to determine what is in the child’s best interests the court must look at and consider the matters set out in section 60cc subsections (2) and (3) of the Act. Each of the matters set out in those subsections, where relevant, must be assessed and considered in the context of the parties’ behaviours and proposals. A decision must then be made as to which of those proposals or such other proposal as the court may determine will be in the child’s best interest.
Section 60cc (2) of the Act sets out the primary considerations which are as follows:
Section 60cc 2(a) the benefit to the child of having a meaningful relationship with both of the child’s parents
It is common ground that [X] does have a close, loving, and meaningful relationship with both of his parents. This was clearly observed by Ms H.
The mother acknowledges that [X] adores his father, but the father was unable to comment positively or at all on [X]’s relationship with his mother.
Section 60cc 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
This goes to the heart of this matter. The father’s evidence is that he has brought his Application primarily to protect [X] from the abuse he believes [X] is receiving and will continue to receive at the hands of Mr W and from which his mother will not protect him. The father will not and cannot accept any other explanation for the incidences that he has described as the “assaults on [X]”, other than they were at the hands of Mr W. He does not accept the findings of the Department or the Police. He rejects the conclusions reached by Ms H. He cannot contemplate there are innocent explanations for [X]’s complaints.
When the possibility that [X] may be exaggerating these incidents to his father because they were what the father wanted to hear, and because of the attention they generated, including his father moving back to Queensland from Melbourne, the father was not open to that being a possibility. The father did not accept that the manner in which he questioned [X], i.e., “How are Mummy and Mr W treating you,” may have prompted [X] to give his father answers that [X] thought his father wanted to hear.
Ms H observed and interviewed [X] twice. She found him to be a confident boy who was able to express his own opinions. He told Ms H he was not scared of living with his mum and Mr W. [X] spoke positively to Ms H of Mr W. Ms H formed the view that if [X] had been harmed in any way by Mr W, he would have told his mother. [X] described the incident when Mr W lost his temper to Ms H matter-of-factly and without fear.
There is no doubt the incident when Mr W lost his temper with [X] was completely inappropriate. Mr W genuinely acknowledged that himself. I am sure that all parents have had moments in their parenting that they would, upon cooler reflection, wish had never occurred. I am satisfied that this was such a moment for Mr W. I am also satisfied he learned from this incident and has put in place strategies such as “time out” to ensure it will not happen again.
Where there has been an allegation of abuse of a child the High Court, in cases such as M and M (1988) FLC 91-979 and B v B (1993)
FLC 92-357, have held that the standard to be applied is:“whether there is an unacceptable risk of exposing that child to violence.”
The standard of proof necessary in making such a finding is as set out in section 140 of the Evidence Act 1995, and it is generally conceded it is to be in accordance with the Briginshaw standard, which is at the stricter end of what is the balance of probabilities.
Having considered all the evidence in relation to these allegations, including the multiple findings of unsubstantiated risk by Child Safety after proper investigation, including a paediatric assessment; the conclusions reached by Ms H that [X] was not at risk with Mr W and the mother; my acceptance of the mother’s evidence that if [X] was abused by Mr W she would leave the relationship, and; having had the benefit of hearing and observing the parties and Mr W, I am satisfied that, in accordance with the test set out in B v B (supra), there is not an unacceptable risk that [X] has been or will be the victim of abuse in the hands of Mr W or in his mother’s home.
I am also satisfied that there is no family violence in the mother’s home between herself and Mr W to which [X] is exposed.
Therefore, I find that [X] is not subjected to or exposed to abuse, neglect or family violence at the hands of either of his parents.
Section 60CC, subsection (3) of the Act sets out the additional considerations, and each of these will be considered.
Section 60cc 3(a) any views expressed by the child and any factors (such as the child’s maturity or level of understanding) that the court thinks are relevant to the weight it should give to the child’s views
When first interviewed by Ms H for the first Report, [X] told her he wanted to live with his dad in Melbourne. A week later, having resolved a fight with a friend at school, he told Ms H that he wanted to live with his mum and Mr W. When interviewed for the second Report, which was in September 2010 and after Mr Lynch was living in the Gold Coast, and [X] was spending regular time with him, [X] told Ms H he wanted to spend time with both his parents. Ms H reported in her second report, paragraph 79, as I mentioned earlier:
79.[X] is expressing a desire to spend more time with his father. I do not find any reason why this should not occur.
I agree with Ms H and accept that [X]’s views in this regard should be taken on board.
Section 60cc 3(b) the nature of the relationship of the child with:
(i) each of the child’s parents; and
(ii) other persons (including any grandparent or other relative of the child)
As has already been observed, [X] has a close, loving, and meaningful relationship with both of his parents. I am also satisfied he is very close to Mr W and to his little sister, [Y].
No evidence was led by the father as to [X]’s relationship with his older brother, [Z], or his paternal family. However I accept that there is a positive relationship there which will be further enhanced if the paternal family move to the Gold Coast.
Section 60cc 3(c) the willingness and ability of each of the child’s parents to facilitate, and encourage, a close and continuing relationship between the child and the other parent
In considering this factor, the court must also take into account sub-s.60cc(4) and (4A) which provide as follows:
4.Without limiting paragraphs (3)(c) and (i), the court must consider the extent to which each of the child’s parents has fulfilled, or failed to fulfil, his or her responsibilities as a parent and, in particular, the extent to which each of the child’s parents:
(a) has taken, or failed to take, the opportunity:
(i) to participate in making decisions about major long term issues in relation to the child; and
(ii) to spend time with the child; and
(iii) to communicate with the child; and
(b) has facilitated, or failed to facilitate, the other parent:
(i) participating in making decisions about major long term issues in relation to the child; and
(ii) spending time with the child; and
(iii) communicating with the child; and
(c)has fulfilled, or failed to fulfil, the parent’s obligation to maintain the child.
4A. If the child’s parents have separated, the court must, in applying subsection (4), have regard, in particular, to events that have happened, and circumstances that have existed, since the separation occurred.
Despite their acknowledged difficulties, and save for the incident in February 2010 which has already been set out previously in this decision, both parents have complied with Court orders and ensured that [X] was able to maintain his relationship with both of them. Even during the turmoil of these proceedings, and the father’s conviction that [X] is unsafe with his mother, the parties have not only complied with the Court orders, but have in fact cooperated with each other to enable [X] to visit Melbourne to see his brother [Z] and his paternal family.
It will be important for [X] that his father back off from his overt questioning of [X] about whether he has been hurt in his mother’s house, and accept that [X] will tell him if there are any problems of his own accord. For the father to continue to actively question [X] could ultimately undermine [X]’s pleasure at being in his dad’s company, as he will start to feel pressured to “carry tales” and will, I might suggest, in time, start to resent his father for having to do this.
It will also be very important that the parties develop a method to communicate with each other about the major decisions that will need to be made for [X], which will include what high school he goes to and what sports he is going to play, because it is pretty apparent to me from the descriptions given by the parties that he is an active young lad who loves his sport.
I am hoping that the orders that I am making about that communication will help the parties be able to make those decisions between themselves.
Section 60cc 3(d) the likely effect of any changes in the child’s circumstances, including the likely effect on the child of any separation from:
(i) either of his or her parents; or
(ii) any other child, or other person (including any grandparent or other relative of the child), with whom he or she has been living
Whilst the mother initially sought to relocate to Victoria, to her credit, she has agreed that it is in [X]’s best interests that both his parents live in proximity to each other to enable [X] to spent regular time with both of them, and that she will not relocate without the written consent of the father.
I note however that in 2008, the father, for very legitimate reasons, moved from Queensland to Victoria, thereby disrupting his capacity to have as close a relationship with [X] as he had previously. It is to be hoped that the father will not make life decisions in the future that will interrupt [X]’s capacity to have regular time with him.
Section 60cc 3(e) the practical difficulty and expense of a child spending time with and communicating with a parent and whether that difficulty or expense will substantially affect the child’s right to maintain personal relations and direct contact with both parents on a regular basis
As both parents are now residents on the Gold Coast, this is not an issue.
It was mentioned earlier in this judgment that the father is exploring further employment opportunities with his current employer. It will be important that he balances those opportunities with his commitments to care for [X].
Section 60cc 3(f) the capacity of:
(i) each of the child’s parents; and
(ii) any other person (including any grandparent or other relative of the child);
to provide for the needs of the child, including emotional and intellectual needs
Ms H, in paragraph 103 of her first report, concludes:
103.Both appear to be capable parents. Mr Lynch has raised his eldest son and Ms Black is demonstrating her positive parenting skills with addressing the developmental issues identified in her daughter [Y].
I agree with Ms H’ assessment. However, it will be important for [X] that his parents learn to better communicate with each other in relation to [X] and they try to shield him from their conflict.
It was noted earlier in my decision that it will be important that the father tries to pull back form his overt questioning of [X] about what is happening in his mother’s household and accept that [X] will tell him if there is anything about which [X] is concerned.
Section 60cc 3(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 relevant.
Section 60cc 3(h) if the child is an Aboriginal child or a Torres Strait Islander child:
(i) the child’s right to enjoy his or her Aboriginal or Torres Strait Islander culture (including the right to enjoy that culture with other people who share that culture); and
(ii) the likely impact any proposed parenting order under this Part will have on that right;
Not relevant.
Section 60cc 3(i) the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child’s parents
Both parents, I believe, are committed, loving, and responsible parents. The father does not believe this of the mother, because it is his belief she has been shielding Mr W against the allegations of abuse, rather than protecting [X]. However, as I have found, I do not believe that there is abuse in that household.
Whilst it is appropriate that the father acts protectively towards his son, it was not appropriate that he unilaterally removed [X] from Queensland, his home, his school, and friends, as he did in February 2010. To his credit, the father was able to recognise that this was not acceptable and accept that this was not an action to be taken in [X]’s best interests, nor the best way to address his concerns.
Section 60cc 3(j) any family violence involving the child or a member of the child’s family
As this matter has been explored at length in this judgment, I do not intend to comment further.
Section 60cc 3(k) any family violence order that applies to the child or a member of the child’s family, if:
(i) the order is a final order; or
(ii) the making of the order was contested by a person
The mother took out an intervention order against the father in 2004, soon after separation and in the context of their breakup and when emotions were still running high. There have been no instances of domestic violence between the parties since that date.
Section 60cc 3(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
These proceedings were instigated, I accept, because of the father’s genuine concerns as to his son’s safety. Otherwise, the parties have, since separation in 2003, been able to satisfactorily arrange their son’s living arrangements between them. They have been able to do this even during the tumult of these proceedings. Whilst I accept the father will not be happy with or agree with my findings in this matter, he has shown he does comply with Court orders, and I am satisfied he will do so into the future.
Section 60cc 3(m) any other fact or circumstance that the court thinks is relevant
Counsel for the Independent Children’s Lawyer submitted in closing, having summarised the evidence, that the father’s assertions of abuse of [X] at the hands of Mr W flies in the face of that evidence. Mr George, Counsel for the Independent Children’s Lawyer, submitted that in light of the objective evidence, being the findings of the Agency and the Police, the evidence of Ms H that [X] makes no allegations of abuse in the face of specific question and that [X] wants to spend time with both his mum and dad, that the Court could not be satisfied on the balance of possibilities, let alone the Briginshaw standard, that [X] was at risk of harm in the care of his mother or Mr W.
In those circumstances, the Independent Children’s Lawyer indicated that he supported the recommendations of the Report Writer and that orders should be made in the terms as proposed by the mother.
It is also noted that the Independent Children’s Lawyer supported the orders for equal shared parental responsibility in the terms and on the conditions enunciated earlier by me.
Conclusion
This matter involves a young eight and a half year old boy who is loved by both of his parents. [X] has lived with his mum and spent time with his dad since they separated some seven years ago. His father is convinced he is being abused by his mother’s partner and that his mother is failing to protect him from that abuse, and that therefore in order for him to be safe, there should be an order that changes [X]’s residence so that [X] lives with him. That the objective evidence does not support the father’s belief of abuse appears to have little sway on those beliefs.
Having considered the evidence, I have made a finding that there is not an unacceptable risk of [X] being abused in his mother’s home. I accept the explanations given by the mother and her partner, Mr W, as to circumstances of those events. I am satisfied [X] is safe, loved, and properly cared for in their home, as well as in the home of his father.
Two Reports were prepared by Ms H in this matter. She noted that [X] wishes to live with both his mum and his dad, but, in particular, wants to see more of his dad than he does now.
I am of the view that orders in the terms suggested by Ms H would be well and truly in [X]’s best interests. Ms H suggested that such time be increased on a graduated basis to enable [X] to adjust to the new routine. This will also ensure that the father is able to adjust his work commitments to accommodate [X]’s extra time with him.
There is also an Application by the mother to be able to relocate to Victoria. Sensibly, and in [X]’s best interests, she has agreed to an order being made that would restrict her from doing so without the written consent of the father or in circumstances where the father no longer lives permanently on the Gold Coast.
The orders I intend to make in relation to equal shared parental responsibility have been well explained in this judgment.
Finally, it has been agreed that the orders previously made in this Court injuncting the parties from using physical discipline in relation to [X] or permitting any other person to do so shall remain in place.
I certify that the preceding one hundred and twenty-two (122) paragraphs are a true copy of the reasons for judgment of Bender FM
Date: 5 November 2010
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