MORAN & KEYES
[2015] FCCA 2684
•13 November 2015
FEDERAL CIRCUIT COURT OF AUSTRALIA
| MORAN & KEYES | [2015] FCCA 2684 |
| Catchwords: FAMILY LAW – Parenting – unacceptable risk – behaviour of mother’s partner. |
| Legislation: Family Law Act 1975 |
| PST & CPR [2006] FMCAfam 36 Re L (contact: -domestic violence) (2000) 2 FLR 334 at 338 |
| Applicant: | MR MORAN |
| Respondent: | MS KEYES |
| File Number: | MLC 1086 of 2011 |
| Judgment of: | Judge McGuire |
| Hearing dates: | 21 – 23 September 2015 |
| Date of Last Submission: | 30 September 2015 |
| Delivered at: | Melbourne |
| Delivered on: | 13 November 2015 |
REPRESENTATION
| Counsel for the Applicant: | Mr J Williams |
| Solicitors for the Applicant: | Septimus Jones & Lee |
| Counsel for the Respondent: | Ms M Agresta |
| Solicitors for the Respondent: | Guthrie & Associates |
| Counsel for the Independent Children's Lawyer: | Ms A Boymal |
| Solicitors for the Independent Children's Lawyer: | Kenna Teasdale Lawyers |
ORDERS
All extant orders in respect of the child X born (omitted) 2009 (“X”) be discharged.
The applicant father and the respondent mother have equal shared parental responsibility of X.
X live with the father.
X spend time and communicate with the mother as follows:
(a)Each alternate weekend from the conclusion of school or 3.30pm Friday until the commencement of school Monday but if that Monday be a public holiday or student free day then such time to conclude at the commencement of school Tuesday;
(b)On each Wednesday evening in school term from the conclusion of school until 7.30pm or otherwise as agreed between the parties with the mother to return X to the father’s home;
(c)During the 2015/16 summer school holidays on a week about basis with the mother to spend the first week with X from 5.00pm on the day school finishes until 5.00pm on the day after the seventh consecutive night and each alternate week thereafter;
(d)For the first half of the 2017/2018 summer school holidays and each alternate year thereafter, and for the second half of the 2018/2019 summer school holidays and each alternate year thereafter with changeover to take place at 10.00am on the middle day, with the school holiday period to be calculated from the conclusion of school on the last day of term until the commencement of school on the first day of the new school term;
(e)For one half of each school term holidays as agreed between the parties but failing agreement then for the first half of such holidays;
(f)On X’s birthday and the mother’s birthday if X is not otherwise in the mother’s care as agreed between the parties in writing and in the absence of agreement;
(i)If the birthday falls on a school day, from the conclusion of school or 3.30pm until 6.30pm;
(ii)If the birthday falls on a non-school day, from 10.00am until 7.00pm on the mother’s birthday and from 10.00am until 2.00pm on X’s birthday;
(g)If X is not already in the mother’s care then from 5.00pm on the day preceding Mother’s Day to 5.00pm Mother’s Day;
(h)On (omitted), (omitted) and (omitted) in 2016 and each alternate year thereafter unless otherwise agreed in writing as follows:
(i)If the celebration falls on a school day then from 3.30pm or the conclusion of school on the day of each celebration until 9.00am or the commencement of school the next day; or
(ii)If the celebration falls on a non-school day, from 10.00am on the day of each celebration until 10.00am the next day;
(i)Such further and other times as agreed between the parties and noting that weekend and Wednesday time for X with the mother be suspended during school holidays provided that X’s time with the mother resume at the beginning of each new school term as if it had not been interrupted.
Provided that X spend time with the father:
(a)On X’s birthday and the father’s birthday if X is not otherwise in the father’s care as agreed between the parties in writing and in the absence of agreement as per 4(f)(ii);
(b)From 5.00pm on the day preceding Father’s Day until 5.00pm Father’s Day each year X is not already in the father’s care;
(c)On (omitted), (omitted) and (omitted) in 2015 and each alternate year thereafter, unless otherwise agreed in writing as follows:
(i)If the celebration falls on a school day, from 3.30pm or the conclusion of school on the day of each celebration until 9.00am or the commencement of school the next day; or
(ii)If the celebration falls on a non-school day, from 10.00am on the day of the celebration until 10.00am the next day;
(d)Such further and other times as agreed between the parties.
For the purposes of changeovers that do not take place at X’s school, the parent commencing the care of X shall collect him from the residence of the other parent unless otherwise agreed in writing and the mother be restrained from permitting Mr J to attend at changeover.
The mother and father facilitate telephone/facetime/skype communication between X and the party with whom he is not spending time every second day at times that are appropriate to X’s routine and to be agreed between the parties, and that the father be at liberty to provide X with a mobile telephone to enable him to telephone X directly.
Each party be permitted to remove X from the Commonwealth of Australia in each alternate year during the summer holidays consistent with these orders being for periods of no longer than three (3) weeks unless otherwise agreed in writing and for the purpose only of visiting countries which are signatories to the Hague Convention on Child Abduction and provided that each gives the other not less than forty-two (42) days prior notice of intention to do so including with that notice the provision of copies of pre-paid return tickets and an itinerary for the travel provided also that should the other parent intend to exercise time overseas with X during the same holidays then the parents each be responsible for one half of the cost of X’s return airline ticket and this be without prejudice to that parent’s right of travel with X in the following summer holidays with the mother being entitled to travel with X in the 2016/17 school holidays and in each alternate year thereafter and for these purposes each parent shall provide written consent for the removal of X from the Commonwealth of Australia not later than 10 December in each relevant year.
The parties MR MORAN born (omitted) 1978 and MS KEYES born (omitted) 1975 their servants and agents be and are hereby restrained from removing the child X born (omitted) 2009 from the Commonwealth of Australia without the joint written consent of the other party, or by order of the Court.
The Court requests that the Commissioner of the Australian Federal Police take all necessary steps to immediately place the said child’s name on the Watch List at all points of international departure from Australia for the purpose of preventing the removal of the child from Australia in breach of these orders until 29 May 2025.
The Marshal of the Family Court of Australia and all officers of the Australian Federal Police and of the Police Forces and Services of the various States and Territories of Australia are required and empowered to give effect to these orders and to take all necessary steps to restrain MR MORAN born (omitted) 1978 and MS KEYES born (omitted) 1975 from removing the said child X born (omitted) 2009 from the Commonwealth of Australia.
Upon expiration of the period referred to in Order 10 above and subject to any further order of a Court of competent jurisdiction, the Australian Federal Police will cause the removal of the child’s name from the Watch List.
The mother be restrained from bringing the child into contact with Mr J (including but not limited to verbal and physical contact or communicating through the mother (including cards, gifts and messages) and for the purposes of this order the mother will ensure that the child remains at least 500 metres from Mr J at any given time) until such time as the following has occurred:
(a)Mr J undertake a course of drug and alcohol counselling, completing a minimum of 12 sessions, and a certificate of completion be provided to the father’s solicitor and he complies with the reasonable directions of such counsellor; and
(b)Mr J has submitted 6 consecutive clean supervised drug urine screens within the normal creatinine levels to the father’s solicitor within 24 hours of receipt of request from the father’s solicitor such to be at the expense of Mr J.
and thereafter the mother be in attendance at all times the child is with Mr J.
The mother be and is hereby restrained from bringing X into contact with any person she reasonably believes to be under the influence of or in possession of any illegal drug.
The mother be restrained from delegating any of her responsibilities of parenting to Mr J.
Both parties prudently do all acts and things and sign all necessary documents to obtain an Australian Passport for X with the father to hold the passport unless required by the mother pursuant to the terms of these orders.
That the order appointing the Independent Children’s Lawyer dated 1 April 2014 be discharged.
Pursuant to section 65DA(2) and section 62B of the Family Law Act 1975, 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 and these particulars are included in these orders.
IT IS NOTED that publication of this judgment under the pseudonym Moran & Keyes is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT MELBOURNE |
MLC 1086 of 2011
| MR MORAN |
Applicant
And
| MS KEYES |
Respondent
REASONS FOR JUDGMENT
These proceedings concern the parenting arrangements for the parties' one child X born (omitted) 2009 (aged six years).
At the commencement of the trial, each of the parties sought an order that X lived primarily with that party. The mother proposed that X spend time with the father for two out of three weekends from Friday afternoon until Monday morning, together with one half of each term and summer school holidays and on special days. The father's position was that X spend time with the mother each second weekend from 4.30 pm Friday until 5 pm Sunday together with half of each term school holidays and two weeks in the long summer school holiday in each year.
Each of the parents preferred an order for equal shared parental responsibility for X.
Both parents are originally from (country omitted). The mother sought an order allowing her to travel with X overseas and specifically to (country omitted). The father was more detailed in this respect and sought an order that these orders be registered with the Family Court of (country omitted) together with a declaration that X is an Australian citizen and limitations on the travelling period.
The mother's position, in particular, changed significantly by the end of the evidence. She now concedes an order that X live primarily with the father. She seeks time with X each second weekend from Friday afternoon until Monday morning together with each Wednesday from after school until 7.30 pm and half the school holidays. She proposes that each parent be at liberty to remove X from Australia for the purpose of travelling to (country omitted) for periods of up to four weeks once every two years.
The father now argues that the summer holidays for 2015/16 be shared on a week-about basis and that, thereafter, there be blocks of three weeks with each parent. The mother prefers the three week block option immediately.
The father does not agree to the mother's time with X each Wednesday evening.
Each of the parties have detailed and similar proposals in respect of special days, including those of religious observation.
By the conclusion of the evidence, however, the major remaining issue between the parties involves the circumstances of the mother's partner, Mr J. The father's preferred position is that there be no contact, direct or indirect, between X and Mr J. Nevertheless, and properly in my view, the father's "fall back" proposal involves conditions precedent and ongoing conditions in respect of Mr J's contact with X. Specifically he requires conditions precedent as follows:
i) That Mr J first undertake a course of drug and alcohol counselling, completing a minimum of 12 sessions, and a certificate of completion is provided to the father's solicitor and that he comply with the reasonable directions of such counsellor;
ii) That Mr J has submitted six consecutive clean supervised drug urine screens within in the normal creatinine levels to the father's solicitor within 24 hours of receipt of request from the father's solicitor and thereafter the mother be in attendance at all times the child is with Mr J."
The father then requires ongoing conditions as follows:
i) That the mother be restrained from permitting Mr J to attend any school or extra-curricular activities that parents ordinarily attend and at which the father will be in attendance.
ii)That the mother be restrained from delegating any of her responsibilities of parenting to Mr J.
The conditions, if any, proposed by the mother are more generic and are as follows:
i)That each parent be restrained by injunction from physically disciplining the child or allowing, or permitting, any other person to do so, and in the event that either parent resides with any other adult the parent will ensure that all parenting of the child is, and remains, their primary responsibility;
ii) That the mother and father be restrained by injunction from ingesting, consuming, or using, or otherwise being under the influence of any illegal substance for 24 hours prior to and at all times during which the child is in her care and/or exposing the child, or allowing the child, to remain in the presence of any other person ingesting, consuming, or using, or otherwise being under the influence of any illegal substance whilst the child is in his or her care.
The mother’s evidence is that she does not currently cohabit with Mr J although the clear inference is of an intention to do so and to, in any event, have X in direct contact with Mr J.
The Court has had the assistance of an Independent Children's Lawyer in this matter. In final submissions, Counsel for the Independent Children's Lawyer supported the orders sought by the mother.
Background
The father is 37 years of age. He is a self-employed (occupation omitted). The mother is 40 years old. She is a (occupation omitted).
The parties are both from (country omitted). They married there in (omitted) 2006. They moved to Australia in (omitted) 2006 and X was born here on (omitted) 2009. The parties separated on 8 February 2011.
There have been previous parenting proceedings in this Court. Final consent orders were made on 19 March 2012 providing inter alia for X to live between the parties as to eight nights per fortnight with the mother and six nights per fortnight with the father.
Following the parties' separation the mother entered into a relationship with Mr J. He is a former friend of both the mother and the father. He is 57 years old and is self-employed as a (occupation omitted). He has two adult children from a previous marriage.
It is clear that in or about late 2013, and in the mother's home or in her presence, there were two incidents involving Mr J and X. Firstly, it is alleged that Mr J did, during a meal, discipline X for an indiscretion of commencing eating before the others and that he forcibly removed the food from the child's mouth for eating in a manner not appreciated by Mr J. On my calculations X would have been four years of age at the time. The parties and Mr J disagree as to the degree of force applied to X at this time.
Secondly, it is alleged that Mr J took it upon himself to discipline X in respect of the child's bedwetting problems. The agreed facts suggest that X came in the early hours to the bed occupied by the mother and Mr J and proceeded to wet his pants and the bed. Mr J returned X to his own bed and at around dawn went to the child's room and urinated on the child's bed (another version has Mr J urinating on the child). It seems clear that Mr J acted unilaterally in this sense and without prior discussion with or the consent of the mother.
These incidents came to the knowledge of the father in early 2014. There was an investigation by Child Protection authorities. Both Mr J and the mother were interviewed. It is now clear that Mr J lied to the investigating officers claiming that he only wet the child's bed with a water bottle in order to teach and encourage proper toilet training. It is equally clear that the mother was aware of the lie and hence complicit in it being perpetuated.
The Child Protection officers sought, and eventually obtained, an undertaking from the mother in respect of the attendance and behaviour of Mr J.
In or about February 2014 the father became aware of the true nature of the particular behaviours of Mr J. He retained X and prudently brought an application to this Court.
An interim hearing was conducted on 1 April 2014 and orders were made inter alia for X to live with the father until further order and with the mother each alternate weekend from 5 pm Friday until 5 pm Sunday with the mother to be restrained from bringing X into any contact with Mr J. A section 11F report was ordered and obtained.
The mother deposes as to a break in her relationship with Mr J at around the time of the abovementioned incidents although the relationship reconciled.
Considerations of X spending equal time or substantial and significant time between his parents are complicated by them living a considerable distance apart. X is currently settled in a primary school near his father's home.
The evidence
The mother relied on a number of affidavits and was cross-examined intrusively. She presented as an articulate and stoic woman albeit one compromised and conflicted in the priorities of her relationships with X and Mr J. She assured the Court that she would be protective in the future of her son.
The father also gave his evidence in a strong and objective fashion although obviously, and understandably, concerned as to any potential repetition of the above behaviour in the mother's home.
Mr J provided two affidavits and was also cross-examined extensively. His evidence, both in affidavit and in the witness box, was unsatisfactory. As mentioned above, I am easily able to find that he lied to the Child Protection authorities. Of equal concern, however, was that he was also untruthful in the witness box in respect of the incident of his alleged urinating on the child's bed or the child. He initially volunteered a version of the event which significantly diminished his culpability whereby X was not in the bed at the time of Mr J urinating in it. When reminded sternly as to his obligation to tell the truth in Court under pain of perjury, he finally admitted to Court (and perhaps for the first time to the father) that he had urinated on the child's bed and that X was in the bed at the time. He denied that he had urinated on the child.
My observations of Mr J were of an entitled and empowered individual ready to be loose with the truth. His affidavit material was enlightening as to its evasiveness in respect of the important issues now before the Court. Those affidavits are highlighted by his readiness to deflect blame and to be critical of the father and, as such, did him no credit and served only to further compromise the mother in these proceedings.
The Court was also provided with a psychiatric assessment of Mr J prepared by Dr S, Clinical and Forensic Psychologist. That assessment appears under an affidavit of 1 September 2015 from Dr S who was not required for cross-examination. The report itself is dated 23 March 2015. That report at paragraph 44 notes:
There was indication that the mother was standing by Mr J, suggesting that he is not abusive.
In respect of the incident involving the removing of food from the child's mouth, Mr J reports to Dr S as follows:
Mr J reported that he and his partner and the child, X, were having dinner one night at his place, and they were attempting to have X use a spoon or fork with pasta rather than using his hands to eat. This proved difficult and Mr J told X that he would choke if he shoved spaghetti in his mouth the way he was doing, and Mr J took a piece of spaghetti out of his mouth (without putting his hands or fingers inside the child's mouth). He reported that the child cried and his daughter, A, reacted to the child crying. Subsequently, there were allegations that he choked the child, which he denies. He believes that his ex-wife, Ms S, rang DHS as, from his account, there was jealousy in relation to his new partner.
In relation to the second incident Mr J reports to Dr S as follows:
In November 2013, Mr J's partner, Ms Keyes, was trying to wean X off nappies at night. At the time, X was in the habit of returning to Ms Keyes’ bed and wetting it in the middle of the night. Mr J reported that he was frustrated with this occurring at his place as X would wet the bed and also himself and the mother when they were in bed, and that his partner, Ms Keyes, would not settle the child. He described this process as frustrating. At the time he also suggested to the child that he would wake up the mother if he came into the bed, so that she could take him to the toilet in the middle of the night. On a particular Sunday morning, he woke up again saturated and described himself as upset. He pulled the blankets off the child and urinated in the corner of the bed. He stated, "I wanted to make an impact." He reported that they spoke and later laughed about it, and he told not only friends, but he told his daughter, A, about the situation. Nevertheless, he acknowledges that what he did was not necessarily appropriate. He indicated that he never urinated on the child but rather urinated on the corner of the bed to have an impact on the child. He indicated that at no point did he consider his behaviour appropriate but saw it as born out frustration primarily with his partner at the time.
Significantly, strangely, and obviously, Mr J's report of the incident well pre-dates his evidence to me and this Court.
There is a further issue in respect of Mr J that raises concerns with the father, namely, Mr J's habitual use of cannabis, which Mr J conceded was of some 30 years duration. He now says, however, that he ceased using cannabis some three months ago. At the commencement of final addresses, I was provided with a clean drug screen in respect of Mr J. Previous drug screens had not satisfied the father or his legal representatives with a suggestion that they had not been conducted under proper supervision. Mr J's understanding of the important issues before this Court in respect of X, and also his sense of entitlement was again indicated by Mr J having previous, and contemporaneously with this Trial, refused a request to provide drug urine screens on the basis that he required "compensation for the costs and loss of earnings."
Dr S concludes that Mr J suffers no disorder. Dr S concludes at [53] that:
There is no evidence of a consistent propensity for him to abuse the child.
The Court also has the benefit of a family report prepared by the family consultant, Ms F. That report is dated 5 November 2014. Ms F was not required for cross-examination. Mr J was not interviewed by the family reporter. Mr Moran's historical report to the family reporter is consistent with his evidence to this Court.
Ms Keyes is critical in her reported history of Mr Moran as being "controlling."
She reports to Ms F at [47] as:
According to Ms Keyes, Child Protection became involved due to an incident when Mr J “urinated on X’s face."
The family report does not disclose the mother commenting on what is now known to be a clear untruthful explanation to Child Protection by Mr J. It is clear that Ms Keyes was separated from Mr J at the time of the interviews for the family report.
The family reporter recommended that X continue to live primarily with the father but spend time with the mother. There is a specific recommendation in the report at [102] that X not have contact with Mr J although I emphasise that Ms Keyes appeared to be separated from Mr J at the time of the interviews.
Issues
The major issue for the Court's determination is the circumstances and conditions, if any, that should attach to X having a relationship with Mr J.
There is an issue as to whether the child and the mother should have time together on Wednesday evenings.
There are issues in respect of details as to overseas travel.
The major issues in respect of Mr J involve a consideration of the principles and authorities in respect of "unacceptable risk."
Relevant Law
Fundamentally, the orders that I make are parenting orders and, as such, must have X’s best interests as my paramount consideration as per section 60CA of Family Law Act 1975 ("the Act").
I determine those best interests by referencing the probative evidence and the parties’ proposals to the mandatory considerations under section 60CC(2) and (3) of the Act.
Issues of parental responsibility are not alive in this matter. Similarly, options of equal time and “substantial and significant” time are not relevant or practicable due to the geographical considerations although, of course, the mother seeks time with the child for a few hours on a Wednesday evening.
In respect of the considerations under section 60CC(2) and (3) of the Act, I am satisfied that X has a continuing, meaningful relationship with each of his parents.
The issues of protecting X from physical or psychological harm, from being subjected to, or exposed to, abuse, neglect or family violence are highlighted here and dealt with in detail below.
X is not of an age where he would reasonably be expected to be able to articulate a view or preference as to his living arrangements. The nature of X’s relationship with his parents is that he has the benefit of two loving and caring parents. They are each willing and able to attend to his needs. By reason of geography, the nature of those relationships for X will be that he will live primarily with his father but spend regular and frequent time with his mother.
The facts in this case do not reference a consideration of sections 60CC(3)(c), (d) and (e).
The capacity of each of X’s parents is an issue but directly dealt with under the sub-section dealing with family violence in its broadest terms and in respect of "unacceptable risk".
Sections 60CC(3)(g) and (h) of the Act are not relevant.
The force of the father's argument before this Court is in respect of a perceived unacceptable risk for X being in the company of Mr J without pre-conditions and ongoing conditions. The father says that to allow otherwise would pose an unacceptable risk to the child. Notions of unacceptable risk are necessarily prospective in their consideration. As Walters FM (as he then was) insightfully observed in PST & CPR[1]:
In my opinion, that which converts an unacceptable risk to an acceptable risk is often little more than confidence on the part of the Court that the contact parent will comply with such orders as it is minded to make in order to protect the child.
[1] [2006] FMCAfam 36 [71]:
The authorities in respect of "unacceptable risk" have often highlighted allegations and concerns regarding sexual abuse. Nevertheless, to my mind, the Court should and does consider "unacceptable risk" of emotional, psychological or physical abuse, absent any sexual abuse.
The difficulties confronting Family Courts in respect of the notion of unacceptable risk often occur where it is not necessary or where the Court is unable to make findings of fact to the criminal standard of "beyond reasonable doubt". In the matter before me, and given (albeit late) admissions of Mr J, such findings of fact do not present difficulties. The issue for this Court is whether there is a risk to the child of such behaviour being repeated or continuing, or if there is a propensity in Mr J for other inappropriate behaviour, and whether such a risk is unacceptable? In an English judgment of Re L (contact: -domestic violence)[2] - Ms E observed:
In cases of proved domestic violence, and in cases of other proved harm or risk of harm to the child, the Court has the task of weighing in balance the seriousness of the domestic violence, the risks involved and impact on the child against the positive factors, if any, of contact between the parent found to be violent and the child. In this context, the ability of the offending parent to recognise his past conduct, to be aware of the need to change and make genuine efforts to do so, will be likely to be an important consideration.
[2] (2000) 2 FLR 334 at 338
Any consideration of risk for X also encompasses the mother’s capacity to react and attend to any risk circumstance including her ability and willingness to prioritise X’s welfare.
Consideration of Acceptable Risk
I am able to find that Mr J did urinate on X’s bed. I am easily persuaded that such behaviour is inappropriate and that there is a likelihood that the child would suffer humiliation and trauma with some residual effect. Similarly, I am satisfied that Mr J acted aggressively and without the consent of the mother in removing food from the child's mouth. As such, on the basis of these findings, I am satisfied that any continuation of such behaviour would pose a risk for X physically and/or emotionally/psychologically.
Counsel for the mother argues that the evidence of her client suggests that she is protective of the child. Notably, there was a separation of Ms Keyes and Mr J following the two incidents. Ms Keyes was impressive in the witness box with her assertions of prioritising her son's protection. I accept the submissions of Counsel for the mother that consideration should be given to the mother being able to pursue her relationship with Mr J subject, of course, to any protective concerns for the child.
The submissions of Counsel for the Independent Children's Lawyer were generally supportive of the submissions of the mother's Counsel with a general tenor that there has been an acknowledgement of wrongdoing by both Mr J and the mother, and that a repetition of such behaviour is therefore unlikely. I should comment, however, that the submission of Counsel for the Independent Children's Lawyer to the effect that Mr J would be "humiliated" by being cross-examined as to these matters in open Court, and in the presence of members of the legal profession, and therefore not likely to pose any future risk is simply an unacceptable submission on the evidence and at odds of my observations of Mr J whom I saw as being reluctant in the extreme in his acknowledgement of wrong-doing.
Whilst my observations of the mother in the witness box were generally consistent with the submissions of her Counsel as to her understanding and acknowledgement of her son's protective needs, there is some force and weight to be given to the submissions of Counsel for the father in respect of the evidence. Specifically, the father's Counsel emphasises the following:
i)That it is open for me to find that the mother has previously been not properly reactive to Mr J's wrongdoings and complicit in the lack of honest cooperation with the Child Protection authorities. I am able to find that Mr J lied to Child Protection in respect of these incidents. I am able to find that the mother was aware of his lies and did nothing to correct the situation. Indeed, the best evidence before me is that, to this day, neither Mr J nor the mother have corrected the Child Protection records by providing a true version of the events;
ii)[44] of Dr S's report where his unchallenged observation is:
There was indication that the mother is standing by Mr J suggesting that he is not abusive.
iii)Selected extracts of the Department of Human Services files tendered to the Court suggest that the mother was observed to be subservient to Mr J in the Department of Human Services process. Given my findings above, I am able to accept that submission;
iv)The mother at no time advised the father of the incidents in her home or in her presence and that this is an indication of her being compromised and conflicted in her responsibility to her son and her relationship with Mr J;
v)That the affidavits of Mr J read into evidence at trial, are in many respects evasive, selective and deflective and on other occasions false by either statement or omission. Counsel for the father asks the Court to note that the mother relied on those affidavits as a part of her case and that I could reasonably presume that they were permitted to be read into evidence without any attempt by the mother to distance herself from Mr J's evidence;
vi)That Mr J's evidence in Court was itself untruthful in some respects.
Conclusion
I find that Mr J acted inappropriately and abusively to X. I find that he lied to the government department charged with investigating child abuse. I also am able to find that the mother was complicit in those untruths. I am concerned that Mr J was unwilling in his affidavits to acknowledge the impropriety or even the fact of his abusive behaviour. I share the concern of Counsel for the father that the mother did not take the opportunity to, in her own evidence, correct the untruths of her partner.
My own observations of Mr J in the witness box were of an empowered individual and so even after he was challenged as to the untruthfulness of his evidence. As such, and considering the unchallenged comments and observations of Dr S, I maintain concerns as to the mother's ability to prioritise the safety of her child as against her relationship with Mr J.
I am told and accept that Mr J has completed an "anger management course". Frankly, this evidence is of little assistance to me. Mr J did not see fit to disclose any details or particulars of that course. There was no evidence before me particularising the course. Frankly, in my experience, these Courts are often confronted with the bold statement that a person has attended this or that course where the bold fact of attendance itself is of little assistance or relevance.
In summary and conclusion, I am left with the evidence of the abuses perpetrated on this young child. I am not confident on the evidence that Mr J has properly acknowledged his wrongdoing. Such acknowledgement would normally be seen as a first step to rectifying the behaviour. The mother did not act appropriately in keeping the incidents from the father and being complicit in the lies to the investigating authorities. She did, however, impress me in the witness box as a mother who now understood her obligation to protect her son as a priority.
Whilst Mr Moran presented in many ways as a most vigilant father of his young son, this is perhaps not surprising and is completely understandable given the humiliations endured by X. In fact, a more blasé reaction by the father might well draw comment on his own lack of parenting insight. Mr Moran cannot be criticised, in my view, as a lay person and father, for taking an initial position that Mr J should be excluded from the child's life. Nevertheless, it is a credit to him and his objectivity that he has clearly considered the advice of his legal representatives in retreating to a position where he seeks pre-conditions and continuing conditions on that time. I am of the view that such conditions are appropriate and in X’s best interests so as to protect this child from the risk of repetition or of similar behaviour.
Time on Wednesdays
The orders that I make will have X spending time with his mother during school terms on each second weekend. The mother is prepared to travel an onerous distance in order to spend a few hours with her son on a Wednesday evening. X is still young. I am of the view that frequency of time and the punctuation of long gaps in time spent together is in the child's best interests. I intend to order that the mother spend time with X on the Wednesday evenings.
School Holidays
The father prefers that time for the coming summer school holidays be spent between the parents for X on a week about basis. The argument in support of this seems to be only as to X’s youth and his dealing with three week gaps between his parents. There is no evidence before me, in proper form, of an intention by either party to travel to (country omitted) in the coming summer holidays. I agree that X is still young and that periods of three weeks away from either parent would not be preferable, or in his best interests, as opposed to a week about arrangement. Consequently, I prefer the proposal of the father in the 2015/16 summer holiday although, thereafter I prefer that X spend block times with each parent to facilitate with likelihood of overseas travel.
Overseas Travel
Each of the parents is from (country omitted). It is understandable that they would like X to establish and maintain a relationship with his extended families in (country omitted). There are obvious benefits to X accordingly. I note that (country omitted) is a signatory to the Hague convention on child abduction.
I am satisfied that the father's proposal is a practical one which would give the opportunity for each of the parents in alternate summer holidays to take X to (country omitted) for a period of three weeks subject to an arrangement for the other parent to travel independently to (country omitted) and then continue the child's time with that parent. There will be orders in the terms of the father's proposal. It is open for Mr Moran to register these orders in (country omitted) if he sees fit.
Specific Issues
The father seeks specific injunctive orders in respect of the mother's use of cannabis. The evidence before me does not satisfy me as to the necessity of such orders in respect of the mother although, of course, I am satisfied that there should be an injunctive order in respect of the child being brought into contact with others (and particularly Mr J) who the mother reasonably suspects to be under the influence of, or having used, illicit drugs. Frankly, Mr J’s evidence of having voluntarily ceased a thirty year drug habit only three months ago was unconvincing given his initial failure to accede to a drug test and the unsatisfactory nature of his evidence generally it follows that I am satisfied that both the pre-conditions and ongoing conditions sought by the father are appropriate.
There is no evidence before me such that I should restrain Mr J from attending "school or extracurricular activities" subject to the other conditions I intended to impose.
I certify that the preceding seventy-one (71) paragraphs are a true copy of the reasons for judgment of Judge McGuire
Date: 13 November 2015
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