Molek & Molek
[2023] FedCFamC1F 684
•18 August 2023
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Molek & Molek [2023] FedCFamC1F 684
File number: SYC 1651 of 2018 Judgment of: HARTNETT J Date of judgment: 18 August 2023 Catchwords: FAMILY LAW – PARENTING – Parental responsibility – Where both parties seek sole parental responsibility – Where the father seeks a change of residence – Family violence and child sexual and physical abuse allegations – Longstanding Department intervention – Where the mother concedes the allegations of sexual abuse were unsubstantiated – Where the father has spent both unsupervised and supervised time with the child who is a young child – The mother have sole parental responsibility – The child to live with the mother – The child to spend unsupervised time with the father – Both parties to facilitate the child attending upon his current General Practitioner – Both parties to facilitate the child attending upon his current psychologist – The mother to attend therapy – The father to attend upon an anger management counsellor – Both parties be restrained from travelling with the child outside the Commonwealth of Australia for a period of five years – The child be placed on the Airport Watch List. Legislation: Family Law Act 1975 (Cth) ss 60CA, 60CC, 61C, 61DA, 65DAA, 69ZW, 91B, 102NA, 149
Children and Young Persons (Care and Protection) Act 1998 (NSW) s 245D
Cases cited: Blinko & Blinko [2015] FamCAFC 146
Bondelmonte v Bondelmonte (2017) 259 CLR 662
Goode & Goode (2006) FLC 93-286
Isles & Nelissen(2022) 65 Fam LR 288
M & M (1988) 166 CLR 69
Mazorski & Albright (2007) 37 Fam LR 518
McCall & Clark (2009) FLC 93-405
Mulvany & Lane (2009) FLC 93-404
R & C [1993] FamCA 62
Division: Division 1 First Instance Number of paragraphs: 230 Date of hearing: 15-18 May 2023 Date of last submissions: 15 June 2023 Place: Heard in Sydney, delivered in Melbourne Counsel for the Applicant: Ms Cantrall Solicitor for the Applicant: Farah Lawyers Counsel for the Respondent: Mr Connor Solicitor for the Respondent: SCB Legal Counsel for the Independent Children's Lawyer: Ms Ryan Solicitor for the Independent Children's Lawyer: Walkden Law & Mediation ORDERS
SYC 1651 of 2018 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MR MOLEK
Applicant
AND: MS MOLEK
Respondent
INDEPENDENT CHILDREN'S LAWYER
ORDER MADE BY:
HARTNETT J
DATE OF ORDER:
18 AUGUST 2023
THE COURT ORDERS THAT:
1.All previous parenting orders be discharged.
2.The mother have sole parental responsibility for the child, X, born in 2017 (“the child”).
3.In relation to any decision the mother is required to make in relation to the long term issues of the child, the mother shall undertake the following actions before making such decisions:
(a)the mother shall provide the father with no less than fourteen days’ notice in writing of any proposed decision;
(b)the mother shall consult the father in writing about any such proposed decision and make a genuine effort to give consideration to the father’s expressed view and should the relationship between the parents permit, make a genuine effort to reach agreement with the father about any such proposed decision; and
(c)in the event that no agreement is reached between the parents, the mother shall make the final decision and within fourteen days of doing so, shall provide the father with written confirmation of the decision.
4.The child live with the mother.
5.The child spend time and communicate with the father as follows:
(a)during school terms:
(i)commencing Friday, 25 August 2023, each alternate week, from 3.00pm or after school until Monday at the commencement of school or at 9.00am until 24 November 2023;
(ii)each alternate week commencing 5 September 2023, from Tuesday 3.00pm or after school until Wednesday at the commencement of school or at 9.00am until 24 November 2023;
(iii)commencing Friday, 24 November 2023, each alternate week, from Friday 3.00pm or after school until Tuesday at the commencement of school or at 9.00am; and
(iv)commencing in the first week of Term 1 of the 2024 school year, and thereafter, each alternate week, from Friday 3.00pm or after school until Wednesday at the commencement of school or at 9.00am.
(b)for four consecutive nights, at the election of the mother, in the third term 2023 school holiday period subject to the father being in substantial attendance.
(c)for the 2023-2024 Christmas/January school holiday period for two (2) periods each of one (1) week duration, at the election of the father, with the father to notify the mother in writing at least 60 days prior to the commencement of that school holiday period of those weeks he wishes to spend with the child. During each of such periods, the father is to be in substantial attendance and to facilitate the child’s private FaceTime contact with the mother on at least three (3) occasions each week.
(d)during the school term holiday periods and the Christmas/January school holiday period commencing 2024:
(i)in even numbered years during the first half of such holiday periods with changeover to take place at 4.00pm on the middle day of the school holiday periods;
(ii)in odd numbered years during the second half of such holiday periods with changeover to take place at 4.00pm on the middle day of the school holiday periods;
(iii)where the child is to spend one half of holiday periods with each parent and there is an odd number of nights, the child will spend an extra night with the mother in even numbered years, and the child will spend an extra night with the father in odd numbered years; and
(iv)the parents shall resume the same pattern of school term time as if it had occurred notionally throughout the school holiday period.
6.Notwithstanding any other order to the contrary, the child shall spend time with each parent on the following special occasions:
(a)for Mother’s Day/Father’s Day:
(i)with the mother on the weekend of Mother’s Day from 6.00pm on the preceding Saturday until 9.00am on the following Monday after Mother’s Day; and
(ii)with the father on the weekend of Father’s Day from 6.00pm on the preceding Saturday until 9.00am on the following Monday after Father’s Day.
(b)for each parent’s birthday:
(i)with the mother on her birthday from 5.00pm until 8.30pm, when the child is not otherwise spending time with the mother; and
(ii)with the father on his birthday from 5.00pm until 8.30pm, when the child is not otherwise spending time with the father.
(c)unless the child is spending time with the parent, on each of the child’s birthdays from 5.00pm until 8.30pm.
(d)if there is a special occasion on whilst the child is in the other parents’ care, such as weddings, funerals, and other like events:
(i)the father shall not unreasonably withhold the child from accompanying the mother to that event;
(ii)the mother shall not unreasonably withhold the child from accompanying the father to that event;
and the parents shall use their best endeavours to give the other parent as much advanced notice of such an occasion as possible.
7.Any such further and other times as agreed between the parents in writing.
8.The child shall have the following parental communication unless otherwise specifically provided for in these orders:
(a)telephone or video calls with each of the mother and the father once per week at times agreed between the parents and to facilitate such communication each of the mother and the father will have the child available to speak to the other parent;
(b)reasonable telephone or video calls during the extended 2023-2024 Christmas/January school holiday period with each of the mother and the father and each of the parents will advise the other of their contact details seven (7) days prior to any extended period; and
(c)privacy during telephone or video calls with both parents and the parents must ensure that they facilitate this.
9.Each parent is entitled to obtain at the parent’s request and expense, information and/or copies of any medical or other reports, photographs, or documentation, including but not limited to, any treatment, attendances or other information that is relevant to the child’s care, welfare, and development.
10.Each parent will inform the other as soon as reasonably practicable of:
(a)any significant medical problems, illness or injury suffered by the child while in their care;
(b)any medication that has been prescribed for the child while in their care;
(c)any specialist medical appointments with any doctor, psychiatrist, psychologist, counsellor or therapist that the child is due to attend;
(d)any occasion that the child is due to be hospitalised while in their care; and
(e)the full particulars of any doctor, medical practitioner (including counsellors, psychologists and psychiatrists), therapeutic or health service provider or institution attended upon by the child while in their care.
11.Each parent will inform the other immediately in the event of an emergency involving the child including, but not limited to, the child suffering a serious illness or injury or the hospitalisation of any of the child.
12.Both parents are permitted to liaise directly with any doctor, medical practitioner, dental practitioner, mental health practitioner (including counsellors, psychologists, or psychiatrists) or any hospital, medical, therapeutic, or other health service provider or institution attended by the child to obtain information about the physical, dental and/or mental health of the child and the progress of any treatment the child may be receiving.
13.Each parent do all acts and things necessary to follow the recommendations of the child's treating medical practitioners, therapeutic providers and educational officers in respect to the child's various medical, therapeutic and educational needs during those periods that the child is in their respective care including, but not limited to, acting on any referrals provided, providing any consents or authorities necessary and abiding by any medication or treatment regimens recommended or prescribed (including any speech therapy exercises or homework or other learning supports) until such time as otherwise recommended by these services.
14.For the purposes of these orders, changeover will occur at the child’s school should time commence ‘before or after’ school or otherwise, changeover is to take place at Suburb C McDonalds.
15.The parties are at liberty to agree in writing to vary the changeover time and location on any given day.
16.The child remain at the B School until the completion of his primary school years.
17.Each parent is permitted to liaise directly with the child's school/s, principal/s or teacher/s to obtain any information about the child's progress at school or information about events such as swimming carnivals, sports days, parent/teacher interviews and other educational activities or to arrange for the sending out of newsletters, school photos and academic report cards and any other correspondence provided to parents by the school.
18.Each parent may liaise directly with any relevant sporting body or extra-curricular organisation the child is enrolled in to obtain any information about any of the child's involvement with that sport or activity including, but not limited to, the child's progress and the details of any functions, events or activities that allow for parental attendance or participation.
19.Each parent is permitted to attend all events involving the child including, but not limited to:
(a)sporting fixtures and events;
(b)extra-curricular activities that allow for parental attendance or participation; and
(c)school functions and events that allow for parental attendance or participation.
20.The parent with whom the child is living or spending time with on the day of any school, sporting or other extra-curricular activities or events will be responsible for the day-to-day care of the child at that event, including ensuring that the child is transported to and from the event unless otherwise agreed between the parents in writing.
21.The child continue to attend upon his current General Practitioner.
22.The child’s current General Practitioner is to be used by both parties.
23.The parents facilitate the child attending upon a medical appointment with any other medical practitioner, including but not limited to a specialist, psychologist, psychiatrist, counsellor or therapist only if referred or recommended by the child’s General Practitioner or a hospital.
24.Each parent shall provide to the other parent written notification of any medication administered to the child whilst the child is in their care including details of the time, date, name of medication and amount administered with written notification to be provided to the parent receiving the child into their care.
25.The parents shall do all things necessary to facilitate the child engaging with the child’s psychologist, Ms D, for a period of twelve months from the date of these orders and shall comply with all reasonable recommendations of the psychologist and the parents shall share the cost of such engagement equally.
26.The parents be at liberty to provide Ms D or any psychologist the child attends upon for the purpose of therapeutic counselling or psychological services, the following documents:
(a)Dr E’s Family Report dated 28 February 2023; and
(b)Ms F’s Family Report dated 5 June 2020.
27.The mother attend upon a therapist of her choice for family therapy to assist her in reducing anxiety about the child and the child’s interaction with his father and continue such attendance for a period of at least twelve (12) months subject to any earlier time frame as recommended by that therapist.
28.Should either parent travel with the child outside of the city that parent resides in for more than 48 hours, that parent shall provide the other parent with notice in writing of the date on which they intend to travel including the estimated dates and times of travel, details of accommodation and contact details for the child whilst travelling.
29.Each of the parties, Ms Molek (born in 1986) and Mr Molek (born in 1983) their servants and/or agents be and are hereby restrained by injunction, and irrespective of authenticated consent as contemplated in Part VII of the Family Law Act1975 (Cth), from removing or attempting to remove or causing or permitting the removal of the said child (X born in 2017) from the Commonwealth of Australia for a period of five (5) years;
AND IT IS REQUESTED that the Australian Federal Police give effect to this order by placing the name of the said child and above named parties on the Family Law Watch List in force at all points of arrival and departure in the Commonwealth of Australia and maintain the child’s name on the Watch List for the said period, or until the Court orders its removal.
30.The child remain on the Airport Watch List until the expiration of five (5) years from this date.
31.The parents are to communicate with each other as follows:
(a)by way of e-mail, for all non-urgent parenting matters; and
(b)by text message only in relation to urgent, medical or other emergency.
32.Each parent will keep the other informed of their telephone contact numbers and email address and will advise the other within 24 hours of any change to those details.
33.Each parent will keep the other informed of their current residential address and will give the other parent not less than 21 days advance notice of any change to their address.
34.Each parent shall refrain from making critical or derogatory remarks in relation to the other party in the presence or hearing of the Child and each party shall do all things necessary to ensure that no third party makes critical comments about the other party in the presence or hearing of the child.
35.At the expiration of three (3) months from the making of these Orders, the father be released from his undertaking given on 18 May 2023.
36.The Independent Children’s Lawyer be discharged three (3) months from the making of these Orders.
37.Within 14 days hereof, each of the mother and the father pay the costs of Dr E invoiced in the sum of $1,237.50.
38.Otherwise all extant applications be dismissed and the matter removed from the list.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Molek & Molek has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
HARTNETT J
INTRODUCTION
On 16 March 2018, the applicant father (“the father”) filed an Application for Final Parenting Orders in the then Federal Circuit Court, now Federal Circuit and Family Court of Australia (“Division 2”). He sought final orders, relevantly, that the child X born in 2017 (“the child”) live with the respondent mother (“the mother”); the child spend time with the father as agreed between the parties and failing agreement, each Wednesday from 4.00pm until 6.00pm, each Saturday from 12.00pm until 2.00pm, and each Sunday from 12.00pm until 2.00pm; and that the child be placed on the Airport Watch List and that both parties be restrained from removing the child from Australia.
On 16 March 2018, the father also filed a requisite Notice of Risk, outlining two incidents. The father firstly deposed that in February 2018, there was an incident at the family home between the father, the mother and the maternal grandmother, all then occupiers of the former family home, though the grandmother temporarily, in the presence of the child. The Police attended the former family home and thereafter the maternal grandmother agreed to move out of the home. No charges were laid. Secondly, the father deposed that on 6 or 7 March 2018, the mother made a complaint to the Police, that at 1.30am on 18 February 2018, the father had assaulted the mother. The father denied the allegations. The father also stated his concern that the mother intended to return to Country G with the child without the father’s knowledge or consent.
On 4 May 2018, the mother filed a Response to Application for Final Parenting Orders. She sought orders, relevantly that, the child live with her; the child spend time with the father each Wednesday from 4.00pm until 6.00pm (unless the child became unsettled and needed to be breast fed by the mother); each Saturday from 12.00pm until 2.00pm (unless the child became unsettled and needed to be breast fed by the mother); the mother and father make a genuine effort to come to joint decisions about the child’s education, religious and cultural upbringing, and the child’s health; and the mother be allowed to travel with the child overseas once a year to visit the maternal grandparents.
On 4 May 2018, the mother also filed a Notice of Risk. The mother made allegations of family violence against the father claiming the father had been verbally, mentally and physically abusive towards her, referring to the incident in February 2018 where the police were called to the former family home, she claimed, to intervene in an altercation between the father and maternal grandmother. She noted that the Police obtained an interim ADVO against the father with the mother as the protected person.
What then followed was five years of litigation before the trial commenced. The child was nearly six months of age at the commencement of the litigation, and was five years and eight months of age at trial. His parents had not been able to resolve their dispute, nor had the appointment of an Independent Children’s Lawyer (“the ICL”) assisted in that regard. There were numerous interim hearings had, and interim orders made. Those which are more relevant and the content of some relevant applications of the parties, are referred to below.
On 16 May 2018, interim orders were made by consent, relevantly that, the child live with the mother, the child spend time with the father each Saturday from 10.00am until 12.00pm and each Sunday from 10.00am until 12.00pm or as agreed; named persons to collect and return the child to and from the mother’s residence, if not the father; the father to give the mother 24 hours’ notice of which person would be attending changeover on his behalf, and the mother was prevented from controlling which person attended changeover. The child was ordered to be placed on the Airport Watch List with a corresponding parental restraint order.
On 27 August 2018, the mother filed an Application in a Case. She sought orders, relevantly, that there be leave to amend her Response to Application for Final Orders to include travel and property orders as sought; for the child to be removed from the Airport Watch List to travel to Country G with her from time to time; and for the father to give the mother the sum of $10,000 on an urgent interim basis to help the mother secure new living arrangements.
Competing applications by the parties for property and spousal maintenance orders were finalised as between them by consent on 16 November 2018. What remained in dispute was the care arrangements for the child.
On 27 August 2018, interim consent orders were made by the parties that the child, then almost 12 months of age, spend time with the father each Friday from 3.00 pm until 6.00 pm; each Saturday from 10.00 am until 1.00 pm; special occasion time; changeover to occur at Suburb H McDonalds at the commencement of each care period and Suburb J McDonalds at the conclusion of each care period unless otherwise agreed; the parties communicate through a communication book; the parties to attend a further Legal Aid conference in six months’ time to discuss care arrangements for the child. The Court further noted and recommended the parties attend therapeutic counselling.
On 30 April 2019, when the child was aged 19 months, the father filed an Application in a Case. The father sought orders, relevantly that, the child spend time with the father on a fortnightly basis, in the first week on Friday from 3.00 pm until 7.00 pm and Saturday from 9.00am to 7.00pm, in the second week on Friday from 3.00 pm until 7.00 pm and Sunday from 9.00 am to 7.00 pm; special occasion time; changeover to occur at Suburb K Police Station; the parties to communicate via SMS in case of emergency or if either party is to be late to changeover; the mother make an appointment with a paediatrician to discuss the child’s development, in particular his gait; and the mother notify the father of the appointment to enable the father to arrange a consultation with the paediatrician to discuss the outcome.
On 1 May 2019, the Court made interim consent orders, relevantly, that the child spend time with the father on a fortnightly basis, in the first week from Friday from 3.00 pm until 6.00 pm, and Sunday from 10.00 am until 3.00 pm, and in the second week Friday from 3pm until 6pm and Saturday from 10.00 am until 3.00 pm. Changeover was to occur at Suburb K Police Station. The father’s Application in a Case was otherwise listed for hearing at a date and time to be allocated.
On 22 May 2019, the mother filed a Response to an Application in a Case. She sought orders, relevantly, that an ICL be appointed in the proceeding, the father spend time with the child from 10.00am until 3.00pm on week days so that upon finding a job, the mother could work while the child was with the father. The mother otherwise sought that the father, for a period of four weeks, send the mother photos and videos showing the child’s interaction with him during his periods of time spent with the child so as to alleviate her concerns that the child was settled when with the father. Thereafter, any extension of time was to be as agreed between the parties; changeover to occur at Suburb K Police Station between the parties only with the paternal grandfather not to be in attendance; both parties to enrol and participate in the parenting program ‘Circle of Security’ within 14 days of the orders; and the child be permitted to travel to Country G with the mother in August 2019 for five weeks to visit her family.
On 6 June 2019, the mother filed an Application in a Case, seeking that she be permitted to travel to Country G with the child in August 2019 for five weeks to visit her family, attend a friend’s wedding, and also attend a grandparent’s birthday. The mother proposed her relative would provide that relative’s family home as a guarantee the mother and child would return to Australia. In an Amended Response to an Application in a Case filed subsequently, the mother proposed in lieu an order that she transfer $20,000 as a surety into the L Lawyers Practice Trust Account within five days of the orders; and upon the return of the mother and child from Country G the $20,000 deposited as a surety be transferred back to the mother.
The father sought the mother’s Application in a Case filed 5 June 2019 be dismissed. The child was at that time not yet two years of age.
On 31 July 2019, the Court made orders, as amended by slip rule on 28 August 2019, relevantly, that from 2 August 2019 and for a period of two months, the child spend time with the father each Friday from 3.00 pm to 6.00 pm and each Saturday from 9.00 am to 6.00 pm; from 4 October 2019 and continuing thereafter, the child spend time with the father each Friday from 3.00 pm until 6.00 pm on Saturday; special occasion time; changeover to occur at Suburb K Police Station; the father be restrained from allowing the paternal grandfather to attend changeovers; the mother’s application for permission to travel to Country G with the child was dismissed; an ICL was appointed for the child; and the parties were to attend upon a Family Consultant for the purposes of preparing a Family Report.
It is worth highlighting that the above orders made provision, for the first time, for the child to spend overnight time with the father. That time was once each week and exceeded 24 hours. The child was approximately six weeks away from becoming two years of age. He had experienced prior to this, consistent and repeated (in each week) time spent with his father.
On 3 August 2020, the Court made trial directions for a final hearing to commence on 27 May 2021. The orders made 31 July 2019 had continued in their operation until that time and were then superseded by orders of 3 August 2020, which provided for a regime of parenting orders as follows:
1. In these Orders, unless the context otherwise requires:
1.1. “Father” means [Mr Molek] born [in] 1983; and
1.2. “Mother” means ]Ms Molek] born [in] 1986.
1.3. “[X]” means [X] born [in] 2017;
1.4. “School” means the school at which [X] attends from time to time and includes any preschool or day care.
1.5. “School Term” means the dates of the each term as determined by the School.
1.6. “School Holiday Period” means the holidays following each School Term as determined by the School.
Care Arrangements
2. [X] live with the Mother.
3. [X] spend time substantial and significant time with the Father as agreed between the parties and, failing agreement, as follows:
3.1. From the date of these Orders and for a period of 6 calendar months:
3.1.1. Week 1: From 3.00pm Friday until 7.00pm the following Saturday; and
3.1.2. Week 2: From 3.00pm Thursday until 9.00am the following Friday.
3.2. From the conclusion of the period in 3.1 above and for a period of 12 months:
3.2.1. Week 1: From 3.00pm Friday until 7.00pm the following Sunday; and
3.2.2. Week 2: From 3.00pm Thursday until 9.00am the following Friday.
3.3. From the conclusion of the period in 3.2 above:
3.3.1. Week 1: From 3.00pm or after school Friday until 9.00am or before school the following Monday; and
3.3.2. Week 2: From 3.00pm or after school Thursday until 9.00am or before school the following Friday.
4. Once [X] commences school and until [X] commences year 2, during the Term 1, 2 and 3 School Holiday periods [X] will spend time with the parties for half each School Holiday as agreed and, failing agreement:
4.1. With the Mother:
4.1.1. for the first half of each School Holiday period in each year ending in an even number and each alternate year thereafter, such period to commence at the conclusion of the School Term and to conclude at 12.30pm on the second Sunday of the School Holiday period;
4.1.2. for the second half of the each School Holiday period in each year ending in an odd number and each alternate year thereafter, such period to commence at 12.30pm on the second Sunday of the School Holiday period and to conclude at the commencement of the School Term.
4.2. With the Father:
4.2.1. for the first half of each School Holiday period in each year ending in an odd number and each alternate year thereafter, such period to commence at the conclusion of the School Term and to conclude at 12.30pm on the second Sunday of the School Holiday period;
4.2.2. for the second half of the each School Holiday period in each year ending in an even number and each alternate year thereafter, such period to commence at 12.30pm on the second Sunday of the School Holiday period and to conclude at the commencement of the School Term.
5. Once [X] commences school and until [X] commences year 2, during the Term 4 School Holiday period [X] will spend time with the parties for half each School Holiday as agreed and, failing agreement:
5.1. With the Mother:
5.1.1. for the first week of each School Holiday period in each year ending in an odd number and each alternate year thereafter, such period to commence at the conclusion of the School Term and to conclude at 12.30pm on the second Sunday of the School Holiday period, and each alternate week thereafter;
5.1.2. for the second half of the each School Holiday period in each year ending in an even number and each alternate year thereafter, such period to commence at 12.30pm on the second Sunday of the School Holiday period and to conclude at 12.30pm on the third Sunday of the School Holiday period, and each alternate week thereafter, with [X] to remain in the Mother’s care until the commencement of the School Term during the third week that he is in the Mother’s care during the Term 4 School Holiday period.
5.2. With the Father:
5.2.1. for the first week of each School Holiday period in each year ending in an even number and each alternate year thereafter, such period to commence at the conclusion of the School Term and to conclude at 12.30pm on the second Sunday of the School Holiday period, and each alternate week thereafter;
5.2.2. for the second half of the each School Holiday period in each year ending in an odd number and each alternate year thereafter, such period to commence at 12.30pm on the second Sunday of the School Holiday period and to conclude at 12.30pm on the third Sunday of the School Holiday period, and each alternate week thereafter, with [X] to remain in the Father’s care until the commencement of the School Term during the third week that he is in the Father’s care during the Term 4 School Holiday period.
6. Once [X] commences year 2, during all School Holiday periods [X] will spend time with the parties for half each School Holiday as agreed and, failing agreement:
6.1. With the Mother:
6.1.1. for the first half of the Term 1, 2 and 3 School Holiday periods in each year ending in an even number and each alternate year thereafter, such period to commence at the conclusion of the School Term and to conclude at 12.30pm on the second Sunday of the School Holiday period;
6.1.2. for the second half of the Term 1, 2 and 3 School Holiday periods in each year ending in an odd number and each alternate year thereafter, such period to commence at 12.30pm on the second Sunday of the School Holiday period and to conclude at the commencement of the School Term;
6.1.3. for the first half of the Term 4 School Holiday period in each year ending in an even number and each alternate year thereafter, such period to commence at the conclusion of the School Term and to conclude at 12.30pm on the fourth Sunday of the School Holiday period;
6.1.4. for the second half of the Term 4 School Holiday period in each year ending in an odd number and each alternate year thereafter, such period to commence at 12.30pm on the fourth Sunday of the School Holiday period and to conclude at the commencement of the School Term.
6.2. With the Father:
6.2.1. for the first half of the Term 1, 2 and 3 School Holiday periods in each year ending in an odd number and each alternate year thereafter, such period to commence at the conclusion of the School Term and to conclude at 12.30pm on the second Sunday of the School Holiday period;
6.2.2. for the second half of the Term 1, 2 and 3 School Holiday periods in each year ending in an even number and each alternate year thereafter, such period to commence at 12.30pm on the second Sunday of the School Holiday period and to conclude at the commencement of the School Term;
6.2.3. for the first half of the Term 4 School Holiday period in each year ending in an odd number and each alternate year thereafter, such period to commence at the conclusion of the School Term and to conclude at 12.30pm on the fourth Sunday of the School Holiday period;
6.2.4. for the second half of the Term 4 School Holiday period in each year ending in an even number and each alternate year thereafter, such period to commence at 12.30pm on the fourth Sunday of the School Holiday period and to conclude at the commencement of the School Term.
Special Occasions
7. Notwithstanding any other order to the contrary:
7.1. During the Orthodox Christmas period, [X] will spend time with the parties as
7.1.1. From 8.00am until 7.00pm in each year ending in an even number with the Father; and
7.1.2. From 8.00am until 7.00pm in each year ending in an odd number with the Mother.
7.2. During the Christmas Holiday Period, [X] will spend time with the parties as follows:
7.2.1. From 9.00am on Christmas Day until 7.00pm on Boxing Day in each year ending in an even number with the Mother; and
7.2.2. From 9.00am on Christmas Day until 7.00pm on Boxing Day in each year ending in an odd number with the Father.
7.3. For the Orthodox Easter Period, [X] will spend time with the parties as follows:
7.3.1. From 9.00am on Orthodox Easter Sunday until either:
7.3.1.1. if the day is a school day, before school on Orthodox Easter Monday; or
7.3.1.2. if the day is not a school day, 7.00pm on Orthodox Easter Monday,
in each year ending in an odd number with the Mother; and
7.3.2. From 9.00am on Orthodox Easter Sunday until either:
7.3.2.1. If the day is a school day, before school on Orthodox Easter Monday; or
7.3.2.2. if the day is not a school day, 7.00pm on Orthodox Easter Monday,
in each year ending in an even number with the Father.
7.4. On [X]’s birthday, [X] will spend time with the party that does not otherwise have the care of [X], for at least four hours as agreed and, failing agreement:
7.4.1. from 2.00pm to 7.00pm if the day is not a School day; and
7.4.2. from after school to 7.00pm if the day is a School day.
7.5. On the Mother’s birthday, if [X] is not otherwise in the Mother’s care, [X] will spend time with the Mother as agreed and, failing agreement:
7.5.1. from 9.00am (or 10.00am if it is a weekend) to 7.00pm if the day is not a School day; and
7.5.2. from after school to 7.00pm if the day is a School day.
7.6. On the Father’s birthday, if [X] is not otherwise in the Father’s care, [X] will spend time with the Father as agreed and, failing agreement:
7.6.1. from 9.00am (or 10.00am if it is a weekend) to 7.00pm if the day is not a School day; and
7.6.2. from after school to 7.00pm if the day is a School day.
7.7. On Mother’s Day, if [X] is not otherwise in the Mother’s care, [X] will spend time with the Mother as agreed and, failing agreement, from 10.00am on Mother’s Day until 10.00am on the next day.
7.8. On Father’s Day, if [X] is not otherwise in the Father’s care, [X] will spend time with the Father as agreed and, failing agreement, from 10.00am on Father’s Day until 9.00am or before school on the next day.
7.9. In addition to Orders 3, 4, 5, 6, 7.1, 7.2, 7.3, 7.4, 7.6 and 7.8, [X] will spend time with the Father on the following special occasions:
7.9.1. From 10.00am until 7.00pm on 24 May;
7.9.2. From 9.00am to 7.00pm on 11 December;
7.9.3. In the event [X] is otherwise in the Father’s care prior to either of the following public holidays, then [X]’s time with the Father will extend until 7.00pm on the public holiday:
7.9.3.1. Australia Day;
7.9.3.2. Easter Monday;
7.9.3.3. ANZAC Day;
7.9.3.4. Queen’s Birthday; and
7.9.3.5. Labor Day.
7.10. In addition to Orders 2, 7.1, 7.2, 7.3, 7.4, 7.5 and 7.7, [X] will spend time with the Mother from 9.00am (or 10.00am if it is a weekend) until 7.00pm on 20 December.
Changeover
8. For the purposes of orders 3 to 7:
8.1. when the commencement of a care period falls on a School day, the Father will collect [X] from School;
8.2. when the conclusion of a care period falls on a School day, the Father will deliver [X] to School; and
8.3. when the commencement and/or conclusion of a care period falls on a day which is not a School day, the parties will meet at [Suburb K] Police Station, 139 The River Road, [Suburb K], or as otherwise agreed.
Medical
9. If there is any medical emergency involving [X], including but not limited to serious illness, accident or hospitalisation, the party with the care of [X] must:
9.1. immediately contact the other party; and
9.2. as soon as practicable, provide the other party all documentation and information in their possession regarding the incident.
10. Each party is authorised to obtain information or documents, including medical reports and details of any treatment from time to time from medical practitioners or specialists treating or attending to [X], including [X]’s Medicare Claim History.
11. Each party must notify the other of the name of any general practitioner, paediatrician or other specialist who treats [X] when [X] is in that party’s care within 48 hours of the consultation and provide to that person any authority necessary so that the other party can contact the person to obtain all information regarding the treatment and care of [X].
Non-Denigration
12. Each party must use their best endeavours to promote [X]’s relationship with the other party.
13. Each party is retrained from doing any act or thing, or causing or permitting any other person to do any act or thing, that has as its intention or effect the denigration of the other party or that party’s family within the presence or hearing of [X] or any of them.
Contact Details/Residential Address
14. Each party is restrained from relocating [X]’s residence outside of the Sydney Metropolitan area.
15. Each party must each keep the other informed of the current suburb in which they are residing and provide the other with written notice of any change in their residential suburb, e-mail address and telephone numbers, including mobile and landline telephone numbers, within 48 hours of any such change.
Telephone Communication
16. From when [X] is 5 years old, [X] communicate with each party at all reasonable times when he is not in that party’s care by telephone or mobile as agreed and, failing agreement, as follows:
16.1. Between 6.30pm and 7.00pm each Sunday; and
16.2. From when [X] starts school, between 6.30pm and 7.00pm each Wednesday and Sunday, during the School Holiday periods.
17. Each party must use their best endeavours to ensure that [X] communicates by telephone or mobile with each party pursuant to Order 16.
18. Each party must provide to the other party their mobile or landline number so that [X] is able to communicate with each party pursuant to Order 16.
19. Each party must give [X] access to their mobile phone or landline so that he is able to communicate with each party pursuant to Order 16.
Parenting Program
20. The parties attend a Parenting Orders program as nominated by the Independent Children’s Lawyer.
21. Each party provide to the service nominated to conduct the Parenting Orders program in Order 20 above with a copy of these Orders.
22. Each party follow all reasonable directions provided by the service provider nominated in Order 20.
23. Pursuant to s65DA(2) and s62B, the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders and details of who can assist the parties adjust to and comply with an order are set out in the Fact Sheet attached hereto and these particulars are included in these orders.
NOTATIONS
The Court notes that the following issues remain outstanding:
A. The allocation of parental responsibility.
B. International travel by each parent with [X].
C. Communication between the parties regarding matters involving [X]’s welfare.
On 21 May 2021, the final hearing was vacated. Orders were made pursuant to s 102NA of the Family Law Act 1975 (Cth) (“the Act”) due to the mother’s legal representation withdrawing on 17 May 2021. A s 69ZW of the Act Order was made requiring the Department of Communities and Justice (NSW) (“the DCJ”) and NSW Police to provide to Division 2 relevant reports in the context of a raft of allegations made by the mother as to abuse of the child by the father as detailed hereafter. Despite those allegations, the mother was still making the child available for overnight time with the father on a regular basis.
On 3 August 2021, a further s 69ZW Order was made for the DCJ and NSW Police to provide reports on any notifications or relevant matters relating to the parties and the child. This order was again repeated by orders made on 14 February 2022.
On 14 September 2021, the mother filed an Application in a Case, seeking that the father’s time with the child be suspended; and the proceedings be transferred to the Magellan List. The mother had by that time secured Legal Aid funding. That application was dismissed.
On 13 October 2021, Division 2 ordered the mother to produce a copy of a video recording made by her of the child, on or around 6 September 2021, which the mother claimed supported her allegations that the father had engaged in inappropriate sexual behaviour with the child. The father denied the allegations of the mother, contending the mother had falsely made reports to Division 2, the DCJ and NSW Police in order to destroy the child’s relationship with him. He considered the child to be at risk in the mother’s care due to her ongoing false reporting.
On 6 April 2022, pursuant to s 149 of the Act, the matter was transferred to the Federal Circuit and Family Court of Australia (Division 1).
On 25 May 2022, the Court made orders, relevantly, that pursuant to s 91B of the Act the DCJ intervene in these proceedings; pursuant to s 69ZW the DCJ and NSW Police provide to the Court a Report of any notifications of the child in the period of 1 March 2022 to 25 May 2022; pursuant to s 245D of the Children and Young Persons (Care and Protection) Act 1998 (NSW) NSW Police provide to the Court a list of COPS events that related to the child, corresponding event reports or cases and the criminal history/bail report of the parties and the child. The Court noted that the issues for determination at trial included parental responsibility, live with, spend time with/communicate with, risk, allegations of family violence and psychological, physical and sexual abuse. Both the mother and father were self-represented at that time and the Court was advised the child was not currently spending any time with the father in accordance with the operative orders. Indeed, the child had ceased to spend time with the father in March 2022.
On 22 July 2022, the Court made orders, relevantly, that Orders 3-8 of the orders made 3 August 2020 be discharged pending further order and in lieu the child spend supervised time with the father at V Contact Centre Supervision Service with the parents to pay all costs equally.
On 5 August 2022, the Court made further orders that the father’s time with the child, as supervised by V Contact Centre Supervision Service, was to commence at 10.00 am for a period of three hours each Sunday, subject to the availability of V Contact Centre; changeover to occur at Chemist Warehouse at the commencement of the father’s time and Aldi in Suburb M at the conclusion of the father’s time; and both parents to facilitate the commencement of supervised time with V Contact Centre as soon as practicable. There was no limitation as to where the father could spend time with the child.
The matter finally proceeded to final hearing on 15 May 2023. At that time, the child was living with the mother and spending weekly time with the father subject to professional supervision with a differing agency to V Contact Centre.
At the final hearing, the father sought sole parental responsibility of the child and that the child live with him. He sought for the child to spend supervised time with the mother. He claimed:
(a)the mother had demonstrated an inability to make decisions that were in the best interest of the child;
(b)the mother’s sole parental responsibility of the child had resulted in a deterioration of the child’s physical health in terms of the child’s weight and development;
(c)there had been a deterioration of the child’s mental health in circumstances where the child had been coached to make false disclosures of violence and sexual abuse to teachers, doctors and on videos recorded by the mother;
(d)that the child did not have a consistent residence having moved at least eight times since commencement of proceedings;
(e)that the child had been removed from a consistent schooling environment;
(f)that the child had suffered the severance of the child’s relationship with the father due to sexual abuse allegations which were later retracted; and
(g)that the child had experienced no continuation of religious teaching/upbringing which the child had when in the father’s care.
At the commencement of the final hearing, the mother sought sole parental responsibility for the child and for the child to live with her. She sought the child spend supervised time with the father. The mother sought to rely upon and adopt the recommendations of Dr E (“Dr E”) in her Single Expert Report. The mother contended that shared parental responsibility was not possible in the circumstances of poor communication and family violence between the parties, and that the father lacked focus with respect to the needs of the child.
At the final hearing, the ICL sought orders that the mother have sole parental responsibility; the child live with the mother and spend supervised time with the father eventuating to unsupervised time in three stages. The ICL further sought that the father complete an Anger Management course; changeover to occur at the child’s school; the child to have telephone or video communication with the father once per week; the parties be restrained from recording videos of the child’s unclothed body or genitalia; and the parties take the child to one general practitioner as nominated by the mother.
What remained in dispute at the conclusion of the final hearing was primarily parental responsibility for the child; with whom the child should live; and if the child changed residence to live with the father, whether the child should spend supervised time with the mother. Further in dispute was the mother’s ongoing desire to travel to Country G with the child. The father remained opposed to such travel.
The issue of supervision of the child’s time with the father fell away during the cross-examination of the mother. The father is spending unsupervised overnight time with the child pending the delivery of judgment. There is no longer any assertion by the mother that the child is at risk in the care of his father.
On 18 May 2023, the Court made interim orders by consent, upon an undertaking given to the Court by the father (in terms he would continue to engage with a counsellor of N counselling for anger management counselling until such time as the counsellor indicated he no longer needed to attend), as follows:
1.The child live with the mother.
2.The child spend time with the father as follows:
(a) For three (3) weeks each Saturday from 10.00am until 5.00pm;
(b) Commencing from 10 June 2023, Order 2(a) shall be suspended and the child shall spend time with the father every weekend from 10.00am Saturday until 5.00pm Sunday;
(c) Commencing from 10 June 2023, the child shall spend time with the father every Tuesday from after school (or 3.00pm on non-school day) until 7.30pm;
(d) On the child’s birthday from after school (or 3.00pm on non-school day) until 7.30pm; and
(e) Otherwise as agreed between the parties in writing.
3.For the purposes of facilitating Order 2 for a non-school changeover, the parties deliver the child to and collect the child from McDonalds [Suburb C] (“the changeover location”) with no other person present.
4.The child have the following parental communication:
(a) Telephone communication with the father every Thursday between 5.30pm and 5.45pm for no more than ten (10) minutes and to facilitate this the father shall contact the mother by her nominated mobile contact number and the mother shall ensure her mobile phone is switched on and able to receive calls.
MATERIAL RELIED UPON
The father relied on:
(1)his Amended Application for Final Orders filed 2 May 2023;
(2)his trial affidavit filed 2 May 2023, certain paragraphs and/or parts thereof which were objectionable and struck out;
(3)an affidavit of Mr O, the paternal grandfather, filed 2 May 2023; and
(4)his tender bundle emailed to Chambers on 12 May 2023.
The mother relied on:
(1)an Amended Response to Application in a Proceeding filed 26 April 2023;
(2)Notice of Risk filed 4 May 2018;
(3)her trial affidavit filed 24 June 2022 and further affidavit filed 26 April 2023; and
(4)her tender bundle filed 9 May 2023.
The ICL relied on a tender bundle emailed by the ICL to Chambers on 11 May 2023.
The mother and the father both relied upon the Family Report of Ms F dated 5 June 2020. Neither they nor the ICL required Ms F for cross-examination and her report was unchallenged.
Both parents and the ICL relied upon the Court Expert Family Report of Dr E dated 28 February 2023. The affidavits of the parties and some documents as contained in the above tender bundles were admitted into evidence in the proceeding as were the Family Reports relied upon.
BACKGROUND
The father was born in 1983 in Country G, and was aged 40 years at trial. The father first came to Australia in 1986 with his father and brother, and he subsequently became an Australian citizen in 1989. The father stayed in Australia until 1991 and then returned to Country G with his family. The father and his family then immigrated back to Australia in 1997.
The father currently lives in a two bedroom apartment in Suburb J which he owns. The father is employed full time as a Manager with P Company. He works full time commencing work at 7.00 am and concluding around 3.30 - 4.00 pm. He has been employed with P Company for nearly 20 years. The father’s income is $95,000 gross per year. The father has re-partnered (but does not live with) with Ms Q, and they have been in a relationship for approximately 15 months. The father described the relationship as close and supportive, they have discussed marriage. Ms Q has two children and the father has a good relationship with her children.
The mother was born in 1986 in Country G, and was aged 36 years at the time of trial. The mother has not re-partnered. The mother is currently employed part-time as a Professional at a Building company. Her income is $45,000 gross per year. She resides in rental accommodation by necessity paying $450 a week in rent, and has been required to move her accommodation from time to time, a matter about which the father is critical. The Court makes no adverse finding about those differing accommodations, which have been focused on advancing the child’s welfare in the circumstances in which the mother found herself. The mother’s hours of work accommodate her need to care for the child.
In 2014, the parties commenced a relationship after meeting online. Eight months later, the father travelled to Country G to meet the mother, where she was then living. They married in a registry office in Country G in 2015. The father then returned to Australia.
In late2015, the parties applied for a visa for the mother.
In 2016, the mother commenced living in Australia.
The parties cohabitated in Australia for three months in early 2016.
At the conclusion of this cohabitation, the mother returned to Country G to prepare for the parties formal wedding ceremony to be held in Country G in mid-2016. The father followed her on a date that is disputed between the parties and nothing turns on that. The formal ceremony was held.
Soon after the ceremony, the father and his brother and their father returned to Australia.
A couple of weeks later, the mother obtained assistance from the father’s brother to file her application for a spousal visa listing the father as a sponsor. The visa was approved in mid-2016.
In late 2016, the mother returned to live in Australia and the parties resided together. The parties initially lived in the paternal grandfather’s property before moving into their own accommodation.
In 2017, the child was born. The maternal grandmother came from Country G to stay with the parties after the child’s birth, the father having paid for the maternal grandmother’s return plane ticket, tourist visa and travel insurance.
In 2017, NSW Police recorded an incident from the mother’s early discharge from the midwife program. When interviewed by the Police, the mother stated she has “normal arguments” with her husband, however felt “unsafe” due to a fear of being displaced in the event a marital separation were to happen.[1]
[1] Family Report of Dr E dated 28 February 2023, paragraph 74.
In early 2018, the child was christened at the Suburb R Church. The father, the mother, the maternal grandmother (who had remained in the parties household), the paternal uncle and his family, the father’s aunt and uncle and godparents were all present. The child received approximately $1,400 in cash as a gift.
In February, an altercation occurred in the family home between the mother, the maternal grandmother and the father. The altercation was in relation to the father’s belief the maternal grandmother had stolen the child’s christening money. The Police were called and it was agreed the maternal grandmother would leave the parties home and reside elsewhere.
The following day, the father requested a week off work. He claimed he was stressed following the altercation with his mother in law, and lost six kilograms in that same week as a consequence. He and the mother had also had an altercation.
A couple of days later, the maternal grandmother returned to Country G.
Soon afterwards, the mother withdrew $1,000 from the parties’ joint bank account.
The following month, the parties separated. The child was five months old. The mother reported leaving due to ongoing concerns for both her and the child’s safety as a result of family violence perpetrated upon her by the father. The mother claimed the father’s violence increased after February 2018 and that he began throwing things, pushing her, attempted to choke her, spat at her and threatened her with a knife. The father denied such allegations, and claimed to be unaware that the relationship was ending, or that the mother was immediately departing the home and taking the child with her. The evidence of the mother discloses that the parties had a heated argument and separation was discussed, as was the father’s desire to retain, to the exclusion of the mother, his property and further to retain possession of the child.
Following separation, the mother and the child resided in a women’s shelter for six weeks. The mother applied for an Apprehended Domestic Violence Order (“ADVO”) against the father.
In March 2018, a provisional ADVO was made against the father and served on him. The father was charged and found guilty, in respect of the mother, of common assault, domestic violence related, and stalk or intimidate intending to cause fear of physical or mental harm (domestic violence).
Between March and May 2018, the father did not spend any time with the child as a consequence of the mother withholding the child. Following this period of time, the parties agreed for the child to spend time with the father between 10.00 am and 12.00 pm each Saturday and Sunday.
Following consent orders made 16 May 2018, the father commenced to spend time with the child from 10.00 am until 12.00 pm each Saturday and Sunday. The child was settled and appeared to be enjoying this time. It was unsupervised time to which the mother had agreed.
In May 2018, the mother alleged the father breached the ADVO.
In June 2018, the father made admissions as to the alleged breach.
In June 2018, the interim ADVO was made on a final basis against the father for a period of two years.
In August 2018, the father commenced ‘Keeping Kids in Mind’ parenting program.
On 15 February 2019, the father received a text message from the mother advising the child was unwell and not able to spend time with him. The father did not spend any time with the child on that weekend.
In February 2019, a Paediatric Registrar at S Hospital, where the mother had taken the child, recorded concerns about the child’s weight loss over the preceding two months and concerning behavioural changes. The child had a medical condition and was prescribed with a ten day course of medication.
On 20 February 2019, the father’s solicitors received a letter from the mother’s solicitors advising the child was very unwell, and had been hospitalised.
On 22 February 2019, the father’s solicitors received two emails from the mother’s solicitors enclosing medical reports and confirming that the father could care for the child on Saturday and Sunday of the following weekend.
In May 2019, an AVO application was served upon the father by his then girlfriend, who had made a complaint to Police in April 2019, alleging that following their separation the father had attended upon her house and upon leaving stated “the cameras on your house will not save you”.[2] The father acknowledged saying this to Police but said he “meant nothing by it”.[3] The Police noted that the innuendo in the comment caused fear and issued a provisional AVO.
[2] Family Report of Dr E dated 28 February 2023, paragraph 54.
[3] Family Report of Dr E dated 28 February 2023, paragraph 54.
In late 2019, a Divorce Order was granted.
On 16 July 2020, the parties attended a Legal Aid mediation in which proposed parenting orders were agreed. Orders were made on 3 August 2020 and provided for the child to gradually increase his unsupervised time with the father, to a point where, at aged three years, the child was to commence spending overnight time with the father with such overnight times also increasing in length over time to ultimately become four nights in a fortnight during school terms commencing in February 2022.
In May 2021, the child attended Suburb M Police Station and was interviewed by Police with the assistance of a Country G interpreter. The child was approaching four years of age. The Police concluded there was no evidence to support charges, or an application for an ADVO, against the father, on the mother’s allegations of physical, sexual and emotional abuse as first arising in mid-2020, and being allegations made by the mother before the making of the consent orders of 3 August 2020.
The following day, the child was further interviewed by two police officers and a departmental caseworker. The child was reported to have agreed to be recorded but then shook his head to being recorded and would not answer any questions.
The next day, the father attended Suburb M Police Station after learning a report had been made by the mother. The father was described as visibly upset and informed Police this was an ongoing issue of fictitious complaints by the mother. Police sighted the child and considered he appeared happy with, and loving toward, the father.
In August 2021, the child was coughing incessantly for about eight weeks. The father took the child for a medical examination, and the child was diagnosed with bronchiolitis and wheezing.
On 5 September 2021, the child allegedly made further statements to the mother that the father had again engaged in inappropriate behaviour towards him. The mother reported such alleged disclosures to paediatrician Dr T and to the DCJ. The mother made an audio visual recording of the child making such statements on 6 September 2021, where the child was speaking Country G language. The child was crying and making disclosures whilst naked pointing at his genitals at the mother’s request. The mother further recorded conversations wherein she urged the child to describe sexual acts. The mother’s questioning of the child was leading and repetitive.
In late 2021, the child was again interviewed by Police about the mother’s various allegations. The child made no disclosures to indicate sexual and/ or physical abuse of him by the father during the course of the interview.
On 24 February 2022, the child spent overnight time with the father. The father delivered the child to child care on the morning of 25 February 2022, and the mother collected him that evening. When preparing him for his bath, the mother observed scratches on the child’s right hip, his back and on his ribs. The child allegedly attributed these scratches to the father having hit him with a stick. The mother made a report to the DCJ on 25 February 2022. She was advised to take the child to the Doctor. The mother made a Doctor’s appointment but did not take the child to such appointment, claiming he was too distressed.
On 10 March 2022, the father collected the child from child care and noticed the child had a large bruise on his head. The father then spoke to the child’s teacher and reported the injury to the Police, making allegations against the mother.
On 13 March 2022, the child attended child care and disclosed to the child care workers that the father hit him. The mother unilaterally suspended the child’s time with the father.
In April 2022, the mother unilaterally removed the child from the child care centre he was then attending. The mother did not consult with the father.
Soon after, the maternal grandmother arrived in Australia to spend time with the mother and child, and to provide some emotional support to them. The child did not attend child care/kindergarten for three months. The maternal grandmother was given, by the mother, this opportunity to spend time with the child. The child thereafter was enrolled by the mother in a different childcare following the maternal grandmother’s return to Country G. Whilst the father made criticism of this, I find the arrangement wherein the child spent his time with his grandmother, who had travelled from Country G for that purpose, instead of in a preschool situation of care, to have been one that promoted the child’s relationship with his maternal grandmother and was in his best interests. I find the mother’s change of child care provider without consultation with the father a part of the high conflict relationship in which the parties have engaged. It was not appropriate, but it reflected the parties’ lack of communication. I find the mother’s dissatisfaction with the child care provider at that time to be as a consequence of the provider, quite reasonably, not supporting a view the mother held as to the father’s behaviour in respect of the child at that time. The mother was searching for a view that validated her own.
On 26 June 2022, the mother called the father to organise a call between he and the child. The father was apprehensive to speak to the child and was not sure how he would react after not seeing him since early-2022. The father deposed the child’s face lit up with a big smile and they spoke about how much the father missed him.
On 11 July 2022, the mother messaged the father and informed him about the child’s future childcare arrangements. The mother informed him of the childcare the child had been enrolled in, being U Child Centre, and the days he would be attending, being Monday and Wednesday.
On 22 July 2022, the parties agreed to the father spending supervised time with the child. However, the parties were unable to agree on a supervisor, or duration of time, and thereafter the child continued to spend no time with the father until 5 August 2022.
From 5 August 2022 to 3 December 2022, the father spent supervised time with the child. The supervision reports were overall positive about the relationship between the child and the father.
In late 2022, the mother was granted Australian citizenship.
On 8 December 2022, V Contact Centre suspended a supervised visit between the child and the father.
On 14 December 2022, V Contact Centre formally ceased providing their services to the family due to the father’s behaviours.
On 25 December 2022, the father was on FaceTime with the child. The child started hitting himself to the head and slapping himself. When the father asked him if anyone was hitting him, the child said “mummy”.[4] The father then called the mother, the mother answered the call and according to the father, in an angry tone, asked the child “who told you to say that?”.[5] The father claimed that the child was scared in the background, and that the camera turned off. The mother then sent a 31 second video to the father. The child was in the corner of the lounge and according to the father, looked scared. The child alleged the father had told him to say the mother was hitting him. The father proceeded to attend at Suburb C Police Station to request an immediate welfare check on the child, the day being Christmas Day. The father told the Police he was unable to attend the address himself due to the ADVO in place, the mother’s false reports of sexual assault, and the fact he did not know the mother’s address. The Police attended upon the mother’s house and spoke with both the mother and the child. The child appeared to be happy with no injuries.
[4] Exhibit ICL-3.
[5] Exhibit ICL-3.
On 27 December 2022, the father was informed by the Police there were no offences disclosed as a result of their visit to the mother’s home and their conversation had with her. The Police noted that they spoke to the child, and sighted him to be happy and in good spirit.
In January 2023, the mother agreed upon W Contact Centre as a supervisor agency to facilitate time between the father and the child. However, the mother failed to submit required documents in a timely way.
On 26 March 2023, the father and the child again had time together – after a period of approximately three months of no time spent. The child spent time with the father in a supervised capacity at W Contact Centre pursuant to the interim orders made by the Court on 5 August 2022.
At trial, the father was spending weekly supervised time with the child.
Department Intervention History
From April 2020 – January 2022, the DCJ received multiple risk of harm reports, which included:
·The child making statements the father and paternal grandfather hit him with a stick;
·The child making multiple reports about excessive discipline being used by his father;
·The child being resistant to spending time with the father;
·The child having three red lines on his leg and a big lump on his forehead which was attributed to the father hitting him;
·The mother observing emotional changes in the child, the child being scared at changeover, the child’s bottom being red on return from the father as if his nappy had not been changed;
·The child disclosing the father locked him in a room and turned out the light leaving the child to cry and scream; when the father did come in he hit the child on the bottom with a stick; and that the child begged the mother not to take him to the father;
·Ongoing physical and emotional abuse of the child by the father;
·The child returning from the father’s home crying, pointing to his penis and saying “Daddy touch it”;
·The child being distressed at having to spend time with the father, reporting the father slaps him and another woman;
·The child disclosing that “dad pulls up my private part like this”; when asked if the father was cleaning him the child saying “no, he pulls it so many times”;
·The child returning from time with his father and disclosing the father pulling his penis up and down in the restroom many times. A recording was made of the child. The child being reported to have said “I told daddy I don’t want to and he said to me oh yes, you want it”; and
·The child inserting his finger into his anus and making statements indicating he had learnt such behaviour from the father and/or the father had done that to him.
The DCJ closed most reports at the helpline without further assessment.
In April 2020, disclosures in relation to the father’s use of excessive discipline upon the child were referred to a Community Services Centre for further assessment.
In May 2020, disclosures of the father’s sexual abuse upon the child were referred to the Departmental Peer Review, however closed due to competing priorities.
In May 2021, the Joint Child Protection Response Team (“JCPRT”) attempted to speak to the child who was then nearly four years of age and described him as “non-verbal and unable to engage in significant conversation” despite the assistance of a Country G interpreter. The team observed that “given [the child’s] witnessed interactions with the family and the presence of three people in this size apartment (noted as small), it appears unlikely that sexual abuse occurred”.[6] The team stated the child is likely to have experienced psychological abuse from long term exposure to consistent parental conflict.
[6] Family Report of Dr E dated 28 February 2023, paragraph 82.
In May 2021, further allegations of the father’s inappropriate touching of the child were made and the DCJ referred this to the Joint Referral Unit (“JRU”) for consideration of allocation to the Joint Child Protection Response Program.
In June 2021, departmental caseworkers attended upon the father’s residence and a safety assessment was completed deeming the father’s household as safe. Debriefing Minutes were prepared in June 2021 indicating the DCJ had facilitated the child being interviewed by NSW Police and a caseworker and a risk assessment was to be completed. The Minutes further outlined the NSW Police had closed/suspended any criminal investigation and NSW Health had not made any referrals or conducted any forensic examinations. The conclusion of these interviews and investigation was that sexual abuse was unsubstantiated. A Risk Assessment was completed. The DCJ considered the risk of neglect was low, the risk of abuse as moderate and gave an overall risk assessment outcome of moderate. The DCJ substantiated a risk of psychological harm to the child and did not substantiate sexual abuse or exploitation.
In July 2021, the DCJ closed its open cases in relation to the child with referrals made to external agencies.
In September 2021, the DCJ received a further report of sexual touching by the father. The DCJ transferred the report to the JRU and the report was screened for sexual abuse. NSW Police arranged with the mother to interview the child in September. No Country G interpreter was required as the child’s English language skills had reportedly improved. When interviewed, the child was reported to have said “Daddy touched me on the penis” and that this had occurred in the toilet when he was washing his hands, over his clothes, and that it hurt. The father denied such allegations claiming they were always raised prior to family law appearances. Departmental caseworkers made enquiry with the child’s child care centre. The director of the centre reported no concerns for the child in the care of either parent. NSW Police concluded there was insufficient context and detail to establish whether or not a criminal offence had occurred and marked the case closed.
In December 2021, a safety assessment was carried out by the DCJ. The child was assessed to be safe and no immediate dangers were identified.
In December 2021, DCJ caseworkers and the Department of Health advised the mother to take the child to a paediatrician to conduct a check-up due to the mother’s claim that the child had sustained bruising in the father’s care. The mother informed the child was scared of the General Practitioner and later took the child to S Hospital. The medical report stated the claimed bruises on the child’s back were not evident on examination, but there had been a nine day interval between the mother first noting the bruises and the child’s presentation to the hospital. The examination findings revealed no significant abnormality. This information was conveyed to the father the following day.
In January 2022, the DCJ referred the child’s claimed (by the mother) behaviour of inserting his finger into his anus and indicating he had learned the behaviour from the father to the JCPRT. The DCJ substantiated risk of psychological abuse of the child arising from, the number of times he had been interviewed; Dr X and NSW Police identifying the fraught nature of the parents’ relationship; no clear disclosure by the child during the interviews and assessments; the likelihood of the child continuing to being exposed to high levels of parental conflict; and the fact that ongoing intervention may place him at risk of psychological harm.
In February 2022, the JCPRT carried out a third investigation following the child’s alleged disclosure of “making milk come out of his penis”, to which the mother replied “nonsense”; that the child could show the mother “like pretend” and when the mother told the child that was not possible the child said “Mr Molek can do that”; and a separate alleged disclosure when the child penetrated his bottom and told the mother he had seen the father do the same. The child showed comprehension of the questions but denied the father had touched his penis or that he had said anything about milk coming from his penis. The conclusion of the interviews and investigation was that sexual abuse was unsubstantiated.
Since 24 March 2022, the parties have had an allocated caseworker at Y Community Services Centre. The DCJ identified key issues regarding the safety, welfare and wellbeing of the child to be:[7]
[7] DCJ Letter dated 5 July 2022, p.2.
·Exposure to parental conflict;
·Allegations regarding domestic violence by the father;
·Poor communication and co-parenting relationship between the parents;
·The mother’s social isolation and vulnerability;
·Allegations that both parents physically harm the child;
·Allegations of inadequate basic care by both parents;
·Allegations of sexual abuse by the father;
·Allegations that the mother makes up false allegations about the father and coaches the child to make disclosures; and
·Concerns regarding overseas abduction.
On 29 March 2022, the DCJ completed a safety assessment of the child. The outcome of the assessment was safe, noting the following:[8]
·Concerns were in relation to the child having a mark on his head in his hairline. Both parents stated this occurred whilst the child was in the care of the other parent.
·The childcare centre informed DCJ that they had no information to suggest that the mark did not occur whilst the child was at their centre and they had no concerns for the child’s wellbeing.
[8] DCJ Letter dated 5 July 2022, p.2.
On 21 April 2022, the DCJ completed a risk assessment of the child. The outcome of this assessment was moderate and the DCJ made the decision to override this to high risk. The DCJ noted the following:[9]
·This was necessary due to the long history that the family have had with DCJ.
·There have been 19 reports since 2018 and each report has continually raised similar concerns;
·A Family Action Plan was implemented on 2 May 2022;
·The DCJ has continuously worked with the mother to ensure that the child goes back to childcare. The DCJ have sent Additional Child Care Subsidy (ACCS) letters in support of this; and
·The DCJ are in the process of referring the mother to Family Functional Therapy for support.
[9] DCJ Letter dated 5 July 2022, p.2.
On 26 April 2023, the mother conceded in her affidavit evidence that her allegations regarding the child being sexually and physically abused by the father were unsubstantiated. She stated:[10]
90. I conceded that it was a significant error in judgment when I decided to make CPS reports and video recordings of [X]. I was in a state of despair after thinking that [X] was possibly being violated by his father. Now I understand that this thinking is detrimental to [X]. It was never at any point beneficial to our family matter nor was it beneficial to [X].
91. I now understand that recording [X] in the way e (sic) I did was harmful to [X], and I never want to think that I have harmed [X]. My actions at the time were out of fear that [X] was not safe, but had I understood the potential harm to [X] (sic), I never would have done these.
92. I will not be making anymore CPS reports that are unfounded, and I will not be making anymore recordings of [X] of the kind that I have.
[10] Mother’s trial affidavit filed 26 April 2023, paragraphs 90-92.
EVIDENCE
Statements of fact in these reasons are findings on fact on the balance of probabilities, unless the context indicates otherwise.[11] I found both the father and the mother to be generally credible witnesses who did their best to recall events accurately.
[11] Evidence Act 1995 (Cth) s 140.
It is not necessary in these reasons for judgment to comment upon the entirety of the evidence including the evidence of each witness, nor to comment on every exhibit tendered. Nor have I done so. However, every piece of evidence relied upon by the parties has been read and carefully considered by me.
Family Report of Ms F, Family Consultant
On 5 June 2020, Family Consultant Ms F prepared a Family Report pursuant to Orders made on 31 July 2019.
Ms F interviewed the mother, the father, the paternal grandfather and the father’s then partner via telephone over two days in early 6 May 2020. The assessment was undertaken during the COVID-19 period and it was noted by Ms F there may have been some limitations to the assessment as a result.
The child was not interviewed due to his age, but the child was observed with both parents at the Sydney Registry in late May 2020. A Country G interpreter assisted as the parents primarily spoke with the child in Country G language.
At the time of the Report the child lived with the mother in her apartment in Suburb M. The child was sharing a room with his mother. At the time, the mother was unemployed receiving income through Centrelink. She claimed she was intending to obtain part-time work after the pandemic.
At the time of the Report, the father was residing in a two bedroom unit in Suburb J. The father stated he had a furnished room prepared for the child. The child at the time was spending overnight time with the father from Friday until Saturday and the father had re-partnered with Ms BB, who did not live with the father (I note that they subsequently parted).
The father
The father presented to Ms F as a polite and engaging individual who participated in the interview and observation without issue. The father advised Ms F he wanted to have a meaningful role in the child’s life, and that he was very involved in the child’s care prior to separation.
The father described the child to be a “smart, caring and beautiful” boy and stated that they had a very positive relationship.[12] The father stated that he and the child read books together, enjoyed going to the shopping centre, the park and swimming pool. The father had been supporting the child becoming comfortable and confident in the water.
[12] Family Report of Ms F dated 5 June 2020, paragraph 33.
The father stated the child’s “eyes light up” when he saw him.[13] The father stated the child had adapted very well to overnight time with him. The child had access to many toys, games and belongings in the father’s house, making it feel like home for the child.
[13] Family Report of Ms F dated 5 June 2020, paragraph 33.
The mother
The mother presented to Ms F as an engaging and pleasant individual who participated in the telephone interview and observation without issue.
The mother described the child as a “happy, smiling and kind boy”.[14] She stated they had a very close relationship and that she had been the primary carer since birth. The mother stated she helped the child learn things through their play, and she taught him the difference between right and wrong. The mother primarily spoke to the child in Country G language, but stated they practice English words for numbers, animals, colours and objects throughout their play.
[14] Family Report of Ms F dated 5 June 2020, paragraph 49.
The paternal grandfather
To determine the best interests of the child, “the Court must consider the matters set out in subsections (2) and (3)” of s 60CC of the Act.[30] Sections 60CC(2) and 60CC(2A) of the Act set out the primary considerations as follows:
[30] Family Law Act 1975 (Cth) s 60CC(1).
(2) The primary considerations are:
(a)the benefit to the child of having a meaningful relationship with both of the child's parents; and
(b)the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.
Note: Making these considerations the primary ones is consistent with the objects of this Part set out in paragraphs 60B(1)(a) and (b).
(2A)In applying the considerations set out in subsection (2), the court is to give greater weight to the consideration set out in paragraph (2)(b).
In Mazorski & Albright (2007) 37 Fam LR 518, Brown J considered ordinary definitions of the term ‘meaningful relationship’
What these definitions convey is that ‘meaningful’, when used in the context of ‘meaningful relationship’, is synonymous with ‘significant’ which, in turn, is generally used as a synonym for ‘important’ or ‘of consequence’… a meaningful relationship or a meaningful involvement is one which is important, significant and valuable to a child. It is a qualitative adjective, not a strictly quantitative one. Quantitative concepts may be addressed as part of the process of considering the consequences of the application of the presumption of equally shared parental responsibility and the requirement for time with children to be, where possible and in their best interests, substantial and significant.
In McCall & Clark (2009) FLC 93-405 the Full Court at 83,476 accepted the above definition as the appropriate interpretation of ‘meaningful relationship’.
Section 60CC(2)(a) of the Act as set out above requires the Court to weigh up the benefit to the child of having a relationship with both parents. In doing so, the Court must give primary consideration as to whether there is an unacceptable risk of physical and/or psychological harm to the child in spending time with either parent.[31] Upon establishing the existence of an unacceptable risk, the Court must then determine whether that risk “is able to be sufficiently managed or ameliorated”.[32]
[31] M & M (1988) 166 CLR 69 at [25].
[32] Blinko & Blinko [2015] FamCAFC 146 at [83] referring to Russell & Close [1993] FamCA 62.
The High Court of Australia considered in M & M (1988) 166 CLR 69 what magnitude of risk would justify a Court denying a parent access to a child and held that the test was best expressed as to whether there was an unacceptable risk, in that case of sexual abuse, to the child:[33]
Efforts to define with greater precision the magnitude of the risk which will justify a court in denying a parent access to a child have resulted in a variety of formulations. The degree of risk has been described as a "risk of serious harm" (A v. A (1976) VR 298, at p 300), "an element of risk" or "an appreciable risk" (Marriage of M (1987) 11 Fam LR 765, at p 770 and p 771 respectively), "a real possibility" (B. v. B. (Access) (1986) FLC 91-758, at p 75,545), a "real risk" (Leveque v. Leveque (1983) 54 B CLR 164, at p 167), and an "unacceptable risk" (In re G. (a minor) (1987) 1 WLR 1461, at p 1469). This imposing array indicates that the courts are striving for a greater degree of definition than the subject is capable of yielding. In devising these tests the courts have endeavoured, in their efforts to protect the child's paramount interests, to achieve a balance between the risk of detriment to the child from sexual abuse and the possibility of benefit to the child from parental access. To achieve a proper balance, the test is best expressed by saying that a court will not grant custody or access to a parent if that custody or access would expose the child to an unacceptable risk of sexual abuse.
[33] M & M (1988) 166 CLR 69 at [25].
In the recent case of Isles & Nelissen (2022) 65 Fam LR 288 the Full Court of the Federal Circuit and Family Court (Division 1) Appellate Jurisdiction relevantly observed:
50In Fitzwater, Austin J rejected the proposition that a finding of unacceptable risk needs to be made according to the civil standard of proof, saying:
…
134. It must be borne in mind that proceedings in respect of children under Part VII of the Act, while civil in nature, are not disputes inter partes in the ordinary sense of that expression because the court is not enforcing a parental right to custody or access (M v M at 76; ZP v PS (1994) 181 CLR 639 at 647). The paramount consideration in Part VII proceedings is the child’s best interests (ss 60CA, 65AA of the Act). Unlike in other forms of civil litigation, no party bears an onus of proving the factual elements of a common law, equitable, or statutory cause of action to justify an entitlement to remedy. Rather, each party adduces evidence and propounds a suite of orders which he or she contends meets the child’s best interests, which gives the proceedings a different character (CDJ v VAJ at 188-189). The resultant orders represent the court’s discretionary judgment about how the child’s interests will be best served and, due to the sheer breadth of the discretion, two judges may, with complete integrity and upon the same material, come to differing conclusions (CDJ v VAJ at 231).
135. The conclusion reached by a court in Part VII proceedings, as reflected in the decrees it makes, is still premised upon proof of relevant facts and circumstances by evidence, but the law draws a distinction between proof of historical facts and the prediction of future possibilities. In determining what did or did not happen in the past, a court decides on the balance of probabilities, but not when hypothesising about future possibilities (Malec v J.C. Hutton Pty Ltd (1990) 169 CLR 638 (“Malec”)).
136. In Malec, Brennan and Dawson JJ said (at 639-640):
…facts of that [historical] kind are ascertained for the purposes of civil litigation on the balance of probabilities…the ascertainment of [future] earning capacity involves an evaluation of possibilities, not establishing a fact as a matter of history…the court must form an estimate of the likelihood that the possibility will occur…
…
…To make a finding on the balance of probabilities as though the prospect were something that had occurred in the past was to misconceive the process of evaluation…
and Deane, Gaudron and McHugh JJ said (at 643):
…The future may be predicted and the hypothetical may be conjectured… Where proof is necessarily unattainable, it would be unfair to treat as certain a prediction which has a 51 per cent probability of occurring, but to ignore altogether a prediction which has a 49 per cent probability of occurring…
137. The High Court was there referring to the prediction of a plaintiff’s income earning capacity in the context of quantifying personal injury damages, but the principle has been applied just as aptly to predictions about the risk of harm to children in this jurisdiction (see Oswald & Karrington (2016) FLC 93-726 at [60]; Bant & Clayton (2015) 53 Fam LR 621 at [99], [107], [171], [172]). Such application of principle is consistent with M v M.
138. The assessment of risk is a predictive exercise and while it is, naturally enough, liable to be influenced by factual findings about past events, the contemplation of risk entails the foresight of possible harm. It is an oddity to expect that the mere possibility of future harm can or should be proven as a probability, as has been implied before (Potter and Potter (2007) FLC 93-326 at [110], [129]). Risks of harm must be heeded even if they are improbable eventualities.
139. Speaking of the risk of some future occurrence is just another way of expressing the chance of it happening. The concept of chance lies along a continuum, encompassing all outcomes which lie in the range between highly probable and remotely possible, assuming the polar extremes of certainty are ignored. In the current context, the higher the chance of the children’s sexual abuse, the greater the risk of their physical or psychological harm. At some point on the continuum the risk of such harm becomes so potent it cannot be tolerated: it is unacceptable.
…
142. As was recognised by Hale LJ (as her Ladyship then was) in Re C and B (Children) (Care Order: Future Harm) [2001] 1 F.L.R 611 at [28], in child-related proceedings, a comparatively small risk of really serious harm can justify action, while even the virtual certainty of slight harm might not. It could hardly be otherwise, because no prudent adult would willingly expose a child to the risk of sexual abuse when there is an unacceptably high chance of its occurrence, even though the chance is not proven by the evidence to be probable. Requiring the proof of any possible future child abuse as a probability would pervert the law as settled by the High Court in M v M and Malec.
51We agree with and adopt that commentary as being a correct statement of the law.
The Court must also consider the additional considerations under s 60CC(3) of the Act.
In Mulvany & Lane (2009) FLC 93-404 it was observed by Finn, May and Thackray JJ that:
76. It is important to recognise that the miscellany of "considerations" contained in ss 60CC(2) and (3) is no more than a means to an end. Self-evidently, they are only matters to be considered. Of course, we accept they are of great importance, being the factors identified by Parliament as those the Court must take into account (when they are relevant). However, they must be applied in a manner consistent with the overarching imperative of securing the outcome most likely to promote the child's best interests.
77. It needs also to be remembered that the importance of each s 60CC factor will vary from case to case…
(Emphasis added)
Whilst the additional considerations as set out in s 60CC(3) of the Act must be considered by the Court, specific reference to each and every of those considerations is unnecessary in these reasons.[34]
[34] Mulvany & Lane (2009) FLC 93-404 at [77].
The High Court’s decision in Bondelmonte v Bondelmonte (2017) 259 CLR 662 reminds us that whilst a child’s views are a relevant consideration, they are not to be determinative in lieu of an assessment of a child’s best interests.
CONSIDERATION
Primary Considerations
Section 60CC(2)(a) the benefit of the child of having a meaningful relationship with both of the child’s parents
The child is a young child who needs the input and care of each of his parents and each of them have much to offer him. The child loves his parents. The parents love their child. On the facts of this case it is clearly beneficial for the child to have a meaningful relationship with both of his parents.
Section 60CC(2)(b) the need to protect the child from physical or psychological harm from being subjected to, exposed to, abuse, neglect or family violence
Both parties made allegations of physical and emotional abuse as perpetrated by the other upon the child. The mother alleged sexual abuse perpetrated by the father upon the child and family violence perpetrated by the father upon her. The mother, however, by April 2023, had withdrawn her allegations of sexual abuse of the child as perpetrated by the father. She accepted that all allegations were unsubstantiated, and that the process of investigation had not benefited the child. Indeed, she conceded there was no risk to the child in the care of the father and that the child should spend unsupervised time with the father. At trial, the father persisted with his claim that the child needed to be protected from psychological harm from being subjected to emotional harm by the mother, which included his assertion that the mother coached the child to claim that the child was a victim of sexual abuse by his father. The mother claimed also that the father may be coaching the child, and thus putting the child at risk. One example was the child telling Dr E “Dad told me that I have to say that Mum hit me. So I did and then he called the police”.[35]
[35] Mother’s written submissions dated 15 June 2023, paragraph 12.5.
The child has undergone numerous examinations and/or interviews by psychologists, doctors, police officers and DCJ case workers as a result of, almost exclusively, allegations made by the mother. Such allegations, for the most part, were founded in what the mother claimed the child had said to her. On two occasions, the father made allegations which required Police involvement and resulted in non-substantiated concerns.
I consider that the child may be at risk of ongoing unnecessary interviews and investigations if the mother does not stop making allegations based on little or no probative evidence. The investigations conducted to trial exposed the child to topics beyond his typical developmental stage, and placed him in the position of having to choose between his parents, which caused significant stress to him. The mother’s reluctance to support the child’s time with the father because of her interpretation of the comments of the child about the father, so often being the wrong interpretation due in part to her hypervigilance, may result in an ongoing incapacity on her part to cease making reports, and a continuation by her to seek out professional input into the comments of the child. This is an issue for the child which impacts adversely upon the advancement of his best interests but is a risk which can be ameliorated in firstly, the mother’s clear acknowledgment that what has occurred to date does not advance the best interests of the child, and secondly, by an order being made, with the mother’s consent and obvious insight, for the mother to attend ongoing therapy sessions to address her anxiety.
The father claimed, as supported by the ICL, and as I find, that the mother’s approach has detrimentally impacted upon the child’s relationship with the father, and hence upon the child’s healthy development. The ICL noted however, and it is a matter I take into account in my finding that any risk can be ameliorated considerably, the mother’s concession that she would no longer be making recordings of the child, or unfounded reports, demonstrated insight into the impact of her behaviour on the child.
The ICL submitted that the father’s anger management issues posed a psychological risk of harm to the child. During cross-examination and in interview with Dr E, the father denied having anger management issues. Clearly, that is not the case and the father has had some difficulty at times in controlling his anger as opined by Dr E and as supported by the fact of his convictions, the AVO and ADVO history and the evidence of the mother, which I accept, as to her fear of the father during her pregnancy and thereafter. The father, at the end of the trial, was prepared to give an undertaking to the Court to attend upon a counsellor to address this issue. That voluntary attendance and an order that it be ongoing for a limited time sufficiently ameliorates that risk in my view.
The greatest risk for the child going forward is his parents past high conflict relationship. They must both be mindful of this. One outcome I find is that the child’s best interests are not served by his parents having equal shared parental responsibility because, as one matter, that will only increase the opportunity for further conflict between the parents. That will occur. On the evidence, there would be disagreement as to schooling and medical matters, as there has been in the past. The evidence supports rebuttal of the presumption, pursuant to s 61DA(2) and (4) of the Act.
Additional Considerations
Section 60CC(3)(a) any views expressed by the child
The child reported to Dr E that he “does not want to see his father”; and stated “his father has hit him and he does not want to spend time at his house”.[36] The child denied that “he and his father have ever done anything fun together and stated that his father has only one toy for [the child]”.[37]
[36] Family Report of Dr E dated 28 February 2023, paragraph 111(c).
[37] Family Report of Dr E dated 28 February 2023, paragraph 111(c).
Dr E’s opinion was that the child’s views should be understood within the context of his alignment with the mother and his desire to remain connected with her. She observed, in light of the home visit conducted by her at the father’s house, and her reading of the supervised contact records, that it was clear the child’s account to her of his time with the father was overly negative. The evidence in its totality supports that observation.
I have attributed little weight to any views expressed by the child.
Section 60CC(3)(b) the nature of the relationship of the child with each of the child’s parents and other persons
The mother described to Dr E her relationship with the child as a combination of best friend and a person who disciplined him. The mother described she and the child as very close. This was consistent with Dr E’s own observations as to the relationship between the child and the mother, which she found to be warm and supportive. Dr E noted the mother was attuned to the child’s emotional cues, and able to provide scaffolding for his emotion regulation. She observed the mother showed some ability to reflect on the child’s needs, although this was significantly limited by her own anxious predictions about the father; and that the child easily turned to the mother for comfort and to share his successes. These things indicated a clear attachment and bond between the mother and the child.
The father has spent five years attempting to have a relationship with the child. He was subject to allegations of child abuse which were unsubstantiated. The father and the child nevertheless have a strong bond as was apparent in the evidence contained in the supervision reports where there was observed a positive interaction, with the father and the child laughing and joking together. I also accept the positive description of their bond as described by the paternal grandfather and the father himself.
Whilst Dr E observed the relationship between the father and the child as strained, and the child’s behaviour (hyperactive and regressed) indicative of discomfort, I note that at the time of observation by Dr E in 2023, the child had immediately prior thereto, not seen his father for approximately six weeks. The overall context was a strong alignment of the child with his mother at the relevant time.
The child also has a warm and healthy relationship with the paternal grandfather, Mr B Molek, the paternal uncle, and with the extended family. He is close to the maternal grandmother, even though she has been able to spend only limited periods of physical time with the child. He is also close to the mother’s uncle and his cousins (of similar age) who reside in Suburb EE, and whom he visits with his mother on a fairly regular basis.
Section 60CC(3)(c)-(ca) the parents opportunity to participate in decision making, spend time and communicate with the child and the fulfilment of the parent’s obligations to maintain the children
There are competing applications for sole parental responsibility for the child. Dr E noted the competing allegations made by both parties “raises significant concerns about the impact of the parents’ highly conflictual relationship on [the child’s] emotional wellbeing”.[38]
[38] ICL written submissions filed 14 June 2023, paragraph 3.1.
Dr E stated the parties “inflammatory language and inability to provide even a neutral interpretation of each other’s behaviours suggests ongoing communication and decision making about [the child] will be difficult, if not impossible”.[39]
[39] ICL written submissions filed 14 June 2023, paragraph 3.3.
Counsel for the ICL submitted the Court should consider it likely the parties’ communication will not improve. I agree with that submission. I find it would be impossible for them to exercise equal shared parental responsibility. There would be further litigation, endless acrimony, and harm caused to the child in the uncertainty of arrangements being made, essential to his welfare. The mother has been the sole decision maker to date, and although the father has made criticism of some of her medical and educational care decisions, I find they were made generally with the child’s best interests as a focus. The mother has attended all medical appointment with the child, attended his pre-school care and education, and managed such decision making and consequent action around her need to work to support herself and the child. There has been no element of neglect – as suggested by the father, in particular in respect of the child’s low weight and small growth.
The father’s opportunities to be extensively involved in the child’s life have been limited, mostly because of the allegations made and the high conflict parental relationship. On occasions, when the mother has informed the father of medical and psychological matters going to the child, the father has chosen not to engage. Perhaps for good reason. He certainly is desirous of participating in the decision making of matters going to the child’s welfare and of course, spending as much time as is possible with the child.
The mother receives $830 monthly in child support payments from the father being assessed payments. Each of the mother and father contribute to the support of the child.
At trial, the father was spending supervised time with the child through W Contact Centre. The cost of the supervised visits were $262 per visit per parent and $322 per visit per parent on public holidays. This was a significant cost for both parties but one they joined in sharing.
Section 60CC(3)(d) the likely effect of any changes in the child’s circumstances
At separation the child was six months old. Since that time, the mother has been the child’s primary attachment figure and primary carer. As the child’s primary carer it is likely any lengthy separation from the mother would have a negative impact on the child – as discussed above.
Further, in Dr E’s view, the father does not have the capacity to be as attuned to the child’s needs as the mother.
The father’s proposal that the child undergo a change of residence and spend less time with the mother, entirely ignored the “significant distress to [the child], who relies upon the mother for care and support”, [40] that such an outcome would produce.
[40] Mother’s written submissions dated 15 June 2023, paragraph 22.
The introduction however, of consistent, and substantial and significant time spent between the child and the father will enhance the child’s life, and be entirely beneficial to him.
Section 60CC(3)(f) the capacity of each of the child’s parents; and any other person (including any grandparent or other relative of the child) to provide for the needs of the child, including emotional and intellectual needs
The mother claimed that between the ages of two to four years the child exhibited concerning behaviours, including motor tics (i.e. eye blinking), biting his hands hard enough to leave marks “screaming attacks” at changeover and nightmares that led to a return to co-sleeping with the mother.[41] Dr X, the child’s paediatrician, noted the child was experiencing “emotional disturbance and anxiety” as a result of the “non-existent” relationship between his parents.[42] I note neither parent had the capacity to rectify that situation.
[41] Family Report of Dr E dated 28 February 2023, paragraph 88.
[42] Family Report of Dr E dated 28 February 2023, paragraph 89.
Dr E’s evidence was that the mother seemed better placed to meet the child’s emotional and intellectual needs. However, the mother needed to address her anxious preoccupation with the child’s safety by engaging in individual therapy to target her overestimation of the likelihood of abuse, including the markers of abuse in children. The mother’s high level of anxiety about the father, and her repetitive questioning of the child about the source of his injuries in the context of the mother’s predisposition to being accusatory of the father, placed the child at risk of psychological harm if it did not abate.
Dr E’s evidence was that the father showed a limited understanding of the child’s ongoing emotional needs. She gave as one example the father’s handling of the Christmas Day incident, saying the question asked of the child “who hits you like that?” to which the child replied “Mummy” was likely distressing for the child as it placed him “in a clear loyalty dilemma of choosing one parents’ version of the truth over the other”.[43]
[43] Family Report of Dr E dated 28 February 2023, paragraph 67.
I find the mother’s capacity to provide for the child’s emotional needs exceed that of the father. The father’s expectation that the child would move to live with him, without any ongoing emotional distress, was but one example of his lack of awareness of the child’s needs.
Section 60CC(3)(g) the maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the child and of either of the child’s parents, and any other characteristics of the child that the Court thinks are relevant
The child is highly vulnerable at his current age and stage of development.
In accordance with the Single Expert Family Report recommendations, the mother has facilitated the child to attend upon his own psychologist, Ms CC. The child’s psychologist has noted progress, and the father has been notified about the child’s sessions.
Section 60CC(3)(i) the attitude to the child and to the responsibilities of parenthood, demonstrated by each of the child’s parents
The father conveyed to Dr E that his parenting strengths were helping the child know right from wrong and giving him proper nutrition. When asked by Dr E about any areas of weakness or that needed improvement in his parenting, the father stated “he did not know of any”.[44]
[44] Family Report of Dr E dated 28 February 2023, paragraph 65.
The father has completed multiple parenting programs including, Circle of Security; Keeping Kids in Mind and Therapeutic Post Separation.
When the father was questioned by Dr E about the child’s needs, the father’s answers appeared to Dr E to be a reflection of his allegations towards the mother. The father stated the child needs guidance, proper nutrition, freedom from mental and sexual abuse (of multiple allegations and investigations) and stability. The father’s behaviour and statements suggested that he believed that when wronged he had the right to act with aggression (i.e. threatening his ex-girlfriend, using derogatory language with V Contact Centre). In Dr E’s opinion, these matters could increase the risk for the child that the father could engage in aggressive or controlling behaviour when parenting.
The father displayed challenges in developing working relationships with professionals attempting to assist him, including JCPR caseworkers and V Contact Centre contact services (who terminated their services to the father due to the father’s recurring, inappropriate behaviours). The father exhibited behaviour that suggested his own self-protection was more important than the child’s wellbeing. The father’s capacity for anger management in interpersonal relationships remains questionable given the allegations of at least three of his ex-partners, including the mother, and his behaviour towards professionals.
The mother advised the child’s health and weight has stabilised and improved. She stated she proactively followed upon on these concerns, and was attending upon the paediatrician, Dr X on a regular basis. The paediatrician was of the view that the child was in the low normal range, taking into consideration that both the child’s parents are of a small build.
The mother conceded she had made several Child Protection Safety reports, and made recordings of the child, as proof of the alleged abuse, but that such “allegations of abuse were unsubstantiated”.[45] The mother conceded that her reporting and video recordings of the child were “a significant error in judgment” and stated she would no longer behave in such manner.
[45] Mother’s trial affidavit filed 26 April 2023, paragraph 89.
Otherwise this consideration is dealt with above in these reasons.
Section 60CC(3)(l) whether it would be preferable to make the order that would be least likely to lead to further litigation in relation to the child
This matter has been ongoing since March 2018. There is no doubt such high parental conflict as is apparent in this litigation has impacted adversely the child’s psychological and emotional wellbeing. It has not promoted a meaningful relationship with his father and made such pursuit secondary to the abuse allegations. As submitted by the father, the child “has never known a time when his parents have not been in Court.”[46] It is clearly preferable to make orders that would be least likely to lead to further litigation concerning the child.
[46] Father’s written submissions filed 15 June 2023, paragraph 2.
Dr E stated her assessment was hampered by the high level of defensiveness shown by both parents. Despite their attempts at positive impression management, corroborating information suggested that both experienced difficulties with emotional regulation, effective communication, and prioritising the child’s needs above their own. Their difficulties with insight and self-reflection suggested that therapeutic interventions would require a high level of expertise, access to her report or other forms of objective information about their behaviour, and some level of monitoring to ensure accountability. Whilst all of that might suggest future litigation is unavoidable, the parties should reflect on their attitudes and hostility, one toward the other, and not pursue further litigation.
The father seeks both a positive order restraining the mother from making allegations about his care of the child to various bodies and an order that a recovery order lie in wait in the Court registry in the event that the mother again withholds the child from his care. I do not propose to make either order, and consider that the making of a pre-emptive order of that type in respect of predicative behaviour that I might find likely to occur is not in the child’s best interests. The orders as sought are more appropriately made on supporting current facts in the particular circumstances of the case at the relevant time and such orders, of recovery and restraint, may not be made because the evidence at that time does not support the making of such orders. The mother has shown a capacity to make the child available to the father on many occasions. Her reporting, controlling and problematic, has been acknowledges by her as inappropriate and not to be repeated without a proper basis. Further, there shall be ordered a mechanism to address the mother’s fears and anxiety.
Section 60CC(3)(m) any other fact or circumstance that the Court thinks is relevant
The father remains concerned that the mother intends to immigrate to Country G with the child and live there on a permanent basis. The father’s concerns are articulated in his affidavit evidence and such concerns were shared by Dr E who noted that whilst the mother denied any intention of not returning to Australia with the child, there were, in her view, obvious positives to the mother and the child to not so return. In Dr E’s opinion, such an outcome would not be in the child’s best interests.
The father stated the mother had been sending money to Country G since her arrival in Australia. Given the mother’s allegations that the father has been abusive towards the child and herself, the father remains concerned she may report such allegations to the Police in Country G, and that if he travels to Country G he may be arrested and prosecuted. The father deposed he no longer “feel[s] safe travelling to [Country G] anymore”.[47]
[47] Father’s trial affidavit filed 2 May 2023, paragraph 196.
The mother’s evidence was that the child travelling with her to Country G for short periods of time would allow the child to have a relationship with the extended maternal family and assist the child in building a connection with his culture. The child regularly speaks to the mother’s family, in particular his grandmother, via video call. He mentions the family in his play. The mother was, however, concerned that the child thinks her family are “movie characters and not real people”.[48] She expressed sadness that the child was unable to meet the extended maternal family, as many of her family are unable to afford to travel to Australia. She was willing to pay a surety of $20,000 to the father’s legal representation, or the Court, to guarantee the return of the child to Australia. The mother was adamant she has no intention to relocate the residence of she and the child to Country G.
[48] Family Report of Ms F dated 5 June 2020, paragraph 58.
Both parties have Country G heritage and are Country G citizens. The mother’s family reside in Country G and the mother is close to her family and is supported emotionally by them. While it would provide a richer sense of identity for the child to visit Country G, and be a happy experience for the mother and the child, there is, I find and as stated by Dr E, a high level of risk that the mother would not return the child to Australia. In my view, it is an unacceptable risk. The child remaining in Country G would not promote the child’s best interests. It would sever the relationship between the child and his father and further lengthy and expensive legal proceedings would follow. The child’s development of his relationship with his father is critical to his psychological advancement at his age.
Under cross-examination by counsel for the ICL, the father again expressed his fear that the mother would not return the child to Australia if she was permitted to take him to Country G. He acknowledged that it would be beneficial for the child to go to Country G with either of his parents, as that would enhance the child’s understanding of his parents background, but that it could not, or was unlikely, to happen.
The father sought an Airport Watch List order in respect of the child and a restraint in respect of both parents, saying “the same rule should apply to me as well”. I consider there is a need for such orders for a limited time being five years. At the expiration of that time the child may have sufficient maturity to have some input into his travel arrangements, and will be more independently of his mother, settled in Australia. There may be other factors which make the need for such orders to no longer exist.
I certify that the preceding two hundred and thirty (230) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Hartnett. Associate:
Dated: 18 August 2023
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