Melvin and Westwood

[2019] FamCA 747

FAMILY COURT OF AUSTRALIA

MELVIN & WESTWOOD [2019] FamCA 747

FAMILY LAW – CHILDREN – contested residence – where the father seeks a finding by the Court that the mother presents as a risk of harm to the child – where the Court does not make such a finding – orders made for equal shared parental responsibility and for the child to live with the mother and spend time with the father.

Family Law Act 1975 (Cth), ss.60B, 60CC, 61DA, 65DAA

Sampson & Hartnett (No 10) (2007) 38 Fam LR 315
Goode & Goode (2006) FLC 93-286

APPLICANT: Mr Melvin

RESPONDENT: Ms Westwood

FILE NUMBER: BRC 8378 of 2014

DATE DELIVERED: 28 October 2019

PLACE DELIVERED: Brisbane

PLACE HEARD: Brisbane

JUDGMENT OF: Baumann J

HEARING DATE: 16, 21, 22, 23, 24, 25 January 2019

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr R Galloway

SOLICITOR FOR THE APPLICANT: Tubaro Lawyers

COUNSEL FOR THE RESPONDENT: Ms L Barnes

SOLICITOR FOR THE RESPONDENT: Gary Rolfe Solicitors

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: Mr A George

INDEPENDENT CHILDREN’S LAWYER: Ms J Boulton
Jennifer Boulton Solicitor

Orders

1. That all existing Orders relating to the child, X born … 2014 (“the child”) be discharged.

2. That the child live with the mother.

3. That the parents have equal shared parental responsibility for the child for major long term decisions.

4. That the child shall spend time and communicate with the father at all such times as may be agreed between the parents expressly in writing and failing agreement as follows:

   a)During the school terms, each alternate weekend from after school Friday until 4.00pm Sunday (or 4.00pm Monday if the Monday is a public holiday or pupil free day);

   a)The father shall collect the child from her school (or from the mother’s home on a non-school day) at the commencement of any time being spent with the father and the mother (or her agent) shall collect the child from the father’s home at the conclusion of such periods of time;

   b)For the first half of the Easter, June/July and September/October school holidays in even numbered years and the second half in odd numbered years;

   c)From 9.00am on 12 December 2019 until 9.00am on 26 December 2019;

   d)From 9.00am on 14 January 2020 until 9.00am on 21 January 2020;

   e)Commencing during the Christmas school holidays in December 2020, for one (1) half of those holidays with the father, being the second half of the Christmas school holidays in even numbered years and the first half in odd numbered years;

   f)On Father’s Day each year, if it does not fall on the father’s scheduled weekend, from 9.00am to 4.00pm, with the father, unless otherwise agreed in writing, to collect and return the child from the mother’s home;

   g)In the event that Mother’s Day falls on a weekend where the child would ordinarily be with the father, then the child’s time with the father will cease at 9.00am on Mother’s Day;

   h)By telephone or Skype each Sunday when the child is not in his care (and at such other reasonable times as may be agreed between the parents), with such calls to be initiated by the father between 5.00pm and 6.00pm;

   i)The child’s weekend time with the father is suspended during all school holidays;

   j)Where relevant, all school holiday times shall commence at 9.00am on the first day of the said holidays and shall conclude at 4.00pm on the day which is either the halfway day of the said holidays and shall conclude at 4.00pm on the day which is either the halfway day of the holidays or the last day of the holidays; and

   k)School holiday time will be by reference to the calendar published by the school at which the child attends.

5. That unless otherwise agreed, the parent into whose care the child is transitioning will collect the child from the home of the other parent on non-school days.

6. That each parent must keep the other informed of their current residential address and mobile telephone number and shall advise the other of any change to these details within forty eight (48) hours of such change occurring.

7. That each parent shall keep each other informed about any incident or issue or injury that involves the child whilst in their care.

8. That all communication between the parents, except in the case of emergency, be by email message and for this purpose each parent shall keep the other informed of their current email address.

9. That these Orders act as an authority, and hereby authorise, any professional service health service or other provider upon whom the child may attend (for example school, doctor or otherwise) to release any and all relevant information about the child to both parents.  Both parents shall be at liberty to obtain any relevant documentation from that provider (including but not limited to school reports, school photographs and medical information) at the expense of the requesting parent.

10. That within forty two (42) days, the parents do all acts and things and sign all documents necessary to enable an Australian passport to be issued for the child and the parents share equally all costs associated with the issue of the passport.  The mother shall retain the passport in her possession.

11. That in the event either parent intends to travel outside Australia with the child, they shall (except in the case of emergency) provide the other parent with sixty (60) days’ notice of their intended travel and provide the other parent with a detailed itinerary of the trip and a copy of the child’s return travel ticket.

12. That the Independent Children’s Lawyer be discharged.

Note: The form of the order is subject to the entry of the order in the Court’s records.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Melvin & Westwood has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).

FAMILY COURT OF AUSTRALIA AT BRISBANE

FILE NUMBER: BRC 8378 of 2014

Mr Melvin

Applicant

And

Ms Westwood

Respondent

REASONS FOR JUDGMENT

Introduction

1. The parents of X (now aged five and a half years) have been in continuous litigation since she was approximately six months of age.

2. The reasons which follow seek to explain how the Court has determined where, in the best interests of the child, she should live.

3. Crucial to that determination are allegations vigorously maintained by the father, that the mother represents a “risk” to the future care of X.  I deal with those issues as should be expected by a Court.

Competing proposals

Father

1. The Applicant father’s primary position that the child live with him was maintained by the time of final oral submissions delivered by his Counsel Mr Galloway and accompanied by written submissions.  However the father’s position articulated in his case outline filed 17 December 2018 that the child X “not before the child is 7 years of age” spend time with the mother “each alternate weekend on Saturday from 9.00am to 5.00pm and Sunday from 9.00am to 5.00pm with a third party bring present at all times”, was modified by final submissions.  The father instructed Counsel to contend finally for the order set out as Exhibit 22, and Appendix One to these Reasons.  They provide no longer for “supervised” time but with the child, living with the father, to spend time with the mother essentially each alternate weekend from after school Friday to 4.00pm Sunday and for half of school holidays.  The majority of the highly prescriptive injunctions and restraints set out on the case outline (see paragraphs 10, 11, 12, 13, 14, 15, 16, 18 and 19) mostly directed to the mother’s conduct were not ultimately pressed.  I make comment about the change in position adopted by the father later in these Reasons.

2. At the commencement of the trial, and consistent with my direction made 20 July 2018 (order 8(a)), the father offered an alternate position if the Court decided to order that the child live with the mother, contrary to the father’s preference.  That proposal provided for the child to spend time with him for three out of four weekends (Friday to Sunday) and half of the school holidays (see Exhibit 1).  The suggestion that week-about care occur should “the parties come to live within 50 kms of each other”, has not been considered where the evidence at the hearing is that the father will continue to live at Town B, whilst the mother chooses to continue to live at Town C, some 146 kilometres north of Town B.  There is no warrant in this case to consider the exceptional coercive power referred to by the Full Court in Sampson & Hartnett (No 10) (2007) 38 Fam LR 315.

Mother

1. The mother’s case, competently presented by Ms Barnes of Counsel, essentially adopted the final position advanced by the Independent Children’s Lawyer (“ICL”), marked at Exhibit 21 and being Appendix Two to these Reasons.  In particular, the mother continues to seek an order for sole parental responsibility unlike the father who seeks an order for equal shared parental responsibility.

2. The mother no longer pressed, in final submissions, for some of the highly prescriptive orders (mostly directed to the conduct of the father), set out at paragraph 4(a); 3; 10 (changeovers); 12 to 15 (relating to attendance at gymnastics, dance classes, rehearsals and concerts; swimming lessons); 26; 28 to 31 (passports) and 32 (overseas travel) set out in her case outline.

3. Most importantly, the mother for the first time in these lengthy proceedings at proposed orders 1 to 3 sought a change to the child’s surname to “[Melvin-Dale]”.  Counsel for the mother conceded that the case outline filed 12 January 2019 was the first time the mother had formally sought this order.  The report writer had not, not surprisingly, dealt with the issue nor had the mother presented any evidence about the issue in her trial Affidavit.  The father objected to such a significant issue being raised in this way and so late.  For reasons delivered orally, the Court agreed with the father and did not permit the mother to seek such order at this time.  For completeness, although the mother sought sole parental responsibility and prescriptive orders for the child to attend a private Catholic school, she contended (by order 6) for an order that the father pay “all costs associated with fees, school uniforms, stationary and any and all school expenses”.  Clearly such an order is not, in my view, a parenting order but an application for child support in a fixed sum (or by way of departure), and as jurisdiction to entertain such an application had not been founded, such relief was not available in these proceedings.

4. The mother’s alternate position, if the Court ordered X live with the father, was contended in the memorandum of proposed orders filed 13 July 2018 and essentially provided for the parents to have equal shared parental responsibility and that the child spend time with the mother on alternate weekends and half of school holidays.

5. As noted, Mr George of Counsel for the ICL had preserved the ICL’s position until all the evidence had been tested, after which and whilst delivering oral submissions first at the conclusion of the hearing, a minute of order tendered and marked as Exhibit 21, was offered and is Appendix Two to these Reasons.

The evidence generally

1. I refer to the evidence received and accepted when dealing with the chronology and findings which hopefully illuminate the pathway to my decision.  The parties’ case outlines identified the witness relied upon, additional to the parents and the report writer Dr D, but some witnesses were not required for cross-examination, particularly:

   a)Dr E;

   b)the father’s adult daughter Ms F;

   c)the father’s sister Ms G Melvin; and

   d)the mother’s witness Ms H.

2. The ICL had an extensive “tender bundle”, however the documents tendered from the bundle and used during cross-examination, were tendered as necessary and are referred to in the proceedings.

3. It is, in many ways, disappointing and contrary to the desired approach in child related proceedings, that so much of the parents’ material (particularly of the father), was assertions and allegations of a negative character directed to the other parent.  In circumstances where a short relationship occurred and separation (although the date is disputed) took place, at most, weeks after X’s birth, these parents substituted getting to know more about the other parent of their child for a high level of disrespect, mistrust and conflict.  Frankly, for two experienced parents aged 52 years (father) and 47 years (mother) at their child’s birth to act at times without evident calm and maturity, does neither of them credit.

4. Whilst, necessarily, I must deal with a few of the allegations that the father says culminate in a finding that the mother is a current risk to the child’s wellbeing with the only result, to protect the child, being to change her residence, I am well aware that these parents have a great deal of future co-parenting for their five year old daughter ahead.  My focus, in determining what is in the best interests of X at this time, is to not create further hurt and pain which is only likely to cascade down to more distress for X, as she seeks to manage her parents’ conflict of which she is likely to become more aware as she gets older.  Although credit issues do not arise, I have formed the view that the litigation, now in its sixth year, has shaped some of the behaviour and attitudes of both parents.  The father has almost since birth held a belief that the mother has put obstacles in his path preventing his relationship with X moving more quickly to overnight time and extended time.  His clear frustration has caused him at times to focus on what he felt were the mother’s deficiencies as a parent – a focus clearly adopted on the evidence I find, by the father’s partner Ms J.  He ran a very negative case.

5. In these circumstances, the mother felt she was under attack, and her best line of defence (apart from persistent denials), was to at times, in my view, exaggerate aspects of the father’s behaviour and to maintain a position that she “did no wrong” when confronted by behaviour that, in hindsight, was a clear error of judgment (for example the events of February 2017).

6. When one pushes aside some of the more value laden comments, X is actually a very fortunate little girl, with her biological parents:

   a)not affected by alcohol abuse, illicit drug use or psychiatrist challenges;

   b)both have skills and drive whereby they have property and/or businesses and a wealth of unique qualities;

   c)valuing education and strong moral development;

   d)are experienced parents who seem to have current partners who love them (and X) and offer support and stability; and

   e)have ongoing connections with children from earlier relationships and their wider extended families.

7. X is not in any sense “under loved” – the challenge is for these parents, after judgment, to work together for the best interests of their daughter rather than to “compete” for the goal of having her live with them.

Chronology

1. Statements of fact hereafter shall be construed as findings of fact.

2. Cohabitation commenced in 2013 and within months the mother was pregnant, X being born in 2014.  The mother says the relationship ended days after the child was born, with the mother travelling to New Zealand for 11 days to visit her ill mother in April 2014, leaving the baby with a friend.  The father says this was the first example of the mother not treating him as a father – the mother says the father was not a real option to care for the baby because he had “no experience” with babies.

3. The father, asserting he was not allowed to spend regular time with the baby, commenced proceedings in the Federal Circuit Court of Australia on 15 September 2014 (seeking an Airport Watch List order) – when the child was not yet six months of age – and the litigation has been ongoing since then involving a Child Inclusive Conference (March 2015) and a total of three family reports through the efforts of the ICL, with interviews by Psychologist Dr D, in August 2015, August 2016 and finally on 11 January 2019 shortly before the trial commenced before me.

4. Because the father runs a case asserting the mother is a “risk” to the child, I deal discretely with the major concerns raised by the father below, however broadly the developing relationship between the child and the father was regulated by Court Orders.  Generally the parents complied with the Orders made, yet the fact that so many orders were made demonstrates the lack of capacity in the past for these parents to compromise and communicate effectively, relying it seems on Court events to move the matter forward.

5. It is to be recalled that the context was an adult relationship of short duration; a young child and, in my view, a desire by each parent to have more control.  The most significant orders were:

   a)after the mother filed her Response on 10 February 2015, on 11 February 2015 Judge Lapthorn ordered by consent that the child spend time with the father every Wednesday and every Sunday from  9.00am to 6.00pm for the first three weeks in a four week cycle.  A Child Inclusive Conference was ordered and took place on 6 March 2015 but no agreements as to future arrangements were reached;

   b)the Orders of 11 February 2015 continued, although the father alleged that the mother failed to facilitate time on four occasions before April 2015 causing him to file a Contravention Application (which never proceeded to a hearing);

   c)Instead, an ICL was appointed on 22 April 2015; consent orders were made on 16 July 2015 to slightly vary the time to every Monday – with changeovers remaining at the Town K Café.

   Changeovers proved to be a continuing point of contention, with the father asserting the mother would unilaterally alter the venue – however the regime continued and after the first family report, on 9 December 2015 the Court made orders for changeovers at two different Police Stations, pending a Children’s Contact Centre becoming available.  The tensions in the relationship were rising, with the father continuing to press for overnight time to commence (which would have reduced travel undertaken by the parents and the child).  Although the Federal Circuit Court of Australia had listed the matter to a “trial callover”, in July 2016, on 7 July 2016 the Federal Circuit Court transferred the matter to the Family Court of Australia.

   d)At the time of the transfer, the father’s Application in a Case filed 18 May 2016 seeking an order for overnight time was pending, but was opposed by the mother.  On 6 October 2016, Senior Registrar Spink made orders by consent for equal shared parental responsibility, and that overnight time commence to occur from 9.00am Sunday to 4.30pm Monday for the first three weeks of a four week cycle, and with changeovers to occur at L Group at Town M.  Although the matter was allocated to the trial list, the orders noted that “the parties agree that these arrangements for the child be reviewed when the child reaches the age of 3 years”.  The anticipated review in April 2017 did not take place, but rather in March 2017 the Court noted the ICL was seeking to arrange a Legal Aid conference;

   e)On 31 October 2017, a Registrar ordered by consent for the parties to attend for assessment by a Psychiatrist and for the child to be baptised at a Catholic Church “as agreed”.  Order 3 provided that:

   “3.      That upon the father competing the Circle of Security Program and the parenting orders program and the child attaining four years of age, the father’s time with the child will occur from 4.30pm Friday to 4.30pm Sunday.”

   Considering that time arrangements had not progressed for over 12 months, I sense the father’s frustrations were significant.  This set the context for the events of November 2017 which are dealt with specifically below.  The effect of those events was to heighten the emotions between the parties with new allegations of “neglect” being raised against the mother; Police and the Department being involved, and with the father holding the child after a visit and not returning X to the mother.

   f)As a result of the allegations of neglect and abuse against the mother, on 27 November 2017 interim orders were made for X to live with the father and spend supervised time with the mother at N Group in the E Region;

   g)On 21 December 2017, by consent, the parties were ordered to undertake drug testing; that the mother be restrained from taking the child to her rural property at Town P and, with the child returning to the mother’s care by then, it was ordered that the father’s time “pursuant to the orders made 6 October 2016 resume on 7 January 2018” with changeovers now to be at Q Group, Town C.  In effect, and sadly, the time X spent with the father was limited to Orders made when she was two and a half years old, despite her approaching her fourth birthday;

   h)This matter was docketed to me and on 20 July 2018, and with strong indications from the Bench, the time X was to spend with the father was no longer conditional on him completing any courses, and provided for the second weekend of each four week cycle to occur from 4.30pm Friday to 4.30pm Sunday.  The matter was listed for a trial to commence on 21 January 2018 for five days, with a notation that supported the ICL obtaining funding for a third family report, which thankfully was obtained (noting that the interviews for the second family report had been conducted two years earlier in August 2016);

   i)Dr D conducted interviews on 11 January 2019 and admirably prepared a report dated 18 January 2019.  It is highly relevant, building as it does on earlier opportunities the expert had to engage with the family and the much younger X.

1. In my assessment, the slow progress of these proceedings and understandably cautious approach adopted (in light of the untested allegations of abuse and neglect), have only caused to further diminish the effective relationship between the parents.  Thankfully the child is still quite young, and as already recorded, the parents have the capacity to parent well and create a solid environment for X.

2. The Court expresses its regret to the parties in the delay in publishing these Reasons.

Statutory pathway

1. In all cases involving parenting orders, the child’s best interests are the Court’s paramount consideration. In determining those interests the Court must consider not only the objects of s.60B of the Family Law Act1975 and the right of a child to have a meaningful relationship with all those people significant to them, but also the primary considerations under s.60CC(2) and the additional considerations under s.60CC(3) which will be analysed below to ensure that the order I propose will serve the best interests of the child.

2. To the extent possible, the Court should ensure orders made do not expose a party or a child to unacceptable risk of harm through family violence, abuse or neglect.

3. In certain circumstances the Court applies a statutory presumption that it is in the child’s best interests for parents to have equal shared parental responsibility (s.61DA(1)), which relates to making major decisions and not about the time a child spends with each parent.

4. In Goode & Goode (2006) FLC 93-286 the Full Court made it clear that the presumption that equal shared parental responsibility is in the best interests of the child (s.61DA) does not carry with it any presumption about time. The issue of equal time is dealt with in s.65DAA and “when the presumption is applied the first thing the Court must do is to consider when making an order whether it is consistent with the best interest of the child and reasonably practicable for the child to spend equal time with each of the parents.  If equal time is not in the interest of the child or reasonably practicable the Court must go on to consider making an order whether it is consistent with the best interest of the child and reasonably practicable for the child to spend substantial and significant time with each of the parents”.

Is the mother a risk to X?

1. By the time of the final hearing before me, the mother in cross-examination swore that she no longer held any concerns about the father’s care of X and acknowledged X loved her father and had a bond with him.

2. Although the change in the father’s position (from supervised time to unsupervised time), reflected he no longer was asserting the “risks” were “unacceptable” in a legal sense, he maintained in his cross-examination that the mother was a “risk” to the child and those “risks” should cause the Court to find it is in X’s best interests to live with him.  The father’s concerns are summarised by his Counsel Mr Galloway in his written submissions at paragraph 15, which contends that:

   “15.    In short, therefore, the father, through these submissions, is bound to draw the court’s attention to what is most salient in the evidence.  Namely, that the respondent has neglected X:  left her home alone; been so inattentive that the child has wandered away on a rural property, being located at 9 o’clock at night with the assistance of a police search; has left her child in the care of her older half-sister Y; and, it must be acknowledged, been violent to the child, hitting her with a wooden spoon and opening a deep cut on her eyebrow.  Together with the necessary observations that she has been quite unreliable in providing the child for time with her father by insisting (without any court order) on moving the place of pick up and otherwise so controlling the regime of contact time that it may truly be said that it was provided only at her whim, notwithstanding the many orders that were made.  In this last, she disrespects X’s rights; perhaps does not understand them and is shown not to value the child’s time with her father.”

3. Findings in respect of these issues are critical to the ultimate determination of where the child is to live primarily, and Dr D in her final report acknowledges as much.  Accordingly, I examine the evidence before the Court in respect of a number of these events before reaching the ultimate conclusion, that in the Court’s view, the mother does not present as a risk to X.

Event with Y in October 2008

1. This incident was unknown to the father, until he inspected subpoenaed records received from Queensland Police.  Exhibit 17 is a record of a Police attendance on 22 October 2008, when it is alleged the mother left Y (then aged two) in a locked car in a store car park, on a hot day.  The Police suggested the child may have been left unattended before Police removed the child from the car after an estimated 12 to 13 minutes.  The car was parked in the shade with the window open to allow ventilation.  The mother is recorded in the report as being “abusive” to Police for insinuating she had done anything wrong.  In cross-examination, the mother denied she had done anything wrong and asserted that the child was locked in the van “by mistake”, and she only left the child long enough to go into the store to retrieve the keys from a builder who was accompanying her.  In the absence of any other evidence, I am prepared to accept the mother’s version and do not find the incident, over 10 years ago, as compelling evidence of a “neglectful” mother.

Incident in July 2015

1. The father submits that a note in Police records that they attended the mother’s home for the purpose of serving domestic violence documents on her and found X there alone, should not be seen as an “isolated event”, but as a pattern of behaviour.  There is no evidence that the Department was notified or concerned.  What is clear is at this time the mother had begun thinking about domestic violence proceedings against the father for what she described as abusive text messages and “controlling” behaviour.  The self-prepared Affidavit of the mother in support of an Application (dated 2 October 2015) (see Exhibit 12) contains a litany of complaints against the father, which are not now maintained as present now.  Although it seems a Temporary Domestic Violence Order was made on 8 July 2015, there is no evidence that any final orders were made. The mother claims the father had commenced domestic violence proceedings against her on 1 July 2015.

X goes missing – 14 February 2017

1. This is a concerning incident, which the mother in cross-examination acknowledges revealed an error of judgment by her at the time.  Exhibit 18 is a Police note of the incident with the mother contacting Police at 6.18pm informing them the child X “had gone missing” from the mother’s farm.  After discussions with the mother and Y (then aged nearly 11 years), the Police say the mother had left X with Y playing with the pet dog.  The mother said she went out of the home yard to “salvage” a quad bike that was bogged.  It seems when the mother could not find her and decided, in desperation, to contact Police, the child had probably been missing between 4.00pm and 6.00pm.  Y followed her little sister, who had followed the family puppy, however Y sprained her ankle and returned home without X.  Police arranged for a search to be conducted with the assistance of SES and the dog squad.  X was found at approximately 9.00pm with minor cuts but otherwise unharmed.

2. The mother indicated, although proceedings were on foot before the Court at the time, she did not tell the Court or, more importantly the father, as she feared “the father would use it to take X away from me”.  I agree with the submission of Counsel for the father (at paragraph 26) that “the concealment of this event from him, for forensic purposes it must be concluded, reflects very badly upon” the mother.  I agree it is a concern but do not find that in the future the mother would “not only be neglectful but conceal that neglect” as the father contends.  I believe the mother had learnt an important lesson.

3. What is clear however, and understandably, the father became very concerned when he found out about this incident after perusing subpoenaed documents around early November 2017, and before (it seems likely) the incident next discussed on 19 November 2017 took place.  The father’s lack of confidence in the mother’s parenting heightened and his suspicions (supported by his partner Ms J), meant he felt he had to retain the child when she came to his home with a cut above the eye on 19 November 2017.

Cut above the eye in November 2017

1. On 19 November 2017, when the child came to the father after an absence of about a month, he noticed a cut on her eyebrow.  The father’s lack of time (when the child was allegedly ill), he conjectures may have been to allow for the child’s injury to heal, and not to raise a concern with the father.  We will never know how events might have transpired if the mother, as she should have, had informed the father about how the injury occurred, as she told the Court.

2. By not doing the simple task of explaining the injury in the circumstances of the father’s beliefs about the mother’s neglect and other past physical injuries (to both X and Y), it was hardly surprising that when the child told him, words to the effect:

   “I dropped mummy’s iPad and she hit me with a spoon.”

   he became alarmed.  I am satisfied that those words were spoken to the father and said also in the presence of Ms S.  The Police record this disclosure having been made at 12 noon on 21 November 2017 when the father was at a shopping centre with the child.

3. The father did not contact the mother and seek an explanation. Over the next few days he:

   a)took legal advice and, he says, also advise from another person, and decided to not return the child to the mother, as he was required to do at 4.30pm on Monday, 20 November 2017.  He would have had to leave his home by 3.00pm to make the Town C handover;

   b)I am satisfied that before he made that decision, he was aware of the contents of subpoenaed records inspected by his lawyer on 15 November 2017;

   c)He said he contacted the contact centre at 3.00pm (not the mother) to inform them he would not be returning the child;

   d)He made an appointment with Ms T at Queensland Health at 11.30am on 21 November 2017.  No records from Queensland Health were produced; and

   e)He contacted Queensland Police by attending the Town U Station at 11.13am on 22 November 2017,

   with the child subsequently interviewed on 23 November 2017.  The tape of the interview (Exhibit 8) has been viewed.  Considering at the time X was three and a half years of age, her speech was difficult to understand but she did say, after being asked by Police about the mark on her eye, that:

   -    It was sore;

   -    Mummy hit spoon at my eye;

   -    It was a white “big” spoon;

   -    She dropped mummy’s IPad;

   -    Mummy put stuff on it (cream); and

   -    Mummy said sorry.

   The father said after the interview he was convinced the mother had deliberately hit and hurt the child with a spoon.

4. On 22 November 2017, the father took X to a local General Practitioner, Dr V who provided a letter to the father’s solicitors dated 23 November 2017 about the injury (see annexure “F” to the father’s Affidavit).  The doctor opined that on his observations the original injury was approximately 14 days prior, and that the scarring suggested it was either “a full thickness injury rather than a superficial abrasion”.

5. Once the Police were seized of the issue, they:

   a)interviewed Y on 30 November 2017 (see Exhibit 16).  I have viewed the tape.  He version of the incident is similar to that of the mother;

   b)interviewed the mother on 30 November 2017, and her version is set out at Exhibit 4.  The version was also given by the mother in her evidence and was not deviated from in cross-examination, and included detail about X’s propensity to throw objects.  The mother says that she had, consistent with, she says, advice from a child Psychologist, tried to regulate this behaviour of X and actually took a video of her explaining to the child why she should not throw things on 2 November 2017 and 4 November 2017.  Copies of the videos were taken by Police.

6. Despite the assessment by Police made by 30 November 2017 that the mother’s version (corroborated by Y) should be accepted and that “this offence has not occurred and the injury is a result of the child throwing the wooden spatula and it rebounding and hitting her in the eye brow”, the father did not accept this assessment.  He continued to press for a finding, as submitted by Mr Galloway, that:

   a)The mother’s account of the injury is “improbable”;

   b)The mother’s actions “entails anger and impulsivity on the past of the mother”; and

   c)She hit the child “deliberately though not with pre meditation when the mother’s iPad was dropped”.

7. A finding of deliberate physical harm is a very serious finding.  I am not satisfied, on the balance of probabilities, that the mother either in anger or otherwise deliberately struck the child as the father believes is the case.  I am not satisfied that the nature of the injury required any more medical treatment than the mother (and the child) say she offered.

Conclusion on risk

1. I accept that at times the child X as well as Y have suffered bruises and cuts.  The father of Y (Mr AA who gave evidence) did not raise any concerns about the mother’s care of Y.  The father seems to be less likely to accept an innocent or accidental explanation for a bruise or cut, than common sense compels.

2. What is clear, is that the letter sent by the solicitors for the father at 17.33pm on 20 November 2017, was based on the incident in February 2017.  The disclosure by the child after the father decided to retain the child, simply provided additional and more compelling evidence of current neglect or abuse, from his perspective.

3. It is apparent that his actions however in engaging Police could not be regarded as inappropriate in view of the disclosure, however the child properly returned to the care of the mother (and her sister Y who expressed how much she was missing her little sister), and supported by the Court Order on 21 December 2017.

4. Sadly, I am satisfied that more than any other event, the November 2017 incident (coupled by the February 2017 incident), fuelled the proceedings such that any reasonable compromise to resolve these proceedings between these parents was not obtainable.

5. The question which weighs heavily on the Court’s deliberation is whether these capable parents of this delightful five year old girl are able to put these many events since the child’s birth where they now belong, namely in the past.  Whilst the past can often be a good predictor of future conduct, as I now explore when considering the competing proposal within the matrix of the relevant primary and additional considerations, I have a degree of optimism that these over 50 years old parents of this child can move forward, because of the deep love they each hold for X.

Primary considerations

1. In the discussion which follows within the matrix of the relevant primary and additional considerations, I rely upon but do not repeat findings already made above.

2. I am satisfied, and the ultimate proposals of each parent demonstrate, that X will benefit from a meaningful relationship with both parents.

3. Section 60CC(2)(b) requires the Court to consider, and give greater weight to “the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence”.  The detailed consideration undertaken above in respect of the asserted risks arising from the mother’s care are relied upon and not again repeated.  However there are two further issues which require further mention, namely:

   a)the father says the Court would find the mother is not able to genuinely support the child having a relationship with the father.  He points to issues such as:

   i)the mother’s application to change the child’s surname;

   ii)the mother’s reluctance to embrace X spending overnight time with the father; and

   iii)the mother’s apparent, at times, failure to “correct” the child when she calls the mother’s partner, Mr W, “dad”.

   I do not regard these factors, either individually or collectively, as establishing the father’s allegations.  When these parents had so short a relationship before birth, I do not regard it as unusual that the mother lacked immediate confidence in the father to care for X as much as he sought.  When she has a daughter (and X’s sibling) using a different surname, I can understand the mother thinking it might benefit the child to change her surname to a hyphenated version.  No evidence was offered to enable the Court to assess this issue, however the strong connection X has with her father makes the mother’s proposition problematic.  I adopt the view expressed by Dr D in cross-examination, that a child of X’s age referring to an adult male in her household as “dad” is hardly novel. 

   Whilst the Court understands that the father is offended by his child calling someone else “dad”, ultimately it appears to me that X firmly understands who her biological father is and has no difficult referring to him as dad.  No injunctions will be made, as the father has sought seeking to impose some rule in the mother’s home of how she describes the father.

   b)Although after a cross-sectional assessment by Psychiatrist Dr E of both parents, he did not diagnose any psychiatric condition, he does opine that he held no concerns the chid would be at risk of harm in the care of either parent “except insofar as either parent may struggle to protect the child from any negative views they may hold towards the other party, as well as protect the child from the conflict between the parties”.  I accept this concern expressed by Dr E, who was not required for cross-examination such that his opinions were effectively challenged.

   Similar concerns were expressed by Dr D in her final family report (see paragraph 11.1) and under cross-examination and considering the longitudinal interventions by this report writer (starting with the first interviews in August 2015), the opinion expressed that the mother’s criticisms were now less “heightened” deserve weight.  Such a view is supported by the mother’s evidence now given.  The father, on the other hand, despite all the evidence, still maintained the mother was a “risk” to X and I felt such views are fairly firmly held and supported by his partner.  In my assessment, the father will find it more difficult to disguise or protect his negative views about the mother, than I believe the mother can.  For these reasons, and to ameliorate these future risks, the parents are encouraged to take on board the recommendation of Dr D (at paragraph 11.1.9(b)) and of Dr E that the parents would benefit “from ongoing engagement with a suitably qualified mental health practitioner”.  I do not propose to order that the parents attend to individual personal therapy now that the litigation has ended – as it is better for these mature parents to acknowledge they could be assisted by such therapy and engage voluntarily.

Additional considerations

1. The report writer, no doubt because of X’s age, did not formally interview her.  As a result there are no independent views recorded for X about any future change of residence  What is clear is that the observation sessions went well, and X seems to be a happy little girl.

2. The history of care, continuously living with the mother (save for the period of about one month in November/December 2017), has created a primary attachment between the child and the mother.  I am satisfied the mother is emotionally attuned to X and the child expresses little concerns about living with her, her sister Y and Mr W.  Mr W’s 10 year old son Z has moved to live with his father in Australia, and because of Mr W’s work commitments, the mother has a significant role in his care.  The sisters are close and the father acknowledged to Dr D the importance of that relationship to X.

1. The father also offers a happy and settled household, in a rural location and where at the time of the hearing, the father’s adult married daughter Ms F and her two infant children (the father’s grandchildren), were making plans to live on the property in a separate building.  The father’s partner, Ms J, has two adult children and a younger daughter 16 years of age in the final years of her schooling.  X, from a slow start after separation, has developed a strong and loving bond with her father and, through him, the other members of his household.  The mother acknowledged more than once in her evidence and interview with Dr D the importance to X of this relationship with her father.

2. Although complaints are raised about the extent to which the parents have participated in decision making, and the progress of care arrangements, the poor communication (always conducted within the shadows of this litigation and where both parents, at times, could be accused of evidence gathering), was a major contribution to many difficulties experienced.

3. I shall deal below with s 60CC(3)(d) – namely the likely effect of changes in the child’s circumstances – which in any case involving a potential change of residence, is a relevant consideration.

4. The only practical difficulties that really arise from sharing X’s care, is the 143 kilometres distance between where the parents choose to live.  The history reveals that changeover locations have at times been an issue in dispute.  Having to use a contact centre has meant that there is a record at least of who turns up and when.  However, using a contact centre comes with some limitations and cost.  The parents have reached a stage where they both appear to accept use of a contact centre is no longer necessary.  I agree.  Recently, the father says an officer at a contact centre was rude and aggressive towards him.  In the absence of further evidence, I make no particular finding as to what occurred.  The ICL’s proposal is for changeovers to occur at the parent’s homes (see proposed order 4(b)), which the mother adopted – although with three school aged children in her care and her partner Ian having to be away for work from time to time, this will require good planning by her, which I am satisfied she can achieve.

5. I have already made findings about the parents’ capacity and attitude to parenting which I adopt.  Dr D’s ultimate conclusion, from longitudinal engagement over three family report interviews, is that the parents are capable parents.  Simply, they are older parents (for a five year old) who parent differently but well within a normal range of behaviour.  Again I make the point that where intense parental conflict exists, this can distract and distort a parent from the necessary parental focus.  My view is that the last five years for these parents is not a good predictor of the future.

6. The mother has connections with New Zealand and has a desire to naturally expose X to the culture of that country.  She should, in my view, be permitted to do so.

7. Apart from at times aggressive and disrespectful text and electronic communication, family violence issues at this time do not arise nor is the Court aware of any current family violence orders.

8. With such a long history of litigation, almost for the entirety of X’s young life, it is important to consider the orders that are to be made and whether such orders are “least likely to lead to the further institution of further proceedings”.  Frankly, if more parents choose, if an issue of concern arises, to pick up the telephone to speak respectfully (and not in an aggressive or accusatory tone) to the other parent rather than to ring a lawyer, Police or the Department of Child Safety, the environment a child has to navigate between her parents would be less treacherous.  Again, my view is that these parents can do better –and genuinely wish to do so.  Of course, because residence will not change, I cannot discount the prospect of the father in this case, who has invested both money, time and emotional capital in the pursuit of his application, being so disappointed that he could look to reinstitute proceedings.  Either parent seeking to do so will need to confront the principles of Rice & Asplund (1979) FLC 90-725, however one reason why these Reasons are lengthy, is that it identifies the foundation for the orders I make. That is of assistance if another judicial officer is tasked with determining whether sufficient change of circumstances in a material way have been demonstrated to enliven the Court’s parenting jurisdiction in the future.

parental responsibility

1. In my view, it is clearly in X’s best interests that her loving parents have equal shared parental responsibility for her major long term decisions.  Both parents support her Catholic faith; want her to have a broad and good education and thankfully she does not appear to be a child with any significant health challenges.  Although the mother was not permitted to pursue her late application for a change of name, I would not regard it as in X’s best interests for the mother to make such a decision solely.

2. I accept parental communication has been ineffective – however, on major long term issues, most parents do not have many decisions to make thankfully.  Notwithstanding the history of this case, I do not think it appropriate for the father to be removed from a decision making role, or for the mother to have control – even with the conditions suggested in the ICL’s proposed minute.

3. In circumstances where such an order for equal shared parental responsibility is made, the Court is required to consider whether an order for equal time or for substantial and significant time (s 65DAA(1)) should be made and should do so if it is in the best interests of the child AND reasonably practicable.  The distance the parents live apart makes any such orders not reasonably practicable even if they were in the best interests of X.

Where should X live

1. The father was not a frivolous Applicant for primary care and, as already recorded, has the capacity to parent the child.  I do not regard his trips from time to time to Town R (where his business is located) or overseas for business related trips, as an impediment.  His partner Ms J is a capable support in the home.

2. However, having made the findings above that the mother is not a risk to X, which was a fundamental concern of the father, the child’s sense of stability and security that the mother, her sister Y and the parenting style she demonstrates, has created for the child should be preserved.  The fact the child presents so well and is socially normal are all likely to be primarily due (but not solely) to the mother’s parenting.  The father, as much as he wished X to live with him, acknowledged that a change of residence for the child would be a major adjustment.  Dr D, absent a finding that the mother posed a risk, did not support a change of residence.

3. It is in the best interests of X to live with the mother.

4. Time with the father over school terms weekends, holidays and special occasions is critical to the child’s close and warm relationship with her father being further developed and nurtured.  Each alternate weekend allows a balance, although I accept there may be occasion’s where X may not be able to make every dance event.

5. At her age, even though I am happy to accept she is a “gifted” dancer as the mother asserts, a relationship with her father is equally if not more important.  I do not propose, as the mother sought in her case outline, to impose restrictions on the father’s time around activities the child might otherwise be involved in in the mother’s care.  The father, I am sure, is well aware of X’s love for dancing and hopefully the social activities that surround it.  However, like all separated parents of young children, they face establishing a necessary “balance” in activities that enthusiastic and talented children wish to engage in.

6. Otherwise, I regard the orders which appear at the commencement of these Reasons as orders in the best interests of X at this time on the evidence.

7. The ICL is discharged with the thanks of the Court. This has been a long, and at times, difficult appointment.

I certify that the preceding seventy-one (71) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Baumann delivered on 28 October 2019.

Associate: 

Date:  28 October 2019

APPENDIX ONE

1. That all existing Orders relating to the child, X born in 2014 (“the child”) be discharged.

2. That the child live with the father and the parties have equal shared parental responsibility for the child.

3. That the Mother shall spend time with and communicate with the child at all such times as may be agreed between the parties expressly in writing and failing agreement as follows:

   a)on each alternate weekend from after school Friday during the school terms until 4.00pm Sunday (or 4.00pm Monday if the Monday is a public holiday or pupil free day) such time to commence on Friday;

   b)the mother shall collect the child from her school (or from the Father’s home on a non-school day) at the commencement of any time being spent with the mother and father (or his agent) shall collect the child from the mother’s home at the conclusion of all such periods of time;

   c)for the first half of the Easter, June-July and September-October school holidays in even numbered years and the second half in odd numbered years;

   d)from 9.00am on 12 December 2019 until 9.00am 26 December 2019;

   e)from 9.00am on 14 January 2020 to 21 January 2020;

   f)commencing during the Christmas school holidays in December 2020, for one half of those holidays with the father, being the second half of the Christmas school holidays in even numbered years and the first half in odd numbered years;

   g)on Father’s Day each year if it does not fall on the Father’s scheduled weekend, from 9.00am to 4.00pm – provided that such time with the Father occurs in a place not more than … kilometres distance from the mother’s home;

   h)in the event that Mother’s Day falls on a weekend where the child would ordinarily be with the Father then his time with the child will cease at 9.00am on Mother’s Day;

   i)by telephone or Skype each week on Tuesday and Thursday when the child is not in her care (and at such other reasonable times as may be agreed between the parties) such call to be initiated by the Mother between 5.00pm and 6.00pm;

   j)the Mother’s weekend time with the child is suspended during all school holidays;

   k)where relevant, all school holiday times shall commence at 9.00am on the first day of the said holidays and shall conclude at 4.00pm on the day which is either the halfway day of the holidays or the last day of the holidays;

   l)school holiday time will be by reference to the calendar published by the school at which the child attends;

4. The parent into whose care the child is transitioning will collect the child from the home of the other parent on non-school days.

5. Each parent must keep the other informed of their current residential address and mobile telephone number and shall advise the other of any change to these details within 48 hours of such change occurring.

6. Each parent shall keep the other informed about any incident or issue or injury that involves the child whilst in their care.

7. All communication between the parties, except in the case of emergency, must be by email message and for this purpose each party shall keep the other informed of their current email address.

8. These orders act as an authority, and hereby authorise, any professional service, health service or other provider upon whom the child may attend (for example – school, doctor or otherwise) to release any and all relevant information about the child to both parents. Both parents shall be at liberty to obtain any relevant documentation from that provider (including but not limited to school reports, school photographs and medical information) at the expense of the requesting party.

9. That, within 42 days, the parents do all acts and things and sign all documents necessary to enable an Australian passport to be issued for the child and the parents share equally all costs associated with the issue of the passport. The father shall retain the passport in his possession.

10. In the event that either of the parties intends to travel outside Australia with the child they shall (except in the case of emergency) provide the other party with 35 days notice of their intended travel and provide the other party a detailed itinerary of the trip and a copy of the child’s return travel ticket.

APPENDIX TWO

1. That all existing Orders relating to the child X born in 2014 (“the child”) be discharged.

2. That the child live with the mother and the mother have sole parental responsibility for the child.

3. In the event that a decision is to be made by the mother concerning a major long-term issue then the mother shall (except in the case of emergency):

   a)before making that decision, notify the father in writing 28 days prior thereto of the decision needed to be made, of the mother’s intended decision and her reasons supporting the same;

   b)within fourteen (14) days thereafter, the father shall respond in writing with any comments or suggestions he has in relation to that decision; and

   c)the mother shall then give careful consideration to any matters raised by the father before notifying the father of the decision she has made.

4. That the father shall spend time and communicate with the child at all such times as may be agreed between the parties expressly in writing and failing agreement as follows:

   a)on each alternate weekend from after school on Friday during the school terms until 4.00pm Sunday (or 4.00pm Monday if the Monday is a public holiday or pupil free day) such time to commence on Friday;

   b)the father shall collect the child from her school (or from the mother’s home on a non-school day) at the commencement of any time being spent with the father and the mother (or her agent) shall collect the child from the father’s home at the conclusion of such periods of time;

   c)for the first half of the Easter, June-July and September-October school holidays in even numbered years and the second half in odd numbered years;

   d)from 9.00am 12 December 2019 until 9.00am 26 December 2019;

   e)from 9.00am on 14 January 2020 to 21 January 2020;

   f)commencing during the Christmas school holidays in December 2020, for one half of those holidays with the father, being the second half of the Christmas school holidays in even numbered years and the first half in odd numbered years;

   g)on Father’s Day each year, if it does not fall on the father’s scheduled weekend, from 9.00am to 4.00pm – provided that such time with the father occurs in a place not more than … kilometres distance from the mother’s home;

   h)in the event that Mother’s Day falls on a weekend where the child would ordinarily be with the father then his time with the child will cease at 9.00am on Mother’s Day;

   i)by telephone or Skype once each week on Sundays when the child is not in his care (and at such other reasonable times as may be agreed between the parties) such call to be initiated by the father between 5.00pm and 6.00pm;

   j)the father’s weekend time with the child is suspended during all school holidays;

   k)where relevant, all school holiday times shall commence at 9.00am on the first day of the said holidays and shall conclude at 4.00pm on the day which is either the halfway day of the said holidays and shall conclude at 4.00pm on the day which is either the halfway day of the holidays or the last day of the holidays

   l)school holiday time will be by reference to the calendar published by the school at which the child attends.

5. The parent into whose care the child is transitioning will collect the child from the home of the other parent on non-school days.

6. Each parent must keep the other informed of their current residential address and mobile telephone number and shall advise the other of any change to these details within forty-eight (48) hours of such change occurring.

7. Each parent shall keep each other informed about any incident or issue or injury that involves the child whilst in their care.

8. All communication between the parties, except in the case of emergency, must be by email message and for this purpose each party shall keep the other informed of their current email address.

9. These orders act as an authority, and hereby authorise, any professional service health service or other provider upon whom the child may attend (for example – school, doctor or otherwise) to release any and all relevant information about the child to both parents. Both parents shall be at liberty to obtain any relevant documentation from that provider (including but not limited to school reports, school photographs and medical information) at the expense of the requesting party.

10. That, within forty-two days, the parents do all acts and things and sign all documents necessary to enable an Australian passport to be issued for the child and the parents share equally all costs associated with the issue of the passport. The mother shall retain the passport in her possession.

11. In the event that the mother intends to travel outside Australia with the child, she shall (except in the case of emergency) provide the father with 35 days notice of her intended travel and provide the father a detailed itinerary of the trip and a copy of the child’s return travel ticket.