MATTHEWS & BENDER
[2015] FamCA 654
•11 June 2015
FAMILY COURT OF AUSTRALIA
| MATTHEWS & BENDER | [2015] FamCA 654 |
| FAMILY LAW – CHILDREN – Best interests – where final orders were previously made that the child live with the father and that the father have sole parental responsibility – where the mother seeks to reopen the question of with whom the child lives – Rice & Asplund considered – where the question of the mother’s time with the child was reserved – whether the mother’s time with the child, if any, should be supervised – where the mother has consistently engaged in conduct likely to undermine the child’s relationship with the father – finding that the mother lacks insight into the effect of her behaviour upon the child – final orders made that the child have supervised time with the mother on one occasion per month under professional supervision – final orders made that the mother be restrained from bringing any application with respect to the child without leave for a period of two years |
| Family Law Act 1975 (Cth) |
| Bale-Sutch & Bale-Sutch (No. 2) [2010] FamCA 20 | ||
| APPLICANT: | Mr Matthews | |
| RESPONDENT: | Ms Bender |
| INDEPENDENT CHILDREN’S LAWYER: | Glezer Lanteri & Associates Pty Ltd |
| FILE NUMBER: | MLC | 3524 | of | 2008 |
| DATE DELIVERED: | 11 June 2015 |
| PLACE DELIVERED: | Melbourne |
| PLACE HEARD: | Melbourne |
| JUDGMENT OF: | Johns J |
| HEARING DATE: | 20 - 23 January 2015 |
REPRESENTATION
| COUNSEL FOR THE APPLICANT: | Ms O'Connell |
| SOLICITOR FOR THE APPLICANT: | Fiona R McGregor |
| THE RESPONDENT: | In person |
| COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: | Ms Agresta |
| SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: | Glezer Lanteri & Associates Pty Ltd |
Orders
That the mother spend time and communicate with the child M born … 2005 as follows:-
(a)At the I Contact Centre (“the contact centre”) for a period of two hours on one occasion per month on the following bases:-
(i)such time to take place on days and at times nominated by the contact centre;
(ii)the mother to be solely responsible for the cost of supervision; and
(iii)the mother to comply with all reasonable directions as may be made by the contact centre in order to facilitate supervision of her time with the child.
(b)By telephone on Christmas Day, Easter Sunday, the child’s birthday, the mother’s birthday and Mother's Day each year and to facilitate such communication:-
(i)such calls to take place at 6.00 pm on each occasion unless otherwise agreed between the mother and father in writing;
(ii)the father do all acts and things to ensure that the child initiates the telephone call to the mother’s landline or mobile number;
(iii)the father be at liberty to monitor the telephone calls on loudspeaker and terminate the calls in the event that the mother discusses subjects or issues that may undermine the child’s relationship with her paternal family or destabilise her care arrangements; and
(iv)the mother keep the father advised at all times of a current telephone number on which she can be contacted.
(c)By telephone at all other reasonable times as may be requested by the child to her father and the father ensure that upon such request he do all things necessary to facilitate the child communicating with her mother by telephone;
(d)By letter, card and/or gift on the special days referred to in sub-paragraph (b) of this order with such items to be provided to the child by the mother at the contact centre on the occasion of time to be spent that occurs closest to the special day; and
(e)At any other times as agreed between the mother and the father in writing.
That the father ensure that in the event that the child wishes to communicate with the mother by way of card, letter and/or gift to her mother at any other time during the year he facilitate such requests by the child and do all such acts and things as may be required to provide such items to the mother at the contact centre on the first occasion of time after such request has been communicated to him by the child.
That the father do all acts and things as may be required to ensure that the child continues to attend upon Dr J or her nominee for such therapy or counselling support as may be recommended by Dr J, the father to be solely responsible for the cost of that therapy and/or counselling support.
That any therapy or counselling provided by Dr J to the child be conducted on a reportable basis.
That the father and mother utilise a communication book which is to be provided to the mother at the beginning of each occasion of supervised time and returned to the father at the end of that period of time with the purpose of the said book being to provide the mother with up-to-date information on a monthly basis about the care, welfare and development of the child including but not limited to details of her extra-curricular activities, her involvement in special events, her special academic or educational achievements, and her attendances on any medical or dental specialists.
That the mother by herself, her servants or agents be and is hereby restrained by injunction from attending at the child’s school or any place where the child is engaged in extra-curricular activities unless otherwise agreed in writing between the father and mother.
That until 1 July 2017 the mother be and is hereby restrained from making any application in respect of the child under part VII of the Family Law Act 1975 (Cth) to any court having jurisdiction under the Act without leave of a Judge of the Family Court of Australia first obtained.
That the appointment of the Independent Children’s Lawyer be discharged.
That all extant applications be otherwise dismissed.
That pursuant to s 65DA(2) and s 62B, the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders and details of who can assist parties adjust to and comply with an order are set out in the Fact Sheet attached hereto and these particulars are included in these orders.
IT IS DIRECTED
That all documents produced to the Court pursuant to subpoena and exhibits relied upon by the parties be returned by the subpoena clerk of the Family Court of Australia, Melbourne Registry, to the person or organisation who produced same after the expiration of thirty (30) days from the date of these orders, or otherwise upon the conclusion of any appeal.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Matthews & Bender has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
| FAMILY COURT OF AUSTRALIA AT MELBOURNE |
FILE NUMBER: MLC 3524 of 2008
| Mr Matthews |
Applicant
And
| Ms Bender |
Respondent
And
Independent Children’s Lawyer
REASONS FOR JUDGMENT
Introduction
Final orders were made on 27 September 2013 by Macmillan J (“the Orders”) in relation to the parenting arrangements for the child, who is aged nine years. She has been at the centre of the conflict between her parents, the parties in these proceedings, since 2008.
The matters in issue before Macmillan J included:-
·The allocation of parental responsibility;
·Whether the father or the paternal grandfather posed an unacceptable risk of sexual abuse to the child;
·Whether the child had been physically abused by the father;
·Whether the father is able to provide proper care for the child; and
·Whether the child should live with the mother or the father.
The hearing before Macmillan J spanned seven days. In determining the matters in dispute, findings were made by Macmillan J on the balance of probabilities that:-
(a) M had not been sexually abused by the father;
(b) The father presents no risk to the child; and
(c)The paternal grandfather does not present an unacceptable risk of abuse to the child.
As a result of the Orders, the child ceased living with the mother and commenced living with the father. The father was granted sole parental responsibility in respect of all major decisions for the child. The question of what time, if any, the child should spend with the mother was reserved.
It is the issue of what time, if any, and upon what basis the mother should spend with the child that I am required to determine.
In addition, the mother, who was self-represented, sought to re-open the question of with whom the child lives on the basis that there has been a significant change of circumstance since the Orders were made; the mother seeks orders that the child be returned to her primary care.
The parties
The applicant is Mr Matthews, aged 45 years. He is the father of the child. He lives with the child at the home of his parents in Suburb V. He is currently unemployed, having previously worked in the business operated by his father which is now in liquidation.
The respondent is Ms Bender, aged 46 years. She is the child’s mother. She lives in Suburb K and her occupation is interior decorator.
The parties commenced cohabitation in April 2003 and married in 2003. The parties separated in February 2007.
M is the only child of the parties and was born in 2005. She is aged almost 10 years. The parties separated when the child was aged two years. She has been the subject of proceedings in this Court and the Federal Circuit Court since 2008.
Background
The current proceedings were commenced upon the father filing an Initiating Application in this Court in February 2012. That application sought orders for equal shared parental responsibility and that the child live with the father.
The mother filed a Response to Initiating Application in March 2012 in which she sought orders for sole parental responsibility, that the child live with her and that the child “spend time with the father on a supervised basis as ordered by [the Court]”.
In April 2012 the mother filed a Notice of Child Abuse or Family Violence. She alleged that the child had been sexually abused by the father. In addition, she made allegations that the child had disclosed sexual abuse by the paternal grandfather.
The father denied those allegations and alleged that the mother was persistently frustrating his time with the child and that the allegations levelled against him were a ploy by the mother to frustrate his time with the child.
The parties’ competing applications were heard by Macmillan J in July and August 2013. As noted above, Macmillan J made orders and delivered a judgment in relation to those proceedings on 27 September 2013.
The Orders provided for a change of the child’s residence from the mother to the father. The question of the mother’s time with the child was reserved to enable the consolidation of her living arrangements with the father. The Orders provided that Dr P, the Family Consultant, prepare an updated report and make any further recommendations as to the mother’s time with the child by no later than four months from the date of her Honour’s orders.
The Orders were made in the context of lengthy proceedings in this Court involving numerous allegations, primarily by the mother as against the father. Those allegations of the mother have neither been accepted nor substantiated in the hearing before Macmillan J.
The mother filed a Notice of Appeal with respect to the Orders and filed an Application in a Case seeking a stay of the operation of the Orders. That application was dismissed by Macmillan J on 25 October 2013. Subsequently, the mother withdrew her Notice of Appeal.
Pursuant to the Orders, the mother spent no time with the child from the date of the Orders until about February 2014.
Macmillan J heard the parties’ competing interim applications with respect to the question of what time the child should spend with the mother in February 2014. At the time of that hearing, the child had not spent time with the mother for a period of approximately four months.
On 20 February 2014, orders were made that the mother commence spending time with the child at a contact centre in Suburb I, such time to be supervised and, if able to be accommodated, to occur weekly. The Independent Children’s Lawyer (“the ICL”) was ordered to obtain a report from the contact centre as to the progress of the time between the child and the mother. The parties’ applications were otherwise adjourned to the Judicial Duty List in May 2014.
On 8 May 2014 the matter was listed before me. That day orders were made by consent which provided that the child spend time with the mother on Mother’s Day, that time to be supervised by the maternal grandparents. Orders were made for the preparation of an updated Family Report and the matter was listed for further mention before me in July 2014, it being anticipated that I would make directions at that time for the final hearing in relation to the issue of what time the child should spend with the mother.
In June 2014 the father ceased making the child available for time with the mother at the contact centre as a result of concerns he had in relation to the mother’s conduct during that time. Those concerns related to allegations that the mother had been behaving inappropriately during her time with the child by conveying messages to the child and otherwise placing the child under undue and inappropriate pressure to express a wish to her counsellor and the Family Consultant to live with the mother. The mother denied those allegations.
The parties’ competing interim applications were listed before Senior Registrar FitzGibbon on 14 July 2014.
That day orders were made by consent which discharged the previous spend time with orders. Further, orders were made that the mother spend time with the child at the contact centre at a frequency of no more than every third week. Orders were made restraining the mother from providing any presents or gifts to the child at the contact centre, save for gift vouchers. The mother was permitted to send unwrapped gifts and unsealed cards for the child to the ICL at Easter, the child’s birthday and Christmas.
In addition, the Senior Registrar made orders providing for the mother to communicate with the child on two occasions each week, that time to be initiated by a telephone call to the father’s landline.
On 18 July 2014 I made orders listing the matter for a final hearing to commence on 20 January 2015, it being noted that the issue for determination at the hearing is the question of what time, if any, the child spends with the mother.
In October 2014 the mother filed an Application-Contravention alleging the father had failed to make the child available for time with the mother and further that he failed to make his landline telephone available to facilitate telephone communication between the child and the mother.
In addition, on 18 November 2014 the mother filed an Application in a Case seeking orders that the mother be permitted to spend time with the child on Christmas Day 2014, such time to be spent at the home of the maternal grandparents.
Those applications were listed before me on 27 November 2014. That day I granted leave to the mother to withdraw her Application-Contravention. Her application with respect to time on Christmas Day proceeded before me that day and I made orders that the mother spend time with the child at the contact centre on 20 December 2014 and the mother communicate with the child by telephone on Christmas Day.
The matter proceeded to final hearing before me commencing on 20 January 2015 and was heard over four days.
On 28 May 2015 the mother filed an Application in a Case in which she sought leave to adduce further evidence. The following day the father filed an application in which he sought orders permitting him to obtain a passport for the child and further that he be permitted to travel overseas with her for a holiday.
Both applications were listed before me on 4 June 2015. I dismissed the mother’s Application in a Case and made orders permitting the father to obtain a passport for the child and to travel overseas with her for a holiday. I delivered ex tempore reasons for judgment in relation to those applications.
The father’s position
In support of his application the father relied upon the following documents:-
·Case Outline dated 19 January 2015;
·Further amended Initiating Application filed 31 October 2014; and
·Affidavit of the father filed 22 October 2014.
The father’s case is that the mother remains unable to accept the orders of 27 September 2013 that the child live with him, and that she continues to attempt to undermine the child’s relationship with him.
Until the commencement of the hearing the father sought orders that:-
·The current orders that the child spend time and communicate with the mother be discharged;
·There be no time or communication between the mother and the child; and
·The mother be restrained by injunction from making any further application to the Court without first obtaining leave, such application for leave to be by way of Application in a Case supported by affidavit.
The father’s position had altered by the time counsel appearing on his behalf opened his case. The orders sought by the father in opening were that the mother spend time with the child once every eight weeks, that time to be supervised at the contact centre, with the costs of supervision to be at the mother’s expense.
The father’s position shifted further by the time of final submissions. The position of the father then was to seek orders in the terms of those sought by the ICL (Exhibit ICL1). The minute of orders tendered on behalf of the ICL sought orders as follows:-
1.That the Final Parenting Orders dated 27 September 2013 in respect of the child [M] born … 2005 remain in full force and effect.
2.That the mother spend time and communicate with the child as follows:-
(a)at the [I Contact Centre] (the contact centre) for a period of two hours on a monthly basis with such time to take place on days and at times nominated by the contact centre with the mother to be solely responsible for the cost of supervision and with the mother to comply with all reasonable directions as may be made by the contact centre in order to facilitate supervision of her time with the child;
(b)by telephone on Christmas Day, Easter Sunday, the child’s birthday, the mother’s birthday and Mother's Day each year with such calls to take place at 6.00 pm on each occasion unless otherwise agreed between the mother and the father with the father to ensure that the child initiates the telephone call to the mother’s landline or mobile number and with the father to be at liberty to monitor the phone calls and terminate the calls in the event that the mother discusses subjects or issues that may undermine the child’s relationship with her paternal family or destabilise her care arrangements and to facilitate this order the mother keep the father advised at all times of a current telephone number on which she can be contacted;
(c)at all other reasonable times as may be requested by the child to her father and the father do ensure that upon such request he do all things necessary to facilitate the child communicating with her mother by telephone;
(d)by letter, card and/or gift on the special days referred to in paragraph (b) of this order with such times to be provided to the child by the mother at the contact centre on the occasion of time to be spent that occurs closest to the special day;
(e)at any other times as agreed between the mother and father in writing.
3.That the father do ensure that in the event that the child wishes to communicate with the mother by way of card, letter or gift to her mother at any other time during the year he facilitate such requests by the child and ensure such items are provided to the mother at the contact centre on the first occasion possible.
4.That the father ensure that the child continue to attend upon Dr J or her nominee for therapy or counselling support as may be recommended by Dr J with the father to be solely responsible for the cost of the therapy and/or counselling support.
5.That any therapy or counselling provided by Dr J to the child be conducted on a reportable basis.
6.That the father and mother utilise a communication book which book is to be provided to the mother at the beginning of each occasion of supervised time and returned to the father at the end of that period of time with the purpose of the said book being to provide the mother with up-to-date information on a monthly basis about the care, welfare and development of the child including but not limited to details of her extra-curricular activities; her involvement in special events; her special academic or educational achievements, and her attendances on any medical or dental specialists.
7.That the mother be restrained by injunction from attending at the child’s school or any place where the child is engaged in extra-curricular activities unless otherwise agreed in writing between the father and mother.
8.That the mother be restrained from making any application in respect of the child under Part VII of the Family Law Act1975 (Cth) to any court having jurisdiction under the Act without leave of a judge of the Family Court of Australia and that leave shall not be sought by the mother for a period less than two years from the date of this order.
9.Usual s 65DA(2) and s 62B orders.
10.That the order for the appointment of the Independent Children’s Lawyer be discharged.
11.That all extant applications be otherwise dismissed.
The mother’s position
In support of her application the mother relied upon the following documents:-
·Case Outline dated 15 December 2014;
·Amended Response to Initiating Application filed 18 November 2014;
·Affidavit of the mother filed 18 November 2014;
·Affidavit of the mother sworn 9 January 2015 and filed 14 January 2015;
·Affidavit of the mother sworn 13 January 2015 and filed 14 January 2015;
·Affidavit of Ms T filed 14 January 2015; and
·Affidavit of Mr BC filed 18 November 2014.
Although the mother had been legally represented at the trial before Macmillan J and at the mention hearing at which I fixed the matter for final hearing, the mother represented herself at the final hearing before me.
Notwithstanding the notation to the orders made 18 July 2014 confirming that the issue for determination at the final hearing before me was the question of what time the child should spend with the mother, if any, at the commencement of the hearing the mother sought orders, the effect of which was to return the child to her primary care.
During discussions with the mother at the commencement of the hearing, the mother submitted that there had been a change of circumstance which would justify the Court revisiting the question of with whom the child should live. In summary, the changes identified and relied upon by the mother in support of that submission included:-
·That the father was not the person primarily responsible for parenting the child - the mother alleged that it is in fact the paternal grandmother who attends to the child’s care;
·That the father was not attending to the child’s nutritional requirements and she had lost weight as a consequence of the father’s neglect;
·That the father was not encouraging or supporting the child’s social development - it was alleged that she is isolated from her peers and that the father does not facilitate the development of those relationships by organising playdates and activities for the child; and
·That the child’s performance at school had deteriorated since she had commenced living with the father.
At the commencement of the hearing the mother sought orders in the terms of the Case Outline filed on her behalf and dated 15 December 2014. That document referred to the orders sought in her amended Response to Initiating Application filed 18 November 2014. The mother there sought orders that:-
·The parties have equal shared parental responsibility for the child;
·M live with “her primary carer the mother”;
·M spend time with the father from the conclusion of school each alternate Friday from 3.30 pm until 4.00 pm Sunday, changeovers to occur at McDonald’s at Suburb K;
·The father have the child for the first week of Term 1 to Term 3 and for two one-week periods in Term 4 holidays;
·The father spend time with the child for specified periods on Christmas Day, the child’s birthday, Father's Day, and the father’s birthday;
·M spend specified time with the mother on Mother's Day, and the mother’s birthday;
·Each party be permitted to telephone the child between 6.00 pm and 8.00 pm each day the child is outside of their respective care;
·M spend specified time with the parties over the Easter period;
·Each party inform the other in the event that the child is ill or hospitalised;
·The father be permitted to attend the child’s dance concerts at his own expense, and the father to be “flexible with dance commitments and to allow the mother to prepare the child for her annual concert”; and
·Each party, including members of their extended family, be restrained from denigrating the other parent or extended family in front of the child.
In addition to the orders sought in her amended Response to Initiating Application the mother sought orders that:-
·The father attend an anger-management course;
·The father complete his parenting certificate;
·The father attend F counselling as recommended by Dr P, Family Consultant; and
·The father complete a “Tuning into Kids program” as recommended by Dr P.
The mother in opening did not present an alternate position in the event that she was unsuccessful in her application for the child to live with her.
During her final address the mother did present a Minute of Orders in which she set out her position in the event that the child was to continue to live with the father. Exhibit R2 is the Minute of Orders Sought by the mother in the event that the child lives with the father. It provides as follows:-
·That the parties have equal shared parental responsibility for the child;
·That the child live with the father;
·That the child spend time with the mother as follows:-
(a)Each alternate week from 3.30 pm Friday from the conclusion of school until the commencement of school or 9.00 am Monday;
(b)For one half of the school holidays being the first half of each of Term 1 and 4 and the second half of each of Term 2 and 3;
(c)The Term 4 holiday break to commence from 28 December at 4.00 pm until 19 January at 4.00 pm, with handover to take place at McDonald’s in Suburb CD;
·That the child spend time with the father from Father's Day eve from 5.00 pm until 5.00 pm on Father’s Day if Father's Day falls on the mother’s weekend; and
·That the child spend time with the mother on Mother's Day eve from 5.00 pm until 5.00 pm on Mother's Day if Mother's Day falls on the father’s weekend.
In addition, the mother sought orders that the child spend specified periods with each parent on Christmas Eve and Christmas Day, the child’s birthday, and the birthdays of the mother and the father. The mother also sought orders that she be permitted to:-
·attend school events;
·communicate with the child’s teacher;
·attend the child’s ballet concerts, rehearsals and parent nights and;
·prepare the child for her ballet rehearsals and concerts.
The Independent Children’s Lawyer’s position
The ICL relied upon the following documents:-
·Further Outline of Case dated 19 January 2015;
·Family Reports of Dr P dated 30 May 2013, 22 January 2014 and 16 January 2015;
·Affidavit of Dr J filed 25 June 2013;
·Affidavit of Dr J filed 30 April 2014;
·Affidavit of Dr J filed 6 May 2014;
·Affidavit of Dr J filed 14 January 2015;
·Affidavit of Ms DE filed 15 January 2015;
·Affidavit of Ms DE filed 9 October 2014;
·Affidavit of Ms DE filed 6 May 2014; and
·Affidavit of Professor Y filed 4 March 2013.
In the Outline of Case filed on behalf of the ICL, she expressed a preliminary view as to the orders sought. That preliminary view, subject to a testing of the evidence, was that I should make orders as follows:-
·That the orders of Macmillan J remain in full force and effect save with respect to the question of the mother’s time and communication with the child;
·That the mother spend time and communicate with the child on a supervised basis at the contact centre once per month with the mother to meet any associated costs of such time;
·That the mother communicate with the child by telephone on Christmas Day, Easter Sunday, the child’s birthday, Mother's Day and the mother’s birthday at times as agreed between the parties and failing agreement at 6.00 pm, such calls to be monitored by the father who has sole discretion to terminate the calls in the event that the mother acts or speaks inappropriately towards the child;
·That the child be permitted to communicate with the mother in accordance with her wishes by card, gift or letter, the father to facilitate such communications;
·The mother attend upon a psychologist or psychiatrist as nominated by the Family Consultant for the purpose of assisting her in accepting the parenting arrangements for the child and addressing concerns specific to the mother as raised in the Family Reports;
·That the father continue to facilitate the child’s attendance upon Dr J or such other counsellor as may be recommended by her, such counselling to be on a reportable basis;
·That the parties utilise a communications book to be supplied by the father to the mother through the contact centre;
·That the father do all things necessary to facilitate the mother’s receipt of information at the expense of the mother including copies of school reports, newsletters, school photographs and such other information that would normally be received by a parent;
·That the mother to be otherwise prohibited from attending the child’s school for any purpose until such time as unsupervised time commences;
·That the mother be restrained from:-
(a)Denigrating the father, the paternal grandparents to or in the hearing of the child or allowing another to engage is such conduct;
(b)Discussing Family Law matters with the child; and
(c)Using the communications book as an inappropriate mode of communication or method of abuse, denigrating, or harassing the father; and
·That the mother be and is hereby prohibited from instituting further proceedings for a period of not less than two years and in the event that she does so, such application be accompanied by a supporting affidavit from the psychologist/psychiatrist referred to herein having attended upon the mother for a period of not less than a continual six-month period and addressing concerns expressed in the Family Reports.
During final submissions, the ICL tendered a minute of proposed orders (Exhibit ICL1) which set out the orders sought by the ICL. The orders sought on behalf of the ICL are referred to earlier in this judgment.
At the commencement of the hearing each of the parties confirmed the documents they sought to rely upon.
As the mother was unrepresented, I arranged for my Legal Associate to provide to the parties copies of ss 60B, 60CA, 60CB, 60CC, 60CD and 60CE of the Act.
Prior to counsel for the father opening his case, I informed the parties that in accordance with the provisions of the Act I must have regard to the best interests of the child as the paramount consideration. Further, I informed the parties that in determining what is in the child’s best interests, I would have regard to the considerations set out in s 60CC of the Act, and I drew the parties’ attention to those provisions.
Given the mother’s position that she sought to re-visit the issues of the allocation of parental responsibility and the question of with whom the child lives, I informed the parties as to the principles established in Rice & Asplund (1979) FLC 90-725; (1978) 6 Fam LR 570 (“Rice & Asplund”). In particular I informed the mother that in order to seek a change of the orders with respect to those issues, it would be necessary for the mother to establish that there is a prima facie case of changed circumstances and further that that change in the circumstances is sufficient to justify a re-visiting of that issue.
I informed the parties of the manner in which the trial was to proceed, the order of calling witnesses and the right which each of the parties had to cross-examine the witnesses.
Ms Agresta appeared on behalf of the ICL. Helpfully, she agreed to go first in the cross-examination of the father and other witnesses so that she could cover much of the material. In doing so, the mother was provided with the opportunity to observe how questions were to be properly framed prior to her cross-examination of the father and the other witnesses. It enabled the mother to collect her thoughts as to any remaining questions prior to commencing her cross-examination.
The Relevant Legal Principles
Section 60B(1) of the Act sets out the objects of Part VII of the Act, to ensure 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.
Section 60B(2) sets out the principles underlying those objects. They are that (except when it is or would be contrary to a child’s best interests):-
(a)children have the right to know and be cared for by both their parents, regardless of whether their parents are married, separated, have never married or have never lived together; and
(b)children have a right to spend time on a regular basis with, and communicate on a regular basis with, both their parents and other people significant to their care, welfare and development (such as grandparents and other relatives); and
(c)parents jointly share duties and responsibilities concerning the care, welfare and development of their children; and
(d)parents should agree about the future parenting of their children; and
(e)children have a right to enjoy their culture (including the right to enjoy that culture with other people who share that culture).
In deciding a particular parenting order the best interests of the child is the paramount consideration (s 60CA). Sections 60CC(2) and (3) set out the primary and additional considerations for the Court in determining what is in the child’s best interests. I will return to those considerations in detail below.
The question of parental responsibility was determined by Macmillan J in her judgment of 27 September 2013. The orders provide that the father has sole parental responsibility in respect of all major long-term issues for the child, save that prior to making those decisions he inform the mother in writing of any proposed decision, seek the mother’s written response with respect to the proposed decision and consider any response received from the mother prior to the making of such decision. Further, the father is required to advise the mother in writing as soon as reasonably practicable as to the decision made by him in exercising such parental responsibility.
The mother seeks orders for equal shared parental responsibility. In order to re-litigate that issue, the mother must satisfy me that there has been a sufficient change in circumstances to warrant a re-visiting of that issue. In the event that the mother were to satisfy me that there are circumstances that would justify a re-litigating of the issue of parental responsibility, s 61DA of the Act provides that there is a presumption that it is in a child’s best interests for the parents to have equal shared parental responsibility. The presumption relates to the allocation of parental responsibility. It does not relate to the time the child spends with her parents.
Findings are made on the balance of probabilities having regard to the evidence and my observations of the demeanour of the witnesses. In what follows, statements of fact constitute findings of fact.
As to the question of whether the mother should be permitted to re-visit the issue of with whom the child lives and the allocation of parental responsibility, the relevant principles with respect to such applications are those established in Rice & Asplund. It was there held by Evatt CJ that a Court “should not lightly entertain” an application to reverse earlier parenting orders. The rationale for that position was to avoid the “endless litigation” that might otherwise ensue since “change is an ever-present factor in human affairs”.
At page 78,905 of the judgment Evatt CJ stated that a Court would only hear an application to vary an earlier order if it was satisfied that there:-
…is some changed circumstance which will justify such a serious step, some new factor arising or, at any rate, some factor which was not disclosed at the previous hearing which would have been material…
There are a wide variety of circumstances that would warrant the application of the above principle. This was acknowledged by Evatt CJ at pages 78,905 to 78,906 of the judgment where her Honour stated:-
These are not necessarily matters for a preliminary submission, but they are matters that the judge should consider in his reasons for decision. It is a question of finding that there are circumstances which require the court to consider afresh how the welfare of the child should best be served. These principles apply whether the original order was made by consent or after a contested hearing. The way they apply and the factors which will justify the court in reviewing a custody order will vary from case to case.
It has been recognised by the Court that on-going litigation is likely to have a deleterious effect on children. It was noted by Strauss J in the decision of Freeman & Freeman (1986) 11 Fam LR 293 at pages 76,470 to 76,471 that:-
Continuing and seemingly endless and inconclusive litigation is usually emotionally damaging to the litigants and is likely to affect the children adversely. It impairs the ability of the custodian … to deal with the present and plan for the future of the family. It is financially burdensome … The welfare of the children is, in this case, as in any other concerning custodial arrangements, the paramount consideration. But once the court, either after a full hearing or by a consent order, has settled the question of custody, it is usually in the interests of the children that the order made by the court is treated as determining the dispute and be given the necessary support. Stability in the lives of children and also in the lives of adults is an essential prerequisite to their well-being.
Section 69ZN(3) of the Act specifically directs the Court to have regard to the impact that the conduct of the proceedings may have on the children in determining the conduct of the proceedings.
In determining when the Court should embark upon another hearing concerning parental arrangements the Full Court in Marsden & Winch [2009] FamCAFC 152; (2009) 42 Fam LR 1 stated as follows:-
50.Whether in a particular case a court should be willing to embark upon another hearing concerning the child and parent, or whether to do so would itself be demonstrably contrary to the best interests of the child, is a decision to be made in each particular case. How is that decision to be made? The court must look at:
(1)The past circumstances, including the reasons for the decision and the evidence upon which it was based.
(2)Whether there is a likelihood of orders being varied in a significant way as a result of a new hearing.
(3)If there is such a likelihood, the nature of the likely changes must be weighed against the potential detriment to the child or children caused by the litigation itself. Thus, for example, small changes may not have sufficient benefit to compensate for the disruption caused by significant re-litigation.
The Full Court described a two-step process to be followed when the Rice & Asplund “rule” is invoked, namely that:-
58. … [T]here is a requirement:
(1)for a prima facie case of changed circumstances to have been established; and
(2)for a consideration as to whether that case is a sufficient change of circumstance to justify embarking on a hearing.
It is also important to recognise that in applying the principle in Rice & Asplund, the best interests of the child remains the paramount consideration.
For the reasons set out later in this judgment I am not satisfied that circumstances exist which would justify a re-opening of the issue of the allocation of parental responsibility or the question of with whom the child lives.
The Issues
The issues in this case, as identified in the parties’ material, the Family Reports and during the course of the hearing may be summarised as follows:-
·Whether there has been a change of circumstance, sufficient to justify a re-litigating of the parenting orders made by Macmillan J in September 2013 with respect to the allocation of parental responsibility and with whom the child lives and, if so, whether there should be a change to those orders;
·If there is no change to the orders that the child live with the father and he have sole parental responsibility, what time the child should spend with the mother; and
·Whether the mother’s time with the child should be supervised.
Is there a change of circumstance sufficient to justify a new hearing with respect to parental responsibility and with whom the child lives?
As noted above, the matters upon which the mother relied as changed circumstances which would justify a re-litigating of the Orders were as follows:-
1.The father’s failure to parent the child. It is alleged that he relies upon the paternal grandmother to attend to the child’s needs;
2.The father’s inability to control his anger, which has impacted upon the child’s emotional well-being;
3.The father’s failure to attend to the child’s nutritional requirements resulting in a loss of weight by the child since she commenced living with the father;
4.The father’s failure to provide for the child’s social development, it being said that he does not encourage or facilitate the development of friendships with her peers; and
5.The failure of the father to attend to the child’s educational requirements resulting in a deterioration in her academic performance since she commenced living with him.
The father denies each of the above allegations. The father was cross-examined by both counsel for the ICL and the mother in relation to the mother’s allegations.
Who is responsible for the child’s care in the father’s household?
The father was cross-examined by both counsel for the ICL and the mother in relation to the issue of who is responsible for the child’s care in his household.
The father confirmed that he is the person who prepares the child’s meals, is responsible for delivering her to and collecting her from school. Further, the father’s evidence was that he arranges play-dates, takes the child to her medical appointments and ensures that she attends time with her mother.
The father gave evidence as to the child’s involvement in and enjoyment of ballet classes and her excitement at commencing to play in a basketball team this year.
During cross-examination by counsel for the ICL the father confirmed that his parents play an important supportive role in the child’s life. However, he was clear that their role is that of grandparents.
During cross-examination the father was able to identify the child’s circle of friends, provide detail of her interests, which include trampolining, basketball, reading and playing with her friends. The father was also able to provide details of his household routine as well as the child’s extra-curricular activities, which include ballet twice-weekly and the commencement of her involvement in a basketball team this year. He also confirmed that the child maintains an interest in arts and crafts which was an activity she enjoyed with her mother. The father conceded that the mother is more artistic and creative than he.
The father’s evidence with respect to this matter was clear and unequivocal. The father presented as an honest and forthright witness who appeared somewhat wearied by the litigation. He was able to give detailed evidence as to the child’s interests and her routine. I accept his evidence.
The Family Consultant, Dr P, gave evidence as to her observations of the father’s role in the child’s life. Dr P’s observations of both the father and the child support the view that it is the father who is responsible for the child’s day to day care. At paragraph 17 of her third Family Report dated 16 June 2014 (“the third Family Report”) Dr P noted the father’s report that he had:-
… become very close [to the child] and that [the child] was now spontaneously initiating hugs and other signs of affection towards him. [The father] noted that [the child] had continued to excel socially and academically at her new school and was well settled. He reported, “I can feel the bond [between us] is strong. She’s very protective of me … we’re a team”.
Those sentiments were echoed by the child to Dr P. For example, at paragraph 27 of the third Family Report, Dr P noted:-
When asked to tell the writer how things had been going since she saw her last, [the child] said, “Really good,” and proceeded to list a number of activities she and her father had done on the long weekend. When asked specifically how she was finding living with her father, [the child] said happily, “Really good”.
Further, at paragraph 35 of the third Family Report Dr P noted the child’s response to how she felt about her living arrangements as follows:-
If it were up to her to choose where to live, she would not know where to choose. She said, “I love them both equally”. She added, “I think dad’s doing a good job at looking after me and a better job [than Mum] at letting me see the other parent”.
Dr P also reported her observations of the child’s interaction with the father. At paragraph 40 of the third Family Report she noted:-
[M] was observed informally with her father in the waiting room and on reunion after interviews. They were observed sitting closely together in the waiting room, looking comfortable. On reunion after the interviews, [the child] ran to her father and initiated a strong hug. Their interactions were observed to be reciprocally affectionate and warm.
The mother cross-examined Dr P for a little over one hour. Notwithstanding the matters identified above contained in Dr P’s third Family Report, the mother did not challenge those observations.
Dr P holds the position of Family Consultant. She is a Doctor of Psychology – Clinical Psychology (Child Specialisation). Her qualifications were not challenged. She is in a unique position insofar as she has had the opportunity of interviewing and observing the parties and the child over three assessments, having conducted her first interview in May 2013. The three reports prepared by her are detailed and thorough. During cross-examination, Dr P was thoughtful and measured; her evidence was insightful and compelling. I accept the evidence of Dr P with respect to her observations of the child and her relationship with the father.
Having regard to that evidence and the evidence of the father, I am satisfied that the father is deeply involved in all aspects of the child’s day-to-day care and that he is primarily responsible to attending to her needs.
Has the child been exposed to abuse or violence in the father’s household?
The mother alleges that the child has been exposed to family violence whilst in the father’s care. She alleges that the child has been present when the father has verbally abused her. At paragraph 25 of her affidavit filed 18 November 2014 the mother alleges as follows:-
On August 20 2014 during a mid week call to our Daughter [the child] the Father verbally abused me in front of the Child calling me a “Fat Mole” and to get “Fucked”. I had asked [the child] how her Maths was going as she was having some problems with Maths at her new school [EF School] as before [the child] was above average at her former school [X School]. The Father went on a rant and kept abusing me. The Father has a history of verbally abusing me and in public.
(Original emphasis)
The mother also relies upon the evidence of her neighbour, Mr BC, in support of that allegation. Mr BC swore an affidavit on 13 November 2014 (filed 18 November 2014). At paragraph 2 of that affidavit Mr BC deposes as follows:-
I witnessed on the 20th August 2014 at 7pm [the mother] phoning her daughter [the child] and [the father] calling [the mother] a “fat mole” and a “fucking bitch”. I heard this because [the mother] had her mobile phone on loudspeaker. [The father] then only after about 5 min hung the phone up without [the mother] being able to say goodnight to her daughter [the child]. Which would upset [the mother] leaving her in tears. [The father] was doing this in front of [the child] as I could hear her trying to inject into the conversation.
Mr BC at paragraph 3 of the same affidavit also provides evidence as to a conversation said to have occurred on 5 November 2014. In relation to that incident, Mr BC deposes as follows:-
On the 5th November 2014 I also witnessed another phone call on loudspeaker where [the father] called [the mother] a “bitch” and [the father] said “I look after [the child] better than you” (referring to [the mother]). Again I could hear the child trying to inject into the phone call without success. [The father] without allowing the child to say goodnight to [the mother] would simply aggressively hang the phone up. I felt sorry for [the mother] and the child as they just wanted to speak to each other. the child doesnt [sic] sound like she used to every time I would hear her voice on the phone. She never sounded happy or natural like she was afraid to say what she really wanted. She didn’t sound natural.
The father denied the allegations that he had verbally abused the mother on 20 August 2014 and 5 November 2014. He denied all allegations that he had verbally abused the mother or that the child had been exposed to abuse.
The father was cross-examined in relation to the allegations of the mother and Mr BC. The father’s evidence was that he had received a couple of telephone calls from Mr BC, the first about seven months ago. The child was with the father during that call and the father stated that he put the child on the telephone and she spoke with Mr BC.
In relation to the second call, the father stated that it was received approximately two months ago. The father stated that on the day of that call he had received a telephone call from the mother during which he could hear Mr BC in the background. The father’s evidence was that he terminated the call from the mother as she was speaking inappropriately to the father and the child, telling the father to allow the child to return to her care. Later that evening Mr BC telephoned the father and left a voice mail message to the effect that the father should not end the call with the mother as he had. The father’s evidence was that he did not return that message.
In addition to those communications with Mr BC, the father also gave evidence as to his communication with Mr BC’s daughter, Ms FG. The father’s evidence was that Ms FG had telephoned him “out of the blue” in about August 2014 regarding her concerns that the mother was taking advantage of Mr BC. The father stated that he had been informed by Ms FG that Mr BC has terminal cancer and is “confused mentally”. Further, it was alleged by Ms FG that the mother has received a payment of $10,000 from Mr BC. The father was informed by Ms FG that due to a conflict between Ms FG and the mother, Ms FG has obtained an interim intervention order against the mother.
At the commencement of the hearing the mother was given notice that Mr BC was required for cross-examination. During the course of the hearing, the mother indicated that Mr BC would not be in a position to attend Court to give evidence due to his age and failing health.
On the second day of the hearing, the mother produced a medical certificate from Dr GH in respect of Mr BC dated 20 January 2015 (Exhibit R3). That certificate stated in part:-
[Mr BC] has a history of multiple medical conditions. It is not suitable for him to travel a long distance by public transport. I advised his witness cross-examination to be done electrically in the court.
That certificate recorded Mr BC’s birthdate as 29 January 1928. Accordingly, at the time he swore his affidavit he was aged 86 years.
The mother’s evidence with respect to her involvement with Mr BC and the lengths to which she was prepared to go in order to have him give evidence for her was disturbing. During cross-examination the mother confirmed that she had taken Mr BC to a general medical practitioner after Court on the first day of the hearing to enable Mr BC to obtain a medical certificate excusing him from attending Court. The mother confirmed that not only had she driven Mr BC to that appointment on 20 January 2015, she also attended the consultation between the medical practitioner and Mr BC.
The mother stated that she has known Mr BC for a period of approximately four years and that they spend time together on one to two occasions per week. Although the mother sought to minimise her degree of involvement in Mr BC’s life, she conceded that on 19 December 2014 an application had been made to Centrelink on Mr BC’s behalf for a carer’s pension to be paid to her for the care and support she is providing to him. The mother confirmed that she is providing care for Mr BC for a period of up to 18 hours per week.
The mother also admitted that Mr BC’s daughter, Ms FG has obtained an interim intervention order against her, that order having been made on 15 January 2015.
The mother confirmed that she drafted Mr BC’s affidavit and that Mr BC had probably only heard two telephone calls between she and the father.
Notwithstanding the medical certificate provided with respect to Mr BC’ health, he did attend Court to give evidence on 22 January 2015. At the time of the hearing Mr BC was aged almost 87 years. During cross-examination by the father’s counsel Mr BC confirmed the following:-
·He has known the mother for approximately three years.
·For the past five months the mother has been assisting him by taking him to his medical appointments, attending to his shopping, cleaning his house and the like.
·He has applied to remove his daughter as his Centrelink carer and to appoint the mother in her stead.
·He wears a hearing aid and is hard of hearing.
There are many aspects of the case about which Mr BC appeared confused. For example, he could not recall when the mother told him he had to attend Court to give evidence. He thought that that had occurred the preceding day but conceded that he was not sure. When asked when the mother took him to his general medical practitioner, he answered that that had occurred “some time this week”; the medical certificate discloses that Mr BC had attended that appointment two days earlier. When asked about the telephone calls between the father and the mother, Mr BC conceded that he had not listened to many of those phone calls. He was not specific as to how many times he had listened to the calls. He was uncertain as to the dates of the telephone calls and conceded that he had not kept a diary note of the dates of the calls. Further, he conceded that he was not listening in on the telephone calls but just happened to be in the kitchen at the time of the calls.
It was submitted by counsel for the ICL that it would be unsafe to rely upon the evidence of Mr BC in circumstances where he is very elderly, has obvious difficulties in hearing and is dependent upon the mother for his physical support. I accept that submission.
Mr BC was unable to provide any detail about the telephone calls during the course of his evidence. He had difficulty hearing the questions posed by counsel representing the parties during the course of his cross-examination. It was conceded by the mother that she in fact was the draftsperson of his affidavit.
Mr BC is a vulnerable old man whose health is failing. Having observed his obvious hearing difficulties during the course of his evidence, I have no confidence that he would have been able to hear or follow a telephone conversation conducted over a mobile telephone speaker. Further, in circumstances where Mr BC could not recall events of the days immediately prior to his Court attendance and he had obvious difficulties in recalling when the telephone calls, about which he gave evidence, occurred, I do not accept his evidence.
I do not doubt the good intentions of Mr BC in seeking to assist the mother upon whom he is dependent for his day-to-day support. The degree of his dependence upon the mother is most concerning, particularly as it would appear his trust in her has been breached; the manner in which the mother has involved him in these proceedings highlights his vulnerability to the mother’s manipulation.
In my view the mother’s actions in seeking to involve him in the proceedings is an example of the degree to which the mother will seek to manipulate evidence in order to achieve her ends. That she would seek to involve her 86 year-old neighbour in these proceedings, have him swear an affidavit, attend upon a medical practitioner to obtain a certificate excusing him from attending Court and then have him attend Court to be cross-examined, demonstrates that the mother will stop at nothing in pursuit of her goal to have the child returned to her care. Her conduct showed little regard for the neighbour for whom she is a nominated carer.
I accept the father’s evidence with respect to the telephone calls with Mr BC. That evidence was direct and spontaneous. I am satisfied on the balance of probabilities that the father has not verbally abused the mother during telephone communication between she and the child.
The evidence of the child’s psychologist, Dr J, to which I will refer shortly, further supports a finding that there is no evidence as to the child being exposed to abusive behaviour by the father when in his care. Dr J has been attending upon the child since October 2012. She has been responsible for psychological monitoring and treatment of anxiety in the child associated with the conflict between her parents. She has sworn four affidavits in these proceedings being affidavits filed 25 June 2013, 30 April 2014, 6 May 2014 and 14 January 2015. Each of those affidavits has annexed to it the reports of Dr J in relation to her counselling sessions with the child. Dr J has consulted with the child on almost a monthly basis between October 2012 and January 2013 and between October 2013 and January this year.
As a consequence of Dr J’ attendances upon the child since she was seven years of age and the frequency of those attendances, being on an almost monthly basis, Dr J is well-placed to give evidence as to the child’s presentation and psychological functioning.
In her report dated 13 December 2014, Dr J notes the child’s observations with respect to telephone communication between the child and the mother. Those observations are telling in terms of the conduct of the parties and the reasons why telephone time is terminated. For example, in the notes of the session of 26 July 2014 Dr J reports as follows:-
While we played we chatted about her phone calls from mum around which time the child reported that the calls often have to end early because of mum saying things she shouldn’t – like “don’t lie for your father.” the child appeared sad as she spoke of the phone calls, and had a little nervous movement at the side of her mouth. She quickly cheered up when asked about the last time she giggled her head off – reporting that it was yesterday when she was with her dad.
In the notes for the session which occurred on 18 October 2014, Dr J reports as follows:-
While talking about phone contact, the child reported that her mum constantly tells her to ring [GH] and make sure you see [GH], and that phone calls had been terminated on account of the amount of pressure she was placing on her. She also reported that mum had called her dad a “cross-dresser.” The F word was also used by [the mother] according to the child…
[M] was asked how she would feel if she saw her mum, but didn’t have the phone calls. She reported that it would be fine and that she wouldn’t miss the phone calls, because they often end quickly and she’s always having to get ready for them right around dinner time. Her facial expression was of relief in considering this possibility.
With respect to the session which occurred on 14 November 2014, Dr J reported as follows:-
[M] bounced in happily today and was very relaxed and spontaneous in her expression. She reported in a matter of fact way that the phone calls were the same as always, not lasting much longer than 5 minutes.
It is significant that that November 2014 session occurred some 10 days after the telephone communication in which the mother alleges that the father verbally abused her.
The mother cross-examined Dr J. Much of that cross-examination focussed on her earlier reports prepared either prior to the change of residence or in the period immediately following the child commencing to live with the father.
This again, appeared to be an example of the mother focussing upon the evidence she perceived to be beneficial to her case, rather than upon the current observations of the child by those experts. For example much of the cross-examination by the mother focussed upon Dr J’s observations of the child in late-2013, being a period of months only since she commenced living with the father.
The mother did ask questions about Dr J’s notes with respect to the telephone communication that occurred on 26 July 2014. Dr J confirmed the contents of her notes and reiterated that the reference to the mother’s use of the “F-word” was reported to have occurred during telephone communication between the child and the mother.
The mother asked Dr J whether she considered that the child’s sadness when she spoke of the telephone calls may relate to the fact that there had been some verbal abuse from the father towards the mother. Dr J stated that she did not consider that to be a possibility.
The mother asked Dr J whether the child was having to lie about the telephone calls. The allegation that the father was swearing at the mother during the telephone communication was put to Dr J. The transcript of Dr J’s evidence in relation to that matter is as follows:-
Mother:[Dr J] could this be because the child is having to lie about the phone calls where [Mr BC’s] witness statement confirms it was actually the father swearing at the mother, and the child was scared to tell the truth as to not upset her father the authority figure, as none of the child’s previous statements, which I mentioned earlier, were supported by [F Contact Centre] at all?
[Dr J]: I don’t believe that to be the case, no.
Mother: Is it possible the child has been coached?
[Dr J]: I don’t believe that to be the case, no.
…
Mother:So basically what I’m asking you, the little quiver at the side of her mouth could have been, do you think – do you think it could have been because she was upset that she was actually saying to you that I used the F-word, when she knew very well that it was her father who actually swore at me, and she didn’t want to disappoint him?
[Dr J]:I don’t believe that to be the case, no. There were – there was consistent reference to the phone calls being particularly difficult for [the child], and [the child] did repeatedly comment that her mother, yourself, had made negative comments about dad to her, and that the conversation often needed to be ended early and – because of those comments.
Dr J was an impressive witness. She was thoughtful and considered and prepared to make concessions where appropriate. I accept Dr J’s evidence with respect to her observations as to the child’s reports of telephone communication with her mother and the impact of that telephone communication upon the child.
Having regard to the evidence of the father and Dr J, I am satisfied that the child has not been exposed to abuse or violence since she commenced living with the father.
Are the child’s educational requirements being attended to by the father?
When she was in the mother’s primary care, the child attended X School. Since living with the father, the child has attended EF School Primary School. She commenced Grade 4 this year. The father’s evidence is that she is making excellent progress at that school.
At paragraph 5(s) of her trial affidavit filed 18 November 2014 the mother deposes as follows:-
Ms [sic] school marks are now mainly standard where as [sic] at [X School] they were well above standard… Especially in Maths the child has declined Academically.
In support of her allegations as to a decline in the child’s academic progress and social development, the mother placed much emphasis and weight upon the child’s 2014 Semester 1 school report from EF School Primary School (Annexure BAB16 to the mother’s trial affidavit).
That report indicates that in all assessed areas the child is at the standard expected, above standard or well above the standard expected. It does not support the mother’s assertion that there has been a decline in the child’s performance. Indeed, those results are even more impressive having regard to the fact that they were achieved at a time when the child had experienced such significant change in her life; she had only recently commenced living with her father, changing her residence and her school and was having only limited supervised time with her mother.
M’s Year 3 Semester 2 school report for year-end December 2014 was tendered and is Exhibit A1. That report discloses that at the conclusion of Year 3 (which was the child’s first year at EF School) she was achieving above the standard expected of her year level across all areas. the child’s class teacher observed in the report as follows:-
It has been a pleasure teaching [the child] this year. She is a lovely, respectful and thoughtful student. [The child] is an independent worker who willingly takes on leadership roles when participating in group work. [The child] is highly organised and submits her homework with pleasing regularity. It has been wonderful to see [the child] enjoy her learning this semester as her friendship groups and confidence also grows. She displays a strong sense of social justice and her natural, caring personality makes her a loyal friend and a lovely classmate.
M was observed to be achieving above the standard expected in reading, spelling, handwriting, mathematics and science.
M undertook NAPLAN testing for Year 3 in 2014. The results of those tests were also tendered on behalf of the father (Exhibit A2). Consistent with the observations of her school teachers as noted in her school reports, the results of the child’s NAPLAN tests confirm that she is well above the national average in all areas tested, being reading, persuasive writing, language conventions and numeracy.
I am satisfied that the mother’s allegation as to a decline in the child’s academic progress since living with the father is not supported by the evidence before me. I am satisfied that the father is providing appropriately for and supporting the child’s educational needs.
Is the father attending to the child’s nutritional requirements?
The mother alleges that the father is failing to provide for the child’s nutritional requirements and as a result she has lost weight since she commenced living with the father. At paragraph 68 of her trial affidavit the mother deposes that the child is “extremely hungry” at the contact centre and that “most visits I do notice she has lost a lot of weight”. Further, she deposes that “I believe the child was a healthier weight in my care”.
In support of that allegation she annexes to her trial affidavit two photographs of the child (Annexure BAB21), one said to be taken when the child was living with the mother and one taken since she commenced living with the father. The photographs are undated and are unremarkable insofar as they depict a smiling young girl who appears happy and healthy.
The father denies the allegations of the mother that the child has lost weight since she had been placed in his care. The father addressed that allegation at paragraph 28 of his trial affidavit filed on 22 October 2014 as follows:-
…I cook nutritious meals for us which we share together. [The child] eats well at my home. She is not underweight and she is fit and healthy. She has everything that she needs and she is becoming more and more comfortable and content in my care.
Further, at paragraph 49 of his trial affidavit the father deposed as follows:-
Another issue arose at the Contact Service and that is the question of food. [The child] has complained that her mother is always trying to feed her up and becomes quite insistent about feeding her. [The mother] for her part in various telephone discussions has asserted that [the child] is thin and too thin and all of those sorts of things. I have attended upon our family doctor with [the child] who gave [the child] a general health check including weighing her. She is exactly at the 50th percentile for children her age.
The father produced a certificate from Dr HI of Suburb V Medical Centre dated 2 May 2014 (Exhibit A5). That certificate noted as follows:-
[M] attends this clinic. I have no concerns about her eating patterns. Her weight is within the expected [range] for her age. I would not support the concern she has an eating disorder.
During cross-examination by the mother, the father described the child as being of average height and weight. In relation to her diet the father stated that when she first commenced living with him she would eat only pizza, KFC and schnitzels. He stated that she has now expanded her diet and eats banana, corn, lean meat, vegetables and salad. He confirmed that he cooks the child’s meals. The father’s evidence was convincing and I accept that evidence.
The mother, in support of her concerns regarding the child’s weight, filed an affidavit on 14 January 2015. Exhibit BAB1 to that affidavit are two photographs taken by the mother of the child during supervised time at the contact centre. The first photograph, taken on 13 December 2014 depicts the child jumping on a trampoline; it is a photograph of a happy and active child. The second photograph exhibited is taken by the mother on 20 December 2014. The photograph is a picture taken of the child facing the wall with her back to the photographer. It is a disturbing depiction of a child who has been asked to turn around so that her mother can photograph her back. That the mother saw fit to take such a photograph during a period of supervised time reflects poorly upon her.
In her submissions and evidence, the mother demonstrated no insight as to the potential impact upon the child of requesting her to pose in such a manner for that photograph. During cross-examination by the father’s counsel, the mother’s evidence was that she told the child she missed her during telephone communication as she was concerned that if she did not, “it might affect [M’s] self-esteem”. Curiously, the mother held no such concern for the child’s self-esteem when asking to photograph her back.
That the supervisors at the contact centre permitted such a photograph to be taken is also deeply concerning.
What is clear from those photographs is that the child is a tall, slim and attractive young girl. Other than the mother’s criticisms, there is no evidence before me that would indicate there are any concerns as to the child’s weight since she has commenced living in the father’s care.
M has attended upon Dr J, psychologist, on a monthly basis since she has commenced living with the father. Dr P has observed the child across three reports, the first of which is dated 30 May 2013 and the most recent of which is dated 16 June 2014. Having observed the child on a regular basis since she commenced living with the father, in my view it is significant that neither Dr J nor Dr P raise any concerns in their reports with respect to the child’s weight.
Further, no issue or concern has been raised at the child’s current school or by her treating general medical practitioner.
Accordingly, I am satisfied that there is no evidence of a change in the child’s weight which gives rise to any concern which would justify a re-litigating of the issues of with whom the child should live or the allocation of parental responsibility .
Is the father attending to the child’s social development?
The mother is critical of the father, alleging that he does not support, encourage or facilitate the child developing friendships amongst her peer group. For example, in her trial affidavit the mother deposes as follows:-
60. … [the child] tells me she simply spends most Weekends Playing alone in her room and says she feels Lonely on week ends [sic], During midweek calls to her.
61. [M] tells me that because of Dads [sic] work schedule He Is never home much and Grandma is too tired to run Her around on weekends I would imagine that if The Paternal Grandmother is cooking everynight [sic] which [the child] tells [Dr J] in her 15 December 2013 Report and Caring For [the child] whilst [the father] is out that The Grandmother in her 70s would tire easily. I don’t Believe this is healthy for the childs [sic] social development As when [the child] was in my care we always went out on The weekends and had her friends at home for playdates.
The mother submits that much weight should be given to the comments of the child’s class teacher contained in her Semester 1 report dated June 2014 (annexure BAB16). In particular, the mother focussed on the following comments by the child’s teacher:-
I would like to see [the child] let herself enjoy things more. She seems very reserved and worried what others may think of her.
Throughout the proceedings the mother placed significant emphasis on the child’s teacher’s use of the word “reserved” when describing the child. The mother also relied upon the comment of the child’s teacher in the last page of the report where she noted:-
I would like to see her consolidate friendships and perhaps having classmates over for play dates could help foster this.
The father denies the mother’s allegations and maintains that he actively supports and encourages the child’s social development. As noted above, during cross-examination the father was able to provide a detailed account of the child’s friendships and his efforts to support those relationships by arranging playdates and facilitating the child’s involvement in her extra-curricular activities. I accept that evidence.
I am satisfied that there is no basis for the mother’s allegations, particularly having regard to the observations of the child’s class teacher in her Semester 2 report (Exhibit A1). At the time of the first report, the child had spent only one semester at the school. By year end, her teacher reports that she was an above standard student in most areas who:-
… is a lovely, respectful and thoughtful student…who willingly takes on leadership roles when participating in group work… It has been wonderful to see [the child] enjoy her learning this semester as her friendship groups and confidence also grows. She displays a strong sense of social justice and her natural caring personality makers her a loyal friend and lovely classmate.
Later in that report, the child’s class teacher noted an area for improvement was for the child to “ensure she does not chat so much to those around her”. Seemingly, the child’s relationships with her classmates have developed to the extent that she now needs to curb her enthusiasm for chatter so as not to distract others.
Notwithstanding the observations of the child’s teacher in the Semester 2 report, throughout the hearing, the mother remained focussed on the comments contained in the Semester 1 report. She appeared blind to the evidence of the positive development of the child’s social network over the course of 2014 as is reported by her class teacher in the Semester 2 report.
At paragraph 63 of the judgment delivered 27 September 2013, Macmillan J observed the propensity of the mother to “cherry pick” those parts of the evidence she perceives to support or assist her case whilst disregarding the parts which do not. The manner in which the mother presented her case with respect to both the child’s educational and social development is consistent with that selective approach to the evidence as observed by Macmillan J. It was an approach adopted by the mother in the presentation of many aspects of her case; that approach does not reflect well upon the mother and significantly undermines her case.
The evidence of Dr J, who, as noted previously, has been attending the child on an almost monthly basis since October 2012, also supports a finding that the father has appropriately supported the child’s developing relationships with her peer group. Dr J was cross-examined by the mother as to her observations with respect to the support for the child’s relationships with her peers in the father’s household. The mother asked Dr J why her reports were silent with respect to the child’s play dates. Dr J’s evidence in response was as follows:-
I haven’t referred to them specifically, and I do apologise for that. [The child] does talk about birthday parties that are for new friends that she has made. She talks positively about school. She seems happy with her friendships there. She has mentioned one or two playdates. It has never been a concern.
I accept the evidence of Dr J.
Having regard to the evidence of the father and Dr J, and the school reports of her class teacher as to the development of the child’s friendships, I am satisfied that there is no basis for the mother’s criticisms of that aspect of the father’s care.
Is there evidence of a change in circumstance?
The criticisms by the mother against the father with respect to his attention to the child’s nutritional requirements and social development were matters squarely raised by her during the proceedings before Macmillan J in 2013.
For example, in the first Family Report of Dr P dated 30 May 2013 Dr P notes the allegations of risk made by the mother with respect to the father’s care. At paragraph 59 of that report Dr P notes the mother’s allegations that the father “is neglectful in his care, providing inadequate nutrition and supervision”.
Macmillan J addressed the mother’s allegations in her judgment. She noted as follows:-
157. The mother also set out in great detail her complaints about the father’s ability to provide proper care for the child. Her evidence suggests almost a wilful neglect of the child’s needs rather than simply an inability on his part to provide appropriate care. They included not only not cooking for her but also not feeding her at all, leaving her alone at night and overnight, watching television or sleeping all day and leaving the child to her own devices, not buying her presents for her birthday or Christmas, not contacting her whilst on extensive holidays overseas and not being interested in nor enquiring about her progress or activities at school. She went as far as to depose that the father “has never shown interest in the child’s development or welfare.” I am satisfied that these allegations are more a reflection of the mother’s attitude to the father than matters of real concern with respect to the child’s welfare.
158. The mother’s allegations are denied by the father. His evidence about caring for the child was natural, responsive and detailed. He described making her breakfast, lunch and dinner, gave examples of what he prepared and also said that although he and the child usually ate lunch with just the two of them, that his parents would sometimes join them for dinner. He also said that it was important for he and the child to spend time together without his parents. The father’s evidence is supported by the evidence of the paternal grandmother. I found the father’s evidence and his mother’s evidence about the child’s care very convincing. Both the father and his mother also gave evidence about outings and activities they engaged in with the child. I accept their evidence.
…
160. Not only is there no physical evidence which supports the mother’s allegations, her evidence is also not consistent with statements made by the child to Ms C, and more recently to Dr J, or the video of time she had spent with the father and her paternal grandparents in March 2012. Dr J reported that the child told her that “she didn’t get the food that she found enjoyable and that she was a bit bored at times, but she wasn’t emphasising that as being a major problem.” She contrasted what the child had told her with the views she expressed to Dr P and also said that what the child was reported to be saying at changeover at the contact centre was not consistent with what she was saying in their sessions. I am satisfied that the father has provided and has the capacity to provide appropriate care for the child and that as observed by Dr J with “regard to the child’s safety, no concerns have been raised in the sessions by way of conversation and interview, or by way of behavioural observation.” I am satisfied that the child is not at risk in the father’s care.
The difficulty with providing such a mechanism in this case is the failure of the mother thus far to engage in psychological counselling that will assist her in understanding the orders and judgment of Macmillan J. I am satisfied that the counselling the mother has undertaken with Ms T has not addressed those matters, its focus being on assisting the mother with her stress and anxiety. Further I am satisfied that that counselling has not assisted the mother in developing any insight as to the impact of her behaviour upon the child.
It was conceded by Dr P that there is little point in ordering the mother to attend further counselling given her fixed and rigid views as to her role in the outcome of the proceedings before Macmillan J.
In all of the circumstances, I am satisfied that having regard to the mother’s inability to engage with counselling so as to affect change and improvement in her psychological functioning, it is appropriate that there be orders for long term supervision. That view is supported by the child’s stated desire that her time with the mother be supervised.
Dr P indicated during her evidence that it may be appropriate to reconsider the need for supervision at or around the time the child completes her primary school years.
I do not propose to make any orders providing leave to the mother to make application at that time to review the question of supervision. At the time of the hearing before me, some 16 months had elapsed since Macmillan J’s orders were made; it was evident at the hearing before me that the mother had done little to address the significant issues impacting upon her psychological functioning and self-awareness as to the impact of her behaviours upon the child. In light of the evidence of Ms T and Dr P, I have no confidence that the mother will address those issues in the aftermath of this judgment. I am satisfied that to invite further litigation in circumstances where there is currently little prospect of change in the mother’s psychological functioning would be contrary to the child’s best interests.
(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;
Both Dr P and Dr J gave evidence in relation to their view as to the appropriate frequency of the child’s time with the mother.
Dr J in her report dated 13 December 2014 (annexed to her affidavit of 14 January 2015) opines at page 5 as follows:-
The court faces a very challenging decision regarding what is best for [the child’s] wellbeing. A non-contact order is certainly a valid option. A further option worth considering is for supervised contact to be of a pattern that is least disruptive to [the child’s] life, but still allows some knowledge and understanding of her mother, and continued opportunities for [the child] to assert herself (supervised) in the relationship. This could look something like supervised contact every two months, or even on special occasions such as around the time of birthdays, Mother's Day and Christmas. I would not be recommending that the contact build up to more often, or build up to unsupervised. With regard to the phone contact, in my opinion, the calls are adding little to [the child’s] wellbeing and are possibly just disruptive to her life. I would not be in favour of the phone calls continuing in between any supervised contact, if this is the outcome.
During cross-examination by counsel for the ICL, Dr J was questioned as to the basis for her nominating two months as the appropriate frequency between the child’s visits with the mother. Dr J responded to that question as follows:-
I guess I’m not committed strongly to it being two monthly. I raised that as a suggestion. I’m very much aware of the potential that [the child] is just pleasing all of the adults by continuing contact, and, alongside that, as she matures and gets older, children’s lives just get busier these days, and if it’s too onerous and too often, my concern would be that she would actually not want to go.
Counsel for the ICL then questioned Dr J as to the potential impact on the child if the time between she and the mother was too limited. In particular, counsel for the ICL invited Dr J to consider the impact upon the mother if the time is so limited and the potential distress such limited time would occasion, particularly if the mother is not seeking treatment to support her in coming to terms with the orders. Dr J conceded that her recommendation of two months was “a suggestion, a recommendation but there’s nothing definite about it”.
Dr J was invited to consider the proposal of the ICL that the child spend supervised time with the mother once per month. Dr J responded to that proposal as follows:-
I think once a month could work well. At some stage, though, it may be important to incorporate some choice in that for [the child].
Dr J qualified that concession indicating that once a month would be appropriate provided the child wanted to go; it was her view that care should be taken to minimise the disruption to the child’s life and that regard should be had to her wishes.
Dr P was also cross-examined as to her views with respect to frequency of time. At the time of the preparation of the third Family Report Dr P’s recommendation with respect to supervised time was set out at paragraph 52 as follow:-
… [the child] continues to love her mother and values this relationship; she has demonstrated that she can withstand her mother’s alignment pressure in this setting and is appropriately critical of her mother’s behaviour. Had [the child] not disclosed about her mother’s behaviour, the recommendations of this report would likely look significantly different; however, her disclosures and the discussion of the same indicate that infrequent and supervised time with her mother now bears little threat to [the child’s] long-term well-being or her relationship with her father and therefore the benefits outweigh the risks. The writer suggests that the Court consider an arrangement whereby [the child’s] time with her mother continue at a supervised Contact Centre, financed by the mother, at a frequency that the mother can afford but no more frequently than every third week…
Dr P confirmed that recommendation during cross-examination. She was asked to comment upon the proposal that the time be reduced to monthly or bi-monthly. Dr P indicated that in circumstances where she had not seen the child for a period of six months, she did not feel that she was in the best position to comment on Dr J’s recommendation as set out above.
Dr P was asked to comment upon the potential impact of a reduction in time upon the mother’s behaviour. In response to that question Dr P stated:-
I think that there’s a real risk inherent in mum’s – in the tone of mum’s questioning today and the tone of her affidavit. I think mum finds it very difficult to accept the judgment that has been made about [the child’s] residence, and there is a risk that if she feels she has lost [the child] altogether that her behaviour will escalate and – in terms of pursuing [the child] and trying to obtain her preferred outcome, which is that [the child] live with her.
Dr P confirmed that the mother’s likely response to a further reduction in her time was a valid matter to take into account.
When asked to consider the risks to the child of a reduction in the mother’s time, Dr P noted as follows:-
I actually think bi-monthly seems – you know, six times a year for a nine-year-old to be seeing her mother seems initially quite infrequent given the level of risk, given that she’s protected – given the low level of risk, given that she’s protected in a supervised setting and given that the mum puts such effort into the time that she spends with her and it is positive.
Having regard to the evidence of both Dr J and Dr P, I am satisfied that it is in the child’s best interests for her time with the mother to occur on a monthly basis. It was conceded by Dr J that that frequency would likely work well for the child. I am satisfied that that level of frequency will ensure that the child has the opportunity to maintain a meaningful relationship with her mother in a safe setting.
The evidence of Ms DE (including the notes of the contact supervisors), Dr P and Dr J confirm that when protected from the mother’s inappropriate behaviour, the child enjoys spending time with her mother; that evidence confirms that when focussed on play-based activities, such as craft activities or outdoor games at the contact centre, the child delights in spending time with her mother.
I am satisfied that spending time with the mother on a monthly basis will ensure that the child can continue to enjoy a relationship with her mother, whilst ensuring that there is minimal disruption to her extra-curricular and social activities.
(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;
Counsel for the ICL and the father submit that orders should be made for the child to spend time with the mother at the contact centre on a monthly basis. It is their position that the mother should bear the costs of the contact centre in relation to that time.
The contact centre is situated in Suburb I. The father drives the child to and from that contact centre from his home in Suburb V which is a journey of some 40 minutes each way. Until July 2014, the father was meeting all of the costs associated with supervised time, that being $220 per visit.
The mother does not pay child support.
In circumstances where the father is responsible for the child’s day-to-day care and support without financial assistance from the mother, I am satisfied that it is appropriate that the mother meet the costs of the monthly visits at the contact centre.
(g)the maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the child and of either of the child’s parents, and any other characteristics of the child that the court thinks are relevant;
(h)if the child is an Aboriginal child or a Torres Strait Islander child:
(i) the child’s right to enjoy his or her Aboriginal or Torres Strait Islander culture (including the right to enjoy that culture with other people who share that culture); and
(ii) the likely impact any proposed parenting order under this Part will have on that right;
So far as these matters are relevant, they have been dealt with in other parts of this judgment.
(j)any family violence involving the child or a member of the child’s family;
(k)any family violence order that applies to the child or a member of the child’s family, if:
(i) the order is a final order; or
(ii) the making of the order was contested by a person;
I have addressed these matters, insofar as they are relevant, earlier in this judgment.
(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;
It is always desirable to make orders that are the least likely to lead to further proceedings in relation to a child. The child has been at the epicentre of conflict between her parents since 2008. The time has now come for the child to be relieved from the burden of litigation.
The orders I make will provide long-term stability for the child. She will continue to live with her father at the home of her paternal grandparents. She will continue to see the mother at the supervised contact centre, albeit on a monthly basis rather than every three weeks.
The orders will ensure that the child has the benefit of meaningful relationships with both of her parents. They will also ensure that she has a period of respite from proceedings, at least until the conclusion of her primary school years.
It is to be hoped that the mother uses that time to address the issues identified by Ms T and Dr P in relation to her acceptance of the current orders and to assist her to develop awareness and insight as to the impact of her behaviour on the child.
(m)any other fact or circumstance that the court thinks is relevant.
There are no other relevant circumstances.
60CC(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
(b)has facilitated, or failed to facilitate, the other parent:
(i)participating in making decisions about major long-term issues in relation to the child; and
(ii)spending time with the child; and
(iii)communicating with the child; and
(c)has fulfilled, or failed to fulfil, the parent’s obligation to maintain the child.
I have addressed the issues regarding the parties’ approach to their responsibilities as parents earlier in this judgment.
Should the mother be restrained from making further application in respect of the child?
The ICL seeks an order that the mother be restrained from making any application in respect of the child under Part VII of the Act without leave of a judge of this Court and such leave not be sought by the mother for a period of not less than two years from the date of the orders. That application is supported by the father. The mother opposes that application.
It is submitted on behalf of the ICL that such order is necessary to provide the child with a period of respite from litigation, in circumstances where she has been the subject of proceedings before this Court in relation to these current applications since February 2012.
Proceedings were first commenced with respect to parenting matters in May 2008. Those proceedings were finalised in July 2008. The second set of proceedings with respect to parenting orders were commenced in February 2009 and were finalised in August 2009. In February 2010 the father filed a Contravention Application in respect of the parenting orders which was finalised in March 2010. The mother also issued an application seeking parenting orders in February 2010 and those proceedings were finalised in April 2010. A further application for parenting orders was filed by the mother in October 2010 which was concluded in December 2010. The parties were again in Court in November 2011 as a result of a Contravention Application commenced by the father.
That history indicates that the child has been the subject of litigation since she was two years of age. Her parents have been parties to family law proceedings regarding the child’s care each year since the first application was filed in 2008. The hearing before me spanned a period of four days. There were multiple interim Court events prior to that hearing. The hearing before Macmillan J was conducted over seven days.
The ICL relies upon the evidence of Dr P in support of her application. During cross-examination, Dr P was asked her view as to whether or not the child should be given a break from Court proceedings as a result of her having been the subject of litigation for much of her life. Dr P confirmed that she would support the ICL’s proposal. It was her view that in two years, the child will be nearing the end of primary school. Dr P observed that at that point, the child will be at a different stage in her maturation and development where things could conceivably look different and that the arrangements appropriate for her at that time could also be quite different.
The ICL relies upon s 64B(2)(g) of the Act as the basis for the restraining order sought. That section provides as follows:-
(2)A parenting order may deal with one or more of the following:
….
(g) the steps to be taken before an application is made to a court for a variation of the order to take account of the changing needs or circumstances of:
(i) a child to whom the order relates; or
(ii) the parties to the proceedings in which the order is made;
…
Section 65D(1) provides that in proceedings for a parenting order, the Court may make such parenting order as it thinks proper.
The ICL also relies upon the judgment of Cronin J in Bale-Sutch & Bale-Sutch (No. 2) [2010] FamCA 20 in support of her application to restrain the mother from commencing further proceedings without leave being first obtained. In that case Cronin J observed that the father there needed to undertake significant work to address deficiencies in his parenting. Like this matter, there was a long history of litigation. In considering the application for an injunction in that context, Cronin J observed at paragraph 175 as follows:-
… It would not therefore be appropriate for the Court to simply permit the husband to bring any application he liked in the future without some indication that there is a basis for the Court to re-examine the position. To allow the husband to make application at any time he felt aggrieved may have unfortunate and inappropriate psychological consequences for the children. That is undesirable. In my view, s 65D is sufficiently wide and it would appear proper in the circumstances, to make an order that the husband not make any application for parenting orders in the future without leave of a judge of this Court….
I respectfully concur with the view of Cronin J that s 65D enables the making of an injunction as sought by the ICL in the appropriate circumstance. I am satisfied that it is appropriate in the circumstances of this case to make such an order.
Having been the subject of litigation since she was two years of age, I am satisfied that the time has come for the child to be relieved of that burden. It is likely that the child is unable to recall a time in her life when she has not been the subject of conflict between her parents. The child has been involved in therapeutic counselling on an almost monthly basis since 2012 to assist and support her with the management of her stress and anxiety, which in large part is due to the conflict between the parties. It is a sad reflection on both parties’ parenting that their nine year-old daughter requires such intensive therapeutic intervention.
I am satisfied that the restraint is appropriate to ensure that the child can enjoy a settled period in her life without the spectre of having to attend upon Family Consultants, an ICL or other professionals related to Court proceedings. Accordingly, I will make an order in the terms sought by the ICL.
Conclusion
I have already indicated earlier in this judgment that the question of allocation of parental responsibility and with whom the child shall live will remain unchanged from the decision of Macmillan J. I am satisfied that there has been no change of circumstance which would justify a re-opening of those issues.
As to the issues as to the time the mother is to spend with the child, I am satisfied that such time should continue to be supervised at the contact centre to ensure that the child is protected from the impact of her mother’s behaviour. As noted earlier in this judgment, the mother does not have the capacity to limit or contain behaviours which place the child under pressure and which have the effect of undermining the role of the father. In circumstances where the mother has not engaged in therapeutic treatment to address those issues (as opposed to treatment to deal with her anxiety and stress related to these proceedings), I am satisfied that the child’s time must continue to be supervised.
Having regard to the evidence and recommendations of Dr J and Dr P, the psychologists who have been involved in these proceedings since 2012 and 2013 respectively, I am satisfied that the mother should spend time with the child at the contact centre on a monthly basis.
I am also satisfied, having regard to the evidence of Dr J, that it is in the child’s best interests that her telephone communication with her mother be limited to special occasions. Dr J’s report of 13 December 2014 (referred to earlier in this judgment) provides detailed accounts of the child’s reports as to the mother’s behaviour during telephone communication. It is clear from Dr J’s evidence that the child is burdened by such telephone communication and indeed it was obvious relief that was exhibited by her when the prospect of ceasing telephone communication with her mother was raised with her by Dr J.
During cross-examination, Dr P was equally supportive of a discontinuation of the weekly telephone communication. I accept the evidence of both Dr J and Dr P with respect to this matter. I will order that the child have telephone communication with the mother on Christmas Day, Easter Sunday, the child’s birthday, the mother’s birthday and Mother's Day in each year.
I will also make orders permitting the mother to provide a letter, card or gift to the child on those special days, such items to be provided to the child by the mother at the contact centre on the occasion closest to those special days.
Dr J has provided invaluable therapeutic support to the child over the course of these proceedings. I am satisfied having regard to all of the evidence that it is appropriate that that support continue and I will order that the father ensure the child’s continued engagement with that therapeutic support. Such support should continue on a reportable basis.
The mother is one of the two most significant people in the child’s life. It is a tragedy for the child that the mother’s continued involvement in her life, of necessity, must be limited; that this has occurred is due to the mother’s inability to contain and limit her behaviour designed to undermine the father and his role. The child must be protected from the damaging effects of that behaviour.
Notwithstanding that behaviour, I am satisfied that it is important to the child and in her best interests that the mother continues to be informed as to her welfare and progress. Accordingly, I will order that the parties utilise a communication book to ensure that the mother is provided with regular updates as to the child’s care and development and that she is informed as to the child’s attainment of milestones and achievements. I am satisfied that the provision of that information will assist and support the maintenance of the child’s relationship with her mother.
However, given the mother’s inability to contain her behaviour around the child, I am satisfied that it is appropriate that there be an injunction restraining her from attending the child’s school or any place where the child is engaged in extra-curricular activities unless otherwise agreed with the father in writing.
The orders I make are as follows:-
That the mother spend time and communicate with the child M born … 2005 as follows:-
(a)At the I Contact Centre (“the contact centre”) for a period of two hours on one occasion per month on the following bases:-
(i)such time to take place on days and at times nominated by the contact centre;
(ii)the mother to be solely responsible for the cost of supervision; and
(iii)the mother to comply with all reasonable directions as may be made by the contact centre in order to facilitate supervision of her time with the child.
(b)By telephone on Christmas Day, Easter Sunday, the child’s birthday, the mother’s birthday and Mother's Day each year and to facilitate such communication:-
(i)such calls to take place at 6.00 pm on each occasion unless otherwise agreed between the mother and father in writing;
(ii)the father do all acts and things to ensure that the child initiates the telephone call to the mother’s landline or mobile number;
(iii)the father be at liberty to monitor the telephone calls on loudspeaker and terminate the calls in the event that the mother discusses subjects or issues that may undermine the child’s relationship with her paternal family or destabilise her care arrangements; and
(iv)the mother keep the father advised at all times of a current telephone number on which she can be contacted.
(c)By telephone at all other reasonable times as may be requested by the child to her father and the father ensure that upon such request he do all things necessary to facilitate the child communicating with her mother by telephone;
(d)By letter, card and/or gift on the special days referred to in sub-paragraph (b) of this order with such items to be provided to the child by the mother at the contact centre on the occasion of time to be spent that occurs closest to the special day; and
(e)At any other times as agreed between the mother and the father in writing.
That the father ensure that in the event that the child wishes to communicate with the mother by way of card, letter and/or gift to her mother at any other time during the year he facilitate such requests by the child and do all such acts and things as may be required to provide such items to the mother at the contact centre on the first occasion of time after such request has been communicated to him by the child.
That the father do all acts and things as may be required to ensure that the child continues to attend upon Dr J or her nominee for such therapy or counselling support as may be recommended by Dr J, the father to be solely responsible for the cost of that therapy and/or counselling support.
That any therapy or counselling provided by Dr J to the child be conducted on a reportable basis.
That the father and mother utilise a communication book which is to be provided to the mother at the beginning of each occasion of supervised time and returned to the father at the end of that period of time with the purpose of the said book being to provide the mother with up-to-date information on a monthly basis about the care, welfare and development of the child including but not limited to details of her extra-curricular activities, her involvement in special events, her special academic or educational achievements, and her attendances on any medical or dental specialists.
That the mother by herself, her servants or agents be and is hereby restrained by injunction from attending at the child’s school or any place where the child is engaged in extra-curricular activities unless otherwise agreed in writing between the father and mother.
That until 1 July 2017 the mother be and is hereby restrained from making any application in respect of the child under part VII of the Family Law Act 1975 (Cth) to any court having jurisdiction under the Act without leave of a Judge of the Family Court of Australia first obtained.
That the appointment of the Independent Children’s Lawyer be discharged.
That all extant applications be otherwise dismissed.
That pursuant to s 65DA(2) and s 62B, the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders and details of who can assist parties adjust to and comply with an order are set out in the Fact Sheet attached hereto and these particulars are included in these orders.
I certify that the preceding three-hundred and thirty-five (335) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Johns delivered on 11 June 2015.
Associate:
Date: 11 June 2015
Key Legal Topics
Areas of Law
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Family Law
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Civil Procedure
Legal Concepts
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Injunction
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Jurisdiction
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Procedural Fairness
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Remedies
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Standing
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Appeal
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