Mazur and Mazur - [2008] FMCAfam 484

FEDERAL MAGISTRATES COURT OF AUSTRALIA

MAZUR & MAZUR

[2008] FMCAfam 484

FAMILY LAW – Parenting orders – allegations of sexual abuse by parent – allegations of physical abuse – spending time with child overseas.

Family Law Act 1975 (Cth)

Cropper v Smith (1884) 26 ChD 700
State of Queensland v JL Holdings Pty Ltd (1997) 189 CLR 146
M v M (1988) 66 CLR 69 at 76

Applicant:

MS MAZUR

Respondent:

MR MAZUR

File number:

BRC 2551 of 2007

Judgment of:

Burnett FM

Hearing dates:

10, 11, 14, & 15 April 2008

Date of last submission:

15 April 2008

Delivered at:

Brisbane

Delivered on:

16 April 2008

REPRESENTATION

Counsel for the Applicant:

Mr Baston

Solicitors for the Applicant:

Wiltshire Lawyers

Counsel for the Respondent:

Mr Burridge

Solicitors for the Respondent:

Rigoli & Associates

ORDERS

That the solicitor for the Applicant submit a minute of order giving effect to the rulings in this judgment and that such draft be submitted to the Court within fourteen (14) days of today’s date.

IT IS NOTED that publication of this judgment under the pseudonym Mazur & Mazur is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
BRISBANE

BRC 2551 of 2007

MS MAZUR

Applicant

And

MR MAZUR

Respondent

REASONS FOR JUDGMENT

Introduction

In this application the parties seek orders in respect of parenting matters concerning three children, they being [A] born in 1991; [B] born in 1992 and [C] born in 1995.
In broad terms orders are sought by the mother in terms of exhibit 7 in the proceeding. The father contends for a different outcome to the sum of matters provided for in exhibit 7 which I will shortly particularise below. It is fair to say, however, that the differences between the parties in the matters which have to be resolved by me in terms of the overall draft of orders, while individually and discretely significant, will not require a significant drafting in terms of the two proposals that exist.

Background

First by way of background, the wife is a woman aged approximately 37 years of age having been born in 1970. The husband is a man of approximately 41 years of age having been born in 1967. They were both Polish by origin. They migrated to Australia variously in 1982 and commenced a relationship in 1987. In 1988 the wife fell pregnant to the husband and in 1989 the parties married.
The first child to the parties, [D], was born in 1989. Unfortunately he passed away. The wife subsequently fell pregnant again and in 1991 the eldest child, [A], was born. Throughout this time the husband and wife and the child had been residing in a property with the wife's parents, but in about March 1991 they took up residence of their own.
In 1992 the second child, [B], was born. The parties continued to reside in Victoria. They resided in various locations. In late 1993 they proceeded to Holland with a prospective view of migrating back to Poland. That was short lived with the parties returning back to Australia in 1994.
In late 1994 the parties determined to relocate to the Gold Coast where they then took up residence. In 1995 [C] was born and in late 1995 the parties moved into the residence at Property L. That was a property which was owned by the wife's parents. It was sold to the applicant and respondent at a sum which was fixed and that property was subsequently used as security to purchase a second property, the property at Property P which is now the former matrimonial home.
The parties resided and continued to reside in that residence up to the date of separation. The mother continues to reside in that residence to date with the children. There is no suggestion that the residence is not otherwise suitable for the parties to reside at.
In May 2004 the parties went to Poland for a holiday. They returned on 11 August 2004. Difficulties arose between them and by September 2004 it appears the parties determined to separate.
Shortly after separation the husband left the jurisdiction and returned to Poland and has resided there on a continuous basis since that time. In the meantime back in Australia it would appear that some time in late 2004, around about November, allegations of sexual misconduct were levelled by the eldest child, [A], against the husband and those allegations, as this judgment will reveal, are the subject of some consideration.
Ultimately a decree nisi issued on 5 January 2008. As these proceedings ensue the wife resides with the three children at the former matrimonial home with her now partner, Mr C. The husband lives in Poland. He has repartnered and has now fathered another child who is about 11 months of age.
Interim orders were made on 6 September 2007 and those orders particularly provided that the father would communicate with the child, [C], commencing from 16 September 2007 and each alternate Sunday thereafter and that the mother would use her best endeavours to facilitate the father's communication pursuant to Order 1. It was also provided that the father would initiate communication with [C]. It is to be noted in those orders that there is no reference to orders made in respect of the two daughters. I will deal with that matter in further detail shortly.
There has, in effect, been no physical contact between the father and any of the three children since late 2004 subject to the child, [C], making efforts to make contact with his father on occasions when he became aware of the father's return to the jurisdiction as had occurred on various occasions between November 2004 and the time of trial.
Now, by reference to exhibit 7, the principal points of difference between the parties are in terms of two orders. First, Order 2 for which the wife proposes there be an order that the wife have sole responsibility for the long term care, welfare and development of the children. The father contends for orders that there be joint shared parental responsibility for the long term, care, welfare and development of the children. Secondly, in Order 4 the wife contends for an order that the husband spend time with the children in Australia as may be agreed between the children and the husband, the children of course being each of the three children.
The husband seeks an order only in respect of the child, [C], which departs from the proposed Order 4. He seeks an order in terms of para 6 of the orders contained in his summary of argument which, in essence, provide that the husband will spend time with [C] on his return to Australia on occasions as outlined in the submission and, further, that on occasions when the husband is outside of Australia, that [C] will spend time with him, most presumably, in Poland.
There is a further point of departure which is only minor which relates to para 10 of the proposed orders. Paragraph 10 contemplates that there will be counselling to assist in the children's re-engagement with the father and that that counselling will be provided by Mr Keith Sedgman, a psychologist. The wife, in her proposal, seeks orders that the husband be responsible for those costs. The husband, in his proposal, asks that those costs will be borne equally.
It is fair to say that overall, save for the orders for the equal shared parental responsibility for all three children, the only substantive issue in the trial concerned the matter of the father spending time with the son, [C].
I turn now to the legislative framework. Section 60B of the Family Law Act provides the object of the Part and the principles underlying that Part which concern Part VII being the Part dealing with children provides that:
“The objects of this Part are to ensure that the best interests of children are met by –“
and relevantly 1A; C and D, they being:
“ensuring that the children have the benefit of both their parents having a meaningful involvement in their lives to the maximum extent consistent with the best interests of the child 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.”
How those objects are achieved is detailed in s.60B(2) and relevantly for the present purposes, subsections (b) and (c) which provide that:
“The principles underlying these objects are that except when it is or would be contrary to the child's best interests; (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; and (c) that parents jointly share duties and responsibilities concerning the care, welfare and development of their children.”
The parties have largely agreed on the mechanical aspect of spending time, at least concerning the eldest two children. It is, as exhibit 7 reveals, agreed that those two children will determine when they will spend time with the father. The only issue to be determined really in this case is whether [C] too, should be subject to that same regime or whether a more prescriptive regime as is advocated for on the father's behalf should be imposed. However, before moving to resolve that issue, I think the first issue to be resolved is the issue of equal shared parental responsibility.
Section 61DA imports a presumption of equal shared parental responsibility when making parenting orders. In particular, it provides that:
“When making a parenting order in relation to a child the Court must apply a presumption that it is in the best interests of the child for the child's parents to have equal shared parental responsibility for the child. The presumption is subject to rebuttal.”
Section 61DA(2) provides:
“The presumption does not apply if there are reasonable grounds to believe that a parent of a child has engaged in; (a) abuse of the child or another child who at the time was a member of the parent's family or; (b) family violence.”
In this case there are allegations of both abuse and family violence.
Dealing first with the allegations of abuse. The allegations are that in November 2004 the daughter, [A], who is now 17 but was then 14, complained that her father, the respondent, had inappropriately touched her on numerous occasions. The complaints are referred to in a number of sources and I will not detail these sources chronologically. I may, if I am required, to settle reasons and re-order them, but for present purposes I will just express them in these terms: There were complaints made by the child to a psychologist, Peter Jordan, who was a psychologist engaged to prepare a family report for these proceedings. At paragraphs 11.1.8 and 11.1.9 and 11.1.10 she made these statements when speaking to Mr Jordan. She recalled an incident where she was in year 3 or perhaps year 2:
“She said that her father always slept in her bed. She said that on one occasion he had touched her in the lower region. She thought that he was drunk. She said that her father got drunk a lot. She continued. The father touched her inappropriately more than once. There was another time when she was in grade 7. She was home from school alone with him. Whilst she was in the spa her father came in and he was massaging her leg and touching her close to her genital area. On that occasion he was not drunk. She reported that after her father left she told a friend at school about her father touching her. Her friend advised her to speak to the school nurse, so she did. She said that she received counselling from the nurse.”
That is the first of a series of independent reports.
Next was a report made by the child to her mother. In exhibit 2, which is a bundle of documents relevant to the issue of a protection order, there is a protection order application which includes a statement made by the mother to police for the purpose of seeking a protection order. In that statement the mother wrote as follows:
“On 9 November 2004 I found out from the Department of Communities that my daughter has been sexually abused. On 22 November 2004 I finally had the courage to ask my daughter of what and how it happened.”
Although she does not detail the matters in her statement to police, in her evidence before the Court she detailed the particulars of the circumstances where she was informed by her daughter of the allegations she made against her father.
Further there were reports made by the daughter to the Department of Community Services. In exhibit 4 there are the various notes, field notes, recorded by the department. Careful reading of them suggests that some of the notes concern notifications made by the mother and others concern notifications made by the daughter. In that regard I refer only to the notes or notification that concerned the daughter and I will explain why I am satisfied they are notes of notification from the daughter.
A note was taken on 14 October 2004 that was received at about 2.08 am and the receiving officer was Eliza Brewer and it was a telephone contact. Quite an unusual hour for something like this to be received and, no doubt, done in those circumstances where it would be expected it was kept relatively quiet, bearing in mind that at this time the daughter had not informed her mother of the allegations. The report writer noted that the notifier – this is on the second page – the report writer noted under the heading:
“Notify Contact of the Following Concerns. That the father verbally and physically abuses mother and children. The father will hit all children anywhere, usually with an open hand. The mother tries to intervene by[sic] father will push her away.”
She probably meant "but":
“The father will push children more than he hits them and has hit them with a belt and thrown keys at them. This abuse has been occurring for a long time. The father will call [A] fat and has told [B] that she is the dumbest of all children.”
And then the following name is redacted so that the identity is not revealed but it continues:
“The father inappropriately touched her between the legs. The father was sleeping at the time in her bed as he and mother were fighting.”
It is quite clear from the expression or the construction of the language used in that report that the reporter was the person complaining of having been touched between the legs and that is indeed the very complaint which is echoed in the complaints made by the daughter to both the mother and to Mr Jordan, and on that basis I am satisfied that the notifier in that instance is in fact [A].
The fourth objective source of complaint was the complaint made to the school nurse, although that matter has only been canvassed in the most peripheral way.
At the outset I make the observation that the father vehemently denies the allegations but notwithstanding that matter the allegations are there and the reports have been received into evidence. Furthermore there are allegations of domestic violence. Again, looking at the material these appear to be made principally by the mother and the daughter, [A]. I have already noted that section of the notification document with the Department of Children's Services that particularises [A]'s complaints. The mother also made complaints and so much again can be seen by reference to the notification in which occurred, it would seem, on or about 30 November 2004 when, again, the relevant parts have been redacted to conceal the identity of the complainer, but the complaint is that on 9 November 2004 a number of officers interviewed the mother at the Gold Coast area. During the interview the mother stated that the father had moved to Poland, although she was unsure if that was a permanent arrangement. She stated that he was verbally abusive, constantly talking down to her and calling her an idiot. He would push her, mostly pushing and shoving, not with a closed fist. She said she put up with it for more than 16 years.
She said the father would smack the children mainly on the bottom and sometimes around the head with an open hand. He would use a heavy thong and sometimes a belt. He would throw shoes and keys at the children and the children had bruises on their bottoms and legs from where the father hit them.
Those particular complaints, again, were echoed in the reports made by children in the course of counselling with the report writer, Mr Peter Jackson. It can be seen from a review of the interviews conducted between Mr Jackson and each of the three children that there are allegations of violence toward them. The child, [A], makes the complaint on one occasion she noted her father kicked her out of the house twice. On those occasions he called her stupid and hit her and told her to get out.
The daughter, [B], reported to Mr Jordan, her memories of her father included he being angry. He drank a lot at night and played very loud music and that he would hit us with his hands but at least once with a cable. She recalls, in fact, an incident when her father broke her mother's nose. I was not sure how it happened, although that matter appears to be picked up partly by [C] who, too, makes complaints about the father having yelled at them and hitting them a lot. I noted that he also hit his mother and stated that once in Poland he had broken her nose. Again, the father vehemently denies all the allegations.
The significance of the allegations are that if I am satisfied that there are reasonable grounds to believe that a parent has engaged in abuse of a child or family violence then the presumption arises under s.61DA(2) will be displaced. What therefore does s.61DA(2) require? It requires reasonable grounds. It does not require me to make a finding that such has occurred. This is in fact consistent with what the High Court stated in M v M where in considering the pre-existing legislation and dealing in the context of complaints concerning sexual assault, the Court stated at 76[1]:
“In considering an allegation of sexual abuse the Court should not make a positive finding that the allegation is true unless the Court is so satisfied according to the civil standard of proof with due regard to the factors mentioned in Brigginshaw v Brigginshaw. There Dixon J said: The seriousness of an allegation made, the inherent unlikelihood of an occurrence of a given description or the gravity of the consequences flowing from a particular finding are the considerations which must affect the answer to the question, whether the issue has been proved to the reasonable satisfaction of the tribunal. In such matters reasonable satisfaction should not be produced by inexact proofs, indefinite testimony or indirect inferences.”
His Honour continuing, the Court noted:
“His Honour's remarks have a direct application to an allegation that a parent has sexually abused a child, an allegation which is often easy to make but difficult to refute. It does not follow that if an allegation of sexual abuse has been made out according to the civil onus as stated in Brigginshaw, that conclusion determines the wider issue which confronts the Court when it is called upon to decide what is in the best interests of the child.”
[1] (1988) 66 CLR 69 at 76.
The matter is ultimately a question of fact to be resolved in the usual way which, in part, of course, requires the Court to have regard to questions of credibility. In this case there are essentially two witnesses whose credit has to be assessed, they are each the husband and the wife. The allegations made by the wife are extremely grave and serious. To accuse a person of sexual misconduct with a child and to accuse in particular the husband of assaulting a wife and children are, in my view, grave matters and when examining and considering those accusations, one has to weigh up, as the High Court has indicated, the fact that the allegations are often easy to make but difficult to refute.

I also take into account the reality of circumstances involving matrimonial disputes where parties clearly have particular agendas which they seek to pursue and that often times those agendas could affect their review of events from an historical perspective. Accordingly, I commence my assessment of any allegations of that kind with some degree of cynicism recognising, as I say, the fact that the claims are easy to make but often difficult to refute.
It is often the case that parties engage, and in this case have also probably engaged in some degree of reconstruction of events, which may lead to a distortion of the facts. Sometimes, of course, there is in any event always going to be some minor departure from the reality of any situation by reason of decay of memory and the drafting and recall of statements of events which occurred some time before.
All up, I look at both parties independently. Dealing first with the wife, some criticism could be visited upon the wife in relation to her recall of these events by reason of the matters contained in her initial statement. In paras.159 to 162 she deals with the allegations in what could only be described as a very brief sense. She does not descend into any of the detail that we have heard evidence of in the course of proceedings through the last three days. Nor does she even descend into that level of detail which she afforded the police when she made her complaint. In broad terms her evidence in relation to these matters at trial was significantly detailed. She gave evidence that, on an occasion on 22 November when she was in the car driving from school and having had discussion with her daughter. The discussion appears to have ensued for over an hour. There were, it would seem, long and pregnant pauses, lots of silence, lots of crying as the events were spoken of between her and her daughter. Clearly that sort of information should have been included in an affidavit and one would have expected at the very minimum something more than one sees in the affidavit.
I am also mindful of the long length of authority extending from well before State of Queensland v J L Holdings back to the previous century, in Cropper v Smith which is to the effect that the sins of solicitors are not necessarily visited upon their clients when it comes to matters of procedure. Equally, once you take the same approach in relation to matters of this kind where procedurally it would have been much more satisfactory to have these matters articulated in an affidavit, however, accepting those matters, the evidence which I heard from the wife was still, in my view, probable and realistic. In particular I draw those conclusions having regard to the inherent likelihood of matters being revealed in the form in which they were revealed between a teenage daughter and her mother. Overall, I have to say, I formed a very favourable impression of the applicant mother and to some extent, and quite unusually for me, I was impressed by her passionate outburst in the course of her evidence which I felt was not only a moment of truth but also a statement made with some heartfelt genuineness and sincerity. I am not one generally to be influenced by what can be described as emotional outbursts, but on this occasion I formed the view that what the wife was expressing was, as I say, heartfelt, genuine and honest.
Now, for the father's part, there were perhaps four pieces of evidence which I found critical in determining my overall view of his reliability. The first is that he said in his prepared statements and affirmed the evidence that he left Australia for Poland immediately after the separation because he was devastated by the breakdown of his relationship. That, as I say, was stated both orally and can be found in a passage at paragraph 41 of his affidavit filed on 22 May 2007.
Secondly, the husband said that he left the wife $60,000 in cash.

A reference to that can be found, apart from his oral statements, at paragraph 77 of his affidavit filed on 8 April 2008. Thirdly, he gave evidence that he had a good relationship with his children such that the reluctance of the girls, in particular, to have time with him was caused by the intervention of the wife. He made those statements first on paragraph 57 of his first affidavit and the second one at paragraph 69 of his second affidavit and, finally, he gave evidence that he lived in the former matrimonial home up until 24 October before departing, which was inconsistent with his earlier affidavit material. Paragraph 39 of his first affidavit referred to him leaving the house in late September.
The evidence which he gave of those matters was demonstrated to be unreliable by reference to a letter dated 25 October 2004 which was forwarded by his then solicitors to the solicitors for the wife. It was a without prejudice letter but the without prejudice components of the letter had been redacted leaving only the matters of fact which no doubt constituted the instructions which were provided by the respondent father to his then solicitors. It is apparent from a review of that letter that each of the facts that I have just recited was wrong.
There is, in my view, a document that exists to demonstrate an inconsistent series of facts leading to my conclusion that the father's evidence in this matter is inherently unreliable and accordingly where it departs from the evidence of the wife, or is contradicted by the evidence of the wife it is rejected.
As I earlier stated I do not need to make any positive findings about abuse or family violence, however, accepting the wife as a reliable witness, and having rejected the husband as being unreliable, I look to the basis of her knowledge in order to determine whether she had a reasonable basis to believe that the husband had engaged in abuse of a child or the children and/or family violence. In that regard I need to have regard to the matters which gave rise to her belief. The matters are these: First, so far as violence was concerned she had her own first hand experience, then she had the reports made to her by the Department of Children's Services and, of course, she had from her discussions with the department, knowledge gleaned from their records of complaints made by the children and then, finally, she has in more recent times, knowledge gleaned from complaints made by the children to Mr Jordan. Those facts quite clearly, in my view, in the mind of the applicant mother would have given rise to rise to reasonable grounds to believe that the father had engaged in family violence.
Next, then, is the question of abuse. In that regard, of course, she had no personal knowledge. She only had knowledge based upon the reports which were made to her. Now, first I wish to acknowledge that I have given consideration to the prospect that the child, [A], may have been telling lies. She may have been motivated by mischievous intention and that, of course, if she was telling a lie then by simply lying on multiple occasions does not convert a lie into the truth. However, I take into account the seriousness of the allegations made by [A], the fact that they have been made over a significant period of time to people in authority and that overall the report on each occasion has been broadly consistent.
Accepting that the mother was then possessed of knowledge based upon the reports made by [A] , to not just herself but to each of the report writer to the Department of Children's Services, I am satisfied that she would have had reasonable grounds to believe that a parent had engaged in abuse of a child. I am also satisfied, in respect of each of those matters, that not only did she have reasonable grounds to believe but I too can be satisfied by reason of those matters, that there are reasonable grounds to believe that the father has engaged in abuse of the child and family violence.
It follows in this case that I do not accept that the presumption which ordinarily applies under s.61DA (1) will apply. In any event, even if I am wrong on that matter by reason of my analysis, s.61DA(4) provides for a rebuttal of the presumption. Section 61DA(4) provides:
“The presumption may be rebutted by evidence that satisfies the Court that it would not be in the best interests of the child for the child's parents to have equal shared parental responsibility for the child.”
That requires, of course, a review of the matter by reference to best interests considerations.
The starting point for that exercise, however, is to define what is in fact parental responsibility that has to be equally shared. Section 61B defines parental responsibility for the purposes of the part in these terms:
“In this part parental responsibility in relation to a child means all the duties, powers, responsibilities and authority which, by law, parents have in relation to children.”
That rather broad statement is not a great deal of particular assistance in a practical sense but I am guided in part by what appears in the Master Family Law Guide First Edition CCH at page 79 where the authors have noted:
“It would appear then that parental responsibility is essentially a responsibility to make all decisions as are necessary to ensure that a child's needs are met and includes decisions about matters including (but by no means limited to) where the child lives, medical treatment, education, religious upbringing, the child's name, social contact and interaction, protection of the child from harm, passports and marriage of the child under the age of 18.”
The author continues:
“Generally speaking, parents have and, indeed, share parental responsibility for their children. It is only when disputes about children come within the sphere of the Family Law Act there is a need to allocate parental responsibility.”
Now, equal shared responsibility obviously means simply sharing responsibility for making decisions about those matters of which I have just articulated. I detailed those matters because when it comes to considering best interests considerations I am particularly mindful of the need to factor those considerations against the background of both the legal and practical meaning of parental responsibility in order to ascertain whether, indeed, in this case there should be an order for equal shared parental responsibility of each of the three children.
Dealing then with the s.60CC considerations, and many of them I should say at the outset are not relevant for present purposes because of the confined nature of the exercise that has to be undertaken in this instance. Section 60CC(2) details both primary and additional considerations. Section 60CC(2)(a) requires the Court to consider the benefit to the child of having a meaningful relationship with both the child's parents. I do not consider in the context of other matters which I have just articulated and having regard to the background of the parties, this is a particularly relevant consideration. Subsection (b) requires the Court to consider the need to protect the child from physical or psychological harm or from being subjected to or exposed to abuse or neglect or family violence. Again, whilst there may be matters in this case that bear upon those factors, for the purposes of determining the question of equal shared parental responsibility, I do not consider in the present context that consideration bears particular relevance.
Next, the additional considerations provided for in s.60CC(3). Subsection (a) provides for the Court to consider any views expressed by the child and any factors such as the child's maturity or level of understanding that the Court thinks are relevant to the weight it should give to the child's views. I will address this matter perhaps in greater detail shortly when I speak of the child, [C], but in broad terms it is tragic for this family that the children, in this instance, really wish to have nothing to do with their father at all. It follows, particularly when one has regard to the age of the children, the eldest being 17, the next just gone 16, clearly the children do not want the father to be involved in decisions about where they live, about medical treatment, education, religious upbringing, their name, social conduct and interaction, passports and other matters. Having regard to their age I am particularly mindful of those matters and will give them particular weight.
So far as the child, [C], is concerned, again, when one has regard to his age, he is presently 13, he expresses the view that he does not wish his father to be overly involved in his life, which would mean that he does not wish his father, by inference, to be involved in such matters as where he lives, medical treatment, education, religious upbringing, his name, social conduct and interaction and the like. It seems on that basis, having regard to the age of the children, and they are, in my view, of an age where they can express a legitimate view about these matters, that the wife's proposal that she have sole responsibility is to be preferred, particularly given that the children live with her and there is a demonstrated capacity between those parties to communicate.
Next is the nature of the relationship with the child with each of the child's parents. In this case, as I have already outlined in the preamble, this is a case where the father has had very limited involvement at all with these children particularly since his departure from the jurisdiction in 2004. He has not seen either of his daughters and has only seen his son on a handful of occasions. Recent exchanges which are documented in Mr Jordan's statement suggest that the child, [A], does not want any contact with her father. In other words there appears to be little, if any, relationship there. The daughter, [B], is perhaps to be described as a little more ambivalent. She had mixed feelings about whether she wanted to talk with her father and the child, [C], submitted that he did not really want to get in touch with his father.
Each of those matters, to me, suggests that the nature of the relationship of the children with the father is such that it is so badly fractured that the prospect of the father's sudden involvement in issues such as where they live, medical treatment, education, religious upbringing and so forth is only likely to further exacerbate the difficulties that presently exist between them rather than assist and, accordingly, I think for that reason, again, the wife's proposal is to be preferred.
Willingness and ability of each of the child’s parents to facilitate and encourage a close and continuing relationship between the child and the other parent. That requires the Court to have regard particularly to the matters provided for in s.60CC(4). That provides that the Court must consider the extent to which each of the child's parents have 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 have taken or failed to take the opportunity to participate in making decisions about major long term issues in relation to the child and to spend time with the child and to communicate with the child and to have facilitated or failed to facilitate the other parent to do likewise.
When one has regard to the requirements of s.60CC(4) it is, in particular, mandated by s.60CC(4)A that if the child's parents are separated the Court must, in applying sub-s.(4), have regard, in particular, to events that have happened and circumstances that have existed since the separation occurred.
In this case there appears to be clear evidence to suggest that since the date of separation there has been no participation by the father in making decisions about major long term issues in relation to the children, not time spent with the children and almost no communication with the children. The question, of course, arises as to whether or not that has occurred because of the intervention of the mother or because of the father's own lethargy, apathy or some other reason which was not advanced by him in the course of evidence.
The father's case on this point is that he has made efforts, he has sent cards and sent packages but the cards have been returned unanswered. I have already indicated that I do not regard the father as a reliable witness. I accept the mother's evidence that there has been no such material sent. The only occasion upon which material was sent was an occasion which was related in evidence concerned the arrival of a parcel. As the mother stated in her evidence, the parcel was addressed to [C] and she was required to take [C] to the post office in order to have the parcel released. [C] was not interested in participating in that activity and the parcel was ultimately returned to the father unanswered.
In any event, even accepting the father's evidence at its best, it strikes me that the father has made a very poor effort, if it could be described as an effort at all, to either participate in making decisions about the children, spend time with the children or communicate with the children. It seems to me that when one has regard to what is involved in an order for joint parental responsibility, that the father should not now be permitted to derail what appears to be a working arrangement in relation to the children with the mother having assumed these responsibilities for the last three and a bit years. She should continue to do so, and for that reason I am of the view that the mother's proposal represents the best outcome.
Subparagraph (d) is not of any relevance. That is the likely effect of any changes in the child's circumstances. Subparagraph (e), again, is not relevant, which concerns the practical difficulty and expense of spending time with. Subparagraph (f) does not have any relevance in the context of this debate. Subparagraph (g), which is the requirement to consider the maturity, sex, lifestyle and background of the child and of the children's parents and any other characteristics that the Court thinks are relevant, I think, has already been analysed and discussed within the context of sub-paras.(a) and (b) above.
Subparagraph (h) has no relevance. Subparagraph (i) is relevant.

It concerns the attitude to the child and to the responsibilities of a parent demonstrated by each of the child's parents. Again, that mandates the Court to consider the matters provided for in s.60CC(4) and (4A). I have already addressed those matters and can add nothing further to those matters save as to say that I think, again, on that basis it supports the proposal contended for by the mother.
Subparagraph (j) involves the consideration of any family violence involving the child or a member of the child's family. Again, in the context of an application for joint parental responsibility and having regard to the geographic location of the two parties, this is a matter which probably bears no practical relevance although, obviously, it is a matter which I have already touched upon as having had some history in this case.
Subparagraph (k) requires no comment, nor does sub-paras.(l) or (m). Overall, having weighed up all those matters that the Court is required to consider in terms of s.60CC, I am of the view that the proposal contended for by the mother represents the best interests outcome in the context of this matter and that, accordingly, in my view the presumption should be rebutted because the evidence does satisfy me having regard to the matters which I have already addressed, that it would not be in the best interests of the child or the child's parents to have equal shared parental responsibility for the children and that the mother should continue to exercise her duties in that regard without having to consult or be involved in negotiations with the father in respect of those matters.
The remaining issues concern time spent by the father with [C]. I have already touched upon the competing proposals and they are essentially these:
a)that the children will spend time with the father at such time as the children might agree with the father, being the contention for on the mother's part;
b)for the father's part, when the father is in Australia, on the father giving not less than 21 day's notice, the father will spend time with [C] each alternate weekend from 6 pm Friday to 6 pm Sunday and for half school holiday periods by agreement otherwise, in the absence of agreement, the first half. Such contact to be subject to the husband being available in Queensland;
c)from 3 pm Christmas Eve until 3 pm Christmas Day 2008 and each alternate year thereafter, from 3 pm Christmas until 3 pm Boxing Day 2009 and each alternate year thereafter;
d)from 9 am until 6 pm Father's Day each year provided all contact is suspended on Mother's Day in each year and [C] is returned to the mother by 9 am on Mother's Day.
e)Three hours on the husband's birthday at times to be agreed in the event that it falls on a non contact day provided that the children are not with the husband on the wife's birthday, arrangements are made for the children to be returned to the wife after a period of three hours on the wife's birthday and;
f)such further and other times as agreed between the parties from time to time;
g)if the husband lives outside of Australia, then [C] spend time with the husband for up to 75 per cent of all school holiday periods and for the husband to meet the costs of [C]'s travel and to provide to the wife notice of his intention to exercise such time together with a copy of [C]'s return airline tickets, itinerary and contact address and phone numbers while with the husband.

This issue is one which is of relatively short compass and, apart from the proposal in respect of overseas travel, it falls to resolving the question of whether or not [C] should spend time with his father at such time and on such occasions as he chooses or whether there should be some prescriptive regime put in place. It too is a matter which has to be resolved by reference to best interest considerations, bearing in mind, in relation to this particular matter, his best interests are of paramount consideration and that there is no need to deal with s.65DAA issues.

60CC(2) Considerations

Commencing then with the s.60CC(2) considerations, the primary considerations, perhaps the most significant is the first, being the benefit to [C] of having a meaningful relationship with his father. His mother is anxious to see that [C] has an on-going relationship with his father and she deposes to that in her affidavit. She says she does not wish to seek or limit his relationship with the father.
The question, of course, is whether or not by [C] having a relationship which is governed principally by his desire to spend time with his father is one that will enable him to have a meaningful relationship with his father. That matter, in part, is addressed in the report of

Mr Peter Jordan. In his report at paragraph 13.2.10 he says that:
“Whilst the father appears to be asking for only a small amount of communication with the children or time spent with them, I believe that is inappropriate for this to occur before issues in relation to [A]'s allegations are settled.”
He continues:
“Even if it were considered that communication with the father was safe, the children to feel confident in communicating with and/or spending time with him would need some reassurance as to his good character. The father believes that the mother is responsible for the children's alienation from him and this heightens the likelihood, if they were to have telephone communication with the children, he would say things to him to undermine their relationship with their mother.”
He continues:
“Even if the father is cleared of suspicion regarding [A]'s allegations, there is still the matter of the children's memories of him as a physical punitive and possibly violent man who was an excessive drinker. These are matters that may need to be addressed through counselling, possibly with the father participating, either in person or by teleconference from Poland.
In the final analysis, after any investigations are completed and information is provided to the children in a sensitive manner by a counsellor, it seems to me that the two older children are going to be the ones who make the final decision as to whether they are prepared to communicate with or spend time with their father. [C] is still only 12 years old. He is still a little young for the responsibility of this decision, hence it may be necessary for a review of the family assessment to be conducted.”
When he gave evidence he was of the view that, with the assistance of a counsellor, [C] would now be in a position to in fact make such decision and that, by inference, I infer that process would ensure a meaningful relationship between he and his father could be developed.
Quite clearly, of course, subject to other matters I raise, in the context of greater contact between the father and the child equally presents as a matter of beneficially developing a meaningful relationship between both the child's parents and, accordingly, on my view of the material, each proposal presents an equally compelling argument and, to that end, the proposals are mutual in terms of their outcome.
The need to protect children from physical or psychological harm from being subjected to or exposed to abuse, neglect or family violence. In this case [C] complains of family violence. He is not alone in that regard. I have already indicated I do not propose to make any formal findings in relation to that matter but I do need to take into account the need to protect him from the prospect of exposure to family violence, and that seems to be a realistic prospect in this case.
That perhaps bears particular consideration in terms of time away, not only in Australia but also overseas. So far as overseas is concerned, I think there is an unreasonable risk of an exposure to family violence. Quite clearly, if [C] is overseas with his father and his father resorts to a violent response to [C]'s behaviour or some other matter which upsets the father, [C] would be isolated from any support network which might otherwise be available to him. I think it constitutes an unreasonable risk and, to that end, having regard to the need to provide protection for him, that particular proposal is not to be favoured.
However, so far as time with his father in Australia is concerned, accepting that time was spent in the general locale of the Gold Coast region where [C] could, as he would as a 13 year old, I expect, simply up and go in the event that there were difficulties between himself and his father. The factor of the risk of physical harm is somewhat less.
Quite clearly, the wife's proposal would involve no risk at all. There is, it would seem on that basis, however, the father's proposal is not unreasonable if his time with the child was limited time on the Gold Coast area.

Additional Considerations

They require me to consider the views expressed by the child, [C], and any factors I consider that are relevant to the weight I should give to his views. [C] has provided evidence in an updated report. Evidence came to the Court by way of a report provided by Peter Jordan on [C]'s views. They were broadly in these terms: At paragraph 11.3.7:
“He was not sure how he felt. He said –“
referring to his father:
“He's all nice just now so he can talk to us. He just wants to look good. He did not know why his father would want to talk to him, he did not really think about him. He just wanted him out of his head. He said he got on well with [Mr C], who is his stepfather. [Mr C] never hit him. He said that he did not really want to get back in touch with his father.”
Those sentiments have not changed. There was a further interview conducted the day before trial between the father and the social worker, Mr Jordan, and it is obvious from the evidence that Mr Jordan gave over the telephone, that [C]'s position has not changed. It was put to him in cross-examination that [C]'s views had been largely fashioned by the views of his mother and his two daughters. Irrespective of whether there was any truth in that allegation or not, Mr Jordan made this observation, he made the observation that [C]'s views had been formed over a very long time and are held strongly irrespective of their cause. When asked about the prospects of there being a repair of the relationship he said he did not consider the prospects to be strong, although he thought that the prospect of counselling may assist.
It is quite clear, in my view, having regard to the evidence I heard from Mr Jordan that [C]'s views are quite unambiguous. He does not wish to spend time with his father. Obviously when he was first interviewed he was 12 years of age and it was considered then that he may have been a little too young to express a conclusive view in relation to those matters, however, I regard the more recent assessment of him by

Mr Jordan as assisting the Court immeasurably on this point.

Mr Jordan, I think, as I have already noted, when questioned as to the prospects of repairing a relationship, expressed a view they were not strong but said that with the engagement of counselling, something might come from that process.
It seems to me, having regard to those matters, that I should give considerable weight to the views of [C]. I think at the age of 13 he is now in high school, he is now, no doubt, by reason of his social development well aware of the nature of these proceedings. He probably does not know of them expressly. I would be very surprised if in the school yard at the [Z] State High School he does not have a whole series of playmates who are in a not dissimilar position to his, who all compare notes on how their families work. He would be, I expect, well aware of those matters and well aware of what he can or cannot do. I would also expect, as I have already indicated as a boy of his age, who is expressing clear issues of rejection, that to try and impose a regime upon him is simply not going to be successful even if one imposes a counselling regime as well. On that basis I think the mother's proposal represents the best interest proposal for the child in this instance.
The nature of the relationship of the child with his father. I made observations about this matter earlier in the context of the first issue for determination, however, some other matters need to be added. Shortly after separation [C] did make efforts to spend time with his father.

It could be inferred from that, and I do except that for a short time there was an intention on [C]'s part to try and maintain his relationship with his father, however, his father has not reciprocated. His father returned to Poland. He has commenced another family and, it seems to all intents and purposes, that the children now experience, and particularly [C] experiences a sense of abandonment. That is a fact and it, no doubt, has coloured the perception of [C]'s relationship with this father, unfortunately, in a negative way.
But the fact remains, as is reported by Mr Jordan, the relationship between [C] and his father is one which is now fractured and his views in relation to his father, poor as they are, are now very strongly held views. Again, in the context of a regime which is proposed for by the father which seeks to impose a prescriptive regime for spending time, it does not strike me that such a regime in those circumstances could ever be seen in the present context to be in the best interests of the child and, again, for that reason I consider the mother's proposal to be the preferred proposal.
Willingness and ability of each of the child’s parents to facilitate and encourage a close and continuing relationship between the child and the other parent. Again, I have already addressed this matter in the context of the first issue for resolution and there is little more to add to that beyond the observations I made in respect of the last matter which concern efforts made by the father to communicate with the child. One in fact could take the view that, if anything, despite the father's evidence that he says cards were sent and returned, one could take the view that the father still has not made significant effort to engage with his children and it could have been done in a more practical way. He has, as Mr Baston submitted in his submissions, been to and from Australia now on about six occasions since separation but, despite that, has not made any real effort to make contact with the child either formally or informally. The closest it came was seeking orders in September last year in relation to communication but the effort that has been undertaken by the father, in my view, has been below standard.
It is because of that and my concerns that the regime which is contended for by the father involves, essentially, an immediate return to what could otherwise be described as a common garden contact arrangement in circumstances where there has been this significant period of relationship breakdown could not be in the child's best interests, and so much is consistent again with the evidence of Mr Jordan who took the view that, having regard to the circumstances of this case, he says especially with respect to the timing that it would be important that there be a period of counselling to assist in relation to the redevelopment of the relationship. Indeed, he want so far as to say that the risk here is that the lack of any face to face relationship between [C] and his father would be likely to jeopardise any on-going relationship and, in that context, contended that some form of counselling would be necessary to reintroduce the parties. So again, for that reason, I am satisfied that the wife's proposal represents the best contention.
Next is the likely effect of any changes to the child's circumstances, including the likely effect of the child on any separation from either his or her parents. That would only be a consideration that arises in the context of an order made for the father to spend time with the child in Australia and, to that end, the competing proposals are neutral.
Next is the consideration relating to the practical difficulty and expense of the child spending time with, communicating with a parent. Again, in the context of there being time in Australia, again the competing proposals are neutral.
The attitude to the child and responsibilities of parenthood demonstrated by each of the child’s parents. Next is the capacity of each of the child's parents and any other person to provide for the needs of the child, including emotional and intellectual needs. Again, having regard to the limited context in which this dispute arises, I do not think this particular consideration is overly weighty in the overall scheme of things and to that end neither proposal assists.
The maturity, sex, lifestyle and background of the children and of the children’s parents and any other characteristics of the children that the Court thinks relevant. I really addressed those matters, I think, when I discussed the matters concerning the child's views and the nature of the child's relationship. Those matters, in my mind, bring out perhaps the most significant issues and they are that, of course, we are now dealing with an adolescent 13 year old boy in the circumstances where there has been a long standing fractured relationship.
The next consideration being that of indigenous background is not relevant.
Next is the consideration relevant to the attitude to the child and the responsibility demonstrated by each of the child's parents. Again, I have already addressed that matter earlier. I have nothing to add to my earlier observations.
As I say, there are complaints made by the child, [C], in relation to family violence. In the context of overseas contact I have already expressed the view that the risk, in my view, is unacceptable and an order could not be preferred on the basis alone. So far as time in Australia is spent, while there is always a risk if the time is confined to the geographical location of the Gold Coast, although there is a risk there, the risk would not be unacceptable and so, again, so far as the competing proposals are concerned, her proposal can be said to be preferred.
I hope that these orders do achieve that outcome and then, finally, any other fact or circumstances. In this case I do not think there are any.
It follows that when one has regard to each of the s.60CC considerations required, it seems to me that the proposal provided for by the wife, which would involve the child spending time with his father on those occasions that he chooses, after the involvement of the counsellor which is provided for in Order 10 is, I think, the outcome that represents the best interests outcome for the child, [C]. I am confident that in the event that [C] is able to re-engage with his father with the assistance of a counsellor, that the parties will, between themselves, recognise [C]'s ability to make decisions about these matters and will assist him in doing so. Quite clearly that is the most desirable outcome in these circumstances.

Orders

In the circumstances I propose to make orders in terms of exhibit 7, and I will ask Mr Wiltshire, given that this came off your word processing system, if you would prepare a draft minute of order which reflects in paragraph 2 it is to stay sole parental responsibility. Paragraph 4 stays as it is. Paragraph 6 was amended by agreement between the parties to provide that each party notify the other of any change of address and phone number of each other and of the children. So if you could add the words "of each other and of the children" to paragraph 6. Paragraph 8 and paragraph 9 were each altered by agreement to insert the words "nor permit others to denigrate" after the word "denigrate" in paragraph 8, "nor permit others to discuss: after the word "permit" in paragraph 9, and then paragraph 10 is amended by deleting the words "a family consultant to be chosen by the wife and retained no later than 1 May 2008" so that it just now reads "upon

Mr Keith Sedgman."
The final issue I should have disposed of a moment ago concerning costs is, in my view, that the costs of the counselling should be borne equally. I am mindful of the economic circumstances of both parties which I will address, no doubt, in due course in the course of property proceedings, but the fact remains that each of the parents, and that includes the mother, has an interest in [C] developing a proper relationship with his father, and in order to see that it has the best prospects of occurring I think that each party should put their hands in their pocket and assist in facilitating the process by paying the cost.
I do not intend to attribute blame for the present situation but I think if parties contribute equally from this point forward, it might help the parties move forward rather than backward to what brought the parties to this situation.

I certify that the preceding eighty-nine (89) paragraphs are a true copy of the reasons for judgment of Burnett FM

Associate: Beverley Schmidt

Date: 19 June 2008