Muldoon and Channing
[2012] FMCAfam 161
•5 April 2012
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| MULDOON & CHANNING | [2012] FMCAfam 161 |
| FAMILY LAW – Parenting – with whom the child should live – allegations of risk to the child in the care of the father – found to be wholly unsubstantiated – concerns as to psychological harm to the child arising from unsubstantiated allegations – consideration of objects and principles arising pursuant to the provisions of section 60B and considerations arising pursuant to the provisions of section 60CC(2) and (3) – balancing the child’s right to a meaningful relationship with both parents and the need to protect the child from harm, physical or psychological – consideration of expert evidence relating to capacity of each parent to foster a relationship with the other parent – consideration of issues with regard to manipulation of the child or placing of “memories” – consideration of presumption of equal shared parental responsibility and whether presumption is rebutted – consideration of the re-establishment of the child’s relationship with the father – balancing of issues as between child’s ability to deal with change in residential circumstances and long-term benefits to the child – capacity of each parent to genuinely foster a relationship with the other parent – orders with respect to change in primary residence and orders to facilitate substantial and significant time with the other parent. |
| Family Law Act 1975 (Cth), ss.60B, 60CC, 61B, 61C, 61D, 61DA, 65DAA, 65DAE, 65DAC |
| Lansa & Clovelly [2010] FAMCA 80 AIF v AMS (1999) 199 CLR 160 U & U (2002) FLC 93-112 Chappell and Chappell (2008) FLC 93-382 |
| Applicant: | MS MULDOON |
| Respondent: | MR CHANNING |
| File Number: | BRC 10699 of 2010 |
| Judgment of: | Coker FM |
| Hearing dates: | 24 and 25 August 2011, 12-15 December 2011 |
| Date of Last Submission: | 15 December 2011 |
| Delivered at: | Townsville |
| Delivered on: | 5 April 2012 |
REPRESENTATION
| Counsel for the Applicant: | Ms Sweetapple |
| Solicitors for the Applicant: | Couper Geysen Family & Animal Law |
| Counsel for the Respondent: | Mr Baston |
| Solicitors for the Respondent: | Self-represented |
| Counsel for the Independent Children’s Lawyer: | Ms McArdle |
| Independent Children’s Lawyer: | Legal Aid Queensland |
ORDERS
That all previous Orders and Parenting Plans be discharged.
That the Paternal Grandfather, Mr C, be excused from his undertaking filed 19 January 2011, that the time the father has with [X] be supervised by him.
Parental Responsibility
That the Father and the Mother have equal shared parental responsibility for the major long term issues of the child, [X] born [in] 2007.
That the parents are to consult with each other about decisions to be made in the exercise of their equal shared parental responsibility and shall make a genuine effort to come to a joint decision. They are not, however, required to consult with each other about the daily care of the child. The types of decisions about which parents are required to inform and consult include but are not limited to changing the child's name; relocating the residence of the child so that existing parenting arrangement become impracticable; changing the child's school; a significant medical intervention for the child.
That each party has responsibility for daily decisions about the day to day care, welfare and development of the child while in his or her care.
Where the child shall live
That the child live with the Mother at all reasonable times as agreed between the parents and failing agreement as follows:
(a)Until the child commences Preparatory School in the year 2013:
(i)In the weeks when [the father is working in Canberra], from 12pm Sunday until 12pm Friday; and
(ii)At the Mother’s election, for up to two weekends per month (and not to occur on any weekend between any two consecutive weeks when [the father may be working in Canberra]), on the basis that the Mother bears the child’s travel costs.
(b)Once the child commences Preparatory School in the year 2013:
(i)From 5pm Friday to 5pm Sunday, each alternate weekend on the basis that:
1. the Father bear the costs associated with the child’s travel to and from Canberra for the first period of time with the Mother and each alternate time thereafter; and
2. the Mother bear half the costs associated with the child’s travel to and from Canberra for the second period of time with the Mother and each alternate time thereafter.
(ii)In the event the Mother is unable to afford the travel to and from Canberra, she shall give the father at least 2 weeks notice.
(c)Irrespective of the child’s schooling arrangements, if the Mother is to be in Brisbane and wishes to spend time with the child, she may give the Father at least 14 days notice.
That the child live with the Father at all other times.
School Holidays
That the child shall live with his parents for Easter, June/July and September/October school holiday periods as follows:
(a)the first half of the gazetted school holidays for the Australian Capital Territory for Easter, June/July and September/October in even numbered years with the Father and in odd numbered years with the Mother; and
(b)the second half of the gazetted school holidays for the Australian Capital Territory for Easter, June/July and September/October in odd numbered years with the Father and in even numbered years with the Mother;
That the child shall live with his parents for the Christmas school holiday periods in 2012 in alternating blocks of 10 days, with the Mother to have the first block.
Commencing with the Christmas school holidays in 2013, that the child shall live with his parents for the Christmas school holiday periods as follows:
(a)the first four weeks of the gazetted school holidays for the Australian Capital Territory (excluding the period from 5pm Christmas Eve until 9am Boxing Day) in even numbered years with the Mother and the remainder of the holidays with the Father; and
(b)the last four weeks of the gazetted school holidays for the Australian Capital Territory in odd numbered years with the Mother and the remainder with the Father;
For the purpose of these Orders, the school holiday time shall commence:
(a)when a parent's time falls in the first half of the holidays from 5pm on the day the school term finishes and conclude at 5.00pm on the day calculated to be half of the holidays;
(b)when a parent's time falls in the second half of the holidays from 5.00pm on the day calculated to represent half of the holidays and shall end at 5pm on the day prior to the school term recommencing;
(c)school holidays shall be deemed to commence at 5pm on the day the school term finishes and conclude at 5pm on the day prior to the child returning to school and the number of nights in each school holiday period is to be used to calculate one half of the school holiday period and if there is an uneven number of nights the Father shall retain the additional night.
(d)when the Mother is to have time for 4 weeks in the first half of the holidays time shall commence from 5pm on the day the school term finishes and conclude at 5.00pm on the day calculated to be four weeks later;
(e)when the Mother is to have time for 4 weeks at the end of the school holiday period his time shall end at 5pm on the day prior to the school term recommencing and shall commence 4 weeks prior to that date.
Special Days
That notwithstanding any previous orders, the child shall spend time with his parents on special occasions as follows:
(a)On the child’s birthday with the parent he is not living with on the day:
(i)By telephone, if the parent is not in the city where the child is at that time living;
(ii)If the parent is in the city where the child is at that time living:
3. a school day, from 4pm until 7pm;
4. If a non-school day, from 9am until 1pm;
5. With that parent to be responsible to collect and return the child.
With the Father on Father's day weekend from 5pm Friday to 5pm Sunday and if that is a weekend that the Father would not ordinarily spend time with the child then the Father shall forego the next weekend of time.
With the Mother on Mother's day weekend from 5pm Friday until 5pm Sunday and if that is a weekend that the Mother would not ordinarily spend time with the child then the Mother shall forego the next weekend of time.
Telephone & other forms of Electronic Communication
That the child communicate with the Mother as agreed between the parents and failing agreement as follows:
(a)by telephone and/or video Skype between 6.00pm to 7.00pm each day with the Father to initiate the call.
(b)by e-mail at all reasonable times.
(c)by post.
That the child shall communicate with the parent he is not spending time with on school holidays each Monday, Wednesday and Friday at 6.00pm with the child to initiate the call.
That the child is at liberty to telephone the parent he is not with at all reasonable times and the parents shall facilitate this.
When the child is communicating with the other parent each parent shall:
(a)Ensure that the child is available to receive the telephone call;
(b)Arrange for the child to telephone the other parent on the following night if, for any unforeseen circumstance, the child misses the telephone call from that parent;
(c)Ensure that the child has privacy during their communication with the other parent.
Changeovers & Travel
With the exception of the weekend travel to be paid for/contributed to by the Mother pursuant to paragraph 6(a)(ii) and 6(b)(i)(2) above, that:
(a)The Father shall deliver the child to and collect the child from the Canberra airport.
(b)The Father will be responsible for making all transport arrangements for the child’s travel to Brisbane and will bear the costs of same.
(c)The Father is to provide the Mother with a copy of the child’s itinerary at least 24 hours prior to the child’s departure.
For travel where the costs are to be borne by the Mother in whole or in part:
(a)She will be will be responsible for making all transport arrangements for the child’s travel to Canberra.
(b)She is to provide the Father with a copy of the child’s itinerary at least 24 hours prior to the child’s departure.
(c)Where the orders provide for the Father to bear half of the costs of the child’s travel, he will reimburse the Mother for his half of those costs within 48 hours of receiving a tax invoice or receipt evidencing the same.
Health & Education
The parties shall keep the other informed of the child’s doctors, health care and other treatment providers and authorise those practitioners to provide the other parent with information that they are lawfully able to provide about the child and this order shall serve as such authority.
Each party shall inform the other parent as soon as reasonably practicable of any medical condition, significant health issue or significant illness suffered by the child.
That no major medical procedures or operations be undertaken in relation to the child without joint parental consent, unless in the case of an emergency requiring immediate treatment (within 3 hours), as advised by a legally qualified medical practitioner, and even in the event of emergency, all reasonable efforts are to be made to contact the other parent.
That neither parent make any appointments for the child with any health care professional or educational professional without informing or involving the other parent, and in particular not for a time while the child is with the other parent, without prior arrangement and agreement.
The parties shall keep the other informed of any daycare, school, educational facility or extra curricular activity provider and authorise those providers to provide the other parent with information that they are lawfully able to provide about the child and this order shall serve as such authority.
If there is a cost associated with the provision of any information or documents under these orders from the child’s doctors, health care and other treatment providers or daycare, school, educational facility or extra curricular activity provider the expense shall be borne by the parent requesting the information.
Subject to the conditions imposed by the child's schools, these orders authorise both parents to attend school functions and extra-curricular activities to which parents are ordinarily invited including but not limited to carnivals, sports days, fetes, concerts, plays and parent/teacher interviews.
Communication
That each parent keep the other parent informed at all times of their residential address and contact telephone number and to notify the other parent of any change within 24 hours of such change.
Neither parent shall discuss these proceedings with the child.
That during the time the child is with either parent, that parent shall:
(a)Respect the privacy of the other parent and not question the child about the personal life of the other parent; and
(b)Speak of the other parent respectfully; and
(c)Not denigrate or insult the other parent in the presence or hearing of the child; and
(d)Use their best endeavours to ensure that others do not denigrate or insult the other parent in the hearing or presence of the child.
Parenting Orders Programme
That the parties shall undertake a parenting orders programme.
That the parties, within 7 days of the date of service upon them of these orders, contact the parenting orders programme co-ordinator (or nominee) for intake into the programme.
That the parties shall comply with any reasonable direction of the programme co-ordinator and in particular:
(a)attend as requested for the purposes of assessment as to whether they are suitable for participation in the programme.
(b)advise the programme co-ordinator of their contact telephone number and advise the programme co-ordinator of any change in that number.
(c)attend and participate in the programme as requested including attending referrals to treating health professionals as recommended by the programme co-ordinator
That for the purposes of the programme:
(a)the parties shall supply to the programme co-ordinator a copy of these parenting orders.
(b)within 7 days, the parties should contact the programme co-ordinator to arrange an intake interview.
(c)the parties are at liberty to supply to the programme co-ordinator a copy of any reports that have been prepared in the course of any proceedings that resulted in the parenting orders.
Family Dispute Resolution
That in the event there is a dispute about the child or about the interpretation, implementation or enforcement of these orders, before making any further application to a court the parents shall:
(a)Either attend counselling or mediation with an organisation recognised under the Family Law Act 1975 (as amended) or by the Commonwealth Attorney-General; or
(b)Participate in family dispute resolution with a family relationship centre or a person authorised under s.10g of the Family Law Act 1975 (as amended).
Other
That the Independent Children's Lawyer be discharged.
That all outstanding applications be removed from the pending cases list.
IT IS NOTED that publication of this judgment under the pseudonym Muldoon & Channing is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT TOWNSVILLE |
BRC 10699 of 2010
| MS MULDOON |
Applicant
And
| MR CHANNING |
Respondent
REASONS FOR JUDGMENT
These proceedings relate to orders sought with regard to the parenting of the child [X]. [X] was born [in] 2007 and has therefore just recently turned four years of age. He is the child of Ms Muldoon, whom I shall refer to as the mother, and Mr Channing, whom I shall refer to as the father.
The mother is the applicant in these proceedings. Her initiating application was filed on 20 January 2011. It sought orders in relation to the parenting of [X], as well as orders in relation to property settlement. The issue to be dealt with by me, however, relates only to parenting, and the orders sought by the mother were simple in compass. She proposed that the child should live with her, that she should have sole parental responsibility and that the father should spend time with the child by way of telephone communication each day at 6 pm and as otherwise determined by the Court. Additionally, and rather simply, an order was sought that the husband and the wife not make derogatory comments about the other in the presence of [X].
At the time that the mother filed the initiating application, she also filed a notice of child abuse or family violence. The notice of child abuse filed on 20 January 2011 indicates that the alleged abuse is:
On 14 November 2010 and between 30 December 2010 and 2 January 2011, the husband, Mr Channing, licked the arms, legs, feet, tummy, bottom, penis, face and back of the child of the marriage, [X] born [in] 2007.
Reference then is made to various statements contained within affidavits in which the mother details what she says are the various bases upon which the allegations are made. The notice of child abuse or family violence is a little difficult to follow, particularly when in part F, headed “About the alleged risk of abuse”, the following is noted:
(1)If the husband has time with [X] without supervision until the Court has had the opportunity to investigate the alleged abuse, there is a risk the abuse will occur again.
I note that point 10 contained within part F requires that there should be provision of the facts alleged to constitute any risk of abuse, but would not think that this provides the full opportunity for explanation and clarification as may be appropriate. In any event, the mother also deposes in part G about alleged family violence, that there have been verbal threats by the husband to harm the wife and abuse of the wife by the husband in the presence of the child. The mother suggests in the notice of abuse that such actions are likely to continue in the absence of supervised time that the father has with the child or at times of collection and return of the child at [omitted] in [M], Qld.
The mother subsequently amended the initiating application on 25 March 2011, and just prior to hearing, which commenced in August 2011, a further amended initiating application was filed, which detailed the orders that the mother sought in relation to these proceedings. They were repeated, or further clarified, in the mother’s case outline, which was filed on 18 August 2011. The case outline detailed specifically the orders sought by the mother in relation to the matter, and those final orders were in these terms:
1)The child of the marriage [X], born [in] 2007 now aged 3 years, to live with the Mother.
2)The Mother have sole parental responsibility.
3)The mother be permitted to remain living in Canberra, close to her family and other significant relationships.
4)The Father have time with [X] as follows:
a) By telephone and/or video Skype every day at 6pm with the Father to telephone the Mother’s residence;
b) For two weekends a month and two one-night periods a month as follows:
i)One weekend a month from 5.00pm Friday to 5.00pm Sunday in Canberra
ii)One weekend a month from 5.00pm Friday to 5.00pm Sunday in either [S], NSW (Paternal grandfather’s residence) or Brisbane, Queensland, at the father’s election
iii)One overnight period per fortnight in Canberra from 5.00pm to 10.00am.
c) To facilitate all visits that occur in Canberra, the mother is to deliver and collect the child from and to the father at an address in Canberra.
d) To facilitate all visits in Brisbane the mother will make all transport arrangements for the child’s travel and will deliver and collect the child from Brisbane, with the parties to be responsibility each for one half of the air travel costs associated with the mother and [X]’s travel to and from Brisbane.
e) That failing the receipt by the mother of one half of the travel costs as provided for in order 3(f) above within 7 days of a request being made by her, then the mother’s obligations to transport [X] to Brisbane for visits is suspended.
f) To facilitate all visits which occur in [S], the mother will deliver the child to the Grandfather’s residence in [S] at the commencement of each visit and the father will deliver the child to the mother in Canberra at the conclusion of each visit.
5)That the time the Father has with [X] be supervised.
6)Communication:
a) That [X] may communicate with either parent at any time. The parent who does not have the child may call him at any reasonable time. The parent who has the care of the child will facilitate such communication as far as practicable.
b) That a diary be purchased and used to maintain a record and notice of [X]’s residency, activities, commitments, health, development and the life, and that that diary accompany [X] (this will become more useful as [X] gets older and attends school and other activities, and is therefore a good practice to institute);
7)Special Days: That the usual arrangements in accordance with these orders be varied on particular days as follows:
a) That [X] spend alternate Christmases with each parent from 5:00pm Christmas Eve until 9:00am Boxing Day, with the arrangement to begin with the father to have [X] for Christmas 2011.
b) That the children spend from 9am to 3pm with the mother on Mother’s Day and with the Father on Father’s Day regardless of which parent they would otherwise be with in accordance with these orders.
c) That [X] spend from 9am to 1pm (weekend) or 4pm to 7pm(weekday) with the parent who does not have care of [X] on the child’s birthday and on the parent’s birthday.
8)That there be scope for variation of [X]’s time with either parent following agreement (confirmed in written agreement) between both parents, and allowance for flexibility and goodwill in arrangements, in order to maximise the attainment of [X]’s best interests, on such other terms as agreed between both parents.
9)Specific Issues:
a) That both parents be informed of, and have the opportunity to attend and participate in, special activities conducted at [X]’s childcare/preschool or other extra-curricular activities;
b) That both parents will keep each other informed (via the diary specified earlier in this document) of significant events occurring in [X]’s life, in particular family, social, academic, health and medical, musical, sporting and the like;
c) That no major medical procedures or operations be undertaken in relation to [X] without joint parental consent, unless in the case of an emergency requiring immediate treatment (within 3 hours), as advised by a legally qualified medical practitioner, and that all reasonable efforts be made to contact the other parent;
d) That neither Parent make any medical or other appointment without informing or involving the other parent, and in particular not for a time while [X] is with the other parent, without prior arrangement and agreement;
e) That both parents agree to speak respectfully of one another with [X], to encourage him to understand that both his parents love him and to not discuss parental relationship issues with him, without the prior agreement of both parents, and that if there are such issues, both parents attend joint counselling with the aim of resolving the issues in [X]’s best interests, either with a mutually agreed counsellor or otherwise as directed by the Family Court of Australia;
f) That both parents encourage [X] to consider his residential arrangements as the best possible, and not talk with [X] about any negative feelings either parent may have about arrangements, to ensure that [X] not be made to feel guilty, sad or pressured about circumstances.
g) That both parents agreed to treat each other politely and with courtesy and respect tin front of [X].
10)Financial Issues:
a) That [X]’s education, (including Before and After School Childcare, with these childcare costs subject to review and negotiated and agreed should the circumstances of either party change), extracurricular tuition (such as music, swimming lessons), medical, dental, social activities (such as outings, parties and presents) and the like be shared equally by both parents and paid for jointly, and that such expenditure be discussed and agreed beforehand, as much as is practicable, or such other similar arrangements, as discussed and agreed in writing, as from time-to-time shall come into existence and operate for [X]’s provision and welfare;
b) That financial issues be considered and exercised with [X]’s best interests in mind, and with equity, flexibility and goodwill overall, and on such other matters and on such other terms as agreed between both parents.
11)Parental Responsibility:
a) That the parent who has the care of [X] is responsible for minor day-to-day decisions concerning him.
b) That the parents are to communicate and try to agree on major, long-term decisions including school enrolments and transfers, however, if no agreement can be reached the mother will have responsibility for the final decision.
c) That in the event [X] is ill, the child will remain in the care of the mother for the duration of the illness.
It is noteworthy particularly that the mother proposed that she should have sole parental responsibility in relation to decisions to be made with regard to the long-term care, welfare and development of the child, though, at final submissions made in relation to this matter, it was indicated by counsel for the mother that that particular issue was not pressed.
I should appropriately note, however, that it was only following an indication given by me that I was not at all satisfied either that abuse of a sexual or physical nature, as alleged by the mother had occurred, nor was I satisfied at all that there was a basis upon which it could be found that there was a risk to the child in relation to his wellbeing.
It is more appropriate, in my view, that the final position of the wife, at least up until the conclusion of evidence in relation to the matter and subsequent only to the indication given by me, is the orders that are sought by the mother, in relation to these proceedings.
The father responded to the application filed by the mother on 21 March 2011. At that time he sought orders in relation to the parenting of the child, which were to the effect that there should be joint parental responsibility for decisions to be made in relation to the child, but then went on to provide specifically that the child should live in Brisbane, with his father as his primary carer, and further detailed issues such as future educational arrangements, as well as payment of expenses associated with future educational arrangements. The father then proposed that the mother spend time with the child by telephone or other electronic means each day and, similar to that order which was sought by the mother, that otherwise the mother spend time with the child as determined by the Court.
Orders were also sought of a more specific nature in relation to the sleeping arrangements for the child and, interestingly, proposed that the paternal grandfather, Mr C, have the opportunity to spend 20 days a year with the child, to be arranged with the son’s primary carer. It is presumed, one would think, that that order was there more to deal with issues that might arise if, in fact, [X] were to be living primarily with the mother rather than the father.
The father also sought orders in relation to the specific notation as to the child’s name and the name to be used at all times, as well as seeking orders with regard to an authority for each parent to speak with medical practitioners and providers.
The father amended his response to the proceedings in a Further Amended Response to Initiating Application filed on 14 July 2011. The orders sought by the father in relation to child matters were as follows:
The respondent agrees with the following final orders sought in the applicant’s Initiating Application:
Children’s Issues: 6 only.
1.That the son live in Brisbane with his father as his primary carer.
2.That the mother have joint parental responsibility for [X].
3.That [X] be enrolled in and attend [A] School in Brisbane for primary schooling.
3.1That the father will pay all the expenses associated with [X]’s schooling there that are incurred with the knowledge and agreement of the father.
4.That [X] be enrolled in and attend [B] School, located on [address omitted] in Brisbane, for his secondary schooling.
4.1That the father will pay all the expenses associated with [X]’s schooling there that are incurred with the knowledge and agreement of the father.
5.That the mother have time with the son [X] as follows:
5.1By telephone (or video link) each day; and
5.2As determined by the Court.
6.That the son, [X], at all times sleeps in his own bed when he is in the mother’s care.
7.That the son’s only male Grandparent, Mr C, be given the equivalent of 20 days a year contact time, to be arranged with the son’s primary carer according to when ‘Grandpa’ is scheduled to be in Queensland upon the provision of at least 14 days notice in writing.
8.That no application or attempt be made to change the son’s birth name or surname without the written consent of both parents.
9.That each of the parents keep the other promptly informed and advised of the name and address of any treating medical practitioner and/or any hospital admission in relation to [X], and any illness requiring medical treatment while [X] is in their care.
In this matter, and it was absolutely appropriate that it should occur, there was also the assistance of an experienced independent children’s lawyer,
Ms Clare Dart. At the commencement of the proceedings, Ms Dart, through her counsel, indicated that she was not in a position where she would be able to provide a recommendation in relation to this matter. At the conclusion of proceedings, however, the independent children’s lawyer, through counsel, put forward alternative proposed final orders, in relation to the parenting of [X].
Those orders are comprehensive and deal with a circumstance, firstly where the child is living primarily with the mother, and that is the first position taken by the independent children’s lawyer in relation to the matter, and in the alternative, as a situation arising from the child living primarily with the father.
Annexed to these reasons are copies of the final orders proposed by the independent children’s lawyer and marked with the letter A, and marked with the letter B are the alternate orders in the event the court orders the child return to Queensland.
This trial was heard over a considerable number of days. It commenced on 24 August 2011 and proceeded for two days at that time. It then resumed on 12 December 2011 and was heard over four more days, from 12 to 15 December 2011. It was, as is perhaps evident from that information, a difficult and complicated matter and one which relied heavily on the evidence of two educated and articulate parents, as well as their various support persons, and in addition there was considerable assistance provided to the Court by the provision of two family reports prepared by Ms Q. The first of those reports was filed on 12 July 2011 and the second report, or addendum, was filed on 10 November 2011.
Obviously, I will be addressing the evidence of each of the parents and the reports of Ms Q in some depth. But before turning to those particular aspects of the matter, it is important that I should also note that a number of other witnesses gave evidence, both for the mother and the father and, interestingly, though not required, on behalf of the independent children’s lawyer.
For the mother, evidence was called from her sister, Ms M, and her brother, Mr M, and also from her partner, Mr P. On behalf of the father, evidence was taken from the paternal grandfather, Mr C, but there was also evidence under the hand of the father’s employer, Mr M, and Ms F, the partner of the paternal grandfather.
Neither Mr M nor Ms F were required for cross-examination, but I will comment briefly upon their evidence in relation to this matter.
Evidence was also produced by way of affidavit from Detective Senior Constable E, a Detective Senior Constable employed with the Queensland Police Service and involved specifically with the Child Protection Investigation Unit at [M] Police, Queensland. Again, I will make comment in relation to the evidence of Detective Senior Constable E, as well as refer to the DVD evidence that was made available following the conduct by Detective Senior Constable E of an interview with the child [X] pursuant to the provisions of section 93A.of the Queensland child protection legislation.
Insofar as the mother’s siblings are concerned, I had the opportunity not only of reading the affidavits that were filed by Ms M and Mr M, but also of seeing them give evidence in relation to this matter. As far as Ms M was concerned, I should note at the outset that she gave me the impression of being an extremely well-educated and precise person, who noted in her affidavit material that she was a [occupation omitted] employed in Canberra for in excess of 30 years, by [omitted].
Ms M in her oral evidence noted that she and the mother were good friends to each other, though she acknowledged that there was a 16-year age gap between the two of them. It appears clear that Ms M had provided, both as a sister to the mother and an aunt to [X], support and encouragement in relation to the circumstances that existed following the breakdown of the relationship between the mother and the father.
It also appears clear, however, that virtually in its entirety, the impressions and opinions that were expressed by Ms M were in all respects a reflection of what she had been told by her sister, and that, whilst there may have been some brief interaction between Ms M and the father during the time that the mother and father were in a relationship together, it is far more the case that Ms M’s opinions were developed as a result of communications and indications given to her by the mother, rather than as a result of anything she had directly seen or heard.
I was troubled by the evidence of Ms M in relation to this matter, not because of what was said by her in relation to the evidence in the matter, but because of the obviously determined stance that she took in relation to the matter and the absolute reliance that she placed upon the accuracy of any reporting that was made to her by her sister.
In particular, and perhaps by way of example, I note that Ms M was asked by counsel for the father whether the mother had told her of her concerns about the father sexually abusing [X], and she indicated that she had and that she believed her. She said that this was more so the case, after she had heard the recording which was prepared by the mother and which will no doubt be the subject of further comment by me, in relation to this matter.
She indicated that she was satisfied of the evidence before her of the fact that abuse had occurred and that she did not have any doubts in that regard, as well as indicating that, whilst there was the possibility of the evidence being misinterpreted, she was of the view that there was a “disturbing element to the tape”, and that she relied upon that disturbing element, as well as the indications given to her by the mother.
I must say that the distinct impression that I got was that there was little respect held by Ms M for the father and certainly no real appreciation of the importance of the father in the child’s life. In that regard, she was asked specifically what contribution the father could make to [X] as he grows. Her response was half-hearted at best. She indicated that she hoped he could parent appropriately, and when asked what the father’s contribution to [X]’s life now might be, she indicated that “boys need a male role model”.
When asked to elaborate upon that, she indicated that nothing came to mind and that she had been thinking of [X]’s protection and that she was not confident that the father was not a threat to [X].
Perhaps most damning, by way of faint praise, was an indication given by Ms M that [X] has Mr Channing as his father and “we have to work with that”. She responded to the final inquiry by counsel for the father, about what contribution or benefits there might be now in a relationship between the father and [X], with words to the following effect:
I am not satisfied that he can without assistance. I am not sure that he can father [X] properly.
I am troubled by that one-eyed view of the circumstances in relation to this matter, and whilst it is perhaps laudable that Ms M provides this unquestioned support for her sister, there is, of course, the far greater consideration that arises in relation to matters of this nature, which relates to the best interest and the welfare of the child and, of course, consideration of the objects and principles that arise, pursuant to the provisions of section 60B of the Family Law Act.
Ms M was also questioned by counsel for the independent children’s lawyer, in relation to this matter along similar lines, and I gained the distinct impression that Ms M was quick to draw adverse conclusions in relation to the father and to generally seek out evidence which could be interpreted by Ms M as critical or damaging to the father, both in respect of his role as a partner in the past to the mother, as well as his present and continuing role as a parent to [X]. I was troubled by the evidence given by Ms M in relation to this matter.
I also had the opportunity of hearing evidence from Mr M, the mother’s brother. Mr M is an [occupation omitted]. Mr M has filed an affidavit in relation to this matter, in which he says in the final paragraph of that affidavit filed 12 July 2011:
I am seriously worried about the idea that my sister may be required to return to Queensland to live in relative poverty again, now that she is no longer working at [omitted], away from her family and friendship circle she has here in Canberra. She won’t be able to afford to travel so I and Ms M, who work full time, and our mother, who cannot travel, will rarely see [X] or be able to support them both. It will also be deeply distressing to my mother to have to say goodbye to her only grandson and her youngest daughter in this way, as her condition is deteriorating. Further [Ms Muldoon] will not be in a financial position to travel to Canberra to continue to support my sister Ms M and I will our mothers care and support [sic].
Mr M has a very negative view of what might be the future for the mother, and, whilst circumstances have changed, particularly with respect to the establishment of the relationship between the mother and Mr P, it appears clear that there is an acknowledgement of the financial issues that arise in relation to the life of the mother as a result of the separation between she and the father.
It is especially relevant because, when concerns were raised about the capacity of the mother to facilitate a relationship between the child and the father if she were able to remain with [X] in Canberra, she rather flippantly seemed to indicate that the father could be responsible for the costs and, perhaps even more troublingly, as it had not been apparently discussed between Mr P and the mother, there was a suggestion that the mother and her partner would be able, from very limited means, to contribute to such costs.
It perhaps, if anything, reinforced the lack of thought that I thought in many respects had gone into proposals in relation to the father’s future relationship with [X], but more particularly was reflective of the rather offhanded approach that was taken by the mother and her supporters to the consequences of any actions taken to date in relation to the parenting of the child and the future issues that would need to be addressed, in relation to the parenting of the child.
More particularly, however, I was assisted by a considerable amount of the evidence that was given by Mr M. Mr M noted that his sister was an intelligent and highly capable woman, holding a PhD qualification, and noted that she was, as he put it, “not skittish”, and therefore not just reactionary but, in fact, proactive. Mr M also acknowledged that his sister had told him about the disclosures that she says [X] made in relation to sexual abuse, and acknowledged that the mother believes that the abuse had occurred, and noted that there was nothing in any evidence to him, that led to a contradiction of that assessment.
Of course, Mr M had only very limited information in respect of the matter and, like his sister, Ms M, had apparently only received information from one source, the mother. And whilst that was the case, it would be almost impossible to imagine that he would have any other view other than that his sister’s concerns in relation to the wellbeing of [X] were well-founded.
This view of a risk to the child was originally, however, suggested by him as being something that he could not comment about, because he could not, as he put it, know or not know if there was a true risk. But he then went on to note that he believed that his sister was telling the truth as she believes it, and then, in cross-examination occurring on behalf of the independent children’s lawyer, in fact acknowledged that he believed that the father had abused [X].
Mr M’s beliefs in relation to this matter were a reflection of the mother’s beliefs, however, more troubling than that was the fact that he and Ms M were, it would appear, the two primary supports, at least until the advent of the relationship between the mother and Mr P, of the mother and that their position in relation to the matter was to generally accept, that what the mother said was true and, expanding from that, without any other evidence, than that of the statements made by the mother, determined that the father had abused the child and was a risk to the child.
Whilst I have no doubt as to the genuineness of the positions taken by both Mr and Ms Muldoon, it is clear that their position in relation to the matter is troubling, because there is little likelihood, in my assessment, of them being able to provide a balanced position in relation to the child’s relationship with the father, particularly when the mother has such determined views with regard to the risks to the child and the behaviours of the father. I shall obviously comment upon those particular aspects of the matter a little later in these reasons, but otherwise note that the evidence of Mr M was not of terribly much assistance to me otherwise.
Insofar as the mother’s partner is concerned, I must say that I was troubled in a number of respects by his evidence. Firstly, I note that the only evidence provided in writing by Mr P, a self-employed [omitted] of the Australian Capital Territory, was that contained in a one-page affidavit prepared hastily on 24 August 2011.
That was in fact the first day of hearing and was the day in which it was first revealed to the Court, but more particularly to the father, that the mother was pregnant to Mr P. Mr P commented about his relationship with the mother and also commented about his observation of [X]. At paragraph 4, interestingly, he refers to the following:
[X], 3 year old son of Ms Muldoon and Mr Channing, is an intelligent, happy, articulate and imaginative boy who, I have observed, has a very close bond with his mother. He and [Y] get on extremely well. They even like to talk to each other on the phone to discuss their school and playgroup days. [Y] talks about [X] a great deal and is very excited and happy whenever we all spend time together.
The interesting notation there, of course, is that the child’s name referred to by Mr P is not that of the child, but I have no doubt is the name that is sought to be used as much as possible, in relation to the parenting of the child. Mr P goes on at paragraph 5 onward to say:
[X] I [sic] have got to know each other very well and I care for him very much; I look forward to the time I share with him and his mother. I consider myself to be involved in [X]’s life and hope to be a positive male role-model in his life in the future.
Ms Muldoon and I are very much in love. We first met in a children’s Playground in early June when our sons began playing together and Ms Muldoon and I got to talking. Ms Muldoon and I went to the same high school ([schools omitted]). We know many of the same people from that stage of our lives. We grew up living just a few streets from each other.
And finally:
Ms Muldoon told me that we are pregnant on Tuesday 23 August. I am completely happy and excited about this and very much look forward to sharing the months and years ahead as we raise our child in a loving family environment.
With respect, there is much that can be read into and around what Mr P says in those few paragraphs. First of all, he notes the close bond between the child and the mother but knows nothing of the relationship between the father and the child. It appears almost to be of no consequence to Mr P in relation to the future that is proposed between he and the mother. Mr P considers that he has gotten to know [X] very well and cares for him very much and looks forward to the time that he shares with him and his mother, but, of course, there is absolutely no reference or consideration whatsoever of the child’s attachments to the father or the father’s wish for a close and loving bond with the child.
The impression that I gain, and it was reinforced in his oral evidence in relation to this matter, is that he and, unfortunately, I think, also the mother have a very self-centred approach in relation to the arrangements with regard to their future and that [X] is a part of that future and is a part of that future on the terms and conditions that they wish to set, in relation to where they live and the relationships that are established.
Mr P had been at the time of that affidavit known to the mother, apart from school days 20 or more years before, for a period of 10 or so weeks. However, he indicated that he knew the mother well, that his relationship with the mother was of great significance and importance and that he was able to rely upon the mother. He spoke of issues in relation to their sharing of their life together, and the appropriateness of the next step in their relationship in moving in together, notwithstanding the relationship was one built on haste and an unplanned pregnancy.
It was, unfortunately, in my assessment, a triumph of hope over experience, where very clearly the actions that had been taken by both Mr P and the mother, in the development of their relationship and in fact falling pregnant, were immature and ill-considered actions, as well as, I think, unfortunately somewhat self-centred behaviours, particularly when it was determined that that was what they wished to do and their two sons would be required to follow suit, though neither of them would accept other than that it was something that the children would both be comfortable in.
I was troubled by this knowing stance that was taken by Mr P and also, of course, by the mother. I was also troubled by the fact that the relationship which both the mother and Mr P said was open, full, frank and complete did not in fact involve discussion of what I would have thought would have been the overriding topic and matter of concern in their lives, at the time of this trial.
Mr P was asked whether he had seen the case outline prepared by or on behalf of the mother. He said that he had been shown it and had read a page but it was not his business. He was asked whether he knew of the allegation of sex abuse by the father and he indicated that he was aware of that and had been told of it by the mother. He also indicated that he was aware of the fact that the mother believes that [X] had been abused by the father and that the mother required supervision of the father’s time spent with the child.
Interestingly, however, it was clear that apart from a most generalised knowledge acknowledged by Mr P, of the fact that the father had, as he put it, sexually assaulted the child, he knew nothing else about what was alleged in relation to this matter, but simply accepted unconditionally that the mother’s concerns must have both been genuine and realistic in relation to the parenting arrangements to be made, with regard to the child.
Mr P also gave evidence that his income was in the vicinity of $31,000 per annum. With respect, when that needs to be put toward the expenses associated with a relationship between he and the mother and she did not intend, at least on the current evidence, to seek to return to work and to provide a household for the two of them, as well as for the needs of their two sons and a hope to have at least another child of their relationship, that is not a significant amount of money.
Mr P, however, I thought rather flippantly suggested that he would contribute to costs of travel etcetera, and whilst he said that it would be difficult, he noted that it would not be impossible and suggested that he might, in his horticultural business, get another contract and that would meet the needs. As I say, it is a prime example of the triumph of hope over experience, and reflected, I thought, poorly upon the position taken by Mr P and the mother.
In fact, if anything, the distinct impression that I received from the evidence of Mr P, in relation to this matter, is that he was not comfortable in giving evidence in relation to these proceedings, and the answers that he gave were far more a reflection of the position of the mother than any genuine understanding or acceptance of what responsibilities might flow if, for example, the child was to live with the mother, but that the father was to spend significant time with the child and that the mother or her family unit were to contribute to travel costs, or in the alternative, that the child would live with the father and then there be consideration of the costs inherent in the mother’s continued relationship with the child.
Finally, and it is unfortunately a matter that I do need to comment upon, I gained the distinct impression that Mr P, whilst attempting to give an impression of being caring, compassionate and understanding of the positions of all involved in relation to this matter, was in fact somewhat rigid in his views. I note that Ms Q in her second report made reference to issues with regard to discipline and behavioural aspects of the household of Mr P and the mother, and also note that questions were directed to him about the strict code of respect and behaviour that he had in that regard.
He said that he expected that there would be core values to help children achieve their goals, and that in particular, manners and respect for themselves and others were important. They are indeed important considerations and matters that all parents would hopefully seek to engender in their children. Unfortunately, the impression that I gained, however, was that Mr P, whilst attempting to give an impression of being such a calm and settled person, was not at all as calm and settled as he deposed to, and particularly whilst he was in the witness box, was that he was far more highly strung than he admitted, and I would have assessed, as I do, that issues of control and direction would be of great significance in any household in which Mr P took a predominant role.
I was assisted by the evidence given by Mr P in relation to this matter, but more, I might say, from the perspective of concerns that were suggested, particularly on the part of the father, as to what steps would be taken with regard to the reinforcement and fostering of a relationship with the father, particularly if the child were to remain in the care of the mother.
I turn then briefly to the evidence of Ms F and Mr M. Mr M has the father as a member of his personal staff. The father is his [occupation omitted]. Mr M notes that he was keen to secure the father’s services, as he put it:
…he had an excellent reputation as a long-standing and talented [occupation omitted].
Mr M also at paragraph 9 spoke of the father in glowing terms. He said the following:
In all the years I have known Mr Channing, he has demonstrated extremely strong character and values, sound judgment and discretion – and I regularly rely on his counsel, sound judgment and extensive knowledge of [omitted].
Mr M detailed discussions that had been had between he and the father with regard to variations to the father’s terms of employment with Mr M, in the event of him having primary responsibility in relation to the care of [X].
Mr M was not required for cross-examination in relation to those issues, and I accept Mr M’s evidence, which is unchallenged, as detailed in paragraph 16 as follows:
I have indicated to Mr Channing that in recognition of his excellent contribution to my staff, I am willing to be flexible in order to accommodate any necessary changes that may arise from the current Family Court proceedings. He has indicated to me that his first priority is to fulfill his responsibilities as [X]’s father, and his job is second to that. I respect his clear determination to look after his young son.
I note also that Mr M was not cross-examined or required in relation to his statements contained within paragraph 12 of his affidavit filed on 30 March 2011. There, Mr M details what he was told by the father following a telephone conversation in the Qantas Club at Melbourne, on 9 November 2010. Whilst, of course, I note that Mr M is only recounting hearsay in relation to what he was told by the father was the exchange between the father and the mother, in particular I note that Mr M refers to the fact that he did not hear the father say anything dramatic, loud or rude in his side of the conversation and noted also that the father appeared visibly upset by this incident.
I accept Mr M’s evidence in relation to this matter and insofar as corroboration can be drawn from the statements made by Mr M, of the position of the father in respect of arrangements that might possibly be made in the future with regard to the parenting of the child and with regard to the conversation that occurred between the father and the mother on or about 9 November 2010.
Ms F is the partner of the paternal grandfather of the child. She was not required for cross-examination but detailed at length statements that she had heard made by the child, [X], as well as observations she had made in relation to the child, both before and after the changes in circumstances with regard to the father’s time being spent by the child. I accept the unchallenged evidence of Ms F in relation to those observations relating to, for example, changes in the child’s demeanour and statements made by the child to or in the hearing of Ms F.
More particularly, called on behalf the father was the paternal grandfather, Mr C. Mr C was a most impressive witness. He gave me the distinct impression that he understood and accepted absolutely the distinction to be drawn between the role of a devoted and caring grandparent and of the role of the primary carer or carers, the mother and the father. Mr C had made himself available, up until separation at least, as requested and sought by the mother and the father, to provide supervision and care for [X], and in particular, to facilitate opportunities for the mother to then return to work at an early stage.
It was clear, however, that whilst he could easily have taken a position of criticism of the mother for all that had occurred in relation to the breakdown of the relationship, and, of course, more particularly the effects upon the interaction between the father and the child, and, I might add, the relationship between Mr C and [X], he did not seek to denigrate or disparage the mother to any unreasonable or unnecessary extent. I gained the distinct impression that Mr C put to the fore the welfare and the best interests of the child and no doubt could on occasion also have found fault in relation to the actions or behaviours of his son. However, his paramount consideration, and what did him enormous credit, was the fact that [X] was his first and foremost consideration.
Mr C was asked about his obtaining a copy of a book which took some significance in relation to these proceedings, such book being headed “Everyone’s Got a Bottom”. He said that he had made inquiries after he became aware of such book from people working in the child care and protection area without real success in obtaining information as to the book, and only after approaching [omitted], a facility on the Sunshine Coast, was he able to obtain further information in relation to the book.
It was obtained by him after the mother’s evidence and the evidence arising from the section 93A interview in August of 2011. Mr C said that he had no previous awareness of the existence of such a book until that evidence was given in August of 2011 and he subsequently made inquiries in relation to obtaining a copy of the book. I accept that that is true.
As I have indicated, Mr C was a most impressive witness. Mr C has extended himself both physically and financially to provide an opportunity for [X] to retain a close, or as close as possible, relationship with his father. He acknowledged that if the Court indicated that there was a need for continued supervision that he would make himself available so as to ensure that [X] had a relationship with his father. He said:
I would do whatever was necessary. It is so important.
I accept without hesitation that Mr C’s motivations in every respect, both prior to separation and subsequent to separation, have been based on ensuring that he could, as best he could assess it, ensure that the child’s best interests were met and provided for.
Mr C indicated that he was aware of the allegations of the “licking game”, but had never discussed it with [X], and noted that the child had never raised it with him, though the relationship between the paternal grandfather and [X] is a very close relationship.
Mr C was supportive of his son but in my assessment there was a very real distinction that could and properly should be drawn between the position taken by the paternal grandfather, in relation to the support he provided for the father and the position taken by the mother’s sister and brother and her partner Mr P in relation to their support for the mother. There was, in my assessment, an enormous difference between the respect that Mr C had for the mother, as opposed to the total lack of respect and appreciation in any way of the importance and significance of the father in the child’s life, from the perspective of Ms and Mr M and Mr P.
More particularly, I gained the impression that Mr C went out of his way to act in a respectful and appropriate manner and noted, for example, that he had met Mr P on about a dozen occasions at handovers and that there had not been difficulties at handovers. No doubt that was a reflection of the position taken by both Mr C and Mr P at the time of handovers, but the comment made by Mr C about Mr P reflects, I think, an appropriate and proper attitude to the household of the other parent and their partner or persons involved in their lives, as opposed to what I observed in relation to the mother and Mr P’s household.
Mr C was asked whether [X] had spoken to him about Mr P and Mr C noted that [X] had said to him that Mr P was very strict. He was asked by counsel for the independent children’s lawyer whether in fact that was of a concern to him, and I think he answered most responsibly, “I respect his right to his rules in his house.” It was, I think, a sensible response and one which genuinely reflected the character of the paternal grandfather and his appreciation of the importance of the different roles that all had, in the life of the child.
I was assisted in different ways and to differing degrees by the evidence given by each of the witnesses in relation to this matter. As I indicated, of course, the primary evidence in relation to the proceedings is that of the mother, the father and, at least to assist in relation to the matter, the evidence of the report writer, Ms Q.
Also, however, I had the opportunity of seeing the affidavit, as I noted, of Detective Senior Constable E and also of hearing the section 93A interview, which was conducted by Detective Senior Constable E on 6 January 2011. That interview was conducted at the [M] Child Protection Investigation Unit and occurred on 6 January 2011 between 3.04 pm and 3.47 pm.
I was most assisted by the opportunity to see and hear what was exchanged in relation to that interview. I do not mean to be critical of Detective Senior Constable E, though it will no doubt sound that way when I say that I was assisted, but not at all in a positive respect, with regard to any assessment as to sexual abuse or interference occurring, in relation to the child.
Whilst I accept unconditionally that the involvement of police is essential in relation to matters involving protection of children, both from physical, sexual and emotional abuse, the questions that were directed to the child and the stance taken by Detective Senior Constable E did nothing to give me confidence in relation to any evidence that might have been sought to be relied upon, in relation to this matter.
For example, 13 minutes into the interview, Detective Senior Constable E asked [X] a question to the effect, “Tell me about your Daddy. Is he living at [omitted] in Brisbane?” [X] told him that he lived on the first floor. “He lives at number [omitted]. He has lots of toys in a toy room”. When asked, “What toys?” he said there were block toys and others and, “He has a big bed”. And then Detective Senior Constable E asked him to tell him more about that and the child said that he had a long stick on the bed and he helped Daddy.
He was asked what games he played at [address omitted] and the child said that he played a Batman game and, when pressed as to what other games, the child indicated that there were, “all sorts, Batman and Robin games”. Then, when the child could not give any other evidence in relation to the matter, he was pressed again about what games were played at [address omitted] and the child, I thought rather offhandedly, spoke of doing lots of other things and then noted that there was a counting game and that his father had a counting book.
The child made no disclosure whatsoever in relation to any other activities, and the only way, and it may have been an essential element in relation to the matter to assess what was going on, was to have at the 15 minute mark a question directly given to the child which was to the effect, “I heard you play the licking game with Dad”. [X] replied, “He licks me”, and then, when asked, “Where he licked you”, the child perhaps not fully appreciating what the question entailed, indicated that he licks him in the bedroom.
The child told Detective Senior Constable E that they play it lots of times and when asked where he licked him, the child said, “On the feet, tummy, legs, back, head, hips, shoulder, neck and then head again”.
Detective Senior Constable E was not satisfied with the answers that he got because they did not accord with the evidence that had been presented to him by the mother. He then asked whether there was anywhere else and the child specifically said, “Just those spots”. Detective Senior Constable E let that go for a short time, but then returned to it and indicated that he wanted more information about the licking game. Questions were then directed to the child about what clothes they were wearing, but again there was nothing untoward other than what would seem to be play between the father and the child, but Detective Senior Constable E pressed on and, at the 27th minute, said words to the effect to the child, “Let’s go back to the licking game. You told Mummy about it”. The child replied that he did and he was asked whether he remembered telling his mother about it and, again, he replied that he did.
It then appears again that there was some degree of confusion that arose in relation to the matter, in that when the child was asked what he had said to his mother, he indicated that he had said, “sorry” to her because he had licked her. It did not relate to the inquiry that was being made by Detective Senior Constable E, which was directed toward the actions of the father. Detective Senior Constable E, however, pressed on and asked whether [X] licked his daddy. He said that, yes, he did and he likes it. He was asked where and the child, rather, nonchalantly responded, “on his face and on his bottom and I go ‘yum’”. He then was asked where else and the child indicated on his legs and on the foot, and then he moved his hands all over him, all over his body, apparently indicating that that was where the licking occurred.
Detective Senior Constable E pounced on that particular evidence and asked whether, in a very directive way, [X] licked his father all over. [X] replied “Yes” and the very next question was, “Does your Daddy lick you all over?” and the child replied, “Yes, sometimes”. He was asked to tell him about the last time, but the evidence or the answer was not to the effect that would have been appreciated by the police officer, in that when he was asked to tell him about the last time that it occurred, his only response was to say that his father did it and then made a coffee.
The interesting line of questioning that then followed was one which presumed that it was the mother who always acted appropriately. Detective Senior Constable E acted whether the mother had taught [X] about his privates. At that stage, [X] said that she did and, interestingly, made reference to the fact that he had a book about his privates.
The mother said she knew nothing about this and I shall, of course, come to that aspect of the matter later in these reasons.
He was asked whether he knew if his bottom or his penis were private and he said that he did. He was then asked whether he knows that no one can touch his privates and [X] said that that was the case, “Yes”, but that excluded or, as he put it, “except your Mummy or your Daddy”. This child had absolute trust and confidence in his mother and his father, but that was not good enough for Detective Senior Constable E. More troubling still was the fact that the mother seemed to ignore any trust that the child had in the father, but absolutely relied on the trust that the child has in her.
Questions were then directed to what could only be hoped to be disclosures which were never forthcoming. The child was asked to tell Detective Senior Constable E about his daddy touching his private parts and the child, who was, of course, only three years of age at the time, said that he did it for fun. There appeared to be little appreciation of the fact that tickling games, kissing games, blowing raspberry games all could be played and the child could be easily manipulated into answers which were, if anything, damning of the behaviours of one parent.
He was asked whether his father touched his privates when he played the licking game and responded “Yes”, but in my assessment, it was much more a reflection of that response that he gave earlier in the interview where he simply indicated that the game, whatever it might have been, was played all over his body. He was then told in a directive manner, “You need to tell me more about your dad licking you”. The child replied, “All the time”, and indicated that it was a long lick. He was asked, “Where” and then repeatedly, “Where else”, and the child indicated it was on his arm, it was on his other arm, it was on his leg, it was on his feet, his back, his head and his neck. And when finally pushed to anywhere else, the child, I would think perhaps in exasperation, said that it was, “all over his body”.
More particularly, and I would think unreliably, he was then asked whether his daddy licked him on his privates and he said that he did. He was then asked whether he licked his father’s privates and he said that he did. Each time, he was told, “Tell me more”. He was asked how he felt when his daddy licked him and he said he “feels happy and I smile”.
It was interesting that when these avenues were pressed, the child, I thought, was becoming frustrated and the answers were less precise and, I think, certainly less reliable. He was asked what clothing he had been wearing and the child, rather maturely and appropriately, indicated that he already told him that he was wearing clothes. Then, perhaps again in an inappropriate way, he was asked whether the game had ever been played when clothes were not being worn and the child answered “Yes”. No reliance could be placed upon such leading questions and it was troubling that someone obviously as experienced as Detective Senior Constable E would seek out evidence from this child specifically, I would think, to support the position of the mother, that was taken in relation to this matter.
Senior Constable E then had a further attempt at gathering evidence. He rehashed all of the indications that had been given before by the child about [homes omitted], Grandpa’s involvement, toys, neighbours, where the father lives, and then references to where the licking game was played and, “where you were licked”. All of these issues were, I would have thought, of absolutely no consequence in relation to the determination of this matter.
But of greatest concern were the answers that came at the end of the interview. The child was asked, if he was frightened or scared, “Who are five grownups that you would go to?” The child responded, “Mummy, Daddy, Grandpa” and then, again, “and my Daddy”. This child relies upon and has or had a very close and appropriate relationship with his father. Detective Senior Constable E then asked, “What about the police?” and the child, perhaps seeking to comply with what he could no doubt have seen as a direction by an adult, acknowledged that he could go to the police.
Then, most telling of all, Detective Senior Constable E indicated that the child, “could ask your mummy to take you to the police”. The child did not respond specifically to that, but I should note that, of course, the child would not ask the mother to take him to the police if, in fact, either physical, emotional or psychological abuse were being perpetrated by the mother.
There seemed to be entirely one‑sided aspect to the interview and it was arising from the fact that the complainant in this matter was not the child, but the mother. And because she was, “first in time”, there was a presumption, at least on the face of it, that what the mother said and what the mother alleged had been done by the child had both sinister overtones and an entirely genuine and truthful significance to them.
Fortunately, Detective Senior Constable E took no action in relation to this matter, but it was, if you like, a basis upon which the mother could then proceed in relation to these proceedings, as she has done. I gained the distinct impression that there was a lack of structure in the questioning, that there was a lack of balance in relation to the allegations that are made, and with such an experienced police officer, I would have, at least, expected that there would be a recognition that there could be more than one factor influencing a child, in relation to disclosures that are made.
This child did not make direct disclosures. He answered questions from an adult, in apparent authority, on occasions in a most obtuse and non‑particularised way. Nothing could be drawn from what the child said but trouble and concerns arose, as a result of what followed, in relation to the matter.
Additionally, however, was the fact that the mother deposed to certain statements that she says were made to her by Detective Senior Constable E. Detective Senior Constable E generally denied the conversations that were alleged by the mother to have occurred between she and the detective or, perhaps, out of an abundance of caution, did not deny them but, rather, indicated that he did not recall specific conversations about how young children should get protected or how their parents should be vigilant for their child’s safety.
He did not recall specific conversations in relation to how articulate the child was, and he did not recall discussing with the mother the need to be, “ever watchful of our children”. He may have spoken in general terms, but the mother was quick to attach to what might have been said by Detective Senior Constable E far greater significance than was in any respect appropriate in relation to this matter.
I was troubled by the conduct of the section 93A interview that I saw in relation to this matter. I am at least comforted to know that it was not sought to be relied upon in relation to any proceedings brought against the father because, in my assessment, for what it is worth, it would have been one of the gravest of injustices that could possibly have occurred.
What has been of assistance, but what is also of very great concern to me, is the reliance that the mother put upon the limited evidence that flowed in relation to the interview conducted by Detective Senior Constable E and [X].
Addressing first the evidence of the mother, I note that she is a woman of very great ability. She holds a PhD and, as was emphasised on a number of occasions by counsel for the father, it puts her in a very limited group, perhaps less than one per cent of the members of Australian society who hold the type of qualifications that she holds.
She is an extremely intelligent woman, and yet, when it suited her and, unfortunately, I gained the impression that it suited her on a very considerable number of occasions, she sought to rely upon a lack of experience or an ability to think, outside the square. That is, of course, notwithstanding the fact that her brother indicated that she was an extremely capable woman and I would have no hesitation in finding that that is the case.
The cross‑examination of the mother was extensive. It started and continued to come back to this issue of the apparent disclosures said to be made by [X]. The mother said very early in cross‑examination by counsel for the father that she believed that [X] had been subjected to some form of sexual abuse by the father. She said in evidence given on 25 August 2011 that it was still her belief that the child had been subjected to abuse, and asked whether it was still her case she indicated, I think rather astutely, that she did not really know and wanted someone else to assess that for her. She was asked whether she believed it and she indicated that she had no reason not to believe it, and then said that she believed it at the moment, because she did not have a reason not to.
With respect, the mother knew exactly what the question was and knew exactly what she was being asked to do, but she attempted to put what I might call “spin” on the answer. She tried to be clever with what she said, and she continued throughout her evidence to attempt, in my assessment, to be a little too clever in relation to this matter. The mother was caught out repeatedly in what, in my assessment, were untruths or half truths and they, if anything, were greater indicators of her behaviours and intent than anything else.
The mother throughout the evidence refused to accept that there might be a possibility that she had misconstrued the evidence that arose in relation to this matter. Toward the end of the first day of cross‑examination, the very last question directed to her on the afternoon of 24 August 2011 was to this effect:
Do you accept as a possibility that when [X] grabbed your arm and licked and you pulled away, then [X] perceived this as disapproval?
Her response was:
He knew I didn’t like it.
It was simply the culmination of hours of cross‑examination in relation to the possibility that the mother had misunderstood or misrepresented what were the actions of the child in the shower on 2 January 2011 when he licked her. She could not countenance that when she did not like the behaviour, the child’s understandable response would be to say that the other most significant person in his life was not cross with him or was happy with him. Children do that all the time. They play parents off against one another, saying that one parent would approve of an action when, of course, they may not. But the mother jumped upon the answer that was given, which was basically to the effect that the father acted in such a manner, encouraged such a manner, and acted in an abusive way of the child.
I do not accept that the abuse has occurred. When the father was finally questioned by the independent children’s lawyer in his evidence in relation to the matter, he indicated that he had never acted in such a manner. He was not questioned at length as to whether there might have been some other behaviours or games played by him with the child that might be misconstrued as licking, such as blowing raspberries on a child’s tummy, back or arms, which is, in my experience, a common behaviour of parents, grandparents and other close friends and family with young children. It is a game, nothing more, nothing less.
There is nothing of a sexualised or abusive nature either arising from it or intended in relation to it, but the mother, as an intelligent woman, refused or was unwilling to accept that that might possibly be the case. She was far more determined to find the most appalling and horrendous intent on the part of the father than to consider that there may have been something wholly misinterpreted by her, in relation to the behaviours of the father and their relationship.
I could, at length, detail issues in respect of the mother’s behaviours which troubled me enormously. Her move to Canberra, when she instructed her solicitors that it was not her intent to make a permanent move, but had, in fact, made arrangements with regard to the removal of all items of furniture and property, including not only those items which had originally come from her mother’s household, but also her own property was, I thought, calculated and her evidence in relation to the move being cheaper than storage costs was, I thought, spurious in the extreme. I have no confidence whatsoever that the mother’s move to Canberra, was other than a calculated intent and determination on her part, to act in a manner so as to achieve what she wanted.
The mother repeatedly alleged issues of domestic violence, both verbal, financial, physical and emotional perpetrated upon her in relation to this matter, but I am not satisfied that that has at all occurred. If anything, the only independent evidence that might in any way reflect upon that particular aspect of the matter is the evidence of Mr M, where he makes reference to the telephone exchange that apparently occurred between the mother and the father and his observation that the father was visibly upset following the exchange between them.
In fact, where there is dispute between the mother and the father in relation to the nature of their exchanges, discussions and correspondence, I am far more inclined in every instance to accept the father’s evidence and approach in relation to such matters, than what might be the understanding or approach taken in respect of the mother.
Her inquiry, under a pseudonym, “[omitted]”, the day after the child allegedly made a disclosure to her, but which makes no reference to dealings of an inappropriate nature by the father with the child, do her no credit. She sought a way to act without the father’s knowledge, and did so knowing exactly that it would be contrary to his wishes or his agreement in relation to any move.
She sought to manipulate the circumstances, when she approached the [C] School, with regard to inquiries in relation to the child. Matters of semantics were played as to whether the child was enrolled, or whether it was some other preliminary step, but the fact was that she told the enrolments officer or principal of the school that the documents were lodged without a signature by the father, because he was on the road. It was a lie and it was knowingly a lie, and again reflects the manipulative and Machiavellian nature of the actions of the mother.
She sought repeatedly to set up circumstances which, in my assessment, could only be seen as looking toward criticism of the father and of his actions, and by doing so, sought to achieve her own goals and aspirations. She had read, on a number of occasions, the book, “Everyone’s Got a Bottom”. She saw the recorded interviews, the reference to a cat named in the interviews, named in the book, “Socksy” and its behaviours. She made no reference to anyone, including her solicitors or Detective Senior Constable E of the fact that that reference might have arisen from a book that she had read.
The mother knew exactly what she was doing at all times in relation to this child and to the horrendous consequence for the father, but more particularly, for the child and his right to a relationship with his father, and yet acted and continued to act in a manner which could only be seen as self-serving and self-centred. I was enormously troubled by the mother and her actions. She was, in my assessment, as I have indicated, an enormously intelligent woman and yet she was also, in my assessment, an enormously manipulative woman. Every action that had been taken by her was designed and, I have no doubt, calculated to achieve the goals that she wanted.
Her move to Canberra, but more particularly, her move very quickly into a relationship with Mr P was, again, self-centred and was not child-focused. She found herself pregnant which, of itself, was troubling in light of the very great changes that have already occurred in a very short time in the life of this child and in a situation where her relationship with Mr P was only new in the extreme, but she then sought to paint a picture in glowing terms of the household that they presented, of the relationship that they had and of what she could provide for this child and there seemed to be little, if any, other than token consideration of what might be appropriate in relation to the father.
In fact, a repeated theme in the evidence of the mother in relation to this matter was the fact that she would be delighted to find that the abuse had not occurred, but until it could be proven to her or she could be satisfied as to findings, she had to move on with her life and that, of course, meant achieving and obtaining exactly what she wished, on a day-to-day basis.
The mother was very quick, in my assessment, to make the statements that would be appropriate in relation to this matter, such as she hoped that nothing had occurred and she appreciated that a relationship was important, but, in fact, it was much more an example of the mother, “talking the talk” than, “walking the walk.” The distinct impression that I gained in relation to this matter is that the mother’s perspective and position in relation to the matter was a determined one to move to Canberra, to achieve any and all aspirations that she might set for herself and to limit, in the extreme, the father’s relationship with the child.
I have already indicated before this matter even came to final addresses that there was not a skerrick of evidence upon which there could be any suggestion that this child had been abused or that this child was in any way at risk, in a relationship with the father. I note that the independent children’s lawyer, through her counsel, indicated exactly the same assessment in relation to this matter and of the fact that there needed to be every opportunity for there to be a relationship facilitated with the father.
The impression that I gained, however, is that whilst the mother, again, “talks the talk,” there is little capability of “walking the walk”, and that the mother’s determination, for example that she would not return from Canberra, even if the child was to do so, was an attempt to perhaps manipulate the court insofar as ensuring that if the child was to have a relationship with both parents, then that could only occur if the child lived with her, because the father could somehow arrange opportunities to be in the same locality on occasion as the mother and therefore that had to occur, because the mother could not or would not make other arrangements, in relation to her time with the child.
Interestingly, in that regard, Mr P noted particularly that he would understand if the mother left Canberra and travelled to Brisbane to be near the child, and in fact, he, perhaps, showed more appreciation of the best interests and the welfare of the child than did the mother, who again, in my assessment, put her own wishes and wants to the direct detriment of the child and his right to a relationship with both of his parents.
The mother troubled me enormously in relation to this matter because in light of her obvious intelligence, the actions that were taken in relation to the matter were much more, in my assessment, predetermined and calculated than perhaps the spur of the moment and off the cuff reactions that are so often seen as occurring following a breakdown in a relationship where one parent or the other simply lashes out. Every action that I have referred to previously in these reasons has been thought out by the mother. It has been calculated and its consequences have been considered as well as reflecting exactly what the mother thought would be appropriate in relation to the matter.
Particularly relevant here are issues in relation to the capacity of each of the child’s parents and others to provide for the child’s needs including their emotional and intellectual needs and in conjunction with that, to consider their attitude to the child and to the responsibilities of parenthood.
Rarely have I seen a more obvious capacity on the part of both parents to provide for the child’s intellectual needs. Both parents are academically gifted and no doubt are able in every respect to provide for [X]’s future educational needs, including the fostering of his abilities in relation to whatever educational direction he chooses to follow.
However, issues in relation to providing for his emotional needs and to meeting the responsibilities of parenthood are different considerations. There is, in my assessment, a significant difference between the capacity of the father to meet the child’s emotional needs, including an unbridled recognition of the importance of the mother to the child, as opposed to the mother’s lack of any real acceptance of the importance of the father to the child’s emotional and balanced development. The actions of the mother over the last two years or so have been clearly indicative of her determination to achieve what she wishes for her own life and clearly, have been wholly disregarding of the father’s wishes and, more particularly, a disregard of the child’s needs and of her responsibilities as a parent.
The mother’s attitude to the child and to those responsibilities of parenthood have been significantly, if not wholly, subjugated to the mother’s personal wishes and are a matter of real concern in relation to the final determination of these proceedings.
Issues do not arise which would be significant in relation to the determination of this matter with regard to those matters detailed in section 60CC(3)(g) or (h).
I have previously commented upon matters relating to family violence in these reasons and would simply note here that the issue of family violence or family violence orders are not, again, of significance in relation to the final determination.
I am mindful of the requirement pursuant to the provision of section 60CC(3)(l) to make orders which are least likely to lead to the institution of further proceedings. Whilst there can never be absolute certainty in that regard, I am of the view that orders which reflect the second proposal put by the Independent Children’s Lawyer, that the child returns to Queensland and lives primarily with the father, is the order which is most likely to have certainty about it because of the father’s clearer recognition of the importance of fostering and facilitating a relationship with the mother.
Finally, in relation to the determination of this matter and the consideration of those issues which arise and need to be given regard in determining what is in [X]’s best interests, I am mindful of the provisions of section 60CC(4) and note that the father has resolutely sought to participate in decision-making and to spend time with and to communicate with the child. Unfortunately, subsequent to separation, the mother has failed to facilitate such opportunities for the father to be so involved or to even communicate and appropriately spend time with the child.
I have therefore come to the decision that the appropriate orders to be made, in order to ensure that the best interests of the child now and into the future, are reflected in orders which provide for the child to live with the father and to spend substantial and significant time with the mother. The orders of the court will be in terms of those outlined in Annexure B.
I certify that the preceding two hundred and forty (240) paragraphs are a true copy of the reasons for judgment of Coker FM
Date: 5 April 2012
ANNEXURE A
FINAL ORDERS PROPOSED BY THE INDEPENDENT CHILDREN’S LAWYER:
That all previous Orders and Parenting Plans be discharged.
That the Paternal Grandfather, Mr C, be excused from his undertaking filed 19 January 2011, that the time the father has with [X] be supervised by him.
Parental Responsibility
That the Father, Mr Channing and the Mother, Ms Muldoon have equal shared parental responsibility for the major long term issues of the child [X], born [in] 2007 (herein after referred to as [X]) .
That the parents are to consult with each other about decisions to be made in the exercise of their equal shared parental responsibility and shall make a genuine effort to come to a joint decision. They are not, however, required to consult with each other about the daily care of the child. The types of decisions about which parents are required to inform and consult include but are not limited to changing the child's name; relocating the residence of the child so that existing parenting arrangement become impracticable; changing the child's school; a significant medical intervention for the child.
That each party has responsibility for daily decisions about the day to day care, welfare and development of the child while in his or her care.
Where the child shall live
That the child live with the Father at all reasonable times as agreed between the parents and failing agreement as follows:
(a) Until the child commences Preparatory School in the year 2013:
(i)In the weeks when [the father is working in Canberra], for one overnight period in Canberra from 5.00pm Thursday until 5.00pm Friday as follows:
1. 29 to 30 December 2011;
2. 12 to 13 January 2012;
3. 26 to 27 January 2012;
4. 9 to 10 February 2012;
5. 22 to 23 March 2012;
6. 31 May to 1 June 2012;
7. 21 to 22 June 2012;
8. 23 to 24 August 2012;
9. 20 to 21 September 2012;
10. 22 to 23 November 2012.
(ii)From 7.45am Wednesday to 11.30am Sunday to take place in Brisbane, Queensland as follows:
1. 21 to 25 December 2011;
2. 4 to 8 January 2012;
3. 18 to 22 January 2012; and
4. 1 to 5 February 2012.
(iii)From 5pm Thursday to 4pm Sunday as follows:
1. 16 to 19 February 2012;
2. 1 to 4 March 2012;
3. 15 to 18 March 2012;
4. 5 to 8 April 2012;
5. 10 to 13 May 2012;
6. 24 to 27 May 2012
7. 7 to 11 June 2012 (extended to 5pm Monday on this occasion to cover the Queen’s birthday public holiday);
8. 28 June 2012 to 1 July 2012;
9. 26 to 29 July 2012;
10. 16 to 19 August 2012;
11. 30 August 2012 to 2 September 2012;
12. 13 September 2012 to 16 September 2012;
13. 18 to 21 October 2012;
14. 1 to 4 November 2012;
15. 15 to 18 November 2012;
16. 29 November 2012 to 2 December 2012;
17. 13 to 16 December 2012.
(b) Once the child commences Preparatory School in the year 2013:
(i)In the weeks when [the father is working in Canberra], for one overnight period in Canberra from 5.00pm Thursday until 5.00pm Friday;
(ii)From 5pm Friday to 5pm Sunday, each alternate weekend with such time to occur in a location chosen by the Father.
(c) Irrespective of the child’s schooling arrangements, if the father is to be in Canberra outside of parliamentary sitting times and wishes to spend time with the child, he may give the Mother at least 14 days notice.
That the child live with the mother at all other times.
School Holidays
That the child shall live with his parents for Easter, June/July and September/October school holiday periods as follows:
(a) the first half of the gazetted school holidays for the Australian Capital Territory for Easter, June/July and September/October in even numbered years with the Father and in odd numbered years with the Mother; and
(b) the second half of the gazetted school holidays for the Australian Capital Territory for Easter, June/July and September/October in odd numbered years with the Father and in even numbered years with the Mother;
That the child shall live with his parents for the Christmas school holiday periods in 2012 in alternating blocks of 10 days, with the Father to have the first block.
Commencing with the Christmas school holidays in 2013, that the child shall live with his parents for the Christmas school holiday periods as follows:
(a) the first four weeks of the gazetted school holidays for the Australian Capital Territory in even numbered years with the Father (excluding the period from 5pm Christmas Eve until 9am Boxing Day) and the remainder of the holidays with the Mother; and
(b) the last four weeks of the gazetted school holidays for the Australian Capital Territory in odd numbered years with the Father and the remainder with the Mother;
For the purpose of these Orders, the school holiday time shall commence:
(a) when a parent's time falls in the first half of the holidays from 5pm on the day the school term finishes and conclude at 5.00pm on the day calculated to be half of the holidays;
(b) when a parent's time falls in the second half of the holidays from 5.00pm on the day calculated to represent half of the holidays and shall end at 5pm on the day prior to the school term recommencing;
(c) school holidays shall be deemed to commence at 5pm on the day the school term finishes and conclude at 5pm on the day prior to the child returning to school and the number of nights in each school holiday period is to be used to calculate one half of the school holiday period and if there is an uneven number of nights the Father shall retain the additional night.
(d) when the father is to have time for 4 weeks in the first half of the holidays time shall commence from 5pm on the day the school term finishes and conclude at 5.00pm on the day calculated to be four weeks later;
(e) when the father is to have time for 4 weeks at the end of the school holiday period his time shall end at 5pm on the day prior to the school term recommencing and shall commence 4 weeks prior to that date.
Special Days
That notwithstanding any previous orders, the child shall spend time with his parents on special occasions as follows:
(a) On the child’s birthday with the parent he is not living with on the day:
(i)By telephone, if the parent is not in the city where the child is at that time living;
(ii)If the parent is in the city where the child is at that time living:
1. a school day, from 4pm until 7pm;
2. If a non-school day, from 9am until 1pm;
3. With that parent to be responsible to collect and return the child.
With the Father on Father's day weekend from 5pm Friday to 5pm Sunday and if that is a weekend that the Father would not ordinarily spend time with the child then the Father shall forego the next weekend of time.
With the Mother on Mother's day weekend from 5pm Friday until 5pm Sunday and if that is a weekend that the Mother would not ordinarily spend time with the child then the Mother shall forego the next weekend of time.
Telephone & other forms of Electronic Communication
That the child communicate with the Father as agreed between the parents and failing agreement as follows:
(a) by telephone and/or video Skype between 6.00pm to 7.00pm each day with the Father to initiate the call.
(b) by e-mail at all reasonable times.
(c) by post.
That the child shall communicate with the parent he is not spending time with on school holidays each Monday, Wednesday and Friday at 6.00pm with the child to initiate the call.
That the child is at liberty to telephone the parent he is not with at all reasonable times and the parents shall facilitate this.
When the child is communicating with the other parent each parent shall:
(a) Ensure that the child is available to receive the telephone call;
(b) Arrange for the child to telephone the other parent on the following night if, for any unforeseen circumstance, the child misses the telephone call from that parent;
(c) Ensure that the child has privacy during their communication with the other parent.
Changeovers & Travel
The Father is to notify the Mother the location where he intends to spend the majority of his weekend and school holiday time with the child at least 7 days prior to the commencement of such time.
To facilitate all visits that are to occur in Canberra or surrounding areas, the Mother is to deliver the child to and collect the child from the Father at an address provided by the Father to the Mother in Canberra.
To facilitate all visits that are to occur in Brisbane, the Mother is to deliver the child to and collect the child from the Canberra airport.
That the Father will be responsible for making all transport arrangements for the child’s travel outside of Canberra and will bear the costs of same. The Father is to provide the Mother with a copy of the child’s itinerary (if the child is to fly) at least 24 hours prior to the child’s departure.
Health & Education
The parties shall keep the other informed of the child’s doctors, health care and other treatment providers and authorise those practitioners to provide the other parent with information that they are lawfully able to provide about the child and this order shall serve as such authority.
Each party shall inform the other parent as soon as reasonably practicable of any medical condition, significant health issue or significant illness suffered by the child.
That no major medical procedures or operations be undertaken in relation to the child without joint parental consent, unless in the case of an emergency requiring immediate treatment (within 3 hours), as advised by a legally qualified medical practitioner, and even in the event of emergency, all reasonable efforts are to be made to contact the other parent.
That neither parent make any appointments for the child with any health care professional or educational professional without informing or involving the other parent, and in particular not for a time while the child is with the other parent, without prior arrangement and agreement.
The parties shall keep the other informed of any daycare, school, educational facility or extra curricular activity provider and authorise those providers to provide the other parent with information that they are lawfully able to provide about the child and this order shall serve as such authority.
If there is a cost associated with the provision of any information or documents under these orders from the child’s doctors, health care and other treatment providers or daycare, school, educational facility or extra curricular activity provider the expense shall be borne by the parent requesting the information.
Subject to the conditions imposed by the child's schools, these orders authorise both parents to attend school functions and extra-curricular activities to which parents are ordinarily invited including but not limited to carnivals, sports days, fetes, concerts, plays and parent/teacher interviews.
Communication
That each parent keep the other parent informed at all times of their residential address and contact telephone number and to notify the other parent of any change within 24 hours of such change.
Neither parent shall discuss these proceedings with the child.
That during the time the child is with either parent, that parent shall:
(a) Respect the privacy of the other parent and not question the child about the personal life of the other parent; and
(b) Speak of the other parent respectfully; and
(c) Not denigrate or insult the other parent in the presence or hearing of the child; and
(d) Use their best endeavours to ensure that others do not denigrate or insult the other parent in the hearing or presence of the child.
Parenting Orders Programme
That the parties shall undertake a parenting orders programme.
That the parties, within 7 days of the date of service upon them of these orders, contact the parenting orders programme co-ordinator (or nominee) for intake into the programme.
That the parties shall comply with any reasonable direction of the programme co-ordinator and in particular:
(a) attend as requested for the purposes of assessment as to whether they are suitable for participation in the programme.
(b) advise the programme co-ordinator of their contact telephone number and advise the programme co-ordinator of any change in that number.
(c) attend and participate in the programme as requested including attending referrals to treating health professionals as recommended by the programme co-ordinator
That for the purposes of the programme:
(a) the parties shall supply to the programme co-ordinator a copy of these parenting orders.
(b) within 7 days, the parties should contact the programme co-ordinator to arrange an intake interview.
(c) the parties are at liberty to supply to the programme co-ordinator a copy of any reports that have been prepared in the course of any proceedings that resulted in the parenting orders.
Family Dispute Resolution
That in the event there is a dispute about the child or about the interpretation, implementation or enforcement of these orders, before making any further application to a court the parents shall:
(a) Either attend counselling or mediation with an organisation recognised under the Family Law Act 1975 (as amended) or by the Commonwealth Attorney-General; or
(b) Participate in family dispute resolution with a family relationship centre or a person authorised under s.10g of the Family Law Act 1975 (as amended).
Other
That the Independent Children's Lawyer be discharged.
That all outstanding applications be removed from the pending cases list.
ANNEXURE B
ALTERNATE ORDERS IN THE EVENT THE COURT ORDERS THE CHILD RETURN TO QUEENSLAND:
That all previous Orders and Parenting Plans be discharged.
That the Paternal Grandfather, Mr C, be excused from his undertaking filed 19 January 2011, that the time the father has with [X] be supervised by him.
Parental Responsibility
That the Father, Mr Channing and the Mother, Ms Muldoon have equal shared parental responsibility for the major long term issues of the child [X], born [in] 2007 (herein after referred to as [X]) .
That the parents are to consult with each other about decisions to be made in the exercise of their equal shared parental responsibility and shall make a genuine effort to come to a joint decision. They are not, however, required to consult with each other about the daily care of the child. The types of decisions about which parents are required to inform and consult include but are not limited to changing the child's name; relocating the residence of the child so that existing parenting arrangement become impracticable; changing the child's school; a significant medical intervention for the child.
That each party has responsibility for daily decisions about the day to day care, welfare and development of the child while in his or her care.
Where the child shall live
That the child live with the Mother at all reasonable times as agreed between the parents and failing agreement as follows:
(a) Until the child commences Preparatory School in the year 2013:
(i)In the weeks when [the father is working in Canberra], from 12pm Sunday until 12pm Friday; and
(ii)At the Mother’s election, for up to two weekends per month (and not to occur on any weekend between any two consecutive weeks when [the father may be working in Canberra]), on the basis that the Mother bears the child’s travel costs.
(b) Once the child commences Preparatory School in the year 2013:
(i)From 5pm Friday to 5pm Sunday, each alternate weekend on the basis that:
1. the father bear the costs associated with the child’s travel to and from Canberra for the first period of time with the Mother and each alternate time thereafter; and
2. the mother bear half the costs associated with the child’s travel to and from Canberra for the second period of time with the Mother and each alternate time thereafter.
(ii)In the event the Mother is unable to afford the travel to and from Canberra, she shall give the father at least 2 weeks notice.
(c) Irrespective of the child’s schooling arrangements, if the Mother is to be in Brisbane and wishes to spend time with the child, she may give the Father at least 14 days notice.
That the child live with the Father at all other times.
School Holidays
That the child shall live with his parents for Easter, June/July and September/October school holiday periods as follows:
(a) the first half of the gazetted school holidays for the Australian Capital Territory for Easter, June/July and September/October in even numbered years with the Father and in odd numbered years with the Mother; and
(b) the second half of the gazetted school holidays for the Australian Capital Territory for Easter, June/July and September/October in odd numbered years with the Father and in even numbered years with the Mother;
That the child shall live with his parents for the Christmas school holiday periods in 2012 in alternating blocks of 10 days, with the Mother to have the first block.
Commencing with the Christmas school holidays in 2013, that the child shall live with his parents for the Christmas school holiday periods as follows:
(a) the first four weeks of the gazetted school holidays for the Australian Capital Territory (excluding the period from 5pm Christmas Eve until 9am Boxing Day) in even numbered years with the Mother and the remainder of the holidays with the Father; and
(b) the last four weeks of the gazetted school holidays for the Australian Capital Territory in odd numbered years with the Mother and the remainder with the Father;
For the purpose of these Orders, the school holiday time shall commence:
(a) when a parent's time falls in the first half of the holidays from 5pm on the day the school term finishes and conclude at 5.00pm on the day calculated to be half of the holidays;
(b) when a parent's time falls in the second half of the holidays from 5.00pm on the day calculated to represent half of the holidays and shall end at 5pm on the day prior to the school term recommencing;
(c) school holidays shall be deemed to commence at 5pm on the day the school term finishes and conclude at 5pm on the day prior to the child returning to school and the number of nights in each school holiday period is to be used to calculate one half of the school holiday period and if there is an uneven number of nights the Father shall retain the additional night.
(d) when the Mother is to have time for 4 weeks in the first half of the holidays time shall commence from 5pm on the day the school term finishes and conclude at 5.00pm on the day calculated to be four weeks later;
(e) when the Mother is to have time for 4 weeks at the end of the school holiday period his time shall end at 5pm on the day prior to the school term recommencing and shall commence 4 weeks prior to that date.
Special Days
That notwithstanding any previous orders, the child shall spend time with his parents on special occasions as follows:
(a) On the child’s birthday with the parent he is not living with on the day:
(i)By telephone, if the parent is not in the city where the child is at that time living;
(ii)If the parent is in the city where the child is at that time living:
1. a school day, from 4pm until 7pm;
2. If a non-school day, from 9am until 1pm;
3. With that parent to be responsible to collect and return the child.
With the Father on Father's day weekend from 5pm Friday to 5pm Sunday and if that is a weekend that the Father would not ordinarily spend time with the child then the Father shall forego the next weekend of time.
With the Mother on Mother's day weekend from 5pm Friday until 5pm Sunday and if that is a weekend that the Mother would not ordinarily spend time with the child then the Mother shall forego the next weekend of time.
Telephone & other forms of Electronic Communication
That the child communicate with the Mother as agreed between the parents and failing agreement as follows:
(a) by telephone and/or video Skype between 6.00pm to 7.00pm each day with the Father to initiate the call.
(b) by e-mail at all reasonable times.
(c) by post.
That the child shall communicate with the parent he is not spending time with on school holidays each Monday, Wednesday and Friday at 6.00pm with the child to initiate the call.
That the child is at liberty to telephone the parent he is not with at all reasonable times and the parents shall facilitate this.
When the child is communicating with the other parent each parent shall:
(a) Ensure that the child is available to receive the telephone call;
(b) Arrange for the child to telephone the other parent on the following night if, for any unforeseen circumstance, the child misses the telephone call from that parent;
(c) Ensure that the child has privacy during their communication with the other parent.
Changeovers & Travel
With the exception of the weekend travel to be paid for/contributed to by the Mother pursuant to paragraph 6(a)(ii) and 6(b)(i)(2) above, that:
(a) The Father shall deliver the child to and collect the child from the Canberra airport.
(b) The Father will be responsible for making all transport arrangements for the child’s travel to Brisbane and will bear the costs of same.
(c) The Father is to provide the Mother with a copy of the child’s itinerary at least 24 hours prior to the child’s departure.
For travel where the costs are to be borne by the Mother in whole or in part:
(a) She will be will be responsible for making all transport arrangements for the child’s travel to Canberra.
(b) She is to provide the Father with a copy of the child’s itinerary at least 24 hours prior to the child’s departure.
(c) Where the orders provide for the Father to bear half of the costs of the child’s travel, he will reimburse the Mother for his half of those costs within 48 hours of receiving a tax invoice or receipt evidencing the same.
Health & Education
The parties shall keep the other informed of the child’s doctors, health care and other treatment providers and authorise those practitioners to provide the other parent with information that they are lawfully able to provide about the child and this order shall serve as such authority.
Each party shall inform the other parent as soon as reasonably practicable of any medical condition, significant health issue or significant illness suffered by the child.
That no major medical procedures or operations be undertaken in relation to the child without joint parental consent, unless in the case of an emergency requiring immediate treatment (within 3 hours), as advised by a legally qualified medical practitioner, and even in the event of emergency, all reasonable efforts are to be made to contact the other parent.
That neither parent make any appointments for the child with any health care professional or educational professional without informing or involving the other parent, and in particular not for a time while the child is with the other parent, without prior arrangement and agreement.
The parties shall keep the other informed of any daycare, school, educational facility or extra curricular activity provider and authorise those providers to provide the other parent with information that they are lawfully able to provide about the child and this order shall serve as such authority.
If there is a cost associated with the provision of any information or documents under these orders from the child’s doctors, health care and other treatment providers or daycare, school, educational facility or extra curricular activity provider the expense shall be borne by the parent requesting the information.
Subject to the conditions imposed by the child's schools, these orders authorise both parents to attend school functions and extra-curricular activities to which parents are ordinarily invited including but not limited to carnivals, sports days, fetes, concerts, plays and parent/teacher interviews.
Communication
That each parent keep the other parent informed at all times of their residential address and contact telephone number and to notify the other parent of any change within 24 hours of such change.
Neither parent shall discuss these proceedings with the child.
That during the time the child is with either parent, that parent shall:
(a) Respect the privacy of the other parent and not question the child about the personal life of the other parent; and
(b) Speak of the other parent respectfully; and
(c) Not denigrate or insult the other parent in the presence or hearing of the child; and
(d) Use their best endeavours to ensure that others do not denigrate or insult the other parent in the hearing or presence of the child.
Parenting Orders Programme
That the parties shall undertake a parenting orders programme.
That the parties, within 7 days of the date of service upon them of these orders, contact the parenting orders programme co-ordinator (or nominee) for intake into the programme.
That the parties shall comply with any reasonable direction of the programme co-ordinator and in particular:
(a) attend as requested for the purposes of assessment as to whether they are suitable for participation in the programme.
(b) advise the programme co-ordinator of their contact telephone number and advise the programme co-ordinator of any change in that number.
(c) attend and participate in the programme as requested including attending referrals to treating health professionals as recommended by the programme co-ordinator
That for the purposes of the programme:
(a) the parties shall supply to the programme co-ordinator a copy of these parenting orders.
(b) within 7 days, the parties should contact the programme co-ordinator to arrange an intake interview.
(c) the parties are at liberty to supply to the programme co-ordinator a copy of any reports that have been prepared in the course of any proceedings that resulted in the parenting orders.
Family Dispute Resolution
That in the event there is a dispute about the child or about the interpretation, implementation or enforcement of these orders, before making any further application to a court the parents shall:
(a) Either attend counselling or mediation with an organisation recognised under the Family Law Act 1975 (as amended) or by the Commonwealth Attorney-General; or
(b) Participate in family dispute resolution with a family relationship centre or a person authorised under s10g of the Family Law Act 1975 (as amended).
Other
That the Independent Children's Lawyer be discharged.
That all outstanding applications be removed from the pending cases list.
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