Munro and Elmi
[2012] FamCA 122
•9 March 2012
FAMILY COURT OF AUSTRALIA
| MUNRO & ELMI | [2012] FamCA 122 |
| FAMILY LAW – CHILDREN – Child related proceedings |
| Family Law Act 1975 (Cth) |
| APPLICANT: | Ms Munro |
| RESPONDENT: | Mr Elmi |
| INDEPENDENT CHILDREN’S LAWYER: |
| FILE NUMBER: | DGC | 1749 | of | 2009 |
| DATE DELIVERED: | 9 March 2012 |
| PLACE DELIVERED: | Melbourne |
| PLACE HEARD: | Melbourne |
| JUDGMENT OF: | Cronin J |
| HEARING DATE: | 16, 17, 20, 21, 22 February 2012 |
REPRESENTATION
| COUNSEL FOR THE APPLICANT: | Mr Sweeney with Ms Paterson |
| SOLICITOR FOR THE APPLICANT: | Howard Bear – Legal Consulting Services |
| COUNSEL FOR THE RESPONDENT: | Mr Dixon SC with Ms Wheeler |
| SOLICITOR FOR THE RESPONDENT: | Sharrock Pitman Legal |
| COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: | Ms Dowler |
| SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: | Victoria Legal Aid |
Orders
That all extant parenting orders are discharged.
That the mother have sole parental responsibility for making decisions about any major long term issues (as defined in s 4(1) of the Family Law Act 1975 (Cth)) concerning the child S born … November 2007.
That the mother advise the father in writing of her decisions.
Nothing in paragraph 3 of these orders shall be construed as requiring the mother to consult with the father nor as requiring the father to respond to any letter of the mother.
That S live with the mother at all times other than those set out in paragraph 6 hereof.
That S live with the father as follows:
(a) until he commences the first term of his first year at school:
i.from 5.00pm on Friday to 9.00am on the following Monday morning in each alternate week commencing at 5.00pm on 16 March 2012; and
ii.from 5.00pm on Wednesday to 9.00am on the following Thursday in each alternate week commencing at 5.00pm on 21 March 2012;
(b) upon S commencing the first term of his first year at school:
i.from 3.15pm on Thursday to 9.00am on the following Monday in each alternate week commencing at 3.15pm on the first Thursday after school commences in that first year;
ii.the first week of each school term holidays (but not the long summer holidays) commencing at 9.00am on the day after school concludes for the school term;
(c) regardless of whether S has commenced school or not:
i.from 12 noon on Christmas Day until 5.00pm on 26 December in each year;
ii.from 5.00pm on 4 November 2012 until 9.00am (if a weekday) or 5.00pm if a Saturday or Sunday on 5 November 2012 and for a similar period in each alternate year thereafter;
iii.from 5.00pm on Saturday before Father’s Day until 5.00pm on Father’s Day in each year;
iv.from 5.00pm on 8 September 2012 until 9.00am (if a weekday) or 5.00pm if a Saturday or Sunday on 9 September 2012 and for a similar period in each alternate year thereafter;
v.during all long summer school holidays commencing in the holidays at the end of 2012 as follows:
a. in 2012/2013 for four days in each alternate week commencing 1 January 2013 at 9.00am;
b. for the holiday period in 2013/2014 during each alternate week 1 January and for the holiday period 2013/2014 and thereafter, for one half of the holiday period by agreement and failing agreement, the first half.
For the purposes of calculating the long summer holiday period from 2013/2014 onwards, the period shall commence at 9.00am on 27 December and conclude at 9.00am on 27 January.
That all weekday periods of time in paragraphs 6(a)(i) and (ii) and 6(b)(i) shall be suspended during all school term and long summer holidays and shall resume once the school terms resume as if they had not been interrupted by the holidays.
For the purposes of paragraph 6(a)(i) and (ii) the mother deliver S to the father and collect him from the father, outside the childcare centre currently attended by S whether it is open and operating or not and each of the mother and the father shall be entitled to have another person present with them at that particular time.
For the purposes of all changeovers in paragraph 6(b)(i) the father collect S from his school at 3.15pm or so soon thereafter as school concludes on the Friday and return him to school by 9.00am on the following Monday (or the Tuesday if the Monday is a day which the school has declared as a non-school day).
For the purposes of all changeover in paragraph 6(b)(ii) notwithstanding that S’s school is closed, the collection and return handovers shall occur outside S’s school and each of the mother and the father shall be entitled to have another person present with them at that time.
That for the purposes of paragraph 6(c), to the extent that the collection or return handover is required, it shall occur outside S’s school (or if he has not commenced at a school, the school that the mother nominates he will attend) and each of the mother and the father shall be entitled to have another person present.
That for the purposes of paragraph 6(b)(i) only, to the extent that the father cannot personally attend S from school at 3.15pm, he may make arrangements with the school for S to attend an “out of school hours care service” but only conducted by that school and his authority to do so shall be these orders.
Any time between the father and S shall be suspended on the following days and times:
(a)10 November; and
(b)Mother’s Day
and for the purposes of this order, if S is in the father’s care on either of those days, he shall be returned by the father to the mother at 9.00am on that day and the changeover provisions shall be as applicable under these orders as at that time.
That the father be at liberty to telephone S (and the mother facilitate the call accordingly) at 7.00pm on Tuesday night.
That the mother be at liberty to telephone S (and the father facilitate the call accordingly) at 7.00pm on Sunday nights when he is in the father’s care.
IT IS NOTED THAT IN CONSIDERING THE RISK OF FAMILY VIOLENCE, an interim intervention order was made by the Melbourne Magistrates Court on 8 September 2011 relating to the mother and S, paragraph 9 of which provides that a contravention will not have occurred in carrying out orders of this Court providing family violence has not been committed. That family violence order also provides that the father must not inter alia:
(a)control, dominate or threaten the mother;
(b)follow the mother;
(c)contact or communicate with the mother by any means;
(d)approach or remain within five metres of the mother;
(e)go to the mother’s place of residence or work;
(f)get another person to do anything of the things above.
The orders made this day are not inconsistent with, and do not alter, any of the above provisions.
A communication book is to always travel with S in which the only entries by either party are to relate to:
(a)illness or injury suffered by S that requires ongoing medical treatment;
(b)any forthcoming medical or other health professional appointments for S; and
(c)any school work that is to be done by S whilst he is in the other’s care.
For the purposes of all general medical treatment for S, both parents attend the one medical clinic which shall be nominated by the mother and the clinic shall be provided with:
(a) the names and personal details of both parents noting however on the records that they are separated;
(b) instructions to provide any information about S’s medical health and treatment in the event that either seeks it and the father has such right notwithstanding that the mother has sole parental responsibility for S; and
(c) a copy of these orders.
That the mother and the father be able to provide a copy of these orders to any health professional or principal of any school at which S attends.
Notwithstanding the mother has sole parental responsibility for the child, the father is hereafter entitled to attend all school, kindergarten or day care functions at which parents would normally attend providing there is no breach of any intervention order.
That the Independent Children’s Lawyer be forthwith discharged.
IT IS CERTIFIED:
That pursuant to Order 19.50 of the Family Law Rules 2004 it was reasonable to engage counsel to attend.
That should any party seek costs arising out of these orders, such application be made by written submission and filed and served by no later than 23 March 2012 with such submission being endorsed with the fact that it has been so served on the other party and any recipient of such submission have until 5 April 2012 to file and serve any response and such response be endorsed with the fact that it has been so served on the other party and upon receipt of any such application for costs, it or they be determined in chambers.
That all extant applications are otherwise dismissed (save as to costs).
That pursuant to s.65DA(2) and s.62B, the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders and details of who can assist parties adjust to and comply with an order are set out in the Fact Sheet attached hereto and these particulars are included in these orders.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Munro & Elmi has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
| FAMILY COURT OF AUSTRALIA AT MELBOURNE |
FILE NUMBER: DGC 1749 of 2009
| Ms Munro |
Applicant
And
| Mr Elmi |
Respondent
INDEPENDENT CHILDREN’S LAWYER
REASONS FOR JUDGMENT
On 23 February 2010 Ms Munro (“the mother”) and Mr Elmi (“the father”) agreed upon a regime of future decision-making along with the sharing of their time for their only child S. They asked the Court to make parenting orders. The Federal Magistrates Court made the orders but two years later, the parties still dispute what they mean.
Both parties now wish to change the orders although in different ways.
The dispute is about time rather than sharing responsibility. Both parties agree that there will be little or no consultation between them about S and as such, one parent alone should have that responsibility for long-term decisions.
On the third day of the hearing, the father altered his position to agree that it was the mother who should have that responsibility but on conditions.
Both parents love and care for S but there is no trust between them. Having regard to the way the case was conducted and the evidence that unfolded, it is hardly surprising.
Background
S was born in November 2007. He is therefore four years of age and probably about one year away from starting school. He has had a significant eye problem requiring attendances at the Royal Children’s Hospital, a paediatrician and an eye specialist. There have been regular appointments to which he has been taken largely by his mother. He has to have daily eye patching to strengthen the muscles in his eye. Despite all of those and the significant conflict in his parents’ life, S is a very happy little boy. He currently attends a day care centre which has a kindergarten program.
There is no consensus about future schooling. The mother was unhappy about the father knowing where she is precisely going to live in the future. She is selling her current home to pay for the legal expenses of this hearing.
There is also an impending contested hearing in the Magistrates’ Court of Victoria in which the mother seeks a family violence order against the father. An interim order made on 8 September 2011 prevails. That order arose out of an incident in the change-over of S between the parents on 21 June 2011. It was a police officer who made the application to the court.
The mother is 41 years of age and currently not in the paid workforce. Until just after S’s birth, she held a senior management position. Now, she is dependent upon a pension, child support and casual employment. She has not repartnered and has no other children.
The father is a 41 year old person engaged in sales. His income including benefits was recently noted as $265,000 for the year. He has a companion with whom he does not live. He has no other children.
The parties only lived together for a short time.
The orders of the Federal Magistrate
The orders of 23 February 2010 provided for the parties to have equal shared parental responsibility and for S to live with the mother. S was to spend time with the father in the first of two weeks from Tuesday to Thursday and from Friday to Monday in the second week. The 2010 orders also provided for the father to have time with S on birthdays and holidays. The exact times and points of handover were part of the dispute that was resolved by consent orders in the Federal Magistrates Court on 4 July 2011.
The mother sought to alter the 2010 orders almost immediately after they were made. She wrote to the presiding federal magistrate whose chambers said a formal application had to be made. In evidence before me, she said she felt she had been bullied into agreeing to the orders. On the evidence, I could not be satisfied that that had occurred.
The father’s position at trial
As with the sole parental responsibility issue, although the case began with the father seeking a significant sharing of S’s time, at the close of the mother’s case, that changed to him seeking orders for the continuation of the status quo with some minor tinkering. It is not unusual to see a change of direction in a parenting case after it begins but this one was perplexing and does affect the outcome because of a number of matters to which I shall now refer.
The father’s position before trial
This matter came before me as a first day hearing in September 2011 at which time, counsel for the father said that the case was about the father’s belief that the mother had maliciously hurt S for the purposes of gaining some advantage. I queried at the time what evidence supported such an allegation and was told that it would unfold in cross-examination. Far from that occurring, those allegations shone a gloomy spotlight on the father. No-one could have been under any misapprehension about what the case was about when it commenced and that the father’s allegations were serious.
The father filed his affidavit material on 31 January 2012. The importance of that date is that it was less than three weeks prior to the commencement of the hearing. He said he had no faith that the mother had not already hurt S or would not in the future hurt S to set him up concerning an allegation of sexual abuse. He referred to a report of Dr E dated 5 October 2009 in which the psychiatrist noted that the mother’s symptoms were consistent with a borderline personality disorder of moderate severity. Dr E was neither called nor was his report tendered by agreement between the parties. Just how that diagnosis would impact upon the mother’s parenting capacity was unclear.
The statement of the father’s concern about the mother hurting S was not an isolated one. He repeated it in his affidavit but went further and said that if an order was made for S to live with him, it might inflame the mother and make her even more of a danger to S. The father made a valiant attempt when cross-examined to water that statement down but his words had been unequivocal.
Further, the father’s evidence was that as S grew older, he feared for the child’s safety if there was challenging behaviour. He followed that statement up with an assertion that his primary position was that S should live with him where he would be more likely to have a normal life and not be subjected to ongoing abuse at times when the mother became irrational, manipulative and emotive.
The father’s case changes
At the conclusion of the mother’s case, senior counsel for the father put that the position had altered such that there should be a continuation of the existing agreed time of five nights per fortnight. He said in opening the father’s case that it was not just about a controversial issue that occurred in November 2010 but a whole host of issues of disruptions by the mother. He said that credit was very much in issue and that changeovers involving the mother showed her having an intent to cause upset to the father, his family or S.
Senior counsel for the father noted all of the details of the mother’s concerns of what was happening in her household with S relating to clingy behaviour and said that the evidence would show that the father experiences no such factors in his house.
It was the father’s case therefore that he had still held strong views about the mother and what she was doing to S but he had “moved on”. In conclusion he said that I would find that there was no reason to reduce the time down to the position adopted by the mother.
Cross-examination of the father
When the father was cross-examined, counsel’s focus was on why there was this sudden shift. The father explained that he had thought about matters and said that S was used to spending more time with his mother and that an alteration now would cause difficulty. In respect of his beliefs as outlined about, he said that things had changed but he acknowledged that only a month before, in his mind there was real prospect that the mother could injure S again, that she had constantly sabotaged the orders and that he needed protective orders to ensure S was not affected by the conflict. This latter point related to a situation that had arisen subsequent to July 2011 when the handover orders were clarified by a federal magistrate.
Thus, from the father’s perspective, the case was about two issues. The first concerned the mother’s attitude to his relationship with S and what his counsel described as the mother’s disruption of it. The second was the concern about what had happened to S in November 2010 such as to give rise to accusations by the father that the mother had injured S. I was very conscious of what I was told in September followed by his affidavit position immediately before trial and then his statements under cross-examination that he did not know what had happened. His fluctuating position with such serious allegations was very concerning.
The mother’s case
On the other hand, the mother’s case was succinctly put by her counsel in opening. He pointed to the fact that the mother and father had a dispute over the changeovers because there was a difficulty in the interpretation of the orders but that was all resolved in July 2011. He said the reason the matter was before the Court was because there was an allegation of sexual abuse against the mother arising from the father’s preoccupation with the mother having mental health issues. He pointed to the father relying upon the general medical practitioner who examined S in November 2010 and submitted that this evidence was called at the very late stage of its filing to reinforce the father’s position about his concerns of the mother. In other words, his position had not changed about the mother.
Over a period of two days, cross-examination also focussed on the communication issue to establish that the father’s contention that the mother was disruptive of his relationship with S.
Credit of the witnesses
The parties each put their honesty and credibility in issue.
The accusations against the mother about her behaviour were concerning but when she was cross-examined, her explanations were plausible. She made concessions including that she had done some things that she regretted. Overall, her evidence was believable because everything she did had a purpose. The focus of the mother was always on S. I accept that she was a truthful witness and importantly note that her responsibility and capacity as a parent remained largely unchallenged. The mother appropriately acknowledged the role of the father in S’s life. She expressed concern about S’s capacity to cope with the existing contact regime.
I found the father’s evidence perplexing. He had no choice but to acknowledge his concern about S had not really abated. He tried to say he had “moved on” but that had a hollow ring about it. That did not mean he was not a competent parent but rather he has and will in the future, parent S in his own way. My real concern about the father stems from the incident in November 2010 which I find he used inappropriately to the detriment of S by overholding him based on an unfounded belief that the mother had a mental illness and that she had specifically hurt S to reduce his time with the father. That whole incident reflected badly on the father. Had he adopted a more sensible view that it was unlikely that his son’s mother would deliberately hurt S, the child would never have been put through the trauma of examinations and interviews. The father’s unreasonable approach put the mother through unnecessary and appalling trauma as well. This was not just accidental; it was unreasonable conduct regardless of the state of the parental relationship.
The mother’s concerns about S
The mother’s evidence, elicited largely in cross-examination, was that subsequent to the November 2010 incident, her concerns about S were:
(a)there were issues of allegations of sexual abuse made against her by the father which were still maintained;
(b)the attitude of the father’s family towards her was not a healthy environment for S to be in for a long period where as a collective group, they had a very strong feeling about her;
(c)if the time between the father and S was confined to a weekend block, it was less disruptive during the week;
(d)most of the time was spent between S and the mother and that required her to always organise his appointments and treatments;
(e)at his developmental age, S was experiencing problems but was coping with the previous orders; and
(f)the father did not acknowledge that S had a part in the community in which he otherwise lived which included childcare, church and neighbourhood friends and a removal from those environments was detrimental.
The father rejected that any such problems between the mother and S existed. The mother was the more plausible of the two witnesses and I am prepared to accept that what she said occurred did so.
Senior counsel for the father said that I would be required to make findings about what happened subsequent to the orders being made in February 2010 and having regard to the way in which the case was conducted, I shall set those details out now.
The two contentious issues
The two main issues of contention in this case concerning whether time between S and his father should be varied are:
(a)the consequences of the incident in November 2010 which resulted in a serious and, I find, unjustifiable allegation of abuse being made against the mother; and
(b)whether the mother is disruptive and destructive of the father’s relationship with S by her conduct.
In parenting cases involving abuse of children, the ultimate question is whether there is an unacceptable risk to the physical or psychological health of the child in the event that a parenting order is made.
In so far as S is concerned, I am satisfied that there is no unacceptable risk of that type in the care of his mother but I am not entirely comfortable about the father and his extended family.
Of the two issues, by far the most serious was that which occurred in November 2010 and the sequence of events needs careful consideration.
November 2010 – allegation against the mother
On 18 November 2010, having had S for two days, the father took him to childcare to conclude his contact period. The communication book which travelled between the parents noted that during the father’s two days, there was mild nappy rash. As part of her evidence, the mother tendered the records of the day care centre to show that no change of nappy occurred at the centre during 18 November 2010 because the child was dry.
Having collected S from the day care centre at the conclusion of the day, the mother drove to the home of Ms SS. There, both women observed red marks around the child’s anal ring and spotty marks on his buttocks. Ms SS did not see any ulceration and thought that the redness was not inflamed but that it needed cream.
The mother remained with Ms SS until late that evening but at 11.34pm, she sent an email to the father which queried whether there had been a problem during the father’s contact. There was cross-examination of the mother about the inaccuracy of the words she used when she referred to the email in a subsequent affidavit. Apart from the fact that she drew the affidavit whilst she was representing herself, she corrected any misunderstanding. Importantly, I find that the evidence of Ms SS was believable and consistent on this critical topic with the mother. There is no reason for me therefore to reject the mother’s evidence about what she saw.
On 21 November 2010 a strange incident occurred. The father’s evidence was that the mother telephoned him and that she was whimpering, a suggestion denied by the mother. When cross-examined about the telephone call, she acknowledged it occurred but said that her purpose in telephoning was to ascertain a response from the father about what had happened to S during the two days that he had had him because he had not responded to her emails. The focus of the cross-examination of the mother on this point related to her behaviour and there was little doubt in my mind that she was being criticised. It was the father’s evidence that he was exhausted and sick of all the litigation that had gone on leading up to the February 2010 orders thereby justifying his desire to have as little to do with the mother as possible. The sequence of events here however showed that the mother wanted to find out what had happened to give rise to the problem seen on the child’s bottom.
On 23 November 2010, the mother again spent time with Ms SS. Ms SS’s evidence was that the buttocks were a little more inflamed around the anal hole, but in her view, it was not a matter for a doctor but rather the continuation of the use of cream but if that did not work, the mother should see a doctor. Ms SS said that the mother said she would see a doctor and she did the very next day.
On 24 November 2010, the mother went to the medical clinic that she had been attending and there saw Dr P. Dr P gave evidence before me having provided an affidavit on behalf of the father but for his purposes, he required a subpoena which was issued. For cross-examination, he attended apparently with his solicitor.
When the mother went to Dr P, she said that what had been observed on S’s bottom was not healing and in that sense, the “rash” had worsened.
Dr P observed what the mother and Ms SS had seen but he went further and found:
When examining the anus more closely the anal margin was a little inflamed and on gentle eversion of the margins a lineal mucosal split at 5 o’clock was seen extending up through the sphincter…
Dr P told me that someone changing a nappy may not have seen it. That is because, as he said, he examined S internally by pushing the sides of the anus apart and noticed a tear in the lining of muscle that borders the anal canal. As Dr P acknowledged, there were a number of possibilities for the tear, one of which was that it was caused by trauma.
Dr P did not take a swab and as it became apparent later, he was criticised by the mother for that. He asked a number of questions of the mother the focus of which was on constipation. He told the mother of what he had seen and said that if someone could not explain what he described as “the trauma”, he would have to report the matter to the Department of Human Services.
Dr P knew that the parties did not communicate but offered to speak to the father. That course of action was not opposed by the mother. As it transpired, other explanations for the trauma which were possibilities included infection, diarrhoea, constipation and the removal of a hard stool.
Because there were a number of possibilities, none of them at that stage of the investigation by Dr P gave rise to an obligation to report the matter to the Department of Human Services.
Having concluded with the mother, Dr P telephoned the father and told him what he had seen and sought an explanation to enable him to make up his mind about whether he should report the observations to the Department of Human Services.
The father went to see Dr P on the following day, 25 November 2010. This consultation was for a whole hour. Dr P acknowledged that the father brought with him notes of court proceedings and various court orders including a report from psychiatrist Dr E. This report had noted that in Dr E’s view, the mother suffered from a borderline personality disorder.
In the consultation with Dr P, the father was convinced that S had been abused. Dr P maintained in evidence that he only said to the father that it was a possibility. The father’s evidence was that Dr P “confirmed” that the mother had blamed him for the injury to S. No such view was held by Dr P.
On 26 November 2011, S who was still in the care of the mother, was to be exchanged between the parties to stay with the father. The mother was aware that the father had spoken to Dr P because of what had transpired on 24 November. At the handover, the mother was holding S when the father and his sister arrived. According to the mother, S was already distressed about going to his father. There was a dispute in evidence about what occurred.
The mother wanted to know what Dr P had told the father about the cause of S’s “trauma” but the father just wanted to collect S and leave. The mother had made an appointment for S with Dr D at the same medical practice. The father declined to even discuss the issue. The mother then showed the father a photograph on her mobile telephone of the affected area of S’s buttocks. In cross-examination, the mother was criticised for producing that photograph because she was holding S and by inference, involving him in a dispute with the father. Having regard to the confusing situation over the preceding days, I would not be critical at all. In addition, the mother did not have the benefit of the communication book which might have indicated to her what the father had also observed about the raw anal area of S. Furthermore, the mother had not received a response from the father about what, if anything, had happened during his time with S. She emailed him on 18 November, 19 November and 22 November. In the last of those, the mother referred to a telephone call that the father maintained had never occurred. The email however referred to “red ulceration” around the anal area. The mother referred to having used cream unsuccessfully and that she was going to see the doctor.
The father’s sister was present at the handover at his request but her evidence shed no light on what occurred because she made no reference to any of the issues that I have just mentioned.
Eventually, S was handed to his father and they left. Armed with the information that Dr P had considered abuse as a possible explanation for the perceived trauma and no doubt influenced by the father’s view that Dr E had perceived the mother to have a mental illness, what happened next has to be cautiously and sceptically scrutinised.
The father commenced the drive home and asked S how his “bottom” was “feeling”. Thereafter, S in response to questions, said his mother hurt him by putting a pencil “in his bum”. The father then led the child into some questions which clearly implicated the mother in abuse. Interestingly, notwithstanding both the father and his sister swore their affidavits on the same day and before the same lawyer who had also prepared them, there is a difference in their recollections as to exactly what S said. Nothing turns on that save that in the confused and hostile environment at the changeover, it leaves me concerned about the accuracy of the reports. It was submitted by senior counsel for the father that the evidence was unchallenged. The absence of a challenge in cross-examination does not give any more efficacy or weight to the evidence if it does not sit comfortably in the logical sequence of events. The events here show that the father conceded that he was convinced about what the mother had done before speaking to S.
The father then contacted the relevant police unit known as SOCIT. An appointment was made for an interview. At the interview, the father remained outside and the father’s sister attended with S. In cross-examination, the sister had such a poor recollection of what occurred that her evidence on that issue was of no value. She said that she was shocked and that may account for her poor recollection but it is clear that she had no recollection of the relevant events including importantly, the police giving her what was effectively a transcript of what had been said by S in the interview that had just taken place.
In the interview between the SOCIT detective and S and apparently unsolicited, S said his father had hurt him. His description was similar to that which he had given about what the mother had done to him but he said it three times. The sister’s evidence was that S was rather distracted and lacking in interest and by inference, that I should not take any notice of what he had said. I reject that view.
No dispute was raised about what had occurred at the interview. It was not suggested that the interview was not done appropriately or with the usual expertise that the trained detectives presumably had. It was not suggested by the sister that the questions put to S led him to respond in the way he did. The answers therefore have significance not so much to suggest that the father did anything wrong but that the child’s responses were unreliable. That too became a contentious matter because when giving evidence, Dr P said the statements of a 3½ year old child were reliable. Unfortunately, Dr P made that comment in ignorance of what S had said about the father.
SOCIT said there was nothing for them to do and they were not concerned about the welfare of the child. However, the Department of Human Services were notified and over successive days, interviewed the mother and the father.
In the interview with the Department of Human Services, the father said he was advised not to return S to the mother. That would be very strange because by that time, the Department was aware that SOCIT had interviewed S and the only allegations made by the child related to the father.
On 27 November, the father took S to the usual medical clinic and there saw another doctor, Dr D. At this visit, he was accompanied by several family members. These people gave evidence but I found them not only partisan but also unimpressive.
Dr D said he did not see what Dr P had seen only days before and he prescribed a cream for infection. The father said he told Dr D what S had said but importantly and I find to his discredit, he did not say what S had said about him in the SOCIT interview.
Undeterred, and for reasons which are inexplicable, the father then went to the clinic on 29 November to see both Dr D and Dr P together.
In his evidence, Dr P was clear that he was told about the “disclosure” by S in the car concerning what the mother had done to S. That statement convinced Dr P to mandatorily report the case to the Department of Human Services and he did so. Dr P emailed the mother on 30 November 2010 and said that S had “perianal skin loss and splitting extending into the anal canal”. That statement is different from Dr P’s evidence by affidavit and in particular, his answers in cross-examination which I understood him to say that the trauma was inside the anal canal. In any event, Dr P confirmed that he had reported the matter. He made no reference to having been told of the “disclosures” particularly relating to the father having hurt S.
That Dr P had the evidence of the “disclosure” against the mother became clear in May 2011 when solicitors for the medical clinic wrote to the mother and referred to Dr P reporting the matter to the Department of Human Services as a result of information provided by the father as well as what he saw in the child’s presentation.
The solicitors for the medical clinic had written to the mother because she had demanded information from the clinic. She reported Dr P to the relevant medical authority because in her view, he had not taken sufficient care in examining S in the first place. I make no criticism of Dr P nor do I make any finding about what he did. The father’s view was unreasonable having regard to the fact that Dr D had taken a swab from the injured area and upon its return some two days later, diagnosed an infection was the cause of the problem.
During the period of those days in November 2010, the father overheld S contrary to court orders. The sequence of events involving his lawyer at that time did the father no credit. On 29 November 2010, the father’s solicitor emailed to the mother a letter which read as follows:
We advise our client will not be returning the child [S] this evening as per the court orders.
Our client has had [S] examined by a medical practitioner who has advised there is evidence that the child has been physically abused.
The medical practitioner, in accordance with their (sic) statutory obligations, is making a report to the relevant authorities this day.
On 29 November 2010, it could not be said that those statements were correct. To the extent that Dr P felt he had a statutory obligation to make a report to the Department of Human Services, it arose because of what the father told him the child said about the mother.
On 3 December 2010, the mother emailed to the father’s solicitor not only requesting the return of S but also querying the medical evidence referred to. As an aside, all of this correspondence seems to have been copied into a person in the Federal Magistrates Court at the time when there was a hearing pending. That was totally inappropriate and whilst it might be understood that a litigant in person might do it in ignorance, it is not appropriate for a lawyer to do so.
On the same day as the mother wrote to the solicitors for the father, the solicitors responded to her correspondence and said:
We are instructed our client received oral advice from the Medical Practitioners treating the child [S] that it was the concluded view of the medical practitioners [S] had been abused and as a consequence of forming such a view the medical practitioner had a statutory obligation to report the matter to the appropriate authorities.
The email went on to say that they were relying entirely upon verbal instructions of their client.
There was no such conclusive evidence. In cross-examination, the father said that when he became aware of the solicitor’s letter, he gave instructions to alter the allegation. The father’s solicitor’s notes were then called for but when produced, no such instructions appeared in the notes nor did the father’s solicitor who was present throughout the proceedings, confirm his client’s evidence.
In the context of the father’s view about the mother setting him up by injuring the child, the statement that he had given instructions to correct the letter becomes important. It must also be seen in the context of the father overholding the child contrary to court orders. By the time the solicitor’s letter was written on 29 November 2010, SOCIT was not interested in the allegation against the mother and the medical evidence would not have supported the sort of allegation that the father was making. I find the father did give the instructions described in the letter and that he inappropriately overheld the child. His evidence becomes unreliable as a consequence.
It was only at the hearing in the Federal Magistrates Court on 8 December 2010, despite knowing for some days that SOCIT and the Department of Human Services had not supported him, the father returned S.
Prior to the Federal Magistrates Court hearing, the mother had contacted the police asking that they visit the father. This was a topic of cross-examination of the mother by senior counsel for the father no doubt on instructions. It was unclear to me whether the mother was being criticised for going to the police at all rather than waiting for the court process. In my view, no such criticism could be made having regard to the unjustifiable overholding in the circumstances to which I have referred.
The overholding caused considerable disquiet in the mother’s household and although the father seemed to dispute that there had been such problems for S, I accept her evidence as plausible and logical. She said that S’s behaviour was extreme. She reported that the child’s anger was directed at her because he believed that she had not come to collect him. She said he cried and had night terrors and did not want to sleep in his bed.
As an indication of the father’s view that those problems had gone away, senior counsel for the father asked the mother whether S had got used to the regime again. Her response was that it took some time to settle down but over the recent holiday period when the child was away for a week, he had regressed to a clingy state and there were problems at the day care centre when she delivered S there. She said he did not want to separate from her although she acknowledged there were no night terrors.
I am not convinced that the father acknowledges that there are those problems. During cross-examination, senior counsel for the father probed the mother in relation to her holding on to S rather than simply handing him to the father or his representative and by inference, blaming her for the child’s distress. Having regard to the sequence of events just referred to, I am not at all surprised that the child has some form of separation anxiety.
I find there could be no suggestion of unacceptable risk for S in the mother’s care. I make that finding notwithstanding the father’s concession that the existing periods of time under the orders should continue. I find that the father’s belief that either the mother had abused S or that she would do so for the purposes of “setting him up” is unreasonable without any evidentiary foundation.
In final address, senior counsel for the father said that his client was not a saint. It is rare that one finds “saints” in parenting disputes. It is not unusual to find cases where there is no trust and high conflict which usually arises out of poor communication and a dislike of one adult for the other. However, to make an allegation that a parent would deliberately hurt the child as a form of retribution is very concerning and I find worrying for this child’s future.
Unfortunately for S, the father’s suspicion did not end there. In June 2011, S came into the father’s care. The father went to change the child into his pyjamas and noticed a distinct rash around his bottom. The communication book did not indicate any entry by the mother of a rash, redness or application of cream but it did make mention of the child having an “accident” in his pants. It was the father’s evidence that because of what happened in November 2010, he decided he should take him to a doctor. This evidence was set out in the affidavit of the father filed in the Federal Magistrates Court on 29 June 2011. It indicates the father had not accepted the November problems for S had been caused by an infection.
Having bathed the child but finding that the doctors’ clinics were not open, a locum was called and he arrived around 10.00pm. S was at the home of the paternal grandparents and asleep. According to the father, the doctor had a “quick, not more than 1 to 2 minute examination” of the child’s bottom and he prescribed some medication. The father’s view again is very enlightening. He said that because the lighting in the room was not good and the child was asleep at the time of the examination, he decided to “cover all bases” and take the child to the surgery the next day. He did that and a cream was prescribed.
There is no suggestion that there was any trauma or abuse involved but it is the basis upon which the examination was undertaken that is of concern.
Having had S examined, the father sent a text message to the mother informing her of the doctor’s appointment but not the locum and indicated that at handover, he would give her the cream that the doctor had prescribed. He made reference to the fact that the communication book had not referred to any rash. The mother’s reaction was to ask when the doctor’s visit had occurred. A sequence of correspondence by text then followed. No reference was made to the locum visit nor more importantly, the basis behind the follow-up visit.
The father’s evidence confirmed that in June 2011 he still held the belief that the mother had hurt the child and he was prepared to put S through an anal examination. S deserved better than that.
The father was carefully cross-examined by counsel for the mother. He confirmed that he stood by what he had said in his affidavit. It was his evidence that he had “moved on” from around December 2010 and that he had explained to Hughes FM in the Federal Magistrates Court that his position was that he really did not know what had happened to S and that was why he wanted a further report that ultimately ended up with the parties seeing Dr A.
Dr A was aware of the existence of a psychiatric examination of the mother but in April 2011, he said that whilst the mother exhibited some borderline personality traits, in his view they were not sufficient to diagnose borderline personality disorder “as suggested by [Dr E]”. Neither the father nor Dr P had the benefit of that view in November 2010 but in my view it matters little because it is clear on the evidence that the father had a fixed view that the mother had a mental illness and he was concerned to tell Dr P and for that matter, SOCIT and presumably, the Department of Human Services as well.
Dr A’s report was released in April 2011. The father’s difficulty was that in his evidence, he had used very uncomplimentary adjectives about the mother such as “vindictive”, “deceitful” and “manipulative”. It was bluntly put to him that as he stood in the witness box, he did not accept that the mother had not or would not hurt S and his response was that he could not have absolute confidence. When asked about whether he believed that the mother had set him up by doing what she had done, he replied that that was what he thought. Much of his concern related to the mother’s behaviour as he saw it in the correspondence and at handovers but that cannot explain why he held the belief about S being abused by the mother. As far as S being in danger, he thought it was “just emotional”. That danger he said arose from the mother’s behaviour at changeover. He explained most of his change of heart on the basis that an order finalising all of these parenting issues and keeping the parties away from each other would resolve a lot of the difficulties. That might indicate a change of attitude but he was asked whether he was still convinced that the mother had abused S and he responded that he had a definite belief. He was given a number of opportunities to depart from language such as his counsel had used in September such as “malicious” but he did not.
Ms L
Ms L is the paternal grandmother of S. She swore an affidavit which clearly showed a very strong love for S. She was able to set out what they did together bearing in mind that she had a significant role in caring for him whilst her son was at work. In relation to the mother however, the maternal grandmother described her as a destructive force in her life as well as that of S. Much of what was said was irrelevant to the parenting dispute. It oozed dislike.
She questioned whether the mother was mentally ill and what her own son had got himself into. She said as a consequence of her dealings with the mother she worried about S. She referred to the behaviour of the mother in harassing telephone calls and emails which culminated in an application by her against the mother for an intervention order in September 2008. The relevance of all this was perplexing having regard to the fact that there were consent orders in February 2010.
The paternal grandmother went on to accuse the mother of distorting conversations and turning “relationships into a fight”. The person who settled the affidavit might have considered a little more objectivity having regard to the issues in dispute between the parties.
In respect of the issues at stake, she observed that the mother had not bonded with S in the early days which she understood related to mental health issues. What those were, I am unsure, because the only expert evidence I had before me was that of Dr A.
The paternal grandmother said that she was embroiled in the ongoing dispute that she laid at the feet of the mother. I was unable to find any reference to her son’s involvement in the debacle of 2010. She confirmed she had read her son’s affidavit and she confirmed its contents to the extent that they were within her knowledge.
Counsel for the mother cross-examined Ms L and asked whether she adopted words such as “manipulative”, “dangerous” and she said she did. As each question was asked, the witness clearly considered the answer and after a pregnant pause, responded that that was her belief. She was asked whether there was a good relationship between mother and child and the best she could say was that she had seen that the child was happy to go with his mother.
The paternal grandmother’s evidence gave me no insight as to how she would promote the relationship between S and his mother whilst he was in his father’s care. She was adamant that there was no negative talk in front of S about his mother but similarly, there was no positive talk either. It was clear that the grandmother viewed the mother with disdain.
One issue about which some evidence was given related to a handover that took place in June 2011. The mother had been expecting the father to attend to collect S. She was sitting at a café with a girlfriend and that woman’s child. That was Ms M. S was standing in the shopping trolley. The parties and their respective witnesses had a differing view as to the exact sequence of events. Ms M said that the mother had her back to the grandmother and that the grandmother did not acknowledge her. That seems common ground. The grandmother took the view that she was simply there to collect the child and there was no basis for any discussion. Certainly, no polite conversation occurred and it was only when the mother inquired why the father was not present that an explanation was given. The exact sequence of events is irrelevant to my determination but it does confirm the disdain the father’s family has for the mother. Whether that is justified or not because of the previous adult behaviour is irrelevant to the question of their respective responsibilities concerning the care of S. Having regard to the opportunities that the grandmother was given to soften her stance, I could not be satisfied that she would ever say anything positive about the mother in S’s care and sooner or later, S will learn that the father and his family have a very negative view about his mother.
The father’s sister
The father’s sister also gave evidence. I have already referred to her involvement relating to the SOCIT interview. Her evidence was most unreliable in respect of that. However she also referred to the June incident at the supermarket. She made reference to the fact that when she and the grandmother approached the mother, the mother’s response that she had a friend for whom she was waiting. The evidence of the mother and her companion was that they were both already there when the grandmother and sister arrived. Having regard to my earlier findings about the sister and her recollection of what occurred at SOCIT, I could not be satisfied that her recollection was reliable in respect of the June incident at the Woolworths supermarket.
The car park incident and the family violence order
There was another changeover at the Woolworths supermarket. The mother had requested the changeover take place there because she did not have a motor car but the father’s sister doubted that and suggested that the father inquire. She said the father approached the mother’s car to “confirm” that the car had a baby seat. On this event, the parties also disagreed. The mother’s evidence seems to me to be more reliable. She said she was followed by the father in his car. That particular event gave rise to the mother complaining to the police who in turn were sufficiently concerned to institute an application for an intervention order. That came before the Melbourne Magistrates’ Court and an interim order was made that the sister not be within five metres of the mother or S. Whilst there is a certain absurdity about such a distance, bearing in mind that S is going to be with his father, the very existence of the order highlights the fact that a State court charged with the responsibility of maintaining public order in family violence situations was sufficiently concerned to make such an order. This was not a case in which the mother was the protagonist. On any view, the incident should not have happened.
It is important to note for reasons to which I shall turn, that the father has consistently said that he wanted the mother to have nothing to do with him at changeover and yet here was an example of him no doubt encouraged by his sister, harassing the mother. The explanation about checking the car and the baby seat was implausible.
In relation to the sister’s view of the mother, she had little hesitation in saying under cross-examination that she believed that her brother accepted that the mother had sexually abused S and when questioned as to what she thought his current belief was, she said he had gone from a strong belief to one over months of knowing not what had happened.
The sister’s evidence unfortunately was not of any assistance in determining what is an appropriate parenting order in this case.
The paternal grandfather
The paternal grandfather’s evidence was set out in an affidavit filed on 9 February 2012 and sworn on 31 January 2012. He was not required for cross-examination. His commentary was hardly relevant to the parenting issues other than the fact that he supported his son and his wife and confirmed the contents of those affidavits.
He made reference to the fact that he had heard S acting like a baby at his home and he thought that was odd. He heard his son ask why the child was talking like a baby and the child responded that his mother had told him to say it. When the father was giving evidence, I asked him what conclusion he wanted me to draw from such a statement. He said he was not criticising the mother’s parenting skills or capacity for that. The inclusion therefore in the grandfather’s affidavit was perplexing. It had nothing to do with any of the issues in dispute.
Ms F
Ms F was also called to give evidence having filed an affidavit on 9 February 2012.
Ms F is the executive assistant to the father. She has had a very significant role in the father’s life in that she is employed to manage his calendar and daily activities. She was present on a couple of occasions at changeover notwithstanding objections by the mother. Her evidence of observations about the mother was largely consistent with the father and because of her role as a secretary managing the father’s activities, she was very much aware of what was happening in the lives of the parties by virtue of photocopying the communication book for record purposes.
The mother clearly took exception to the involvement of Ms F in the changeovers but the father’s response was that there was no injunctive order precluding that happening. Discretion might have been the better part of valour. That problem now seems to have abated in any event by virtue of the orders changing the arrangements in July 2010.
Of real concern however was the fact that by virtue of her secretarial role, Ms F at least on one occasion cancelled a doctor’s appointment for S. She was simply following instructions. Whether the mother was told about that or not is largely irrelevant. Ms F and the father knew that her involvement with the mother was a controversial subject and it might have made things easier if she had stayed out of the dispute.
Much of the rest of the evidence of Ms F was her observation of the father and the discussions he had with her. Her evidence did nothing to assist me in determining the parenting issue.
Ms H
The evidence of Ms H was also set out in an affidavit filed 9 February 2012 and sworn 31 January 2012. Ms H was not required for cross-examination and sensibly so. She is employed and a student who is in some form of a relationship with the father but with whom he does not live. According to the father, they do not intend to do so until the end of 2012. The association between the father and Ms H really only began in December 2011 and having regard to the time that the father had with S over that period of time, her involvement must have been extremely limited. Her affidavit glowed with indications of how affectionate the father and son were and how the father impressed her as a parent. This evidence too was hardly relevant to assist me in determining what was best for S’s future. I have already mentioned the reference in the evidence of the father’s sister about the baby talk. Ms H also made reference to that and again, I am unsure why it was there.
Dr A
Dr A is a consultant child and adolescent psychiatrist whose affidavit in the proceedings was filed on 6 May 2011 and an updated report was tendered in evidence by consent. It was dated 27 May 2011. There was considerable dispute about the purpose for which the report had been prepared. It came about as a result of an order by Hughes FM made on 14 December 2010. The order concerned the assessments of the allegations of potential child abuse, the psychiatric health of each party, the relationship between the parents and S and any other matter that Dr A might consider necessary. Most of those matters were irrelevant. Importantly, and of relevance, Dr A found nothing in the mother’s history or his own assessment to suggest that she was suffering from what was described as Münchausen by proxy syndrome. He said she did exhibit some borderline personality traits but was not prepared to make that diagnosis. Of the father, Dr A found his presentation suggestive of some narcissistic personality traits although there was insufficient evidence to diagnose that as a disorder.
Ironically, Dr A’s view was that the greatest risk to S was the ongoing conflict between his parents and their difficulty in putting down their own disappointment about the failure of their relationship. In other words, there was little prospect of cooperative parenting of S. In my view, Dr A got it right.
The second issue about the mother’s behaviour
I turn then to the issue of the father’s concern about the mother’s behaviour subsequent to the orders of 23 February 2010.
The mother had sent the father over 700 messages in various communication forms. Counsel for the mother agreed that his client had sent too much. The various emails, text messages and the communication book were all tendered in evidence with a list of the dates that I was to read. I have laboriously done that. Counsel for the father was correct that there were demands made on the father that could only be described as persistent and extensive. Counsel for the mother was also correct in indicating that there were far too many. More importantly however, the question is what the messages were about.
Right from the commencement of the February 2010 orders, the mother expressed concerns about S’s capacity to cope. She maintained in evidence that she had been bullied into agreeing to the orders.
Almost immediately after the 2010 orders, the mother began making suggestions to the father that they attend upon psychologist Mr V to work out various parenting strategies because she was having difficulty with S. There is a strong inference to be drawn that she was also having difficulty in coping with letting go of the relationship and carrying the responsibilities of parenthood in her position as a single mother. The father refused to attend any further appointments saying that he was exhausted by the litigation and in any event, there had been a different court-appointed expert.
There were times where the mother made vitriolic comments to the father and copied people such as lawyers and the childcare centre into her communications but the father did likewise by involving his personal assistant and his lawyers in the dispute. I am satisfied the poor communications of the parties meant the situation was virtually uncontrolled at various stages. That seems to have abated subsequent to the amending orders in July 2011.
In cross-examination of the mother, senior counsel for the father produced a cross-sectional document of text messages that had been traversing between the mother and father but mostly from the mother between June 2010 and December 2010. There were many more but these served as an indication of the parties’ respect for each other and their level of communication. It was common ground that it had to stop. The flow seemed to be one way but the mother’s response was that there were telephone conversations interspersed with these messages. I accept the mother’s evidence about that because in isolation, the messages do not make sense. They do refer to topics that were obviously being discussed in one form or another and clearly not in the text message format. The messages were generally unhelpful in determining what parenting orders should be made between the parties.
The complaints about the mother’s conduct began on the very day in 2010 that the final orders were made in the Federal Magistrates Court. At the first handover which was at the day care centre, when the father and his family arrived, they found the mother already there.
The mother described S as crying and refusing to go to the father but then the child put his hand out to go to the paternal grandmother. Things did not get off to a good start. It is not clear why the mother was present at all.
It was put to the mother that in July 2010, she imposed a handover time on the father of 6.30pm rather that 5.00pm. The mother denied that the father had been collecting S at 5.00pm up to that time but in any event pointed to the fact that the orders provided that the handover was to be at the end of crèche (if S was there). This dispute highlighted the inability of the parties to consult and come up with a solution.
I do not accept that the mother unilaterally fixed the 6.30pm time for the handover and I accept her version on that issue for two reasons. First, on the day in July 2010, she had taken S to a specialist appointment. She told the father by email of that appointment and that she would be back at the childcare centre at 6.30pm. I would not conclude that the mother was imposing anything on the father. Secondly, the order did provide for the end of crèche and at various times the mother and other parents at various times took children in and out of the centre. That being the case, so long as the mother had the child at the centre at the day’s end, it is hard to see what the problem was. The father was free to collect earlier than 6.30pm. The mother knew of the times that the father had been collecting S because she had sighted the centre register and knew of his attendances. The mother’s attention to detail throughout these proceedings was very clear and precise. I have no doubt she did make those observations. She pointed to the fact that the father had chosen not to attend earlier than closing time. The register was not tendered in evidence to the contrary.
That was not the only difficulty in relation to the interpretation of the orders. The father read them as meaning that if S was not attending day care, he was to collect the child at a café. Poor drafting left open the question of the correct venue because either was possible. The father would not have known where S was on a particular day. The father argued that the orders meant that if S was not at day care because he was ill, the handover had to occur at the café. That is a valid interpretation of the order but only one.
In her affidavit of evidence, the mother said the café was “unknown” to her. She had handed over S prior to the orders being made in February 2010. I accept her explanation that she was referring to whether or not the café was open. To lie about that as was asserted by the father would be illogical because she clearly had been there prior to the orders. Again, I find that there is no basis to criticise the mother.
The mother said that she understood the handover was to be at the café if it was open and she had been assured that it would be. She insisted that she had wanted a public place with other people around. She said that that was because the father had taunted her about her mental health and intimidated her and she felt vulnerable. I accept her evidence.
In August 2010, the parties had a dispute about handover. The mother insisted that the father come to her residence and drive into a secured underground carpark. She said she had the area covered by video camera surveillance. The father refused to come inside the building and according to the mother, was double parked on a busy street. On the father’s evidence, S was not in day care that day and accordingly the handover should have taken place at the café. Only after considerable cross-examination did the mother’s position become clear. S had been ill. It was winter time and on that day it was raining. The father did not give evidence to the contrary. The mother said she did not want to have S out in the cold carpark area of the café which it now appears was shut by that time of the night. Whilst this dispute did neither party any credit, it was harder to be critical of the mother because of the circumstances. The situation would hardly qualify as evidence of a deliberate breach of the orders or of the mother’s conduct being destructive of the father’s relationship with S.
On the third birthday of S, he was with his father. Early in the morning of that day, the mother went to the father’s house. Her evidence was that it was to leave a gift for S but on arrival, he was in a glass door area. Although cross-examination of the mother suggested her attendance was inappropriate, the parties spoke civilly and drank coffee in front of the father’s house. The mother’s action was inconsistent with her concern about security cameras, open spaces and the presence of adults to avoid conflict. It was however, just before the November 2010 sexual abuse dispute where the parties’ relationship deteriorated dramatically.
By March 2011, the childcare centre had requested the parties not to attend together. On 18 March 2011, S was not in the centre but had been with the mother and some other parents and children that day. I am satisfied that it was the mother’s intention that she would be back at the centre in time for the handover to the father but she was running late. An unseemly dispute occurred, the details of which remain unclear. The parties disagreed about how long the dispute took. The father called the police. The parties could not agree as to whether the handover should have taken place at the café because S had not been in the childcare centre. He would have been in the centre at 6.30pm had the mother been running on time. The father went inside the building to sign the register and the mother followed him. Unsurprisingly, with the parties arguing, the childcare centre had had enough. They terminated the entitlement of S to be there. Both parties contributed to that debacle.
The debacle over handover did not end there. As late as Christmas 2011 when S was in a new day care centre, the parties had a dispute after a Christmas function organised by the parents in a local park. The father’s version was that the mother unnecessarily clung to S causing him to cry. The mother’s version was that she had promised S a cake and the father had left without giving her the opportunity to fulfil her promise. When the mother found that the father had left or was leaving, she followed him to his car. This caused S confusion and distress and the absence of civility between the parties no doubt contributed to that.
In addition to the childcare centre termination, the father also asserted that it was the mother’s conduct that caused the termination of S’s right to attend the local medical clinic. Cross-examination of the mother was directed towards establishing that she had created so much trouble with the clinic that they refused to treat S further. I do not accept that was the case. This was the clinic at which Dr P was a practitioner and at which the examination about the abuse arose. I am satisfied that for professional and insurance reasons, the clinic owners decided it was not in their interest for the association at least with the mother, to continue. The mother was certainly forceful in her demands of why Dr P had not taken a swab. In hindsight, even Dr P questioned whether that might have been a sensible move. With the mother making the demands for information and being particularly concerned about the allegations that she had caused abuse, I am not at all surprised that the relationship between she and the doctors broke down.
At a hearing in the Federal Magistrates Court, the mother was asked about her dissatisfaction with the investigation into the abuse issue. Her response was that she was concerned that she alone was being investigated. There is some justification for that view. She had the knowledge that SOCIT and the Department of Human Services had not been interested and had closed files. She knew that the child had made allegations against the father. She knew that the clinic had ultimately undertaken a swab and found that S had had an infection. I am satisfied her concern was as to why the spotlight was on her rather than on the father or potentially others.
Another complaint of the father about the mother was that she sent the police around to his residence in January 2011. The mother acknowledged that she had been late with a telephone call to speak to S and wanted to call him but the father would not take the call. The point seemed insignificant and reflected badly on both parents. The father could have allowed a late call and may have, had he know the reasons for the mother’s lateness which had something to do with the fact that the mother of a child known to S had just died. On the other hand, the mother might have been more diligent despite her difficulties or alternatively waited until the following morning. When pressed about the latter, the mother said that she had promised S she would call him and was worried that her absence would resurrect the problem that arose during the overholding period only weeks before. In isolation, this would have reflected badly on the mother but in the context of the total period of time in the relationship between the parties, it had a ring of plausibility about it. It showed her single-mindedness but also the father’s exacerbation. In cross-examination, it was also put to the mother and denied by her, that she had organised the police to attend the paternal grandmother’s home. There is no evidence to support that contention.
Part of the incessant emailing and communicating by the mother related to schools, doctors and costs. Notwithstanding the disparity of income between the parties, the father only wanted to pay for medical treatment for S when the child was in his care. There was cross-examination of both parties including of the mother putting accounts in the father’s name and a very unseemly dispute about a $33 doctor’s account. The parties very much disagreed about enrolment at school. In cross-examination of the mother, counsel for the father put to her that her position about the payment of school fees was unreasonable because she knew that the father had always intended to pay half. Reference was made to an email that the mother acknowledged existed and which on its face would appear to suggest that was his commitment. However, a more formal letter sent to her by the father’s solicitor showed that the exact opposite position was the case. The father valiantly tried to say in cross-examination that the written words had some other meaning than that which appeared in the solicitor’s letter. When pressed about his intentions, the father’s position was clear that he would contribute for a set period but it was subject to his financial capacity. This dilemma highlighted the impossibility of any agreement about S’s future. It would be most unwise to put S in a school where he would be disrupted at some stage in the future because of a school fees’ dispute. As I pointed out, I was not dealing with a child support issue.
The dispute also raged over which school S would attend. The father expressed a desire to be involved in S’s life but was unable to find a way to compromise with the mother about any solution. Both parents indicated a desire for private schooling. I am not at all convinced that the focus was on the best interests of S.
The mother used language in emails to the father to suggest that he was dishonest and a cheat. When challenged about that, the mother pointed to a number of incidents that predominantly predated the February 2010 orders. One that did not however related to the father asserting to the mother that he was suffering from a brain tumour. It was clear that he was not. Just how that unfolded remains a mystery having regard to the state of the evidence. What was clear however was that the mother contacted the Road Traffic Department to report the fact that the father had indicated that he was suffering from a brain tumour. The mother was cross-examined about the fact that she did not put the father on notice about her intention to make the call but she observed that it was a matter entirely for the Road Traffic Authority and she was concerned about the fact that S would be driving with a person in circumstances where that was inappropriate. I would not draw an adverse inference against the mother for that conduct and as I have no clear understanding of what the father’s explanation was for the issue being raised, it was inappropriate for me to criticise the mother.
Another unseemly dispute occurred about S attending Japanese classes. I do not propose to make any findings about that as I am satisfied it is simply another indication of a lack of communication between the parties.
Thus, to the extent that the evidence of the father was adduced to show a deliberate breach by the mother or a destructive approach to the relationship between he and S, I reject that proposition.
Should there now be two medical practices?
Having had their association with the medical practice terminated, the parties had to find alternative practices. They now have two. That is not appropriate for reasons such as the maintenance of two records, possible conflicting diagnoses and treatment but also for the need for each parent to find out what the other is doing having regard to their dreadful relationship. I propose to make an order that the mother have the choice of a practice and that be the only place that treats S.
Intervention orders
There are now intervention orders in existence at least on an interim basis and I understand that those proceedings are contested and will be heard later this year. A magistrate contemplating that application obviously has a different task to that which I fulfil but I express my concern about the difficult nature of the relationship between these parties which has every potential to become volatile.
In respect of the changeover, the problem between the parties is likely to occur mostly in the period up until S commences school.
The various handover possibilities
As late as Christmas 2011, the mother was still insisting on an arrangement involving security. She pointed in evidence to the fact that handover had been successful but it had occurred at a hotel foyer which had security cameras.
The mother does not want her residential address known and she does not want to go to the home of the father. There is intense mistrust involving extended family so they are not appropriate to be agents of change or changeover. The mother wants a public place with security cameras and people around. The father wants the protection of being able to collect S without discussion, debate or dispute. He currently has the interim intervention order against him which creates significant difficulty for any dialogue.
The father was content for the handover to occur at a contact centre. The mother was resistant because she did not want S to be going to a place such as that. A police station would be inappropriate because apart from the connation for S, such an order places an onus on the police to do something that they are not obliged to do, that is, to supervise a handover to avoid a breach of the peace. The contact centre is an obvious alternate solution but the closest to the local area is Contact Centre 1 and they are only open for limited periods of time that would fit with the orders that I have in mind.
A contact centre on a Friday night would work but Contact Centre 1 is not open on the Monday morning and I am resistant to changing the conclusion of the time on the end of the weekend to the Sunday because both parties considered that Monday morning was appropriate. Shopping centres require entry into buildings as well as having parking problems and there has been at least one disputed example of problems in the past. Changeover points must be devoid of confusion.
The locations of the parties creates problems for the times proposed by both of them because of peak hour traffic. Whilst the father has to get to work on a Monday morning, getting S out of bed very early so that peak hour traffic can be contemplated, creates difficulty for a child of his age. The father suggested handovers at the day care centre but there is no certainty about the times that S will be there. The kindergarten program conducted at the present day care centre is in the middle of the morning and if the father is to attend work, a handover to the mother presumably is necessary. The father would have to get from the day care centre out to the eastern suburbs of Melbourne to work.
On any view, the morning drop off time is different from the evening collection when a little more leisure can be undertaken but the father also has to contemplate traffic and work commitments.
In 2012, S will be attending a kindergarten program on Monday, Wednesday and Thursday somewhere around 10.00am and that does not work with a contact centre or with locations where there would be plenty of people about. There is no guarantee that S will commence school in 2013 because much depends on the assessment of the kindergarten professionals.
In my view, the most appropriate place is the day care centre until S commences school. The handover can be outside the building and the parties can have another adult present providing there are no breaches of the intervention order. There would normally be other parents present but if there are not, the parties will just have to do the best they can.
Communication in the future
There is a communication book already travelling with S but that has been a source of contention. There is no need for that exchange of information if the times are reduced.
One of the problems with instant electronic access to each other has been the ongoing communication which has caused angst for both parties.
The parents need to pass information back and forward. The communication book should be restricted to information about immediate health and schooling matters. Emergencies will arise where accidents have occurred; the parties will have to be conscious of the need to inform each other of those. Major health and education issues should not be in the communication book but advised in writing and possibly by letter. I would not restrict them to that means but it may come to that in the future if the mother bombards the father electronically.
Handover when S begins school
Once S starts school, the handover can occur at the school ground and that will obviate the necessity for parental contact. To the extent that the mother did so attend the school unnecessarily, a State magistrate might contemplate that as being a basis for an intervention order against her.
Future medical costs
The issue of medical treatment costs was also a subject of some debate. The Independent Children’s Lawyer sought that orders be made. There is no issue before me other than suggestions that the mother was sending accounts to the father and the father was refusing to pay anything if the appointment did not occur in his time with S. Any future dispute about such costs should be dealt with under the child support process.
Injunctive orders
The Independent Children’s Lawyer also sought injunctive orders about the parties using various court documents with health professionals inappropriately. There should be no need for that in the future now that all outstanding issues are completed. Each party needs to be conscious of the provisions of s 121 of the Act.
Having regard to the evidence that I heard, the father has clearly involved his staff and family in this dispute. He needs to ensure that that stops as well. I accept that Ms F is his personal assistant and that she manages his diary. That should be the limit of her role and she should not be involved in any activity with doctors or with the mother, making arrangements. No matter how busy the father is, this is an issue that must be dealt with by him.
The father also sought orders that the Court restrain the mother from attending his workplace as well as his residence. There was no evidence upon which I could justify such an order being made.
The father also sought an order in relation to the payment of childcare fees. Those are matters that are more appropriately dealt with in child support proceedings and there was no such application for me to exercise the jurisdiction here.
The father sought orders that the intervention order concerning his sister be declared invalid to the extent that it clashed with these orders. There is no evidence justifying any interference with State court orders nor any parenting orders that involved the sister such as I could make any such order here.
Similarly, is there a basis to be concerned about his allegations of the breaches of orders without solution?
In my view, it is clear that the orders of February 2010 have not worked and need to be altered so that they best suit the needs of S. There can be no doubt on the evidence that both parties have a very strong attachment to the child and he seems comfortable in both parties’ care. That is not a basis however not to change the orders having regard to all of the matters that I heard.
The submissions
After some days of evidence where both parties were intensively cross-examined, their respective positions altered. In final submissions, the Independent Children’s Lawyer put a number of propositions which were encapsulated in writing. I propose to deal with all of those matters in the general reasoning. As counsel for the Independent Children’s Lawyer said, the parties have been litigating since S was ten months of age and they continued to harbour fears about the other’s parenting and neither was encouraging the relationship of the other with S.
The father’s position was that the Independent Children’s Lawyer’s proposals put petrol on a fire. Senior counsel for the father was critical of the mother on many issues. Sadly, had the father agreed to attend upon another expert, the problems may very well have abated much more quickly than they have. The father’s position was that both he and the mother had the capacity to provide love, care, guidance and role modelling. I am not so confident but in any event, what will happen in this case is that both parents will do their own thing with parenting of S. I am satisfied that the orders proposed by the father in the document handed to the Court will not work. Senior counsel for the father said that there was no evidence to justify a reduction in the father’s time. I find there is such evidence. It was senior counsel for the father’s submission that the orders proposed were workable and would avoid dogged problems. With that unfortunately, I cannot agree.
In his final submission on behalf of the mother, counsel referred to the constant problems of communication and what the mother described as the toxic environment in the father’s household towards her. His submission was that the reduction in time would limit the exposure. I do not agree with that. There is ample time in the weekend for the toxicity to create damage.
Counsel for the mother pointed to all of the inconsistencies in the father’s evidence and in particular his persistence about a view that the mother had perpetrated a violent act on S. The father’s view is not only inexplicable it is untenable.
Counsel then sought the orders set out in the mother’s amended application.
Parenting orders
In proceedings concerning parenting orders, the Court may make such parenting order as it thinks proper (s 65D) subject to the presumptions that come with equal shared parental responsibility. What is “proper” in this case depends on many factors.
Section 61DA(1) provides that the Court must apply the presumption that it is in the best interests of S for his parents to have equal shared parental responsibility but that presumption may be rebutted by evidence that it is not in his best interests. Apart from the fact that the father conceded that the mother should have sole parental responsibility (subject to conditions which I reject) there is ample evidence here that there is no prospect of the parties communicating on any issue even sensibly in writing. It is not in the best interest of S therefore for there to be an order for equal shared parental responsibility. It is a requirement of the Act for parties to consult one another about a long term issue and make a genuine effort to come to a joint decision. The parties have shown by their history that that is not possible.
The father sought an order that in respect of health and education, there be communication through the communication book with limited size entries in which the mother would invite the father’s response and if there was a dispute, the parties attend Relationships Australia for mediation about the issue. No amount of professional assistance in this case has resolved the proceeding on any issue of substance. In my view, mediation would be fraught with difficulty. The father’s proposal was that if the mediation did not resolve the issue then the mother make the final decision subject to further conditions. It will be remembered that the parties differed in relation to the interpretation of the 2010 orders. A complex set of processes that required the parties to communicate and then mediate and then still have conditions, is most unlikely to work.
The father’s proposal was that the mother make a final decision subject to conditions but having regard to the father’s mistrust of the mother, there is every reason on the evidence for me to expect that she would go through such a process knowing that she ultimately had the final say. Such a process would be pointless.
Difficult as it may be, this is a case where it is in the best interests of S for the determination to be made by the mother. It is a very serious thing to take away all parental responsibility. However, the mother and the father have shown that they do not have the capacity to find a way to make decisions. S is about to commence his many years of schooling and the parties disagree about not only which school but the philosophy of the school and the cost of attendances.
In terms of medical treatment, S has a serious eye problem and the mother has done everything to ensure that his care has been of the highest standard. There is no reason for me to doubt that the mother would make the right decisions for S. What is unfortunate is that those decisions would be delayed if there was to be consultation even if the parents ultimately came to the same conclusion.
Under those circumstances, the mother should have sole parental responsibility and simply advise the father of the decision that has been made. To the extent that the father believes that the decision is not in the child’s best interest, further litigation would have to be undertaken.
How much time under parenting orders?
In respect of the time between S and both parents, the mother’s position was to reduce the father’s time. As I have pointed out, that was clearly not the position at the commencement of the hearing. As such, the Court is being asked to make a parenting order. I have already indicated that the Court is required to make an order which is proper and when deciding whether to make such an order, the Court must regard the best interests of S as the paramount consideration (s 60CA).
The Act sets out its objects to ensure that the best interests of S are met. Those objects include S having the benefit of both parents having a meaningful involvement in his life to the maximum extent consistent with his best interests.
The mother has fulfilled the parental responsibility requirements to a greater degree than has the father. That is not a criticism of the father but the reality of S’s life.
The legislative objects also require the Court to ensure when making a decision that S is protected from physical or psychological harm by being subjected to or exposed to abuse, neglect or family violence. Whilst there has been no suggestion of physical violence or neglect in this case, it will only be a question of time before S realises that his parents and his father’s extended family do not respect one another.
Family violence is something which the Court is required to consider when determining what parenting order is in a child’s best interests. It is defined in the Act to mean conduct whether actual or threatened that causes a person to fear for or be reasonably apprehensive about their personal wellbeing or safety. The mother obtained an intervention order on the basis of the conduct of the father and his sister in or around a carpark at the time of a handover in 2011. In her evidence, the mother said that changeovers were things that she dreaded because the father continued to taunt her about her mental health and denigrate her. That conduct fits within the definition of family violence. I accept that the mother did have that fear and that the father did denigrate her and taunt her. That would normally form the basis of a parenting order which enables the parties to keep away from each other but at least for the next twelve months, I find that there is no possible alternative other than the parties coming into contact with one another albeit briefly.
Another of the objects of the legislation is to ensure that children receive adequate and proper parenting to help them achieve their full potential. Both parents articulate a desire to see the best outcome for S but they do things in their own way because they cannot deal with each other. To some degree, the major hurdles are still to come. I have no confidence that in the future, the parties will have a common system of discipline or care.
The Act requires the Court to consider children receiving adequate parenting. Both parents seem to have a high ideal for S for the future rather than just an adequate approach. The way in which they parent S without any acknowledgement of the other or involvement of the other means that the mother who will have a much greater role than the father should be the dominant parent to give S the best opportunity to meet his potential in the future.
Another object of the legislation is to ensure that parents fulfil their duties and meet their responsibilities but on the question of health, the parties wanted no responsibility for decisions made by the other parent either as to timing or cost. In respect of education, the parties could not agree on the schooling or the cost.
The Act requires the Court to contemplate that children have the right to know and be cared for by both parents and the orders I propose to make will enable that to occur. However, it is also an ambition of the Act for the Court to make orders so that parents jointly share duties and responsibilities as well as agree about the future of their parenting. There is no prospect of that happening in the foreseeable future.
Section 60CC requires the Court in determining what is in the best interests of S to contemplate a number of matters. I have already dealt with those in terms of the objects of the legislation but the primary considerations here are that S has the benefit of a meaningful relationship with both parents. All of the evidence points to the fact that he does have the benefit of the time that he spends with both parents. It is not the quantity of time but the quality of time that is critical.
There are a number of other considerations for the Court in determining what is in the best interests of a child. They can be encapsulated in the following sentences. The views of S cannot be given any weight having regard to his age and maturity. In respect of the parties’ relationship with S, each parent has shown the importance to them of S in their lives. The father has expressed the desire to have S benefit for the involvement of his extended family but that too, for the reasons I have outlined, has been problematical because of the extended family’s view about the mother. I have no confidence that the father and his family will treat the mother as a very significant part of S’s life. The paternal grandmother made clear that nothing negative was said but that misses the point.
Each of the parents has the capacity to care for S’s physical needs and each does it in their own way. Each has shown a very strong desire to be involved in S’s life and to fulfil the responsibilities of parenthood. S is a lucky child except that the way in which his parents will raise him means that he will live in two entirely different worlds. The father’s attitude to paying for medical expenses and future schooling costs leaves me with considerable doubt as to whether the mother could rely upon him to fund various activities in a positive way. She will always be either chasing him or justifying what she has done. Whilst that is not unusual in this economic age where parties’ financial circumstances change constantly, I could not be confident that S will have a consistency of education to which the parties both currently aspire.
I have contemplated the question of whether or not reducing the father’s time will make any difference to S and am satisfied that S will adapt quickly. However, until S attends school, he needs to spend time at least once a week with his father having regard to the role that his mother is playing in his life. Once he commences school however, I consider the various changes will be disruptive and fraught with difficulty having regard to the nature of the relationship between the parties.
The appropriate solution is to increase the father’s time into a block period of four days in the fortnight but no more. That period is consistent with the definition of significant and substantial time in another unrelated provision in the legislation. It means that the father would spend time getting S to school and being involved in his school activities whilst at the same time, spending leisure time on weekends. As S grows older, if the parties can reach agreement, they are obviously at liberty to vary the orders but at this stage it is inappropriate for me to go beyond the first few years of schooling. For that reason, I propose to make holiday orders that will cautiously increase the time during the long summer holidays. Because of the potential for dispute between the parties and their inability to resolve matters quickly, I shall define the holiday period regardless of what the school term arrangements are.
Notwithstanding S’s age, I think it is preferable to make final orders to try and avoid further proceedings in the future. The parties endeavoured to do that in 2010 and the orders have been a failure. For that reason, I propose to make orders which are unlikely to alter unless the parties come to a reasonable compromise about their terms of communication and their respect for each other.
Section 60CC(4) and (4A) both require the Court to consider the extent to which the parties have fulfilled their responsibilities and facilitated the relationship as well as decision-making processes. The parties have been in litigation virtually all of this child’s life and have still not been able to resolve those problems. Because of that, orders are necessary.
Section 65LA entitles a court to make an order that the parties attend a post-separation parenting program. That was certainly contemplated during the proceedings. The whole concept of such a program is to enable parents to learn about not only their responsibilities and the impact that each has on the other and on children but also to learn skills to improve their respective communications. The mother and the father are both intelligent, articulate people from business backgrounds. On the evidence, I find there is no prospect that any program forced upon them would make any impact. Accordingly, I would not make such an order.
ANNEXURE
Documents Relied Upon by the Parties
Mother
Amended initiating application filed 19 December 2011
Affidavit of the mother filed 19 December 2011
Affidavit of Ms M filed 6 June 2011
Affidavit of Ms SS filed 7 December 2010.
Father
Amended Response filed 9 February 2012
Affidavit of the father filed 9 February 2012
Affidavit of Ms L filed 9 February 2012
Affidavit of Ms T filed 9 February 2012
Affidavit of Ms F filed 9 February 2012
Affidavit of Ms H filed 9 February 2012
Affidavit of Ms B filed 9 February 2012
Affidavit of Dr P filed 13 February 2012
Independent Children’s Lawyer
Affidavit of Dr A filed 6 May 2011 (and further report dated 27 May 2011)
Submissions and other documents relied upon by the parties
Mother
Outline of case document filed 15 February 2012
Father
Outline of case document filed 13 February 2012
Minute of orders sought by the father handed up on 22 February 2012
Independent Children’s Lawyer
Outline of case document filed 13 February 2012
Minutes of proposed orders handed up 22 February 2012
I certify that the preceding One Hundred and Eighty Six (186) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Cronin delivered on 9 March 2012.
Associate:
Date: 9 March 2012
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