Matthews and Norris (No 3)
[2017] FamCA 461
•30 June 2017
FAMILY COURT OF AUSTRALIA
| MATTHEWS & NORRIS (NO. 3) | [2017] FamCA 461 |
| FAMILY LAW – CHILDREN – With whom the child lives – Where the child enjoys a meaningful relationship with both parties – Where both parties have the capacity to meet the child’s physical and intellectual needs – Where the dispute concerns the parties’ capacity to meet the child’s emotional needs – Where the child is too young and does not have the maturity to understand the long-term implications of his views – Concluded no weight should be reposed in the child’s views – Where the mother proposes to live with the child in New Zealand – Where the evidence most probably proves the mother will not be capable of allowing the child the emotional autonomy to continue her relationship with the father – Where the mother maintains she will cut off all contact with the child if an order is made for her to live with the father in Australia – Concluded the mother prioritises her own mental health and wellbeing over the child’s interests – Where the father is willing to allow the child the freedom to retain her relationships with both parents – Order the child live with the father and there are no prescriptive orders regulating the child’s interaction with the mother |
| Bankruptcy Act 1966 (Cth), s 60 Family Law Rules 2004 (Cth), r 15.41 |
| Betros & Betros [2017] FamCAFC 90 Daemar v Industrial Relation Commission of NSW (1988) 12 NSWLR 45 Jones v Dunkel (1959) 101 CLR 298 Kuhl v Zurich Financial Services (2011) 243 CLR 361 Sullivan & Tyler & Anor (No.2) [2016] FamCAFC 131 |
| APPLICANT: | Mr Matthews |
| RESPONDENT: | Ms Norris |
| INDEPENDENT CHILDREN’S LAWYER: | Mr Scally, Legal Aid NSW, Newcastle |
| FILE NUMBER: | NCC | 2226 | of | 2015 |
| DATE DELIVERED: | 30 June 2017 |
| PLACE DELIVERED: | Newcastle |
| PLACE HEARD: | Newcastle |
| JUDGMENT OF: | Austin J |
| HEARING DATE: | 13, 14, 15 & 16 June 2017 |
REPRESENTATION
| COUNSEL FOR THE APPLICANT: | Ms Carty |
| SOLICITOR FOR THE APPLICANT: | Oliver Campbell Heslop Lawyers |
| COUNSEL FOR THE RESPONDENT: | Mr Kelly |
| SOLICITOR FOR THE RESPONDENT: | Derham Houston Lawyers |
| COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: | Mr Boyd |
| SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: | Mr Scally, Legal Aid NSW, Newcastle |
Orders
All former orders relating to the child B, born … 2010, are discharged.
The father shall have sole parental responsibility for the child.
The child shall live with the father.
Each party is restrained from denigrating the other in the presence or hearing of the child and from permitting the child to remain in the presence or hearing of another person denigrating the other.
Each party shall notify the other of any medical emergency, illness or injury suffered by the child whilst in their respective care warranting treatment by a third party, and shall authorise any treating health professionals to communicate with the other parent about the condition and treatment of the child.
The father shall authorise and request the principal of any school attended by the child to provide to the mother, at the mother’s expense, copies of all school reports and school photograph order forms relating to the child.
Each party shall forthwith inform the other, and keep the other informed, in writing of their respective current postal address, mobile telephone number, and email address.
Each party is restrained from removing and/or causing or allowing, by their agents or otherwise, the removal of the child from the Commonwealth of Australia, and it is requested that the Australian Federal Police give effect to this order by placing the name of the child on the Airport Watch List in force at all points of arrival and departure in the Commonwealth of Australia and to maintain the child’s name on that Watch List for a period of 12 months.
The parties are at liberty to provide a sealed copy of these orders to:
(a)Any authority entitled to issue Australian passports;
(b)Any authority with control over international departure points in Australia;
(c)The Commissioner of the Australian Federal Police; and
(d)The principal of any school attended by the child.
Pursuant to s 65DA(2) and s 62B of the Family Law Act, particulars of the obligations that these orders create, particulars of the consequences that may follow contravention of these orders, and details of assistance to comply with these orders are set out in the attached Fact Sheet, which forms part of these orders.
The Independent Children’s Lawyer is discharged upon the expiration of any applicable appeal period.
Costs are reserved for 28 days.
Any and all other outstanding applications are dismissed.
Notation
(A)These orders intentionally make no provision for the child to spend time or communicate with the mother. If, when, and how the child may do so are decisions the father shall make as an incident of his sole parental responsibility for the child.
Note: The form of the order is subject to the entry of the order in the Court’s records.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Matthews & Norris (No 3) has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).
| FAMILY COURT OF AUSTRALIA AT NEWCASTLE |
FILE NUMBER: NCC 2226 of 2015
| Mr Matthews |
Applicant
And
| Ms Norris |
Respondent
And
| Independent Children’s Lawyer |
REASONS FOR JUDGMENT
Introduction
These proceedings concern, in part, the orders that should be made to regulate the care of the parties’ only child, who is now six years of age. The parties are also locked in dispute over their property settlement, but these reasons deal with only the parenting dispute under Part VII of the Family Law Act 1975 (Cth) (“the Act”).
All aspects of the child’s care were controversial: how parental responsibility for her should be allocated, with whom she should live, and the manner in which she could or should spend time and communicate with the non-residential parent.
The orders which most effectively promote the child’s best interests generally reflect those proposed by the father, whose proposal enjoyed the broad support of the Independent Children’s Lawyer and the conditional support of the Family Consultant.
History
The parties commenced their relationship in July 2008 and married in 2009. There was a factual dispute about the timing of their separation, which need not be decided, but it was common ground they continued to live at the same property until early August 2015. The child was born in 2010.
The proceedings were commenced by the father in the Federal Circuit Court in late August 2015 and have an unfortunate history. The parties engaged in many interlocutory disputes, the number and bitterness of which is perhaps explained, at least in part, by their formation of new relationships with another separated and embittered couple. The father was, but is not now, in a relationship with Ms West and the mother now lives with Mr West, to whom she is pregnant, with their baby due soon.
The mother asserted the father arranged to have the child’s name added to the Airport Watch List in September 2015,[1] but if he did, it was apparently without any order being made by the Federal Circuit Court. No interim orders appear to have been made in that Court before it transferred the proceedings to this Court in December 2015.
[1] Mother’s affidavit, paras 76, 164
The parties’ outstanding interim applications were listed for hearing in January 2016, but the hearing became unnecessary. With the parties’ consent, interim parenting orders were made providing for them to have equal shared parental responsibility for the child, for the child to live with the mother, and for the child to spend substantial and significant time with the father (amounting to three days each week, half of all school holidays and other special occasions). Although an apprehended violence order was then in existence between the parties, it was expressly noted the interim parenting orders would prevail to the extent of any inconsistency. In fact, there was no inconsistency because the operation of the apprehended violence order was subject to any contrary order made under the Act.[2] The orders were amended under the slip rule in March 2016 to cure some minor grammatical errors.
[2] Mother’s affidavit, para 672, Annex W
In June 2016, the father filed a contravention application alleging the mother withheld the child from him and, contemporaneously, the mother filed an application seeking some additional parenting orders. Those applications merged in further orders made in July 2016. The fresh orders were injunctions, again made with the parties’ consent, grafted onto the original orders made in January 2016. The injunctions restrained the father from allowing the child to stay overnight at Ms West’s home and from allowing the child to be in the physical presence of the West’s adolescent son L. Those orders resulted from an allegation made by the mother (refuted by the father and later retracted by the mother) that L sexually molested the child.
On 9 December 2016, the mother’s interim application to relocate with the child to New Zealand was dismissed and the father’s interim application to reverse the child’s residence was also dismissed. The mother appealed some of those orders, but the appeal is still pending.
On 22 December 2016, another interim application made by the mother to relocate with the child to New Zealand was dismissed. Orders were made restraining the parties from removing the child from Australia and the orders earlier made in January 2016, conditionally allowing the child’s international travel, were discharged. The mother appealed those orders, but the appeal is still pending.
In accordance with the orders made in January 2016, the father delivered the child to the mother on Christmas Day, expecting her to be returned to him on Boxing Day so she could spend the remainder of the first half of the summer holidays in his care. However, the mother retained the child and went into hiding with her, so the father did not see her again for nearly two months.
Consequently, another interim hearing occurred on 6 February 2017. The father sought a recovery order to ensure the child resumed spending time with him in accordance with the orders made in January 2016, whereas the mother renewed her application to relocate with the child to New Zealand and sought various other orders. The mother’s application was dismissed and the recovery order was made. However, the mother’s contravention of the January 2016 orders continued because she remained in hiding and the recovery order could not be executed.
About a week later, on 14 February 2017, the mother and child failed to attend their appointment with the Family Consultant, which placed the mother in breach of procedural orders made on 24 November 2016.[3] The mother consulted with the Family Consultant by telephone, but the Family Consultant was unable to speak with the child or observe her in the father’s company.
[3] Orders 2-3 and Notation A made 24 November 2016; Notation B made 6 February 2017
The mother took the child to school for the first time in the new academic term several days later on 17 February 2017 and, at the invitation of school staff following their notification of the police, the father collected the child and she has been in his care since then.[4]
[4] Father’s affidavit, para 157, Annex Q; Mother’s affidavit, paras 200-201
Because of the mother’s abduction of the child and her refusal to faithfully commit to implementation of the orders previously made in January 2016, the father applied for interim orders to reverse the child’s residence. The mother opposed the application but, following the hearing on 20 February 2017, interim orders were made for the child to live with the father and to spend time with the mother for two hours each week under professional supervision. Given the mother threatened to abandon the child and return alone to New Zealand if orders were made in those terms, provision was made for suspension of the child’s supervised visits with the mother if she failed to attend on two consecutive occasions. The mother moved to New Zealand within days of those orders being made,[5] but she flies back to Australia to see the child, ensuring never to miss two consecutive visits and cause suspension of the orders.[6]
[5] Mother’s affidavit, paras 211-215
[6] Mother’s affidavit, paras 17-18, 610-612; Second Family Report, para 5
The orders made on 20 February 2017 discharged all previous orders made in respect of the child. Accordingly, the mother’s pending appeals against the two sets of orders made in December 2016 are now superfluous because the orders no longer exist. The mother also appealed the orders made on 20 February 2017, but that appeal is still pending. Her application to stay the operation of the orders was refused on 2 March 2017.[7] That appeal is also rendered otiose by the orders now made in accordance with these reasons, because they discharge the orders made on 20 February 2017.
[7] Mother’s affidavit, paras 216-217
In light of the mother’s failure to present the child to the Family Consultant in February 2017, an update Family Report was ordered once the child was temporarily placed in the father’s residential care.[8] It was later released to the parties and the trial was fixed in June 2017. Both parties desired urgent final determination of their parenting applications and so, to accommodate their desire, their parenting applications were bifurcated from their pending property settlement applications, which are not yet ready for trial.[9]
[8] Orders 4-5 made on 20 February 2017
[9] Order 3 and Notation A made 20 February 2017; Orders 4-5 made 16 March 2017
Mother’s bankruptcy
The mother is now bankrupt, by reason of a sequestration order being made on or about 28 February 2017.[10]
[10] Notation B made on 16 March 2017
The Bankruptcy Act 1966 (Cth) stays any action commenced by a person who becomes bankrupt until the trustee in bankruptcy elects in writing to either prosecute or discontinue the action (s 60(2)), unless the election is not made within 28 days of service of notice upon the trustee, in which event the action is deemed abandoned by the trustee (s 60(3)). For such purposes, an “action” is defined (s 60(5)) and only actions of specified classes are exempt from operation of the statutory stay (s 60(4)).
Although some doubt has been raised as to whether family law proceedings under the Act constitute an “action” for the purposes of operation of the statutory stay (see Daemar v Industrial Relation Commission of NSW (1988) 12 NSWLR 45 at 53-56), the question seems to have escaped definitive decision. Past consideration of the issue by the Full Court was not germane to the case at hand (see Sullivan & Tyler & Anor (No.2) [2016] FamCAFC 131 at [9]). The issue was not argued with sufficient aforethought in this case to permit the expression of a concluded view, but family law proceedings are civil actions and the terms of the definition appear wide enough to catch them (s 60(5)). It may be thought that parenting orders, personal injunctions, and divorce orders made under the Act do not bear upon a bankrupt’s property rights, which vest in and are of interest to his or her trustee, but the continuation of proceedings in relation to such personal matters may still give rise to costs orders which certainly do or would affect a bankrupt’s financial circumstances. Proceedings in relation to children under Part VII of the Act are unrelated to “personal injury” or “wrongs” done to the bankrupt, which precludes application of the statutory exemption (s 60(4)).
Nonetheless, even if the current proceedings for parenting orders under Part VII of the Act are “actions”, the stay only applies to actions “commenced by a person who subsequently becomes a bankrupt” (s 60(2)). The current action was commenced by the father when he filed his Initiating Application in August 2015. The mother responded to and contested the relief sought by the father, pressing her own application for parenting orders, but she did not commence the action. The parties and Independent Children’s Lawyer all adopted that proposition and uniformly invited the Court to proceed to hear the trial under Part VII of the Act, satisfied the action was not stayed by operation of s 60 of the Bankruptcy Act. The mother’s trustee in bankruptcy was legally represented at the trial, but only in relation to procedural orders to be made in respect of the outstanding applications for property settlement under Part VIII of the Act, and did not demur.
Proposals
The father sought only a nominated selection of the orders set out within his Further Amended Initiating Application filed on 24 March 2017. In summary, he sought sole parental responsibility for the child and for the child to live with him. He abandoned his proposal for orders to be made about the child’s future interaction with the mother, which depended upon findings about her likely compliance with orders and whether she lives in Australia or New Zealand. In view of the mother’s evidence that she would sever all contact with the child if orders were made for the child to live with the father in Australia, his final proposal for communication between the child and mother was unclear.
The Independent Children’s Lawyer foreshadowed general support for the father’s proposal, but did not tender any minute of orders. Ultimately he proposed the child should live with the father and the father should have sole parental responsibility for her. He submitted the orders should remain silent about any future contact between the mother and child, leaving such decisions to the father as an incident of his sole parental responsibility if the mother ever changes her mind and seeks some form of contact with the child.
The mother sought the orders set out within her Amended Response filed on 31 March 2017. In summary, she sought sole parental responsibility for the child, for the child to live with her in New Zealand, and for her to spend an unspecified amount of time with the father – but only in New Zealand, only under supervision, and only if the child expressed a wish for it to occur.
Evidence
The father relied upon:
(a)His affidavit filed on 28 April 2017;
(b)The affidavit of Ms West, filed on 28 April 2017;
(c)The affidavit of the paternal grandfather filed on 28 April 2017; and
(d)The affidavit of the paternal grandmother filed on 28 April 2017.
The mother relied upon:
(a)Her affidavit filed on 17 May 2017, supplemented by some tendered documents which were mistakenly omitted from the annexures;[11]
(b)Her proof of evidence dated 14 June 2017;[12] and
(c)The affidavit of her partner, Mr West, filed on 17 May 2017.
[11] Exhibit M8
[12] Exhibit M6
At the commencement of their evidence, the mother and Mr West both attested to the truth and accuracy of their affidavits, sworn or affirmed in New Zealand, to overcome the restriction imposed by s 98AB(2) of the Act.
The mother either did not or could not avail herself of the leave granted to adduce evidence from the maternal grandmother and her treating psychiatrist.[13] Her treating psychiatrist (Dr M) did not initially respond to her solicitor’s request to provide an affidavit[14] and her subsequent application for leave to issue and serve the psychiatrist with a subpoena compelling her to give oral evidence at trial was refused,[15] though she was granted leave to issue a subpoena for the production of relevant medical records.[16]
[13] Order 11 made on 16 March 2017
[14] Mother’s affidavit, paras 101-111
[15] Order 4 and Notation A made on 11 May 2017
[16] Order 3 made on 11 May 2017
Over objection, the mother tendered a medical report belatedly prepared by the psychiatrist on 8 June 2017, but its acceptance into evidence was limited to the constraints imposed by r 15.41 of the Family Law Rules 2004 (Cth) upon the admissibility of expert opinion evidence proffered by treating medical practitioners, for otherwise it would be unfairly prejudicial to the father (s 136 of the Evidence Act 1995 (Cth)). The report was only served on the father and the Independent Children’s Lawyer after the trial started and the psychiatrist refused to submit to any cross-examination because of clashing professional commitments. She was not “unavailable” for cross-examination in the sense contemplated by the Evidence Act. Consequently, the father was precluded from testing the reliability of the evidence, which limitation was liable to affect the weight attributed to it.
The parties and Independent Children’s Lawyer relied upon the various documents compiled by the Family Consultant in these proceedings, comprising:
(a)The memorandum dated 24 March 2016;
(b)The first Family Report dated 15 February 2017; and
(c)The second Family Report dated 19 April 2017.
Legal principles
Orders in respect of children are made under Part VII of the Act, where the meaning of a “parenting order” is defined (s 64B). The Court may make such parenting orders as it thinks proper (s 65D), within the context of the objects of the legislation and the principles which underpin those objects (s 60B).
When making parenting orders, the Court is mandated to regard the child’s best interests as the paramount consideration (ss 60CA, 65AA). The Act specifies the criteria which must be considered in arriving at a conclusion as to what is in the child’s best interests (s 60CC).
The Act imports a rebuttable presumption that a child’s best interests are served by an order allocating equal shared parental responsibility for the child to the parents (s 61DA). Parental responsibility is defined to encompass all duties, powers, responsibilities and authority conferred by law upon parents (s 61B). The legislation dictates the manner in which shared parental responsibility is to be exercised in respect of decisions relating to “major long-term issues” concerning the child (s 65DAC), being matters such as education, religion, culture, health, name, and changed living arrangements (s 4), and also in respect of decisions which do not relate to such significant issues (s 65DAE).
The presumption of equal shared parental responsibility does not apply in certain circumstances, including in instances of child abuse and family violence (s 61DA(2)), and the presumption may be rebutted if the Court is satisfied it would not be in the child’s best interests for the parents to have equal shared parental responsibility (s 61DA(4)). The presumption says nothing about the amount of time the child should live or spend with each parent, but the manner in which parental responsibility for the child is allocated by the Court may bear on that issue.
In the event an order is made allocating equal shared parental responsibility to the child’s parents, the Court is then obliged to consider both the advisability and practicability of the child living for equal time with both parents, or alternatively, living primarily with one and spending substantial and significant time with the other (s 65DAA). If parental responsibility for the child is allocated in some other way, then the exercise of the Court’s discretion about the child’s care arrangements is at large, though the discretion must still be exercised in the context of the child’s best interests being the paramount consideration.
Family violence
After the parties ceased living at the same property in August 2015, the mother would only permit the child to spend time with the father when supervised by persons she approved. She told the Family Consultant she was protecting the child due to the father’s past perpetration of family violence upon her,[17] but it is more likely she was acting vengefully. Protection of the child was improbably her motivation because it would be inconsistent with her behaviour before August 2015, whilst the parties still shared the same residential property. Until then, she was quite content for the father to freely participate in the child’s care, even though they were separated.
[17] First Family Report, para 14
The mother is a skilled professional and was formerly employed at remote sites. She also enjoyed participation in competitive sport, which involved travel. She voluntarily chose to leave the child in the father’s exclusive care for prolonged periods when she was away from home to either work or compete.[18] That occurred, for example, between August and December 2014,[19] in March 2015,[20] and between June and August 2015.[21] She also offered for the child to spend even more time with the father in April and May 2015.[22]
[18] Father’s affidavit, para 30
[19] Mother’s affidavit, paras 297-301, 503
[20] Mother’s affidavit, para 303
[21] Father’s affidavit, para 22; Mother’s affidavit, paras 313, 314
[22] Mother’s affidavit, paras 308, 310
The parties lived together with the child in WA between 2012 and February 2015, after which time they moved back to NSW together,[23] but the mother was not bound to follow him. She asserted they separated nearly a year before in May 2014, but remained amicable.[24] By February 2015, the father was unemployed, but she was not. She earned a large income and could have supported herself and the child without financial assistance from the father. She is a strong-willed, successful and resourceful woman, having supported herself independently since her teenage years. She is not a woman who tends to cower or submit, so whatever tumult existed in their relationship must not have been so bad as to warrant voluntary removal of herself and the child from the same residence as the father. She was not trapped, financially or emotionally, in a unilaterally abusive relationship. She was in a superior financial position to the father and was not emotionally overborne by him. During 2015, after the parties moved back to NSW from WA, she chose to live on a property owned by the father in a motorhome, which she could have driven away at any time.[25] After the mother did eventually decide to move away from the father in late July 2015, she moved into another residential property she owned,[26] which she could probably have done much earlier had she wanted. She afterwards continued to stay at the father’s property on weekends,[27] albeit in his absence, but he could have returned unannounced to his own property at any time so she must not have been unduly fearful of him.
[23] Mother’s affidavit, para 520
[24] Mother’s affidavit, paras 8, 501, 502
[25] Mother’s affidavit, para 524
[26] Mother’s affidavit, para 542
[27] Mother’s affidavit, para 561
When the father commenced these proceedings in August 2015, he filed a Notice of Risk alleging the parties’ relationship had been volatile and cited a series of incidents in which he alleged the mother was physically violent towards him. In October 2015, the mother filed a Notice of Risk in which she too cited a series of incidents in which she alleged the father was physically violent towards her. At that stage, both parties were seeking interim parenting orders. Their applications were listed for hearing in January 2016, but the hearing was unnecessary because the parties compromised their dispute. They agreed to have equal shared parental responsibility for the child, for the child to live with the mother, and for the child to spend about three days of each week with the father. Orders were made to that effect with their consent. The parties negotiated that outcome in full knowledge of their respective versions of past family violence, so their concerns about it must have merged in their consensus. There is no other plausible explanation.
The mother maintained she mistakenly agreed to the child spending that amount of time with the father each week, intending to implement fortnightly instead of weekly cycles, and did not realise her mistake for about a month.[28] Regardless, she still intended for the child to spend substantial amounts of unsupervised time in the father’s care, irrespective of the alleged history of family violence between them. Her isolated, inconsistent and bare assertion of her “coercion” to sign the consent orders is rejected as false.[29] She either signed the consent orders willingly but mistakenly or she signed them under compulsion against her will, but it could not be both, because the alternatives are mutually exclusive.
[28] Mother’s affidavit, paras 125, 128, 129; Memorandum, para 5; First Family Report, para 64
[29] Mother’s affidavit, para 428
When the Family Consultant first conferred with the family in March 2016, several weeks after the consent orders were made, she reported:[30]
Both parents have identified a history of serious family violence between them with police having been involved at times….Each alleges the other was the perpetrator of the violence…
[30] Memorandum, para 9
The Family Consultant subsequently reported:[31]
It is clear the parental relationship was turbulent…The allegations are mutual with each alleging that the other parent has had difficulty containing their anger…there is independent evidence to support both parents’ versions of events.
[31] First Family Report, para 114
Despite the countervailing allegations of family violence, neither party took any steps to upset the interim orders upon which they agreed in January 2016. The mother consulted her lawyer about making an application to vary the orders from weekly to fortnightly – not to annul them altogether – but she accepted his advice to desist.[32] She later tried to force the variation on the father, but he resisted. In March 2016, the mother told the Family Consultant she was content for the child to spend unsupervised time with the father.[33] In April 2016, she even asked the father to care for the child for a whole week, though the arrangement later dissolved.[34] The parties resolved another interim hearing in July 2016 by agreeing upon injunctions (related to Ms West and her son L) that supplemented the January 2016 orders, but did not change them in any way. In October 2016, in correspondence between the parties, the mother raised no concern about the child’s welfare in the father’s care and proposed regularising the time the child should spend with him.[35] In the parenting questionnaire and Amended Response the mother filed in November 2016, she proposed much the same thing, subject to her residence with the child in New Zealand.[36] Evidently, throughout 2016, the mother was satisfied the child was safe in the father’s care, notwithstanding she would have preferred that they spent less time together once the father found fresh employment.[37]
[32] Mother’s affidavit, paras 136-137
[33] Memorandum, para 27
[34] Father’s affidavit, para 62
[35] First Family Report, para 92
[36] First Family Report, paras 94-95
[37] Father’s affidavit, paras 65, 78, 79. 80
The change in the mother’s attitude appears to correlate with the spiteful disputes between the parties in December 2016 and February 2017, resulting in interim orders with which the mother was dissatisfied. The orders made in December 2016 precluded the mother from relocating with the child to New Zealand, at least prior to the final trial, and the orders made in February 2017 reversed the child’s residence due to the mother’s retention of the child on Boxing Day and her refusal to commit to restoration of the child’s regular visits with the father.
In March 2017, the mother filed another Amended Response proposing that the child spend very limited time with the father – but only in New Zealand, only under supervision, and only if the child asked for it. When the trial commenced in June 2017, the mother’s counsel informed the Court the mother then proposed “the child have no contact with the father”. Although the mother confirmed in cross-examination she pressed for the orders set out in her Amended Response rather than for elimination of the father from the child’s life, her evidence was not convincing. Perhaps she realised the proposal in her Amended Response, which required the fulfilment of various conditions before the child’s relationship with the father could be restored, would virtually amount to the father’s elimination from the child’s life. She declared her belief it would be best for the child to “spend no time” with the father.[38]
[38] Mother’s affidavit, para 20
It is against that background the mother’s allegations of family violence fall to be assessed, since she contended – inferentially, if not expressly – that the history of family violence effectively precluded the child from spending any time with the father, other than under draconian conditions.
The mother was incorrectly advised by her lawyers that the Court would regard events prior to the January 2016 orders to be “irrelevant”.[39] The Act does not permit disregard of family violence. Rather, it requires assimilation of all evidence about “family violence” to determine whether the child needs any protection from harm caused by exposure to it as part of the broader inquiry about her best interests (ss 60CC(2)(b), 60CC(3)(j)) and findings about the commission of family violence are integral to the application of the presumption of equal shared parental responsibility (s 61DA(2)(b)) (see Betros & Betros [2017] FamCAFC 90 at [27]). Nevertheless, evidence about family violence is adduced in a context, not a vacuum, so it may be difficult (as it was here) for a party to convincingly contend restrictive orders need to be made to keep a child safe from exposure to family violence after having already willingly agreed to an arrangement under which the child spends substantial amounts of unsupervised time in the care of the alleged perpetrator.
[39] Mother’s affidavit, para 426
The mother’s florid assertions that the father was “physically, verbally and emotionally violent” towards her and subjected her to “sexual abuse” were not persuasive because they were only statements of subjective opinion, not facts which could be fairly tested.[40] Significantly, once the factual evidence adduced was objectively evaluated, it did not correlate with the mother’s opinions. In several instances, her factual evidence was either contradicted or unsupported by independent evidence and, in any event, her evidence was not particularly reliable. Several instances of her unreliability serve to exemplify that finding. For example:
(a)She denied hitting the father at all,[41] which denial she was impelled to concede was false, because she admitted hitting the father – at least in self-defence.[42]
(b)She blithely said in cross-examination “I have always facilitated [the child’s] relationship with the father”, which was flatly contradictory with recent history. In October 2016, the father needed to file a contravention application to force her compliance with orders.[43] Then, in December 2016, she retained the child in her care and refused to allow her to either see or speak with the father for nearly two months, in contravention of existing orders. The mother said she was advised by staff at the child welfare authority to retain the child to keep her “safe”, but there was no official record to confirm any such advice was given.[44] Of course, the absence of any confirmatory note does not mean the mother was not so advised, but it is unlikely she was. The reasons she gave to the Family Consultant in February 2017 for withholding the child appear contrived, given her declared willingness to return the child if the father divulged Ms West’s address and undertook not to allow the child any contact with Ms West and her family.[45] Inconsistently, she had abandoned concern about the child being at Ms West’s home or in L’s company months before in September 2016.[46]
(c)The mother admitted in cross-examination that, in November 2016, she attended the Court in relation to the property settlement dispute and denied to the Court having any knowledge of a black motor vehicle, which the father believed she may have owned. To be clear, she did not merely deny her ownership of the vehicle; she denied having any knowledge of it. Her denial was revealed to be a lie. Her partner, Mr West, accompanied her on that occasion and was privy to her false denial. In cross-examination, he confirmed he owned the vehicle between May and November 2016, during which period it was parked at the home he shared with the mother. It would have been impossible for her not to know of the car’s existence and its ownership by him. She must have known because, presumably on her instructions, her counsel cross-examined the father in an attempt to extract a concession he had seen it parked at her home.
(d)Presumably on the mother’s instructions, her counsel cross-examined the father by positively alleging he made no attempt to find out details of the child’s extra-curricular activities once she moved to live with him in February 2017. The proposition put to the father was false and was rightly denied by him. The father and his solicitor separately sent emails to the mother on 22 and 27 February 2017 seeking details from her about the child’s dance studio, violin lessons, and little athletics,[47] but the mother failed to reply. The father now takes the child to swimming lessons and speech therapy instead.
(e)The mother deposed she had never been diagnosed with “bipolar disorder”,[48] but was impelled to admit that was untrue. She did not merely assert her lack of memory. Rather, she positively asserted she never had such a diagnosis. In fact she did, as medical records revealed.[49] The fact her current treating psychiatrist opined she does not have Bipolar Disorder is not to the point,[50] since that is only her opinion at the current time. The father told the Family Consultant in March 2016 the mother was previously diagnosed with bipolar disorder,[51] which he said in cross-examination he only knew because she told him. The mother told her current psychiatrist of her past diagnosis,[52] so her denial of the diagnosis (as distinct from denial of her sufferance of the condition) was false.
(f)The mother denied in cross-examination she was suicidal when she lost her job in 2009, but she was forced to concede medical records revealed she was. In fact, she has experienced intermittent bouts of suicidal ideation from as far back as 1997[53] and as recently as 2016.
(g)She denied she had ever been “hospitalis[ed] for manic episodes”,[54] but she was hospitalised for a month in 1997 for psychological treatment. She was an involuntary patient for part of the hospital admission. She was described as “suicidal” and was medicated to stabilise her mood.[55]
(h)She conceded she gave a false historical account to a treating practitioner on at least one occasion.[56]
[40] Mother’s affidavit, paras 37, 427, 464, 469
[41] Mother’s affidavit, para 425
[42] Mother’s affidavit, para 433
[43] Father’s affidavit, paras 92-93, Annex J, K
[44] First Family Report, para 79
[45] First Family Report, paras 21-22
[46] Mother’s affidavit, Annex G
[47] Exhibit F1
[48] Mother’s affidavit, para 403
[49] Exhibits F12, F13, F14
[50] Exhibit M5
[51] Memorandum, para 28
[52] Mother’s affidavit, para 108
[53] Exhibits F15, F16
[54] Mother’s affidavit, para 438
[55] Exhibits F14, F15, F16
[56] Mother’s affidavit, paras 440-441
Of course, evidence of the mother’s unreliability in some respects does not mean she is unreliable in all respects. However, in circumstances where the parties’ uncorroborated evidence conflicts over alleged incidents of family violence and misconduct, the father’s evidence should be preferred. His veracity was not found wanting.
The mother alleged she was physically assaulted by the father in about September 2010 while she was pregnant with the child. She alleged he repeatedly kicked and punched her while she cowered on the ground curled in a foetal position, but she then managed to spring up, punch him in the face, and escape.[57] The Family Consultant reported a quite different story from records produced on subpoena. In fact, the mother told a counsellor during a joint counselling session with the father that she punched him in the face on that occasion, even though he “had not threatened her”.[58] In cross-examination, the mother admitted she gave that version of the event to the counsellor, but said it was a false account because she was scared to say otherwise in the father’s presence. That is possible, but by no means probable. Either she told the counsellor the truth, in which event she was the aggressor, or alternatively, acceptance of her evidence means she admits her capacity to tell lies about family violence. In the latter case, her motivation is relevant to explain the mendacity, but the very fact of her mendacity means considerable care should be exercised when assessing the weight that can be reposed in her asserted motivation.
[57] Mother’s affidavit, paras 432-434
[58] First Family Report, para 35; Exhibit F11
The Family Consultant was asked to concede in cross-examination that it was “not uncommon” for victims of domestic violence to minimise the blame of the perpetrator, to which she replied “it can happen”. The mother’s counsel tried vainly in submissions to elevate the admission of a generic possibility into a finding of probability in this specific instance. While it is renowned that victims sometimes do deflect blame from perpetrators of domestic violence, self-evidently, that is not so in every case. Whether it occurred in this case could only be determined on the evidence adduced in this case. The father denied the mother’s allegations when cross-examined. His credible version was consistent with the story the mother told the counsellor at about the time the event occurred. It is probably the most accurate version of the event.
The mother alleged that in December 2011 the father engaged the handbrake of the car she was driving, while he and the maternal grandmother were passengers.[59] The father told the Family Consultant he felt compelled to engage it because the mother was speeding and he feared she was going to drive the car into a bridge.[60] He was concerned for their safety and wanted to stop the car. He adhered to that version in cross-examination. The parties’ versions were incompatible and there was no evidence to corroborate either. The contemporaneous police records do not resolve the incompatibility.[61] The mother did not adduce any evidence from the maternal grandmother, even though she was granted leave to do so. Her unexplained failure to call corroborative evidence from the maternal grandmother entitles the Court to more readily accept the father’s evidence in preference (see Kuhl v Zurich Financial Services (2011) 243 CLR 361 at 385; Jones v Dunkel (1959) 101 CLR 298 at 308, 312, 320-321).
[59] Mother’s affidavit, paras 450-458
[60] First Family Report, para 41
[61] Exhibit M8
In early 2012, the mother learned she was pregnant, which she attributed to the father “forcing [her] to have sex with him”.[62] At that time, she and the child were living in WA and the father was still living in NSW.[63] She terminated the pregnancy. She alleged the father asked her to reconcile in March or April 2012 and, despite her recent sexual assault by him and him calling her a “murderer” for terminating the pregnancy, she agreed to the reconciliation and they happily bought a new home together in WA.[64] Put simply, her evidence is difficult to accept. It is almost inconceivable a person of the mother’s intelligence and forthright independence would so meekly accede to the reconciliation of such an abusive relationship when she had already taken the necessary steps to successfully extricate herself from it by moving to the opposite side of the continent. Neither party was cross-examined about that evidence, perhaps because it was so incredible.
[62] Mother’s affidavit, para 464
[63] Mother’s affidavit, paras 462-463
[64] Mother’s affidavit, paras 465-468
The mother alleged that in April 2013 the parties argued inside a vehicle and the father “smashed” an iPad into the side of her face, which split her lip and chipped her tooth.[65] In cross-examination, the father admitted their argument on that occasion, but denied the alleged assault. He maintained the mother had hold of the iPad, not him. He said the iPad had been broken for some time beforehand, as a consequence of him accidentally kneeling on it. He said the mother had no facial injury that day.[66] The maternal grandmother was also a passenger in the vehicle at the time and, again, the mother failed to adduce corroborative evidence from her without any explanation.
[65] Mother’s affidavit, paras 474-478
[66] First Family Report, para 42
The mother alleged she reported the incident to police some short time afterwards, but she conceded the police have no record of her report.[67] It seems there is no record of her making any police report until April 2016.[68] The police asked the mother to provide them with any photographs she had of her chipped tooth and broken iPad but, if she had them, no copies were tendered in evidence. The mother did not explain why she wanted the father prosecuted in 2016 and did not insist on it beforehand. Most likely it was because she perceived some forensic advantage in these proceedings if the prosecution could be fostered.
[67] Mother’s affidavit, paras 479-482
[68] Mother’s affidavit, Annex O; First Family Report, para 42
The mother alleged that, in February 2014, the father threatened to kill her while menacing her with a knife. She asserted she ran from the house in alarm, called 000, and told the operator the father was “threatening to kill [her]”. Amazingly, she said the operator told her she should not have made the emergency call and the police did not even bother to attend the house.[69] She did not depose to how the situation ended – peacefully it must be assumed. It is so inherently improbable an emergency operator would tell a frightened woman calling for help in fear for her life that she should not have bothered emergency services that little else need be said. No effort was made to tender the transcript of the emergency call to verify the mother’s evidence.
[69] Mother’s affidavit, paras 483-486
In cross-examination the father said the allegation was ridiculous. He said he and the mother were once in the kitchen on opposite sides of the bench and, during an argument, she telephoned the police to inform them he had access to knives within the kitchen, albeit he had not touched them. He implied the episode was a demonstration by the mother of how she was prepared to make false allegations of violence against him to authorities when it suited her.
The mother said the father dug his fingernails into her hands during an argument in February 2015.[70] Neither party was challenged about that allegation in cross-examination.
[70] Mother’s affidavit, paras 525-527
The mother alleged the parties were involved in a physical struggle in April 2015. She said she acted to defend herself, but even so, she either tried to or actually did whip the father and then head-butted him.[71] Again, neither party was challenged about that allegation in cross-examination. The Family Consultant’s discussion of the incident did not make the evidence any clearer.[72]
[71] Mother’s affidavit, paras 528-534
[72] First Family Report, para 46
The last incident occurred on 1 August 2015. The mother alleged the father jumped on her from behind and forced her to the ground, causing her injury.[73] The father was charged with assaulting the mother, which charge he defended. The hearing before the State court in January 2016 resulted in him being found guilty, but no conviction was recorded against him and no penalty was imposed upon him. An apprehended violence order was made against him in favour of the mother for 12 months.[74] The father said he merely prised the mother’s fingers off the car keys she had momentarily before removed from the ignition of the car he was using.[75] The transcript of the hearing reveals that was the only basis upon which he was found guilty of the assault.[76]
[73] Mother’s affidavit, paras 547-556
[74] Father’s affidavit, paras 28, 222-224; Mother’s affidavit, paras 558, 560, 671, 672
[75] First Family Report, para 30
[76] Exhibit F8 (pages 21-22)
The mother’s evidence about the incident was most probably exaggerated. She confirmed in cross-examination the child did not witness the incident but alleged, in the aftermath, she “mopped blood off [her]”, which she said was flowing “profusely” from her cut mouth. None of that evidence was corroborated and it was denied by the father. The police attended and their contemporaneous notes make no mention of any injury to the mother’s mouth, let alone one that bled profusely. Their notes only refer to “several minor cuts from the car keys to her hands”.[77] The police took photographs of her injuries, but none was tendered in evidence to prove the mother’s contention. The mother attended her doctor the following Monday morning and the medical notes of that appointment make no mention of any mouth injury.[78] Only bruising to her legs was noted,[79] which the mother did not attribute to the assault. The mother gave evidence of only hand injuries when she later gave evidence in the criminal prosecution.[80]
[77] Exhibit F9
[78] Exhibit M9
[79] First Family Report, para 50
[80] Exhibit F8 (page 9)
The father undoubtedly assaulted the mother on that occasion, since the finding of his guilt by the State court is unimpeachable. But the incident was not as serious as the mother alleged. The manner in which the State court disposed of the offence without conviction or penalty reflects the same conclusion. It was another example of the mother’s tendency to exaggerate her allegations about the father’s “unrelenting abuse”.[81] It should not escape attention that the father’s prosecution for that offence in the State court concluded only one week before the parties attended this Court in January 2016, but it did not dissuade the mother from reaching agreement about interim parenting orders for the child. She must have factored that incident into her decision to compromise the parenting dispute.
[81] First Family Report, para 23
In final submissions, the mother’s counsel contended her version of the violent incidents between 2010 and 2015 should be accepted but, given the limitations of the mother’s evidence already addressed, he could not rationally explain why. It was then submitted the prior violent history was merely the “context” for the father’s alleged control of the mother throughout 2016, after the consent orders were made. The mother alleged the father was responsible for breaking into her home, stalking her, sabotaging Mr West’s car, forging her signature on documents, and behaving in other miscellaneous ways that caused her emotional distress.[82] Her counsel submitted the father deliberately intended to cause the mother’s emotional distress, even though that proposition was put to and credibly refuted by him in cross-examination. The mother’s counsel was impelled to admit there was no evidence to substantiate the allegations made by the mother against the father, and further, her subjective belief was not probative. The father denied any involvement in those incidents, both in chief[83] and in cross-examination. The mother reported her allegations to police and, on a couple of occasions the police spoke to the father, but following his denials no further action was taken. No charges have been proffered against the father and there is no ongoing investigation. Blaming the father for the incidents about which the mother complained would be pure speculation; not valid inference.
[82] Mother’s affidavit, paras 642-670
[83] Father’s affidavit, paras 225-226
Other evidence independently supported the father’s allegations about the mother’s tendency to act violently when her objectives are obstructed. Two recent incidents exemplify the point. In June 2016, the mother attended the child’s school to remove her and take her home before she could be collected by the father to spend time with him, in clear breach of existing orders. School staff members were aware of the orders and thwarted her plans. Her access to the classroom had to be physically blocked and she was escorted to the principal’s office.[84] The confrontation would not have occurred but for the mother’s belligerent insistence. In December 2016, the mother attended her former solicitor’s office with the intention of recovering documents from her. The solicitor refused to release the documents, claiming a lien over them until her outstanding fees were paid. The mother ignored her, seized the documents from inside the office and a physical struggle then ensued between the mother and the solicitor. The police were summoned. They regarded the solicitor as the victim, even though he mother insisted in cross-examination she was the victim. Apparently no charges were pressed against the mother at the request of the solicitor.[85] Again, the mother employed violent confrontation to pursue her objective.
[84] Exhibit ICL2
[85] Exhibit ICL1
The mother’s invocation of family violence allegations to explain her decision to curtail the child’s contact with the father in the period between August 2015 and January 2016 and her more recent opposition to any substantive contact between the child and the father seemed opportunistic and, in some respects, disingenuous. Alternatively, if she conducted her case genuinely, she was blind to its paradox. She correctly contended the father could not have entertained any genuine concern about her unstable mental health, given he agreed in January 2016 for the child to live with her,[86] in which event she must similarly be unable to persuasively assert she was concerned about the father’s violent conduct when she agreed in January 2016 for them to have equal shared parental responsibility for the child and for the child to spend substantial amounts of unsupervised time in his care.
[86] Mother’s affidavit, para 401
It is difficult to accept that the mother is genuinely “scared for [her] life” and now too fearful to live anywhere in Australia, as she deposed,[87] but even if that is true, there is no objectively rational basis for the belief. The Family Consultant considered the risk of further family violence between the parties was “reasonably low”.[88] She was undoubtedly correct. There was no evidence of any family violence between the parties at all after they ceased living at the same property in August 2015 and neither party now wants any contact with the other. If the mother is believed, she will continue to live in New Zealand and not return to Australia.
Best interests – primary considerations
[87] Mother’s affidavit, para 79
[88] Memorandum, para 34
Section 60CC(2)(a)
The child enjoys meaningful relationships with both parties, from which she derives much benefit. That should obviously continue, though it depends upon the parties’ willingness to enable it.
In March 2016, the Family Consultant observed the child to be “relaxed and happy” in the father’s company and heard her express love for the mother.[89] She concluded the child had “positive relationship[s]” with both parties.[90]
[89] Memorandum, paras 15, 19
[90] First Family Report, para 113
In April 2017, after the child had commenced to live with the father, the child told the Family Consultant she did not love the father because of his conduct towards the mother, but she witnessed the child give the father “unsolicited affection” and saw the father engage with her in a “warm and child focussed manner”. The Family Consultant also witnessed a “joyful reunion” between the child and the mother, with whom the child was similarly “happy, relaxed and confident”. The Family Consultant was not challenged about the validity of her conclusion that the child had “mutually warm and loving relationships” with both parties.[91] In cross-examination she said the child was “equally strongly attached to both [parents]”. I accept her evidence.
[91] Second Family Report, paras 35-39
Section 60CC(2)(b)
For reasons already given, the evidence does not establish the need for the child’s protection from any harm she could suffer through exposure to “family violence”. However, the mother adduced other evidence in an apparent attempt to substantiate the need to protect the child from harm she might suffer through subjection to the father’s “neglect” or “abuse”.
The mother gave evidence of the child suffering a number of injuries whilst in the father’s care. They included a cut tongue in March 2015, a blackened tooth and a grazed chin in October 2016, and a laceration around her eye in November 2016.[92] Despite the mother’s complaint to the contrary, the father gave her sufficient explanation for the injuries about which she enquired.[93] Even though she disbelieved the father’s explanation, she had no alternative explanation to offer.[94] They were most probably only incidents of childhood misadventure, which was apparently the same conclusion reached by the child welfare authority when the last of those incidents was reported for investigation by the mother.[95] The mother’s implication that the father did not adequately supervise the child’s play and that orders needed to be made to protect the child against harm caused by the father’s neglect is rejected.
[92] Mother’s affidavit, paras 303-305, 319-327
[93] Exhibit F2; Mother’s affidavit, paras 326-327, 391
[94] Mother’s affidavit, para 392
[95] Father’s affidavit, para 143
The mother deposed that, in February 2017, she begged the Court to keep the child “safe from [the father’s] abuse” and she believed she needed to remain hiding with the child in a “safe house” when an order was made to recover the child from her.[96] Some months earlier, in November 2016, the mother emailed the father accusing him and the paternal family of subjecting the child to “child abuse”.[97] Save in one respect, the mother did not articulate at trial the manner in which she alleged the father (or members of the paternal family) subjected the child to “abuse”. The allegation remained entirely elusive, floating unexplained in the ether. The mother made separate complaints about Ms West poisoning the child’s thoughts, but they presumably dissolved as a consequence of the father cooling his relationship with Ms West, since no final submissions were made in respect of that issue.
[96] Mother’s affidavit, paras 188-195
[97] Father’s affidavit, para 106, Annex M
The Family Consultant reported that, in March 2016, both parties expressed the view to her that the other was “mentally unwell” and posed a “high risk of murdering [the child]” as a form of vengeance or revenge.[98] In the father’s case, that was most probably a dramatic flourish, because he was willing to facilitate the child spending unsupervised time with her, but in the mother’s case it was not, because it was an allegation she made repeatedly. She implied it in an email sent to the father in November 2015,[99] she said the father continued to be a risk to the child in a letter to his solicitors in December 2015,[100] and in cross-examination at trial in June 2017 she said she was still concerned about the child’s safety and still believed the father might murder the child as a way of hurting her. The mother might genuinely believe in that risk, but the evidence did not objectively vindicate it. There is no need to protect the child against harm she might suffer from subjection to abuse while in the father’s care.
[98] First Family Report, para 65
[99] Father’s affidavit, para 51, Annex D
[100] Father’s affidavit, Annex G
Best interests – additional considerations
The child told the Family Consultant in April 2017 that she wanted her former care arrangements to be restored,[101] which the parties understood to be her reference to the arrangement that existed under the orders made in January 2016, and which provided for the child to live with the mother and spend substantial time with the father. No weight should be reposed in the child’s views, essentially for two reasons: first, she is too young and does not have the maturity to understand the long-term implications of her view that the parties should return to the former regime, and second, neither party heeds her view in any event. They both proposed outcomes far removed from the view expressed by the child.
[101] Second Family Report, para 35
Despite some isolated arguments about the parties’ respective capacity to provide for the child’s physical needs, they are each able to satisfactorily clothe, feed, and accommodate her. They are each also able to cater to her intellectual needs. The dispute really concerned the parties’ respective capacity to meet the child’s emotional needs, and in particular, by enabling her to continue enjoying meaningful relationships with both parties. The father is far more capable than the mother in that regard.
The evidence most probably proves the child will not have a relationship with one parent – but only because of the mother’s choice. If the child lives with the mother in New Zealand, she will not be capable of allowing the child the emotional autonomy to continue her relationship with the father. Alternatively, if the child lives with the father in Australia, even though I accept he would comply with orders for the child to spend time and communicate with the mother, the mother firmly maintained she would cut off all contact with the child.
While the mother may be honestly motivated by the need to preserve her own psychological health in making that decision, the necessary corollary is that she prioritises her own needs above the child’s. That must follow from the Family Consultant’s opinions, which I accept as valid. The Family Consultant observed:[102]
I am also concerned as to the mother’s extreme self-focus as is evident in her unambiguously stated intent to sever all contact and communication with [the child] if she lives with her father which is likely to have a significant deleterious impact on [the child]. That is, the mother is prioritising her own mental health and wellbeing over that of her daughter.
and:[103]
I continue to hold concerns as to the mother’s proposal to spend no time with [the child] if she is to live with the father. The mother emphasised that in her view this was a protective approach to ensure that [the child] does not continue to be immersed in the parental conflict. I acknowledge that the ongoing parental conflict is harmful to [the child], however I do not agree that the harm from the parental conflict would eclipse the harm that would be occasioned to [the child] if her mother was to spend no time with her (this would also, of course mean no time for [the child] with her as yet unborn sibling). In short, spending no time with her mother is likely to be a devastating psychological blow for [the child].
[102] First Family Report, para 118
[103] Second Family Report, para 41
Those opinions were repeated by the Family Consultant in cross-examination. When she was challenged with the contrary proposition that the mother was showing insight by insisting on her need to live in New Zealand, the Family Consultant clarified she was critical of the mother for intending to sever contact with the child, not because she chose to live in New Zealand. The mother could live in New Zealand and still periodically travel back to Australia to see the child, as she does now. Nor would there be anything to stop communication between the mother and child while the mother lived in New Zealand. However, the mother disavowed both those options. She said if the child lives with the father in Australia, she will live in New Zealand and sever all contact with the child. The Family Consultant said, and I accept, that the orders need to be considered from the child’s perspective, not the mother’s perspective.
The mother was challenged to admit she knew it would have a “devastating psychological effect” upon the child if she severed all contact with the child, as the Family Consultant said, but she was unable to adopt the child’s perspective. She initially said she did not believe the child would be so affected, but then said she did not know if the child would be affected that badly, before finally saying “it would kill me”. Again, the emphasis was on her feelings rather than the child’s. She lacked the empathy and insight to thoroughly consider the problem from the child’s perspective.
There could be no real doubt about the mother’s intention to sever all contact with the child if orders are made for her to live with the father. She told the Family Consultant of her plans in February 2017[104] and April 2017,[105] she deposed to it in her affidavit in May 2017,[106] and she said so during cross-examination at trial in June 2017. She confirmed there would be no point in the Court making orders for her to spend time and communicate with the child (if the orders provided for the child to live with the father) because she would not avail herself of them.
[104] First Family Report, paras 8, 11, 25, 118
[105] Second Family Report, paras 17, 41
[106] Mother’s affidavit, paras 80-84
That was only one aspect of the evidence that established the mother’s comparative lack of insight and, consequently, her inferior parenting capacity. There were many others. For example:
(a)She alleged the father “erode[s]” the child’s relationship with her, will never “facilitate” their relationship, tells the child “inappropriate things”, and “twist[s]” the child’s mind.[107] The mother’s criticism of the father for engaging the child in discussion that should be reserved to the adults was justified, but ironic,[108] since both parties probably shared critical views of the other with the child. Nonetheless, the mother’s belief the father does not support the child’s relationship with her was against the weight of evidence. The father had some positive things to say about her,[109] he displays photographs of her in his home for the benefit of the child (even though she said she did not believe it),[110] and he allows the child to communicate with her at times outside those provided in the interim orders.[111] While the father certainly does hold some negative views about the mother, the Family Consultant considered he was generally supportive of the child’s relationship with her.[112] The mother was not amenable to even the possibility that was correct.
(b)During the litigation, the mother alleged the father’s solicitor was responsible for “alienating” the child from the father, which allegation lacked any sound or logical basis.[113] She even sought an apprehended personal violence order against the father’s solicitor in January 2017, though she apparently later withdrew her application. Expanding her grievances to envelop her own former solicitor (in December 2016) and the father’s solicitor (in November 2015 and January 2017) tends to demonstrate her loss of perspective and proportion.
(c)The mother alleged the father drugged the child with some form of sedative before at least one supervised visit in early 2017. There could be no doubt she made the allegation seriously, because she circulated an email about it[114] and confirmed her belief in cross-examination. The evidence did not reasonably permit such an allegation to be made.
(d)The mother disavowed her conduct tended to impinge upon the child’s relationship with the father, when in fact there was plenty of evidence to show it. She engaged the child in the conflict by telling her the father sold the farm, which precluded their use of it and was the reason for her distress,[115] she encouraged the child to believe the father is “mean”, she encouraged the child to use a different name, she told the child the father took her money and sold all of their houses, she told the child the father assaulted her,[116] and she even told the child in recent text messages the father was a liar and owed her child support.[117] The mother told the Family Consultant she would prove to the Court her willingness and ability to facilitate the child’s relationship with the father,[118] but she did not because she could not. In fact, she said in cross-examination she would not lie to the child, which is exactly what she told the father’s solicitors in December 2015.[119] Inferentially, she meant she was both willing and intended to share her opinions with the child. The Family Consultant reported and confirmed in cross-examination, which evidence I accept, the mother was either deliberately undermining the child’s relationship with the father, placing “loyalty demands” upon her, unable to protect the child from her own emotional state, or any combination of those explanations was plausible.[120] The mother’s apparent inability to realise it is a powerful consideration. To be clear, in reaching those conclusions, weight is only reposed in the child’s representations to the Family Consultant and other independent persons. Little or no weight is reposed in the evidence of representations made by the child directly to either party, since such evidence is unlikely to be reliable for the obvious reasons given by the Family Consultant.[121]
(e)In June 2016, the mother alleged L sexually abused the child. Her report of the allegation to the authorities led to the child’s formal interview. The allegation was rejected because the child actually denied it during her interview. The mother then retracted the allegation, but could not explain why it took a couple of months to do so.[122] Despite the retraction, at trial, the mother still sought to imply the child had been sexually abused, but perhaps by the father rather than L. She said in her affidavit the child might have been referring to the father as the culprit[123] and in cross-examination she said “something happened” and “I cannot be 100 per cent sure who she [the child] was talking about”. Submitting her own child to formal police interview and exposing her partner’s son to the prospect of formal police interview and possible prosecution on the basis of such tenuous evidence was most unwise. The mother admitted in cross-examination the child disavowed the allegation to her before the formal interview was even conducted and the Family Consultant said it was therefore concerning she allowed the child to be interviewed at all. Her willingness to do so suggests she perceived some possible forensic advantage in it.
(f)Notwithstanding her report of the sexual abuse allegations about L for formal investigation, she “wholeheartedly” blamed the father and Ms West for the deterioration of L’s relationship with Mr West. It was an extraordinary example of egocentricity that the mother would absolve herself of all blame for that repercussion. She said it had “nothing to do with [her]”. She conceded “[L] has been put through the wringer”, but attributed responsibility for that entirely to the father and Ms West. L’s text messages to Mr West show the depth of his resentment of the mother and Mr West,[124] but they seemed to think the father and Ms West should not have informed him of the sexual abuse allegation made against him. They obviously did not consider that, had the allegation been investigated any further than the child’s interview, L would almost certainly have been interviewed and he needed to be forewarned of that prospect. It was the mother and Mr West who put those events in motion, not the father and Ms West. L was not offered any apology when the allegation was retracted.[125] L’s older sister was also unhappy with the mother and Ms West because she believed, perhaps incorrectly, that they were having sexual intercourse in the motorhome they shared with the children.[126]
(g)The mother admitted to the Family Consultant in April 2017 that her retention of the child between December 2016 and February 2017 was “wrong”,[127] which suggested she was contrite, but the implication of her remorse was dispelled when she filed her trial affidavit in May 2017. She asserted the justification for withholding the child was her belief the January 2016 orders were invalid, her concerns about the child’s safety in the father’s care, and her concerns about the father’s conduct towards her,[128] which reasons did not entirely correlate with those she earlier gave the Family Consultant.[129] Her “sincere regret”[130] over the child’s retention was difficult, if not impossible, to reconcile with her evidence in cross-examination about the child still being unsafe in the father’s care. Most likely, her expression of regret was made in expectation it might help her case. It did not seem genuine when contrasted with her other evidence.
(h)The mother said she would not pay a solitary cent of child support to the father if the child lives with him in Australia. She was content with the morality of that position since she would have no relationship with the child, notwithstanding that would be her choice. Again, the mother considered the dispute from only her perspective and assumed only her opinion was justifiable.
[107] Mother’s affidavit, paras 82, 209, 210, 641; Father’s affidavit, para 62
[108] Mother’s affidavit, para 316
[109] First Family Report, para 110
[110] Father’s affidavit, para 200; Ms West’s affidavit, para 30
[111] Second Family Report, para 13
[112] First Family Report, para 110, 120, 122
[113] Father’s affidavit, para 55, Annex E, F
[114] Father’s affidavit, paras 162-163, Annex R
[115] Memorandum, para 17; Father’s affidavit, para 57, Annex G
[116] Second Family Report, paras 25, 27; Mother’s affidavit, paras 367-373
[117] Father’s affidavit, paras 166-167, Annex S
[118] Second Family Report, para 21
[119] Father’s affidavit, Annex G
[120] Second Family Report, para 39
[121] Memorandum, paras 22-23
[122] Mother’s affidavit, paras 138-149; Father’s affidavit, paras 69-74, 215-218; First Family Report, paras 73, 78-85, 90; Exhibit F6
[123] Mother’s affidavit, para 147
[124] Exhibit F7
[125] Affidavit of Ms West, para 22
[126] Affidavit of Ms West, paras 12-13
[127] Second Family Report, para 23
[128] Mother’s affidavit, paras 176, 179, 180, 185-202, 207
[129] First Family Report, para 21
[130] Mother’s affidavit, para 202
The mother’s evidence and proposal at trial betrayed her real sentiment about the father’s likely elimination from the child’s life, if she lives with her. She deposed she thought it would be best if the child spends no time with the father, because of her concern for the child in his care.[131] Although she considered the father might re-enter the child’s life in time, she considered that should depend upon modification of his behaviour,[132] which presumably only she would judge. The child knows of the mother’s ill-will towards the father so, if she lives with the mother in New Zealand, the prospect of her having the fortitude to tell the mother she wants to see or communicate with the father is remarkably remote. Even if she did, it is doubtful the mother would act on her request. The mother has already told the father the child does not want to see him.[133] Most likely, the child will acquiesce to the mother’s will. In any event, the child should not be left with that onerous responsibility, as the Family Consultant confirmed, though it hardly needed an expert opinion to vindicate that conclusion. Nor was the mother’s proposal for the child to only see the father under supervised conditions satisfactorily explained. Understandably, the father did not know why she wants the child supervised in his care.[134] His worry about being excluded from the child’s life is well justified.[135]
[131] Mother’s affidavit, paras 20-21
[132] Mother’s affidavit, para 43
[133] First Family Report, para 103
[134] Father’s affidavit, para 239
[135] Father’s affidavit, paras 237-238
The father sought to make the mother’s psychological health an issue of significance but, aside from perhaps explaining her errant behaviour during 2016 and early 2017, it was not an influential factor of itself. The mother’s psychological condition has occasionally deteriorated over the years, such as in 1997-1999,[136] 2009-2011,[137] and 2016-2017,[138] but she said she is much better now she lives in New Zealand. She certainly presented in a much better frame of mind than she did some months ago. She was undoubtedly labouring under an emotional burden by February 2017. In cross-examination she said “I thank the Court for taking my daughter off me in February”, which implied her relief at the reprieve from parental responsibility and the opportunity to recover her emotional equilibrium in solitude. Her own psychiatrist suspects she has a personality disorder,[139] which condition she will need to manage carefully, but her parenting capacity should not be unduly impaired if she does so. She can capably participate in the child’s life if her views and perceptions remain balanced.
[136] Exhibits F12-F16
[137] First Family Report, paras 38-40; Exhibit F5
[138] First Family Report, paras 68, 93, 108; Mother’s affidavit, paras 91, 105, 220-226
[139] Exhibit M5
The mother contended the father lacked insight and was unreliable because, contrary to his representations not to do so,[140] he changed the child’s school enrolment as soon as she began to live with him in February 2017.[141] The Family Consultant did not agree unconditionally with the proposition that decision demonstrated lack of insight on his part, since it was potentially advantageous for the child to avoid unnecessary travel, which the father asserted was partly the reason for his change of heart.[142] It was uncontroversial that, while the child missed her old school friends, she had settled well into the new school and was doing well.[143] Nothing turns on that decision.
[140] Exhibits M2, M3; First Family Report, para 26
[141] Exhibit M1
[142] Father’s affidavit, paras 170-174
[143] Father’s affidavit, paras 175-176
The father now works in full-time employment, which means he needs to rely upon a day-care service to assist his care for the child, but the mother had to do the same when the child lived with her. Neither could legitimately criticise the other for that.
The mother professed interest in the Maori culture,[144] but the father said she showed no prior interest in it.[145] Only the mother was cross-examined on the issue and she conceded she did not know whether she was of Maori heritage and, more importantly, she did not identify as Maori when in New Zealand.
[144] Mother’s affidavit, paras 65-68
[145] Father’s affidavit, paras 232-235
Conclusions and orders
The evidence easily rebuts the presumption of equal shared parental responsibility (s 61DA(4)). The parties cannot share responsibility for the child co-operatively. The mother said in cross-examination she “refuse[d] to go into any conversation” with the father and she will never speak with him again. It would be impossible for them to discharge their legal obligations (s 65DAC) and they would likely be in permanent deadlock if an order for equal shared parental responsibility was foisted upon them. One party must have exclusive parental responsibility for the child and it must be the party with whom she lives. Both parties’ proposals recognised that fact and the Family Consultant recommended that outcome.[146]
[146] First Family Report, para 123
The evidence favoured an order for the child to live with the father. His capacity to provide for the child’s emotional needs is superior to the mother’s. The Independent Children’s Lawyer agreed. As for the Family Consultant, she said in February 2017, when the child was still living with the mother:[147]
…I am of the view that if [the child] remains living with the mother, her relationship with her father will be at best difficult, and at worst non-existent. When consideration is given to the mother’s attitude toward the father and her past behaviour in not complying with orders, the latter is highly probable to be the case if the mother is allowed to relocate with [the child] to New Zealand where additional barriers of geographical distance and a different Family Law system would need to be negotiated…
[147] First Family Report, para 121
The Family Consultant considered the child was better placed with the father,[148] provided the Court found he posed no risk of harm to the child, which finding is made. In cross-examination at trial, she confirmed her view had not changed.
[148] First Family Report, para 122; Second Family Report, para 44
If the child instead lived with the mother in New Zealand, the father would be eliminated from her life. The mother could never bring herself to support the child’s relationship with him. The Family Consultant said she was “wholly negative” about him. She thinks he is a “compulsive liar” and was responsible for “destroying [her] whole life”.[149] The child is well aware of her dislike of the father.[150] Her relationship with the father is too important to allow the mother to annul it, because there is no justification for that outcome. The child is equally attached to both parties, but only the father is willing to allow her the freedom to retain her relationships with both. The child should therefore live with the father.
[149] First Family Report, paras 25, 109
[150] Memorandum, para 18; First Family Report, para 119
At least implicitly, the mother knows that is the result dictated by the evidence. At a supervised contact visit in April 2017 she gave the child a letter to read.[151] She admitted in cross-examination the letter informed the child she did not blame her for not telephoning her on her birthday, but more importantly, that she would be severing contact with her. When it was suggested to the mother it was emotionally abusive to force that information upon the child, the mother said “no, she needs to know”. The mother agreed she was effectively saying “goodbye” to the child in that letter. Obviously, she would have no need to say goodbye to the child if she expected the child would live with her. She expects the child will live with the father and she was making good on her promise to withdraw from the child’s life.
[151] Exhibit ICL4
Given the child should live with the father, the mother’s trenchant intention to sever her relationship with the child in that eventuality means there is no need to consider supplementary orders enabling the child to spend time or communicate with her. When that alternative option was offered to the mother in cross-examination she rebuffed it. There is no utility trying to arbitrarily fashion orders to regulate the child’s future interaction with her when it probably will not happen. The father said it would be “horrendous” for either party to be shut out of the child’s life, so if the mother later relaxes her attitude and seeks a relationship with the child, the father would probably facilitate it.
The mother said she would not even avail herself of communication orders. In any event, telephone communication was a bone of contention between the parties. The mother criticised the father for failing to comply with current communication orders,[152] but he credibly refuted her claim. He denied that “only two calls” made by her in the last few months successfully connected. He said the child regularly called the mother and asserted he kept records of the calls. He produced his records pursuant to the call made for them and was not thereafter successfully challenged. The child’s attempted call to the mother on Mother’s Day 2017 was verified by the father’s records.[153] Emails sent by the father to the mother in May 2017 proved he believed the mother had changed her telephone number and he tried to establish the new number on which the child should call her,[154] but the mother admitted she did not reply to his emails. The mother said she records all of her conversations with the child, which is not a practice that should be tacitly encouraged by granting more telephone communication anyway. It remained unclear what, if any, communication orders the father proposed because he purported to press one[155] but abandon another.[156] No communication orders are made in the face of the mother’s evidence.
[152] Mother’s affidavit, para 640
[153] Exhibit F3
[154] Exhibits F4, M4
[155] Further Amended Application filed 24/3/17, Order 7
[156] Further Amended Application filed 24/3/17, Order 16
The father adhered to his application for an injunction preventing the mother’s attendance near his home and the child’s school,[157] but the order is not made because it is unnecessary and, at least in part, inconsistent with his evidence in cross-examination.
[157] Further Amended Application filed 24/3/17, Order 5
The mandatory injunctions concerning access to treating health professionals and the child’s school were sought by the mother and unopposed by the father.
The restrictive injunction about denigration could not be the subject of sensible objection. It applies to both parties in case the mother later decides to have some form of contact with the child and the father facilitates it.
An order requires the parties to keep several lines of communication open in case they are needed. The order accords with the mother’s proposal and was unopposed by the father.
The father expressed his preference in cross-examination for the child’s name to remain on the Airport Watch List, even though that may mean he is precluded from taking her on international holidays. Presently, he remains too concerned about the mother’s possible abduction of the child. His apprehension was not misplaced because, in cross-examination, the mother said she did not know whether she still had the child’s New Zealand passport in her possession and, although she admitted she had no need for it, she refused to agree to its cancellation. The mother deposed the child is a citizen of New Zealand[158] so, to avoid any prospect of the child’s removal from Australia by the mother using her New Zealand passport, an Airport Watch List order is extended for one year. There is no need for the order to endure for as long as the father proposed.[159]
[158] Mother’s affidavit, para 57
[159] Further Amended Application filed 24/3/17, Order 6
To facilitate operation of the orders, the parties are at liberty to provide copies of the orders to relevant authorities and the child’s school principal.
I certify that the preceding ninety-nine (99) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Austin delivered on 30 June 2017.
Associate:
Date: 30 June 2017
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