N and U
[2009] FCWA 46
•18 MAY 2009
[2009] FCWA 46
| JURISDICTION | : | FAMILY COURT OF WESTERN AUSTRALIA |
| ACT | : | FAMILY COURT ACT 1997 |
| LOCATION | : [REGIONAL CENTRE] | ||
| CITATION |
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| CORAM |
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| HEARD |
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| DELIVERED |
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| FILE NO/S |
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| BETWEEN |
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AND
U
Respondent/Mother
Catchwords:
Parenting orders where 6 year old child does not know father
Legislation:
Family Court Act 1997, s 66, s 70A
Category: Not Reportable
[2009] FCWA 46
Representation:
Counsel:
| Applicant | : | Mr A Dungey |
| Respondent | : | Ms J Johnston |
| Independent Children's Lawyer | : | Mr J Pacy |
Solicitors:
| Applicant | : | Macdonald Rudder |
| Respondent | : | Bannerman Solicitors |
| Independent Children's Lawyer | : | Pacy Solicitors |
Case(s) referred to in judgment(s):
Nil
[2009] FCWA 46
1 The dispute to be determined between [Mr N] (“the father”) and [Ms U] (“the
mother”) concerns the parenting arrangements to be made for their child, [NSU]
(“[Nancy]”) who is aged nearly 6 years, having been born on 26 May 2003.2 The father presently has no relationship with [Nancy] and seeks to establish a relationship. The mother opposes the father having any contact with [Nancy].
Brief background
3 The father is a permanent resident of Australia of [Melanesian extraction], having lived in Australia for over 25 years. He is aged 47 years.
4 On 2 September 1990 the father married [MN] (“[Melody]”).
5 The father and [Melody] have one child, a daughter [SN] (“[Sandy]”) who is now aged 14 years. She lives with her parents [in the goldfields].
6 The mother is of aboriginal descent and is aged 51 years.
7 She has been married to [JU] (“[Jack]”) for more than 30 years. They reside
[in town]with [Nancy], their son [Don] aged about 32 years, a foster daughter [Stephy]
aged about 23 years and a foster son [Anthony] aged about 8 years.8 There is no dispute between the parties that [Nancy] only knows [Jack] as
her father.
Relevant history of court proceedings
9 On 6 August 2003 the mother obtained an interim Violence Restraining Order
(“VRO”) against the father. It was obtained on an ex parte basis. The VRO was later cancelled on the application of the father which appears to have done in the mother’s absence and the non-appearance of a solicitor who the mother says was to represent her at the hearing.
10 On 6 May 2004 orders were made in the Court of Petty Sessions at [the regional
centre] on the application of the father for the parties to undergo parentage testing procedures to establish [Nancy]’s paternity. This order was made after the Court had earlier dispensed with the requirement for personal service of the father’s application on the mother and in lieu ordered service be effected by prepaid post which was carried out. The order for parentage testing was made in the absence of the mother and the proceedings were otherwise adjourned to 8 July 2004.
11 On 8 July 2004 the mother was represented by a solicitor from the Aboriginal
Legal Service and the proceedings were further adjourned to 5 August to enable the mother to properly instruct her solicitors.
12 On 5 August 2004 the mother’s solicitors failed to appear, having earlier notified
the Court that they were unable to represent the mother because of a conflict of interest and the proceedings were relisted for hearing on 30 August 2004 with the mother being notified of the adjournment date by registered letter.
[2009] FCWA 46
13 On 30 August 2004 the following orders were made in the absence of
the mother:
“1. A declaration that the applicant is the father of [Nancy]. 2. The Registrar of Births Deaths and Marriages do amend or grant a birth certificate for [Nancy] accordingly. 3. The father have reasonable contact with [Nancy] to include overnight contact each Friday from 9am to 3pm Saturday.”
14 The mother says she was not aware of the listing date for 30 August 2004 and first learned of the existence of the orders on 3 September 2004.
15 The mother did not comply with the orders for contact and filed a Notice of Appeal against these orders. On 15 October 2004 the orders made 30 August 2004 were stayed pending the hearing of the appeal which was later discontinued.
16 On 29 October 2004 orders were again made for the parties to complete DNA testing necessary to establish [Nancy]’s parentage.
17 On 5 December 2005 the father filed a contravention application alleging that
the mother had without reasonable cause failed to undergo the parentage testing
ordered by the Court.18 Arrangements were finally made for the parties to undergo the parentage testing
and in about May 2006, the tests were completed and established that [Nancy]’s
biological father is the father in these proceedings.19 On 14 September 2006 an order was made for the appointment of an Independent Children’s Lawyer for [Nancy].
20 On 19 December 2006 [a clinical psychologist] was appointed as a Single Expert to prepare a report for the Court.
The evidence
21 The father was represented by Mr Alan Dungey. The father gave evidence in
support of his application and was cross-examined. The father also relied upon the
following affidavits:
(a) his trial affidavit filed 12 August 2008; and (b) [Melody]’s affidavit filed 27 October 2004.
22 The mother was represented by Ms Julia Johnston. The mother gave evidence in
support of the orders sought by her and was cross-examined. The mother also relied
upon the following affidavits:
(a) her affidavits filed 5 September 2006 and 20 March 2008; and
[2009] FCWA 46
(b) [Jack]’s affidavit filed 20 March 2008.
23 Mr John Pacy appeared as the Independent Children’s Lawyer. He relied upon
the affidavit of [the clinical psychologist] sworn 26 August 2007 who was also cross-
examined.
Parties’ credibility
24 There were significant differences between the parties about many relevant
issues, including the mother’s allegations of rape and violence against the father. I propose to deal with the evidence and make findings in relation to the relevant issues before considering what parenting will best promote [Nancy]’s interests.
Position of the father
25 The father seeks that the parties engage a suitable counselling organisation to
prepare [Nancy] to be informed of her biological father with a view to [Nancy]
spending time with the father, which is to be initially supervised by the counsellor.
Position of the by mother
26 The mother seeks that the father’s application be dismissed and no order be made for [Nancy] to spend time with the father.
Position of the Independent Children’s Lawyer
27 Mr Pacy also seeks that the parties engage a suitable counsellor to assist [Nancy]
to learn of her biological father and for [Nancy] to spend time with the father. This is
to initially take place on a supervised basis for up to two hours each fortnight.28 The Independent Children’s Lawyer further seeks that the mother and [Jack] be
restrained from:
(i) discussing with or in the presence of [Nancy] the proceedings and the allegations made against each other; and
(ii) from denigrating any party to the proceedings or members of their respective families in the presence of [Nancy].
The law
29 Pursuant to s 66A of the Family Court Act 1997 (the "Act") in deciding whether to make a particular parenting order, I must regard the best interests of [Nancy] as the paramount consideration.
30 For the purpose of determining what is in [Nancy]'s best interests, I must consider the "primary" and "additional" considerations set out in s 66C(2) and (3).
[2009] FCWA 46
31 The primary considerations are:
(a) the benefit to the child of having a meaningful relationship with both of the child's parents; (b) the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.
32 I must also have regard to s 66 of the Act which sets out the objects of the Act dealing with children and the principles which underlie those objects.
33 Section 66 provides as follows:
(1) The objects of this Part are to ensure that the best interests of
children are met by:
(a)
ensuring that children have the benefit of both of their parents having a meaningful involvement in their lives, to the maximum extent consistent with the best interests of the child; and
(b)
protecting children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence; and
(c)
ensuring that children receive adequate and proper parenting to help them achieve their full potential; and
(d)
ensuring that parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of their children.
(2) The principles underlying these objects are that (except when it is
or would be contrary to a child's best interests):
(a)
children have the right to know and be cared for by both their parents, regardless of whether their parents are married, separated, have never married or have never lived together; and
(b)
children have a right to spend time on a regular basis with, and communicate on a regular basis with, both their parents and other people significant to their care, welfare and development (such as grandparents and other relatives); and
(c)
parents jointly share duties and responsibilities concerning the care, welfare and development of their children; and
[2009] FCWA 46
(d) parents should agree about the future parenting of their children; and (e) children have a right to enjoy their culture (including the right to enjoy that culture with other people who share that culture).
34 I will consider other relevant provisions of the Act later in my judgment.
Circumstances of the parties’ relationship
35 The mother says that during her relationship with the father she was threatened
and abused both physically and verbally and on the first occasion sexual intercourse took place she was grabbed by her wrists, held in a way that she could not break free and then “raped” by the father. The mother further says that the father raped her on subsequent occasions.
36 The father denies having ever “raped” the mother and says that at no time did he
have other than consensual sex with the mother. He further denies having ever assaulted the mother or threatened to damage the mother’s property or expose their sexual relationship to [Jack] and her son [Don] if the mother resisted his advances as she alleges.
37 I intend to now consider the background to the parties’ relationship and
determine whether I am satisfied that the mother’s allegations of violence and rape on
the part of the father took place.38 The father and the mother together with their respective families had known each other for a number of years prior to [Nancy]’s birth.
39 The two families shared a home together for a period at [an aboriginal community] near [the town]. As best I can determine, this would have been in about early 2002. [Melody] says the two families became close friends and I accept this was the case.
40 The mother says “the relationship began during the time in my life when I was
finding it extremely difficult to deal with the death of a child that was in my care that
was at the boarding school I worked at”.41 On 15 September 2004 the mother executed an affidavit in support of her appeal
against the orders made by the Court of Petty Sessions at [the regional centre] which made a declaration as to [Nancy]’s paternity and orders for the father to spend time with [Nancy]. The mother at paragraph 19 of this affidavit says her affair with the father lasted for about 18 months and ended when she was about five months pregnant with [Nancy]. The father says the affair lasted about 4 years and ended a few weeks before [Nancy] was born. [Melody] says, and I accept, that she was aware of the father’s affair with the mother and gave evidence that it is not morally objectionable in her culture for a husband to have a child by another woman if his wife is unable to conceive. [Melody] further says that after having had three miscarriages she was
[2009] FCWA 46
advised that she was unable to have another child and gave her consent to the father
having a child by another woman.42 The father says he agreed with the mother to have a sexual relationship and that the two couples would raise any child the mother may have together.
43 The mother denies ever having agreed that she would have a child with the
father.
44 In the mother’s affidavit filed 20 March 2008 she seeks to depart from her
earlier evidence relating to her having an “affair” with the father and says concerning
the “affair”:
“12. I note that my previous affidavits state that I commenced an affair with the applicant, but at the time, I stated this because I was not in the right frame of mind and couldn’t bring myself to disclose the correct scenario of our relationship. 13. The first time that I had sexual relations with the Applicant was non-consensual and I have explained the circumstances of this later in my affidavit. 14. Therefore I do not agree that I had an affair with the Applicant.”
45 Where there is conflict between the parties as to the nature of the parties’
relationship and whether the father threatened or physically assaulted the mother and forced her to have sexual relations with him as she alleges, I prefer the evidence of the father.
46 The father was not shaken in cross-examination when questioned about the
mother’s allegations of threats and violence. He was direct and responsive when giving evidence about these issues and I consider his evidence to be more reliable than the evidence of the mother in this regard. I find the father’s account of what took place to be far more likely than the mother’s evidence.
47 My reasons for preferring the evidence of the father on these points include the
following:
(a) the mother was cross-examined about when she first told someone about being raped by the father and she answered: “When I was strong enough to talk to someone, when I was not
afraid to speak and tell people about it”.The mother was then asked “when was that?” and she answered:
“When [Nancy] was born, that made me a lot stronger to be able to talk to people about what happened to me and how she was conceived”.
[2009] FCWA 46
The mother was then asked if she told her lawyer she had been raped when the father took her to the Family Court and she answered that she did. Having allegedly told her lawyer about the rape after the father applied to the Family Court, it is difficult to understand why no reference was made to the rape allegations in the mother’s affidavit sworn 15 September 2004 which contains a specific section under the hearing “[Mr N’s] Violence”.
When the mother was asked to explain why there was no reference to the rape in this affidavit, she said she was not “strong enough” at that time to say what had happened. Having earlier admitted that she felt able to talk to people about what had happened to her after [Nancy] was born, I find it very difficult to accept the mother’s explanation;
(b) the mother admitted during cross-examination that she also failed to mention the allegations of “rape” against the father when she applied for the VRO against him in 2003; (c) at paragraph 77 of the mother’s affidavit filed 20 March 2008, she refers to an incident where she was allegedly assaulted after meeting the father in the bush. On this occasion, the mother says that she had her son asleep in her car when she had met the father. I accept the father’s evidence that he would sometimes meet up with the mother in the bush and she would bring her young foster son who would remain in the mother’s car, whilst the parties had sex in the father’s car. Furthermore, the father was not challenged on his evidence, which I accept, that the mother drove from [the regional centre] with her own mother to meet up with the father at the shop he was then operating [in another town]. I accept this occurred a few weeks before [Nancy] was born and the parties had sex [in town] on this occasion. I simply do not believe the mother would have taken family members with her when she drove some distance to meet up with the father if he had previously “raped” the mother and acted in such a violent manner toward her; and (d) I find it inconceivable that the mother would have agreed to the father and [Melody] visiting her home [in town] after [Nancy] was born if the father had raped and been violent to the mother as she alleges. I accept the father’s evidence that he was made welcome at the mother’s home and that the two families spent a few hours together, on this occasion.
48 In summary, I do not accept that the father raped the mother on any occasion or
was physically violent toward her as she alleges. In my opinion, the parties had a relationship which lasted more than 18 months and engaged in consensual sex during this period.
[2009] FCWA 46
Primary considerations
49 I will firstly turn to the primary considerations in determining what would be most likely to promote the best interests of [Nancy].
(a) the benefit to the child of having a meaningful relationship with both of the child's parents;
50 I am satisfied the mother has a very close and loving relationship with [Nancy].
The father readily acknowledged that the mother was a good mother. She has cared for [Nancy] on a full-time basis from the time of her birth.
51 At paragraph C1(i) of his report, [the clinical psychologist] says [Nancy] has “
bonded well” with the mother who he regards as having “always been a responsible and predictable parent in the child’s development”. [The clinical psychologist] also noted that during the assessment the mother was close to [Nancy] but was able to detach from her and allow [Nancy] independence appropriate to her age. I accept his evidence.
52 I am satisfied that [Nancy] will benefit from continuing to have a close and meaningful relationship with the mother.
53 The father presently has no relationship with [Nancy].
54 As earlier mentioned, shortly after [Nancy]’s birth the father and [Melody] went
to the mother’s home in [town]. I accept the father’s evidence that he and [Melody] stayed with the mother and [Jack] for a few hours and he was permitted to hold [Nancy] during the visit. The father next visited [Nancy] about one week later. The second visit was also prearranged with the mother and [Jack]. The parties again spent a few hours together, including time at the [local] markets. I accept the father held [Nancy] during this second visit and spent time pushing [Nancy] in her pram. It is alleged that the father walked off with [Nancy] and spent time hiding [Nancy] inside a room at the town hall. I accept the father’s evidence that he did not try to abscond with [Nancy] or take her from the mother’s care. I further accept that [Jack] told the father during this second visit that he did not want [Nancy] to get to know him because it would confuse her and he told the father not to come back to their home. The father has not since spent any time with [Nancy].
55 [The clinical psychologist] expresses at page 6 of his report that he “believes it is
in the best interest of a child to form a relationship with both natural parents, assuming
that everything is equal”.56 I will consider whether it is beneficial for [Nancy] to try and establish
a meaningful relationship with the father after I have dealt with other relevant
considerations in this case.
(b)
the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.
[2009] FCWA 46
57 I have already made reference to the VRO the mother obtained on an ex parte basis which was later cancelled. I have also considered the mother’s allegations that the father was physically violent toward her during the period of their relationship.
58 [Jack] says he has been witness to the father’s aggression during an incident
which occurred at the [local] Church where both the father’s family and the mother’s family would attend. This took place after the father was served with the VRO which contained a provision that the father was not to come within 100 metres of the mother. The father says he went with [Melody], [Sandy], and her 9 year old girlfriend to the [local] Church [in the regional centre] at which time the mother and [Jack] were already inside the church. The father says that [Sandy] went on ahead into the church whilst he was still getting out of the car. He further says, and I accept, that his daughter came out of the church upset over having been told by [Jack] they were not allowed to come to the church. An argument then developed between [Jack] and the father over his treatment of [Sandy]. I accept that the father grabbed [Jack] by the collar and told him not to speak to his daughter like that. Whilst the father denies having sworn at [Jack] and abused him, I think more likely than not he did.
59 The father was subsequently charged and convicted of having breached the VRO
which I assume was because he came within 100 metres of the mother who was inside the church when the incident occurred. The VRO was subsequently varied to enable the father to attend church and was later cancelled as earlier mentioned.
60 The father says in relation to the incident at the church in [the regional centre]
that he did not sit near the mother nor did he say a word to her. He further says “I never thought you could be arrested for going to church in Australia, and I didn’t consider the order carefully enough”.
61 I accept the father may not have realised he could be in breach of the VRO by
taking his family to church if the mother was also present. Nonetheless, his conduct in grabbing [Jack] by the collar and abusing him, even given the circumstances described by the father, was highly inappropriate and should not have taken place. This incident however occurred more than five years ago and there is no evidence to suggest that either the mother or [Jack] have found it necessary since the cancellation of the interim VRO, to seek any protective orders against the father.
62 [The clinical psychologist] considered in his report whether [Nancy] would be at
risk of any form of abuse, harm or neglect from the father. He noted at page 6 “there was no indication during this assessment that the father is a physically violent or aggressive man towards his wife, children or other people in the community” and I accept his evidence.
63 I am satisfied if the father is granted time with [Nancy], there is unlikely to be
any incident of violence between the father, the mother or any member of the mother’s family which might subject or expose [Nancy] to any abuse, neglect or family violence. I am further satisfied that [Nancy] will not be exposed to any abuse, neglect or family violence from the father during any time he may be entitled to spend with her.
[2009] FCWA 46
64 The father is supported by [Melody] in making his application to spend time
with [Nancy] and if time is granted to the father, it is likely that [Melody] will be present during contact visits. I was impressed with [Melody] and found her to be an honest and frank witness who gave evidence to the best of her recollection. I am satisfied that if the father is granted time with [Nancy], [Melody] will be a good support for him. [The clinical psychologist] noted at page 8 of his report there are no indications of any risk factors concerning [Melody] and I accept this to be the case.
65 When considering whether [Nancy] was at risk of any form of abuse, harm or neglect from [Jack], [the clinical psychologist] said at page 8 of his report:
“The Single Expert understands that while the mother and step-father were working at the [Aboriginal Education Centre], there were allegations made that the step-father had some inappropriate sexual dealings with some young female scholars who were boarding at this school. This was investigated, the police was allegedly called to investigate and allegedly [Mr U] was requested to leave the [Aboriginal Education Centre]. It is unclear if this request was related to the investigation, and as nothing is known about these alleged sexual inappropriate dealings, it could be beneficial if the Independent Children’s Lawyer requests further information in this regard.”
66 No evidence was led to suggest that [Nancy] is at risk of any abuse, harm or
neglect from [Jack], nor was anything put to him in cross-examination relating to the circumstances which allegedly led to [Jack] leaving the [Aboriginal Education Centre] as mentioned by [the clinical psychologist].
67 I am satisfied [Nancy] would not be exposed to any risk of abuse, neglect or family violence from the mother or from any member of the mother’s family.
Additional considerations
68 I turn now to the additional considerations.
(a) any views expressed by the child and any factors (such as the child's maturity or level of understanding) that the court thinks are relevant to the weight it should give to the child's views;
69 [Nancy] is nearly 6 years of age. She does not presently have a relationship with
the father. No evidence was led to suggest that [Nancy] has any views which are
considered relevant.
[2009] FCWA 46
(b) the nature of the relationship of the child with:
(i) each of the child's parents; and (ii) other persons (including any grandparent or other relative of the child);
70 As earlier mentioned, [Nancy] has a very strong relationship with the mother to whom she is closely bonded.
71 [The clinical psychologist] says that [Nancy] also has a close and loving
relationship with [Jack] who [Nancy] refers to as “daddy” and regards him as her father. I accept his evidence. I also accept [Nancy] has a close relationship with [Don], [Stephy] and [Anthony].
(c) the willingness and ability of each of the child's parents to facilitate, and encourage, a close and continuing relationship between the child and the other parent;
72 As earlier mentioned, [Nancy] has no relationship with the father. Whilst the
mother has the ability to facilitate and encourage a close relationship between [Nancy] and the father, it is not in dispute that the mother strongly opposes the father having any relationship with [Nancy]. The mother’s position is strongly supported by [Jack].
73 The father says that he wants [Nancy] to know her natural father. He appeared
genuine when giving this evidence and spoke from the heart. I am satisfied that in bringing his application, the father has no desire to damage or interfere with [Nancy]’s relationship with the mother and I accept that if the father is given the opportunity, he will support and foster the relationship between [Nancy] and the mother.
(d) the likely effect of any changes in the child's circumstances, including the likely effect on the child of any separation from:
(i) either of his or her parents; or (ii) any other child, or other person (including any grandparent or other relative of the child), with whom he or she has been living;
74 [The clinical psychologist] considered this issue at page 5 of his report where he
observed:
“Should the child establish a relationship with her father and his family, the effect will depend on how the mother and her family manage the introduction of this relationship.”
75 [The clinical psychologist] was also asked about the effect on [Nancy] of being
separated from the mother. He noted at page 9 of his report that any immediate or long-term separation of [Nancy] from the mother would negatively affect her
[2009] FCWA 46
emotional development. He says, however, that should [Nancy] be introduced gradually to the father and to his family, then separating [Nancy] from the mother “for a short time should not have a significant impact on her development”.
76 As an example, [the clinical psychologist] said that, if the mother and her family
had a positive attitude to the introduction of the relationship between [Nancy] and the father and assisted [Nancy] in developing that relationship, it would be positive for the child and she would have “an additional family to support her with her developmental needs, both now and later in life”. He further says that if the mother and [Jack] handled the introduction of the relationship in a negative way, there “would be considerable difficulties in terms of establishing such a relationship between the child and her father”. [The clinical psychologist] noted that “at this stage the mother refuses to allow the father to have contact with the child and it is likely to make it difficult for the father to establish a relationship with the child.” I accept [the clinical psychologist]’s evidence.
77 [The clinical psychologist] was also asked about the affect on [Nancy] of not
establishing a relationship with the father and his family. After noting there would be no affect on [Nancy]’s development if she does not establish a relationship with the father and [Melody] as she would not know them and would simply be brought up with the mother and [Jack], [the clinical psychologist] says at page 6 of his report:
“However, [Nancy] may, during her teens, or as a adult, question why she never had contact with her father, and she might experience a variety of negative emotions (disappointment/anger/resentment) towards the mother for not encouraging a relationship between her – more so if she decides to have establish a relationship with the father during this time.”
78 When cross-examined, [the clinical psychologist] said that it was normal for
children to have a “natural curiosity” and would usually want to know the identity of
their natural parents.79 According to [the clinical psychologist], [Nancy] is likely to find out the identity
of her natural father and at some point the mother is likely to be faced with having to
answer the question about her paternity. I accept his evidence.80 The mother acknowledged in cross-examination that she will tell [Nancy] the
truth about her father and says this may be when [Nancy] is “18 or 19”. When asked what she would tell [Nancy] about her father, the mother says she would tell her he is “a [Melanesian] bloke who was not very good to her mother” and would also tell [Nancy] what the father did to her. Apart from the natural inquisitive nature of children to know their biological parents as reported by [the clinical psychologist], the father has contact with the mother’s brother [George], who has had the father and [Melody] over for dinner and has shown them photos of [Nancy]. [George] has seven children of his own and whilst it appears that there is now a rift between the mother and [George] over his contact with the father, the fact that the father has this contact may increase the likelihood of [Nancy] finding out that [Jack] is not her biological father.
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81 [Jack] was also cross-examined about when he thought [Nancy] should be told
the identity of her biological father. Like the mother, [Jack] says that [Nancy] is too young to be told now and says he believes the appropriate age is when [Nancy] reaches her late teens. [Jack] also stated, however, that [Nancy] may never have to be told because the “second coming of Christ is near”.
82 In opposing any contact between [Nancy] and the father, the mother also says
[Nancy] suffers from a seizure disorder and that her seizures are triggered possibly by [Nancy] becoming distressed. The mother further says she has a problem leaving [Nancy] with anyone except for [Jack] and [Don] and believes that [Nancy] is likely to become extremely distressed if she is separated from her to spend time with the father.
83 To support this evidence, the mother relies upon a report from [Dr JS] which is
Annexure B to the mother’s affidavit sworn 4 September 2006. This report is dated 15
August 2006 and says in the first paragraph:“[Nancy] is 3 years old. She is a well child but has a seizure disorder and was admitted to [the regional] Hospital on 5/5/2006 for investigations. No cause was found and she has not had any further seizures but the risk of seizures remains. The risk of further seizures will be increased by stress, being overtired, fever and hyperventilation as can occur when she is upset.”
84 The paediatrician concludes her report by advising that “it is not in [Nancy]’s best interests to be separated from her mother and her familiar surroundings”.
85 The report from [Dr JS] was prepared nearly three years ago and at a time when
[Nancy] was being breast fed. No current expert evidence was produced by the mother and I do not intend, in the circumstances, to give the paediatrician’s report any significant weight in reaching my determination.
(e) the practical difficulty and expense of a child spending time with and communicating with a parent and whether that difficulty or expense will substantially affect the child's right to maintain personal relations and direct contact with both parents on a regular basis;
86 The father lives some 700 kilometres from the mother’s home [in the town].
The mother says that she is not in a financial position to contribute to the costs of travel for [Nancy] to spend time with the father. The father says he is not in a strong financial position but they manage. He is dependant upon [Melody]’s income who is the breadwinner for the family. [Melody] works on a full-time basis and says she earns about $1,600 per fortnight net. For unpaid work the father does for [the community] , his family is provided with a modern four bedroom, two bathroom home. I accept this provides comfortable accommodation for the father, [Melody] and [Sandy].
87 [Melody] supports the father’s application and says she is prepared to meet the
costs of the trip from [the community] to [the regional centre] once every two weeks and will also pay costs of any counselling which may be ordered. I am satisfied with
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[Melody]’s support the father will be in a position to meet the travelling expenses and
any other costs that might be involved spending time with [Nancy].
(f) the capacity of:
(i) each of the child's parents; and (ii) any other person (including any grandparent or other relative of the child); to provide for the needs of the child, including emotional and
intellectual needs;
88 [The clinical psychologist] notes at page 7 of his report that the mother is more
than capable of adequately providing for the emotional, physical and intellectual needs of [Nancy] and I accept his evidence. [The clinical psychologist] says that the father and [Melody] have brought up [Sandy] and have provided adequately for her needs. He also says the father and [Melody] are more than capable of adequately providing for [Nancy]’s needs during any time she may spend with them and I accept his evidence.
(g) the maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the child and of either of the child's parents, and any other characteristics of the child that the court thinks are relevant; (h) if the child is an Aboriginal child or a Torres Strait Islander child:
(i) the child's right to enjoy his or her Aboriginal or Torres Strait Islander culture (including the right to enjoy that culture with other people who share that culture); and (ii) the likely impact any proposed parenting order under this Part will have on that right;
89 [Nancy] is of aboriginal and [Melanesian] descent. The mother is from
[a well respected] people. The father and [Melody] have worked for aboriginal communities for a number of years and I accept they respect and are very fond of aboriginal people.
90 I am satisfied that orders which provide for [Nancy] to establish a relationship
with the father and his family will enable [Nancy] to learn of her [Melanesian] heritage and give her the opportunity to enjoy the [Melanesian] culture by associating with people who share that culture.
91 I am also satisfied that [Nancy] would benefit from being exposed to both aboriginal and [Melanesian] cultures.
(i) the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child's parents;
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92 The father first went to visit [Nancy] at the mother’s home soon after her birth.
After the father was refused contact with [Nancy] he consulted solicitors who wrote to the mother and [Jack] on 29 July 2003 seeking time for the father with [Nancy]. This request was not agreed to and the father then filed an application to spend time with [Nancy]. I have earlier detailed the delays that have taken place in the matter coming on for hearing.
93 I am satisfied that the father has done all that was reasonably open to him in the
circumstances to try and build a relationship with [Nancy] and this has been his desire for more than five years. The father is not to be criticised for any failure to meet the responsibilities of parenthood towards [Nancy] given the mother’s uncompromising opposition to his application and the difficulties he has faced.
94 The mother and [Jack] have opposed the father’s efforts to establish any form of
relationship with [Nancy] since she was a few weeks of age and have denied [Nancy] any knowledge of her paternal father and his family. If the Court’s decision is that [Nancy] is likely to benefit from establishing a relationship with the father and the mother and [Jack] continue to stand in the way of that relationship, then such conduct would be inappropriate and irresponsible.
(j) any family violence involving the child or a member of the child's family; (k) any family violence order that applies to the child or a member of the child's family, if:
(i) the order is a final order; or (ii) the making of the order was contested by a person;
95 I have previously dealt with the alleged incidents of violence between the father,
the mother and [Jack]. No evidence was led to suggest that [Nancy] has been exposed to any family violence involving the father and no family violence order applies to [Nancy] or to any member of her family.
(l) whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to the child;
96 Usually, it is preferable for orders to be made that are least likely to lead to further proceedings between the parties.
97 Making orders aimed at building a relationship between [Nancy] and the father
is likely to result in further proceedings if the mother fails to comply with the orders. In her Papers for the Judge, the mother further says she is also concerned the father may threaten to remove [Nancy] from Western Australia and take her [overseas] , if the father made any attempt to do this, there would be further proceedings. I am not satisfied, however, that the father has any intention of taking [Nancy] away from the mother and her family. The mother’s affidavit sworn 15 September 2004 says at paragraph 32 that she forwarded a child alert request to the Department of Foreign Affairs and Trade which would result in the mother being notified if the father made
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application to obtain an Australian passport for [Nancy]. No evidence was led that the father has made such an application. Whilst the mother asserts in that same affidavit that the father “would know how to get out of Australia without a passport”, I am not satisfied that there is any reasonable basis for the mother to express fears that the father may abscond with [Nancy]. It would of course be open to the mother to make application for an order for [Nancy]’s name to be included on the Pass Alert System if she presently fears that the father may seek to remove [Nancy] from her.
(m) any other fact or circumstance that the court thinks is relevant;
98 Any other relevant fact or circumstance that has not been dealt with earlier in these reasons, will be considered in my discussion and conclusion.
Section 66C(4) factors
99 Under this section, the Court is required to consider the extent to which each
party has failed to fulfil their parental responsibilities. The matters relevant to these
factors have been earlier considered.
Discussion and conclusion
Equal shared parental responsibility – s 70A
100 In making a parenting order, I must apply a presumption that it is in [Nancy]’s
best interests for her parents to have equal shared parental responsibility for her. This relates not to the time [Nancy] may spend with her parents but to the responsibility for decision making. This presumption may, however, be rebutted if I am satisfied that it would not be in [Nancy]’s best interests for her parents to have equal shared parental responsibility.
101 The father does not seek equal shared parental responsibility for [Nancy]. In any
event, I am not satisfied it is in [Nancy]’s best interests for the parties to have equal shared parental responsibility. In my opinion, there is presently no prospect that the mother and father will be able to work together to reach decisions concerning long-term issues affecting [Nancy].
102 This case raises difficult issues. The mother wants the father to have no
involvement whatsoever in [Nancy]’s life and her counsel submits an order for [Nancy] to spend time with the father will cause the mother, her family and [Nancy] a good deal of distress. In reaching my decision, [Nancy]’s best interest must, however, remain the paramount consideration and rank above the desires of both parties.
103 As earlier mentioned, I am satisfied that the father is genuine in his desire that
[Nancy] know her biological father and that he have an opportunity to build a relationship with her, which the father first pursued soon after [Nancy] was born. Whilst the litigation has taken many years to come to trial, I am satisfied that the father has been consistent and committed to establishing a relationship with [Nancy].
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104 I also accept that the father is genuine in his belief that [Nancy] should have the
opportunity to build a relationship with her half-sister [Sandy], who [Nancy] presently does not even know exists. He also has the benefit of a supportive wife in [Melody] who is prepared to assist the father financially in meeting the costs of facilitating any orders that may be made for the father to spend time with [Nancy], including any costs of counselling sessions.
105 The evidence of [the clinical psychologist] confirms that it would ordinarily be
in the best interest of a child to have a relationship with both natural parents which is consistent with the objects, and principles which underlie the objects, set out in the Act to which I have earlier referred. These include the right of any child to know and be cared for by both of their parents and the right to spend time on a regular basis with both of their parents and other people significant to their welfare and development unless it would be contrary to a child’s best interests. In [Nancy]’s case a significant person would include her half sister [Sandy]. The Single Expert at page 9 of his report noted “that children who have a relationship with half-siblings can benefit from this relationship in the future.” I accept his evidence.
106 The Independent Children’s Lawyer supports the father having an opportunity to form a relationship with [Nancy] for reasons which include:
(a) [Nancy] will be able to have the support and input from the paternal father; (b) [Nancy] will have the opportunity to form a relationship with her half-sister [Sandy]; (c) [Nancy]’s long-term emotional development may be jeopardised if she is not informed of her parentage; (d) [Nancy]’s longer term relationship with her mother may be damaged if she later learns that the mother prevented her from knowing the identity of her natural father; (e) [Nancy] will have an opportunity to enjoy and associate with people who share her [Melanesian] culture which is her right.
107 I accept these submissions of the Independent Children’s Lawyer as to the
benefits [Nancy] is likely to gain from forming a relationship with the father and his
family.108 I accept that the mother opposes the father having any opportunity to build
a relationship with [Nancy] which is a decision supported by [Jack] who wants [Nancy] to grow up, at least until her late teens, believing he is [Nancy]’s natural father. I also accept the mother genuinely believes it would not be good for [Nancy] to be told that [Jack] is not her natural father at this stage and for orders to be made for [Nancy] to spend time with the father.
109 The strength of the mother’s opposition to the father’s application is such that
the mother, supported by [Jack], may choose not to comply with the order and this may lead to further proceedings between the parties. Furthermore, I accept there is
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also the risk that the mother will be distressed by the making of orders aimed at introducing [Nancy] to the father and this may have a detrimental impact on [Nancy] by causing anxiety in the mother’s household.
110 I am satisfied, however, that these risks are outweighed by the benefits to
[Nancy] of having an opportunity to establish a close and loving relationship with her biological father and members of his family, which in my opinion is in her best interests.
111 I do not intend at this stage to consider making any final orders for [Nancy] to
spend unsupervised time with the father. I intend to make orders substantially as proposed by the Independent Children’s Lawyer at the conclusion of the trial which require the parties to engage the services of an appropriate counselling organisation to prepare and assist [Nancy] to establish a relationship with the father and thereafter for [Nancy] to spend supervised time with the father. The matter is then to be relisted before me when consideration can be given to [Nancy] spending unsupervised time with the father on an ongoing basis.
112 The Independent Children’s Lawyer further seeks an injunction restraining the
mother and [Jack] from discussing the proceedings in the presence of [Nancy] or from denigrating any party to the proceedings or members of their respective families. I am satisfied it is appropriate to grant the injunctions sought by the Independent Children’s Lawyer. I have earlier referred to the mother’s evidence of how she intends to describe the father to [Nancy] when it is time to do so. I am very concerned that the mother and/or [Jack] may seek to demonise the father to [Nancy] which is likely to create anxiety and fear for her. This would clearly be against [Nancy]’s best interests.
113 Subject to hearing from counsel, I propose making the following orders which
I am satisfied are in [Nancy]’s best interests:
1. The parties, as soon as practicable, engage the services of an appropriate counselling organisation such as Centrecare, for the purposes of:
(a) conducting therapeutic sessions to prepare and assist the child, [Nancy] born [in] May 2003, to: (i) be informed of her biological father; and
(ii) establish a relationship with her father and to commence spending time with her father, and the father’s family;
(b) assisting the father to establish a relationship with [Nancy]; 2. The parties co-operate with all reasonable requests made by the counsellor/therapist to:
(a) make [Nancy] available for sessions;
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(b) attend sessions themselves; and/or (c) participate in joint sessions with [Nancy]. 3. Once the counsellor/therapist has completed the preparatory sessions as provided for in paragraph 1, then, until further order, [Nancy] spend supervised time with the father on such days & times as can be arranged at the Centrecare children’s contact centre in [the regional centre], up to a maximum of 2 hours per fortnight.
4. Any fees payable to Centrecare or any other counselling organisation in relation to the therapy provided for in paragraph 1, and the supervision of time spent between [Nancy] and the father, be paid by the father.
5. The Independent Children’s Lawyer, John Pacy, be at liberty to provide information to Centrecare in relation to these proceedings, including:
(a) a copy of these orders and reasons for decision; and (b) a copy of the Single Expert’s report dated 22 August 2007; and be at liberty to request a report or reports for the purposes of the Family Court proceedings, in relation to the counselling and any supervised visits.
6. Any report(s) obtained by the Independent Children’s Lawyer from Centrecare (or other such agency) be provided to the Court and to the solicitors for each parent.
7. The parties and the Independent Children’s Lawyer have leave to request the re-listing of the proceedings, before His Honour Justice Crooks, as follows:
(a) in relation to the implementation of these orders; and (b) in relation to the time [Nancy] is to spend with the father after the implementation of paragraphs 1 and 2 hereof and the father has spent supervised time with [Nancy] for not less than three months. 8. Each of the mother, [Ms U] and [her husband], be restrained and an injunction be granted restraining each of them from:
(a)
discussing with or in the presence of [Nancy] any of the allegations made against each party in these proceedings; and
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(b)
denigrating any party to these proceedings, or members of their respective families, or allowing any other person to do so, to or in the presence of the child.
I certify that the preceding [113] paragraphs are a true copy of the reasons for
judgment delivered by this Honourable Court
Associate
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