NEAL & GARNETT
[2009] FMCAfam 1139
•5 November 2009
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| NEAL & GARNETT | [2009] FMCAfam 1139 |
| FAMILY LAW – Parenting – arrangements for care of one child aged almost seven – where the parents are from different cultural backgrounds – where the child has been living primarily with the father for more than two years – where the mother seeks an order for equal time – where the father alleges that the two young children of the mother’s partner sexually abused the child in 2008 – whether the partner also poses a risk to the child – whether there are reasons to be concerned about the mother’s parenting capacity – whether the mother can be trusted to comply with an order that she not bring the child into contact with the partner and his children. |
| Family Law Act 1975, ss.60CC, 61DA, 65DAA |
| Applicant: | MS NEAL |
| Respondent: | MR GARNETT |
| File Number: | SYC 6550 of 2007 |
| Judgment of: | Terry FM |
| Hearing dates: | 17, 18 & 19 September 2008, 16,17 & 19 December 2008, 15 & 16 June 2009 |
| Date of Last Submission: | 16 June 2009 |
| Delivered at: | Darwin |
| Delivered on: | 5 November 2009 |
REPRESENTATION
| The Applicant: | In person |
| The Respondent: | In person |
| Counsel for the Independent Children’s Lawyer: | Ms Giacomo |
| Solicitors for the Independent Children’s Lawyer: | Ward Keller |
ORDERS
UPON NOTING THAT on 19 September 2008 the following final orders were made by consent:
That the parents have equal shared parental responsibility for [X] (“[X]”) born in 2002.
Medical Issues
IT IS NOTED
AThat both parents will use their best endeavours to use natural remedies for [X] where possible.
That in the event that [X] requires medical treatment both parents are to ensure [X] attends upon Dr M (unless Dr M is unavailable or [X] requires emergency medical treatment).
That the mother and father are to provide [X] with all medication (natural or mainstream) prescribed by Dr M (or any other medical practitioner) at times and in doses as prescribed.
Changeover
That for the purpose of changeover of [X] from one parent’s household to another:-
(a)If the changeover day is a school day the parent who is to commence spending time with [X] is to collect her from [L] Child Care Centre or her school;
(b)If the changeover day is not a school day the parent who is to finish spending time with [X] is to deliver [X] to the other parent’s residence.
For the purposes of paragraph 4(b) of these orders:-
(a)The parent delivering [X] is to remain near their motor vehicle and is to drive away as soon as [X] has been collected by the other parent;
(b)The parent collecting [X] is to ensure the other parent is aware that [X] has been collected safely;
(c)The mother is to ensure that her partner, Mr R, is not present during changeover.
Communication between parents
That the parents shall communicate with each other regarding issues about [X] via email or in an emergency or urgent situation via telephone.
That if [X] has been prescribed medication (natural or mainstream) the parent who has taken [X] for medical treatment shall inform the other parent immediately by email:
(a)[X]’s symptoms and the doctor’s diagnosis;
(b)The medication prescribed and the doctor’s advice regarding the administration of such medication.
That the parents shall forthwith attend either “Building Connections” or “Kids Come First” as recommended by the Family Consultant,
Mr Vidot.
Telephone communication
That each parent have liberty to telephone [X] at 6.00pm on each evening that [X] is not spending time with them.
IT IS NOTED
B For the purposes of facilitating orders the parents agree:-
(i)they will both ensure that [X] is the only person to answer the phone at around 6.00pm in the evening;
(ii)they will both ensure to call [X] on the other parent’s landline unless advised by the other parent to call on the mobile phone;
(iii)that there will be times that [X] may not be available at 6.00pm to take the telephone call and in this event:-
(a) the parent calling [X] will leave a message for her to call back;
(b)if a parent receives a message for [X] to call the other parent back then they shall ensure [X] calls the parent that evening.
(iv) That there will be times when [X] may be on an outing with the other parent and not return home until it is too late in the evening to call the other parent. In this event the parent taking [X] on the outing will text message the other parent to advise the other parent to call [X] on a mobile number that evening. Alternatively the parent taking [X] on an outing can arrange for [X] to call the other parent on their mobile at 6.00pm.
ORDERS
That the child [X] born in 2002 live with the father.
That subject to the mother complying with Order (8) the child spend time with the mother:
(a)from the conclusion of school on Friday (or the conclusion of school on Thursday if Friday is a public holiday) until the commencement of school on Monday (or the commencement of school on Tuesday if Monday is a public holiday) each alternate week during school terms commencing on the first Friday of each school term;
(b)from the conclusion of school on Wednesday until the commencement of school on Friday (or 8.00am on Friday if Friday is a public holiday) each alternate week during school terms commencing on the second Wednesday of each school term;
(c)for the first and each alternate week of the Christmas school holidays 2009/2010, to commence at the conclusion of school on the last day of the school term and with changeover between the parents thereafter to take place at 5.00pm each Friday;
(d)commencing with the school holidays at the end of Term 1 in 2010 being the first half of the holidays in 2010 for half of each school holiday period and each alternate year thereafter and the second half of the holidays in 2011 and each alternate year thereafter;
(e)if the mother’s birthday falls on a day when the child is not otherwise with the mother from after school until 6.00pm on the birthday if it falls on school day and from 9.00am until 6.00pm if the birthday falls on a non-school day;
(f)if the child’s birthday falls on a day when the child is not otherwise with the mother the mother shall spend time with the child from 9.00am until 2.00pm in 2009 and each alternate year thereafter and from 2.00pm until 6.00pm in 2010 and each alternate year thereafter;
(g)from 2.00pm on Christmas Day until 6.00pm on Boxing Day in 2009 and each alternate year thereafter and from 2.00pm on Christmas Eve until 2.00pm on Christmas Day in 2010 and each alternate year thereafter;
(h)on the Mother’s Day weekend each year and if Mother’s Day falls on a weekend when the child would otherwise be with the father the child shall spend the following weekend with the father;
(i)at such additional or alternate times as may be agreed between the parties.
That if Father’s Day falls on a day when the child would otherwise be with the mother, the mother’s time with the child is suspended on that weekend and shall in lieu take place on the following weekend.
That if the father’s birthday falls on a day when the child is not otherwise with the father the child shall spend time with the father on his birthday from after school until 7.00pm if the birthday falls on a school day and from 9.00am until 7.00pm if the birthday falls on a non-school day.
That if the child’s birthday falls on a day when the child is not otherwise with the father the father shall spend time with the child from 9.00am until 2.00pm in 2010 and each alternate year thereafter and from 2.00pm until 6.00pm in 2009 and each alternate year thereafter;
That unless otherwise agreed between the parties the father shall spend time with the child each Christmas as follows:
(a)from 2.00pm on Christmas Day until 2.00pm on Boxing Day in 2010 and each alternate year thereafter;
from 2.00pm on Christmas Eve until 2.00pm on Christmas Day in 2011 and each alternate year thereafter.
That the mother’s time with the child pursuant to Order (2) shall commence upon the mother giving a written undertaking to the court that she will:
(a)not allow the child to come into any direct or indirect contact with Mr R or allow the child to have any direct or indirect communication with Mr R;
(b)not allow the child for the next twelve (12) months to come into any direct or indirect contact with [Y] or [Z] or allow the child to have any direct or indirect communication with [Y] or [Z];
NOTING THAT the mother is not expected to prevent the child having communication with or coming into contact with [Y] or [Z] in circumstances where this contact or communication occurs because the child attends the same school, day care centre, child carer or extra-curricular activity as [Y] and [Z].
That Mr Vidot or a person nominated by him shall as soon as reasonably practicable explain personally to [X] that orders have been made preventing her from having any contact or telephone communication with Mr R and (for the period and subject to the conditions in Order (8(b)) with [Y] and [Z].
That each parent shall keep the other informed of their residential and postal addresses and their landline and mobile telephone numbers and notify the other parent of any change to these details within forty eight (48) hours of the change.
That if either parent intends to travel away from their usual place of residence during their period of holiday time they shall provide to the other party in writing at least seven (7) days prior to departure an itinerary including the dates of departure and return and the address and telephone number of the place where they will be staying during the holiday.
That the Independent Children’s Lawyer is hereby discharged.
IT IS NOTED IN CONNECTION WITH THESE ORDERS that the judgment of Federal Magistrate Terry delivered this day will for all publication and reporting purposes be referred to as Neal & Garnett.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT ALICE SPRINGS |
SYC 6550 of 2007
| MS NEAL |
Applicant
And
| MR GARNETT |
Respondent
REASONS FOR JUDGMENT
Introduction
[X] is almost seven. She is the only child of Ms Neal and Mr Garnett, who separated about three years ago.
[X] currently lives primarily with her father and spends five nights per fortnight with her mother.
The parents are in dispute about what should happen in the future. The mother wants to move to equal time. The father is somewhat conflicted about the outcome he seeks, but at the end of the hearing he leaned toward either keeping the current arrangement or reducing the mother’s time to alternate weekends.
There is an interim order in place prohibiting the mother from bringing [X] into contact with her partner Mr R or his children [Y] and [Z]. The father is adamant that this prohibition must continue. The mother would like it removed, although she said that she would abide by it if she had to.
Background
The mother is Vietnamese and the father, although originally from the United States, has been an Australian citizen for some time. The parents met in Vietnam in May 2000 when the father was working there, married in Thailand in December 2000 and came to Australia in September 2001.
There is a considerable age difference between the parties, the mother having been born in 1972 and the father in 1952.
After the parties came to Australia they lived in [B] (where [X] was born in December 2002) and [D] in Western Australia before moving in Alice Springs in 2005. They purchased a home in Alice Springs in December 2005.
When the parties met the mother was working as an English interpreter. She had done a teaching course, and after she and the father met she also studied [omitted]. However the mother did not work outside the home in Australia until 2005, when she began working one day a week as [occupation omitted].
The father’s usual occupation is that of manager and he was consistently employed in Australia from September 2001. At the time of separation he was employed as a [occupation omitted] in Alice Springs.
Each party had (and still has) their grievances about the other as a spouse.
The mother said that she felt lonely and isolated during the marriage. She said that the father resisted her efforts to involve him in family life and spent his spare time smoking cannabis and consuming alcohol. She admitted that she turned to the internet to look for relationships but said that this was because of her loneliness in the marriage.
The father said that the mother was lying and that the difficulties in the marriage arose simply because she went looking for other relationships on the internet.
In December 2006 there was talk of separation, indeed the mother said that the parties did separate at that time. The father sent the mother and [X] to California to spend time with his sister and her family over Christmas, believing that this might help to save the marriage. However while the mother was in the United States she met Mr J and began a relationship with him.
The mother returned to Alice Springs with [X] on 12 February 2007 as the father expected, but two weeks later she surreptitiously left Alice Springs with [X]. She returned to the United States and began living with Mr J.
The father was distraught about the disappearance of his daughter. He contacted the Central Authority in Canberra. The mother was located in the United States and the father was granted assistance to commence proceedings to recover [X].
In March 2007 however the father was able to speak to the mother on the telephone and he was able to persuade her to hand [X] over to him voluntarily. He flew to the United States, collected [X] and in early April 2007 returned to Australia. The mother remained in the United States with Mr J.
The mother was obliged to leave the United States every three months to renew her visa. In June 2007 she visited [X] in Alice Springs for a few days before returning to the United States and in September 2007 she came to Sydney with Mr J. [X] spent some weeks in Sydney with the mother before the mother again returned to the United States.
The mother appears to have somewhat naively believed for a time that the father might eventually consent to [X] living with her in the United States. By September 2007 however it had become clear to her that this was not going to happen and while she was in Sydney she filed an application in the Federal Magistrates Court there, seeking final orders that would permit [X] to live with her in the United States.
In her court documents the mother said that she and Mr J intended to marry in early 2008 once she had obtained a divorce.
The father filed a response in which he opposed the relocation and sought orders that [X] live with him in Alice Springs. The proceedings were subsequently transferred to the Federal Magistrates Court in Alice Springs.
On 25 December 2007 the mother returned to Alice Springs with the intention of remaining there permanently, having formed the view that she had little prospect of being able to take [X] back to the United States.
[X] continued to live with the father and the mother spent time with [X], at first as agreed between the parents and later pursuant to consent court orders made on 14 January 2008. These orders provided for the mother to spend two blocks of time with [X] during the remainder of the school holidays and to spend time with her for about two and a half hours each day after school once school commenced
Mr J visited the mother in Alice Springs in January 2008 but he returned to the United States after a fairly short period. I am satisfied that the mother’s relationship with him ended at this time.[1]
[1] During the hearing the father expressed some doubt about when and if the mother’s relationship with Mr J had ended but there was simply no evidence that it continued after February 2008.
On 11 February 2008 a further interim order was made which permitted the mother to spend time with [X] each alternate weekend from after school on Friday until 5.00pm on Sunday, in addition to the afternoons after school.
On 3 March 2008 fresh orders were made by consent which provided for [X] to spend five nights a fortnight with the mother namely from after school on Friday until 8.00am on Monday each alternate weekend and from after school on Wednesday until the commencement of school on Friday in each other week.
Initially after these orders were made the mother also continued to pick [X] up after school on other afternoons. The father saw this as a deliberate breach of the orders, but I am satisfied that the mother genuinely did not understand that the 3 March 2008 orders were intended to be comprehensive and to supersede the earlier orders. Once this was explained to the mother she ceased picking [X] up after school on days which were not her days.
After initially living in a women’s shelter and a caravan park, the mother rented an apartment. She began working at [workplace omitted], a business operated by Mr R. The mother and Mr R commenced a relationship and Mr R began spending nights at the mother’s apartment.
Mr R is about 44. He has a son aged about 18 from his first marriage, who lives interstate, and two children from his second marriage who live in Alice Springs. These children are [Y], who was born in 2002 and is about seven months older than [X], and [Z] (called [Z]) who was born in 2000 and who was 8 when the relationship between Mr R and the mother commenced.[2]
[2] Exhibit C Family & Children’s Services records
[Y] and [Z] live in a shared care arrangement with their father and their mother Mrs R. Once Mr R began his relationship with the mother, his children slept over at the mother’s apartment with him on occasions.
The father took a fairly immediate dislike to Mr R and his children. He complained that Mr R gave him menacing looks at changeovers and that [Y] and [Z], on being in the father’s vicinity for the first time, ignored the father and had obviously been “prepped that he was bad.”
The relationship between the mother and father had had its ups and downs since the mother returned to Australia. In January 2008 there was an occasion when the mother called the police following an incident at the father’s home at changeover, and the father complained about what he saw as the mother’s repeated breaches of the court orders.
On 25 April 2008 the parents had an argument over whether [X] should go to the mother when she was sick and about where changeover should occur. [X] did eventually go to the mother on that day after changeover occurred at the police station.
On 28 April 2008 the father filed a contravention application. He alleged, based on the mother’s statements to the police officer at the changeover earlier that day, that she had denigrated him and failed to foster his relationship with [X]. He also alleged that she had failed to advise him about a significant medical issue, namely that the child had had a nose bleed two weeks earlier.[3] The father later withdrew this application although he has never resiled from his position that the mother did breach the orders.
[3] Father’s affidavit filed 28 April 2008 paragraph 2
On 19 May 2008 the competing applications for final parenting orders were listed for hearing in the September 2008 circuit sittings in Alice Springs, and a Family Report was ordered.
The matter was however about to take another turn.
On 28 May 2008, the father filed an application in which he sought to reduce the mother’s time with [X] and to prevent [X] coming into contact with [Y] and [Z]. He alleged among other things that [Y] and [Z] were engaging in unacceptable sexual games with [X].
[X] was sharing a bed with [Z] in the mother’s two bedroom apartment when all three children were there at the same time, and [Y] slept in the same room.
The father alleged that he first became concerned on 14 April 2008, when [X] complained after returning from her mother’s that she had a sore vagina. He said that he “asked her if anyone touched her there and she said no but it wasn’t a very convincing no.”
The father said that on 12 May 2008 [X] again returned from time with her mother with a red vagina. He said that he asked her about it and [X] told him that “[Z] stretched her pussy and shows [Y] and [Y] stretches his doodle and shows her”. He said that he asked [X] if [Y] and [Z] touched her and “she quickly said only mommy and daddy can touch me there but I could tell she was lying.”
The father tried to discuss the matter with the mother on 15 May 2008 but she dismissed his concerns. The father said that he talked to [X] again on 16 May 2008 when she again had an irritated vagina. He said that he asked her if she still played doctors with [Y] and [Z] and she replied “yes all the time.” However she again denied to the father that [Y] and [Z] touched her.
The father said that on 22 May 2008 [X] told him that “[Y] always grabs her vagina and [Z] plays with [Y]’s doddle while [Y]’s touching [X].”
On 10 June 2008 an interim order was made requiring the mother to ensure that [X] slept in a bed of her own and requiring the mother to personally supervise [X] at all times.
An Independent Children’s Lawyer was appointed.
On 3 July 2008 as a result of a notification made by the father to Family and Children’s Services (FACS), Dr D carried out a physical examination of [X].
Dr D found no physical evidence that [X] had been sexually abused. However she recorded that:
“Post examination, when discussing ‘safe, protective behaviours’ and personal boundaries [X] quite clearly responded to open questions about ‘unwanted touching’ anywhere on body – “No” to any occurrence at school, home but clear and immediate “yes” to “[Y]” at Mum’s house …. ‘He pull down my pyjamas and touches me everywhere’ (indicated with had her suprapubic/vaginal area) “Told him to stop but he doesn’t listen. Re reporting to adults: they are asleep.”[4]
[4] Exhibit B
Dr D noted that the absence of physical evidence did not preclude possible child sexual abuse. She said that:
“In view of the history from child, I have recommended that [X] not be further placed at risk as she clearly describes who is inappropriately touching her.”
On 7 July 2008 an interim order was made restraining the mother from allowing [X] to come into any contact with [Y] and [Z].
Families and Children’s Services later concluded their investigation and issued a letter to the mother and father dated 28 August 2008 which said as follows:
“The recommendations resulting from this investigation include:
·Adequate and appropriate supervision occur when [Y] and [Z] ([X]’s step siblings) and [X] are together;
·That appropriate strategies be implemented between all adults supervising these children, in ensuring that the level of supervision is consistent and appropriate;
·It is also recommended that Mr Garnett cease showering with [X] whilst in his care;
·If there are any medical concerns with [X]’s private parts at any given time, Mr Garnett is not to conduct his own medical inspections or take on any roll [sic] of which a medical practitioner can complete.”
Although [Y] is the same age as [X] and [Z] is about two years older, the father was most insistent during the hearing that the only appropriate way to describe what happened between the children was to use the term sexual abuse. He said that he had called what was happening “interference” or “children playing doctors” until a Family and Children’s Services worker told him it was in fact sexual abuse.
Mr Vidot considered the issue and although he initially said that he was wary of identifying what had happened to [X] as sexual abuse, he said later in this report that
“based on her repetition of the claim and her discussion of soreness with her counsellor, she has experienced some vaginal soreness from those games to the extent that it does move into the grey area of whether it has been some form of abuse.”
There was in fact no evidence that [X] discussed soreness with her counsellor, at least in relation to herself. The counsellor, Ms H, reported [X] as telling her on 2 July that:
“[Y] [sic] sleeps in a cot in the same room as me. He gets me to take my pyjamas off. [Z] is awake. She tells him to stop. He doesn’t, he wants to look at my body. Then he goes back to sleep. [Z] helps me put my pyjamas back on.” [5]
[5] Exhibit I
Ms H also said in another report that:
“In one session [X] disclosed that during contact with her mother, the two children ([Y] and [Z]) were playing with their privates until they were quite red and that this happens regularly. [X] was quite clear that she did not want to do this.”[6]
[6] Report of Ms H attached to father’s affidavit filed on 2 June 2008
[X] disclosed ‘touching’ to Dr D, but certainly not rubbing or soreness.
The father insisted during the hearing that [X] had experienced soreness but this can only have been a conclusion he drew based on the activities he believed had occurred and the fact that he observed redness in [X]’s vagina area on occasion.
The possibility that this redness was due to a medical condition (and [X] did suffer from vulvo vaginitis in August 2008) rather than anything done by [Y] or [Z], and the possibility that the father has exaggerated and leapt to the wrong conclusion cannot be excluded.
Abuse is defined in the Family Law Act1975 as follows:
"abuse", in relation to a child, means:
(a) an assault, including a sexual assault, of the child which is an offence under a law, written or unwritten, in force in the State or Territory in which the act constituting the assault occurs; or
(b) a person involving the child in a sexual activity with that person or another person in which the child is used, directly or indirectly, as a sexual object by the first‑mentioned person or the other person, and where there is unequal power in the relationship between the child and the first‑mentioned person.
I am not satisfied on the balance of probabilities that [X] was abused by [Y], a child who was five and the same age as [X] when inappropriate touching occurred.
Regardless of the name by which the incidents between [Y] and [Z] and [X] are called however, [X] deserved to be protected from repetitions of this behaviour and the mother did not take steps to protect [X].
It is instructive to compare the mother’s response with that of Mrs R. Mrs R, upon being made aware of the concerns about [Y] and [Z]’s behaviour did not dismiss them out of hand but, spoke to the children. She said that the children told her that they had been playing doctors and nurses and claimed to her that [X] had initiated the activity.
Mrs R said she told [Y] and [Z] that the behaviour was not to continue and spoke to the children about appropriate and inappropriate touching.
Had the mother handled the matter in the calm and sensible way Mrs R did, the problem might have been nipped in the bud without repeated court interventions and without the incidents between the children being blown out of proportion. It is highly regrettable that the mother allowed her antipathy toward the father and her mistrust of him to cloud her judgment in April and May 2008 and that she did not take active steps to protect [X].
I am satisfied that the mother did ensure after the orders were made that [X] had no direct physical contact with [Y] and [Z]. There were a number of mentions by [X] during her subsequent sessions with Ms H about the effect the order had had. On 15 August 2008 [X] informed Ms H that she missed [Z] and on 29 August 2008 told her that she got lonely at her mother’s and would like to see [Z]. On 5 September 2008 [X] “drew Mum and Mr R as unhappy because [Z] and [Y] are not able to come over any more.”
The hearing
When the hearing commenced in Alice Springs on 17 September 2008 the mother was still working for Mr R at [workplace omitted] and was still in a relationship with him. [X] was spending five nights a fortnight with the mother and was having no contact with [Y] and [Z].
The father had left his job at the [omitted] and had commenced a new job. [X] was in Transition at [B] Primary School.
The competing proposals of the parties when the hearing commenced were the mother’s proposal for equal time, and the father’s proposal that [X] should live with him and that her time with the mother should be cut back from five nights a fortnight to each alternate weekend from Friday to Sunday.
There was an issue between the parties as to whether the restraint on [X] coming into contact with [Y] and [Z] should continue and further, whether an order should be made preventing [X] coming into contact with Mr R.
The Family Report prepared by Mr Tony Vidot in August 2008 recommended that the latter restraint be imposed, as a result of his assessment of allegations that Mr R had harshly physically disciplined [X] and that [X] did not like him.
The father’s concerns about Mr R were heightened during the hearing in September 2008 when police documents were tendered which revealed that in 2003 a girl of about fifteen complained to the police that Mr R had sexually assaulted her. The girl subsequently withdrew the complaint and Mr R was not charged. Mr R vehemently denied that there was any truth in the girl’s allegations.
The hearing could not be concluded in September and was adjourned part heard to the December circuit. In the meantime the existing interim arrangements continued in force.
In December 2008 the evidence was concluded and the Independent Children’s Lawyer made her submissions.
When it was the turn of the father to make submissions, he informed the court that he and the mother had been talking and would like to trial a continuation of the five nights per fortnight arrangement, with the restraint in relation to [Y] and [Z] to continue and a restraint to be imposed in respect of Mr R. They both expressed the hope that things might settle down and that this might become a permanent arrangement.
Interim consent orders were made and the matter was adjourned to the March 2009 circuit sittings for further consideration.
In March 2009 however the mother informed the court that she still wanted equal time. The father was still opposed to equal time and the matter was listed for further hearing in the June 2009 circuit and an updated Family Report was ordered.
During the report interviews the mother and Mr R gave Mr Vidot information which suggested that the orders designed to prevent [X] coming into contact with Mr R and his children may have been breached.
Mr Vidot raised in his report the spectre of whether Mr R was engaged in ‘some sort of grooming behaviour’ in relation to [X].
By the time the hearing resumed in June 2009 the mother was working at [omitted] and was studying for a Certificate III in [omitted], which she said she hoped to complete by the end of 2009. The mother was still doing some bookwork for Mr R’s businesses, but maintained that she had largely ceased working for him.
The father had changed jobs again. [X] was in Year 1 at [B] Primary School.
During the hearing in June 2009 the mother, father and Mr R gave further evidence and Mr Vidot was again cross-examined.
The mother’s proposal at the end of the hearing was still for equal time.
The mother’s preference was still to have the restraint in respect of contact between [X] and the [R]s removed but she said that she would end the relationship with Mr R if that was required in order to protect [X].
The mother and Mr R both strongly rejected the suggestion that there was anything sinister in Mr R’s interest in [X].
The father struggled to articulate his preferred outcome. He certainly did not support equal time. He said that he “would consider keeping the same roster if this time [the mother] would actually follow the orders,” but he saw her as a serial breacher of the orders and was unable to accept that she had ‘changed her spots’. This inclined him to propose that [X] spend the more limited time of alternate weekends with the mother, even though he conceded that [X] would not be happy with such an outcome.
The evidence
The mother relied on the following documents:
(i) her amended application filed on 4 September 2008;
(ii)her affidavits filed on 18 September 2007, 27 September 2007, 18 November 2007, 4 June 2008, 2 September 2008 and 4 September 2008, 5 June 2009 and 12 June 2009;
(iii)the affidavit of Mr R filed on 2 September 2008 and the affidavit sworn by him on 12 June 2009 and annexed to the mother’s affidavit filed on 12 June 2009;
(iv)
the affidavits of Mrs R filed on 2 September 2008 and
15 September 2008;
(vi) the affidavit of Ms N filed on 4 September 2008;
(vii) the affidavit of Mr B filed on 2 September 2008;
(viii) the affidavit of Mr D filed on 2 September 2008;
(ix) the affidavit of Ms H filed on 2 September 2008.
The father relied on the following documents:
(i)his amended response filed on 4 September 2008;
(ii)his affidavits filed on 27 September 2007 (2 affidavits), 3 October 2007, 28 April 2008, 28 May 2008, 2 June 2008, 25 July 2008, 8 August 2008, 25 August 2008, 4 September 2008 and 15 September 2008 and 5 June 2009.
Two Family Reports were prepared by Mr Tony Vidot a psychologist and the Family Consultant attached to the Federal Magistrates Court in Darwin.
The mother, father, Mr R, Mrs R and Mr Vidot were cross-examined. The mother’s remaining witnesses were not required for cross-examination. These witnesses were either character witnesses for Mr R or witnesses attesting to [X] spending enjoyable time with the mother.
Neither the father’s evidence nor the mother’s evidence was wholly reliable.
The father exuded a strong sense of his own righteousness and of being the wronged and aggrieved party in the proceedings. He repeatedly and forcefully insisted that the mother’s actions in early 2007 be referred to as abduction and that the behaviour of [Y] and [Z] be referred to as sexual abuse. He was both offended and puzzled by the court’s refusal to unquestioningly adopt his forceful terminology.
The father saw himself as [X]’s champion and was keen to be viewed as the unfailingly reliable and trustworthy parent. Unfortunately this led him into some bluster and evasion when he was questioned about instances where his parenting or his compliance with the orders had fallen short.
One example was when he was questioned about the time he took [X] to the emergency room in the early hours of the morning and failed to notify the mother until the next evening. He was evasive when questioned about this issue and initially insisted that he had telephoned the mother early in the morning after he got home and that that was good enough. He eventually admitted that all he had done was leave a message on the mother’s answering machine saying “[Ms Neal], please call [Mr Garnett].”
Another example was when the father was questioned about an incident in July 2008 where [X] had a severe allergic reaction to penicillin. The father was very slow to admit that he had made a serious mistake on that occasion.
The mother has lived in Australia since 2001 and speaks clear though accented English. None of her affidavits were translated to her by an interpreter before she affirmed them. The mother was an English interpreter in Vietnam.
Only days prior to the commencement of the hearing in September 2008 the mother’s then solicitor asked that an interpreter be made available for the mother during the hearing. It was impossible to obtain the services of an interpreter in Alice Springs on short notice and an interpreter was made available by video link from Darwin. The same procedure was adopted in December 2008.
During the hearing the mother asked questions in English and answered questions in English. She requested assistance from the interpreter on only a couple of occasions over a period of five days.
Prior to the commencement of the hearing in June 2009 the mother was asked by the court if she would be happy to proceed without an interpreter, on the basis that if she needed a particular passage translated the court would contact the telephone interpreter service to assist her. The mother agreed to proceed on this basis. The mother did not ask to access the telephone interpreter service at any time.
I gained the strong impression that the mother, although she projected it more quietly than the father, also had a strong sense of the righteousness of her position and was not above pushing the boundaries and seeing what she could get away with in her campaign to be restored, if not to the position of [X]’s primary carer, at least to a position equal to that of the father.
I can accept that the mother genuinely failed to understand that the
3 March 2008 orders superseded the earlier parenting orders, and I can accept that the mother did not see anything wrong with going to the school to see [X] at lunchtime in 2008.
It is however very difficult to excuse as innocent the mother’s actions in 2009 which resulted in some fleeting direct contact between [X] and Mr R and extensive telephone communication with Mr R and [Y] and [Z], and the mother’s evidence on this topic left me with a feeling of unease.
Mr R was a most unsatisfactory witness.
Mr R gave evidence in the mother’s case in 2008 and he was still in a relationship with her in December 2008. In early 2009 however he and the mother had a falling out, and Mr R telephoned the father on at least two occasions and made a series of nasty derogatory comments about the mother.
I do not accept Mr R’s evidence that he could not remember who rang who and that he “vaguely recalled a conversation where [he] tried to discuss difficulties in cross-cultural relationships.”[7] I accept the father’s evidence that Mr R contacted him on two occasions, and I accept the father’s evidence about the contents of the conversations.
[7] Affidavit sworn by Mr R on 12 June 2009
I accept that in March 2009 Mr R sent the father a text message saying that he was “glad he was not in [the father’s] shoes”.
Subsequently Mr R and the mother reconciled their relationship.
During cross-examination in June 2009 Mr R denied the father’s version of the telephone conversations and he purported to be still on the mother’s side, but he was strikingly evasive and dishonest when cross-examined about telephone calls.
I am satisfied that Mr R was also dishonest with Mr Vidot about the contents of these telephone conversations during the report interviews in May 2009.
Mr R was not a witness of credit and I treat all of his evidence, including his denials in these proceedings of other wrongdoings, with considerable scepticism.
I formed the view that Mrs R endeavoured to be honest in the witness box and was not bent on being unduly protective of Mr R.
[X]’s best interests
In considering appropriate parenting orders for [X] I must treat her best interests as the paramount consideration. Subsections 60CC(2) and (3) of the Family Law Act set out the matters which I must have regard in determining [X]’s best interests.
The primary considerations in s.60CC(2) are as follows:
a)the benefit to the child of having a meaningful relationship with both of the child parents; and
b)the need to protect the child from physical or psychological harm from being subjected to or exposed to abuse, neglect or family violence.
[X] will benefit from having a meaningful relationship with each of her parents in the future, particularly in circumstances where the parents come from different cultural backgrounds and each have something different but important to offer her.
[X] is not likely to be exposed to or subjected to abuse neglect or family violence in the care of her father.
[X] is not likely to be exposed to neglect or family violence in the care of her mother.
Insofar as the father might argue that the mother’s handling of [X]’s medical needs borders on neglect, I do not accept that argument and I will deal with that issue further when considering the mother’s parenting capacity.
The issues in respect of the mother which are less easily resolved are:
i)whether [X] is likely to be exposed to abuse or family violence if she comes into contact with the [R]s in the future; and
ii)whether if an order is made prohibiting the mother from bring [X] into contact with the [R]s the mother can be trusted to comply with the order.
For reasons given earlier I am not convinced that [X] was abused by [Y] or [Z] as that term is defined in the Family Law Act.
I am not convinced that there is an unacceptable risk of [X] being abused or even subjected to the same inappropriate interaction as previously, if she comes into contact with [Y] and [Z] in the future.
[X] has not spent any time with [Y] and [Z] since July 2008 and if her interview with Mr Vidot is anything to go by her memory of the events of 2008 seems to have faded. [X]’s school reports and the father’s evidence suggest that she is now a more assertive child than she was in 2008.
Mr Vidot was of the view that children tend to grow out of the kind of behaviour [Y], [Z] and [X] were indulging in during 2008.
The more important issue in the case now in any event is whether the mother should be restrained from allowing [X] to come into contact with Mr R, because [Y]’s age and sex and [Z]’s age make it improbable that [X] will come into contact with [Y] and [Z] involving sleepovers in the future unless the children sleep over at the mother’s house with Mr R.
The mother’s case was that there was nothing wrong with Mr R and that in making complaints about him the father was acting out of jealousy and spite and was trying to control her and prevent her from moving on with her life.
The mother pointed to the fact that father seemed to have taken an almost instant and unwavering dislike to Mr J and his daughter [T], and then took a similar dislike to (and in some respects made similar complains about) Mr R and his children.
The mother’s evidence on this issue was particularly poignant in the September 2008 part of the hearing, when she talked yearningly of her desire to establish a successful blended family with Mr R.
Mr R denied that he was an undesirable person and accused the father of being a “stirrer-up of trouble.”[8]
[8] Family Report August 2008 paragraph 32
I need to carefully examine the evidence about Mr R in order to test the hypothesis put forward by the mother.
The father’s earliest complaints about Mr R (aside from the complaint that he gave him menacing looks at handovers) were that he was hitting [X].
Mr R denied this allegation when interviewed by Mr Vidot in 2008. However Mr Vidot said that:
“[X] was quite clear about being hit hard on the bottom a few times by Mr R. She did not use her father’s descriptor [presumably ‘paddling’], yet revealed sincere emotional hurt as she related her account, thus leading me to conclude that she had not been coached by her father about this or any other matter.”[9]
[9] Family Report August 2008 paragraph 32
When interviewed in June 2009, [X] informed Mr Vidot that Mr R had never smacked her. However at that point [X] had not been in Mr R’s company for any prolonged period of time since December 2008, and I do not place any weight on this statement.
Mr R was not a witness of credit and I do not accept his denials that he hit [X]. Hitting children however, even when it is done by a step parent, does not necessarily come within the definition of “abuse” in the Family Law Act. In any event, in some circumstances an undertaking by a step-parent that they will not physically discipline the child is all that is required to deal with the problem.
The issue I need to consider however is whether Mr R is simply a parent who favours corporal punishment and who might be persuaded to refrain from hitting in favour of some other form of discipline if the circumstances required it, or whether Mr R has a propensity for hitting people which he finds it difficult to control.
The evidence about an incident between Mr R and his daughter [Z] in June 2008 raises a concern about how far Mr R might go and about whether he is able to control his temper.
On 4 June 2008 when Mrs R picked her daughter [Z] up from school [Z] told her that “Dad bashed[my] head against the wall.” Mrs R was furious and took [Z] to the police station and made a complaint.
The police spoke to Mr R at work and he told his side of the story. The matter went no further. By the time of the hearing in September 2008 Mrs R was a willing witness in the mother’s case.
Mr R denied that he had assaulted [Z]. He said [Z] had been “unruly and disrespectful” and that he had placed his hand on her forehead and her head hit the timber partition.
Mr R’s description of what happened between himself and [Z] was very bland and was incongruous with the distress [Z] displayed when recounting the incident to her mother, and I was left with a feeling of unease about where the truth lay in relation to this incident.
There were also allegations that Mr R had been violent to Mrs R during their relationship.
Mr R admitted that on one occasion he had “lashed out’ at Mrs R while they lived together and had struck her on the chest. Mrs R gave evidence of another incident in which (she said) Mr R hit her once while she was pregnant. She also said that on another occasion in the car Mr R lost his temper and punched her.
I prefer the evidence of Mrs R to that of Mr R about these matters.
The fact that Mr R was violent to Mrs R on occasions during their marriage and that Mrs R felt strongly enough in June 2008 to go to the police station to report an assault on her eight year old daughter, together with the fact that [X] made credible complaints to Mr Vidot about Mr R giving her hard smacks, creates a concern in my mind that if [X] continued to come into contact with Mr R she might be subjected to harsh physical discipline or even abuse in the future.
Mr R’s denials of wrongdoing give me no comfort, as he was not a witness of credit.
A second area of concern about Mr R was raised by Mr Vidot in his June 2009 report. Mr Vidot ruminated on whether there was a possibility that Mr R was grooming [X].
Mr Vidot’s consideration of this issue may well have had its genesis in the contents of the police documents tendered during September 2008 in relation to a complaint by a girl of about fifteen that Mr R had sexually assaulted her.
The girl told police that Mr R and his wife befriended her parents when she was about seven years old and that Mr R saw her on occasions over the years as a result. The girl alleged that after some encouragement from Mr R she went around to his house alone one night in December 2002. The girl alleged that while she was at the house Mr R sexually assaulted her.[10]
[10] Exhibit F
The matter was first reported to the police in May 2003 and a statement was obtained from the girl in August 2003. However about two months later the girl, while still asserting that the assault had occurred, asked to withdrew her complaint saying that “if it has to go to court I will not be able to handle it.” The girl said that she might proceed with the matter at a later time.
The police considered that in the absence of the girl’s own evidence there was insufficient evidence to allow them to proceed further.
The police records reveal that on 9 February 2004 the girl informed the police that she wanted to proceed with the complaint. Police records do not reveal what followed but it appears that no charges were ever laid against Mr R.
Mr R strongly denied any wrongdoing in relation to the girl, and she did not give evidence at the hearing before me. Mr R was not a witness of credit but my concerns about Mr R’s credibility alone would not justify me finding on the balance of probabilities that the events described in the girl’s statement to the police occurred.
Mr Vidot’s concerns about Mr R however were also triggered by the information he was given about contact between the [R]s and [X] after the orders were made in December 2008 and other statements by Mr R during the interview.
The order concerning Mr R’s contact with [X] which I made on
19 December 2008 was as follows:
(1) That the mother shall not bring the child into contact with Mr R, [Z] or [Y] at any time.
Mr R told Mr Vidot that during 2009 he had spoken to the mother frequently on the telephone, that he put the phone on speaker and that during these calls [X] was allowed by the mother to speak to him and his children.
Mr R also informed Mr Vidot that [X] had been in the mother’s house on one occasion when he went around to collect something but said that the mother had been careful to put [X] in the bedroom so that they would not be in contact on that occasion.
On the basis of what he was told and on the basis of his interview with Mr R, Mr Vidot said as follows:
“Mr R reports that [X] has told him in the speaker phone contacts that she would like to cuddle and kiss him. On the surface this wish would appear to be entirely innocent. However, in the somewhat complicated and abstruse atmospherics surrounding Mr R’s involvement with [X] and her mother, clouded as they are by allegations of sexual assault [against Mr R] (withdrawn), gut feelings of him being a molester by someone once very close to him and his utter charm during both his presentation with me counterpointed by his affidavit completely dismissive of the first report, it might be useful to look at another possible approach to the ‘kiss and cuddle’ phrasing. There are some elements that go towards creating a pattern, but they are not necessarily conclusive. …
While I am not readily in a position to identify Mr R as someone who could exercise sexually grooming behaviour, such behaviour may be present in his presentation…..(Mr Vidot then referred to an article by Gregory Webner).
Such a person will identify closely over time with the child or adolescent, who almost always has considerable vulnerability due to family separation and conflict, low self esteem or some sort of isolation. Such a person can spend months to years grooming the child. One of their key strategies can be to groom at least one of the child’s parents. The establishment and consolidation of affection and trust is central to the process adopted by the adult…..There is a deep level of deviousness about this behaviour, which is designed to win over key adult figures unwittingly. The deviousness also makes it notoriously difficult to accurately delineate the behaviour as sexual grooming.
Unfortunately grooming behaviour is extremely hard to verify and is often only done so after the event of the sexual assault has occurred or is close to happening.”[11]
[11] Family Report June 2009 paragraphs 78-82
Mr R’s contact with [X] in 2009 went further than Mr R revealed to
Mr Vidot.
Mr R said during cross-examination that he had in fact gone to the mother’s house on two occasions when [X] was there. He said that on one occasion when he called at the house by arrangement with the mother he saw [X] behind the bar in the living area. On the other occasion he looked through a window and saw her in the kitchen. He said that he had called out to the mother when he got to her house and conceded that [X] would probably have heard him.
When Mr R rang the father on 5 January 2009 and made what I am satisfied were angry and abusive comments designed to hurt the mother and damage her case, he also told the father that the mother had been shouting at [X] on her birthday, which was on 30 December 2008.
When asked in cross-examination if he had seen [X] on her birthday, Mr R was evasive. He looked away and did not answer directly, simply saying that he did not recall. If Mr R saw [X] on her birthday it was in breach of the order and I consider it likely that he did do so.
Mr R informed Mr Vidot that [X] “grown taller and her face had become thinner [since December 2008]. She was now more mature in her mannerisms, especially in getting rid of her previous lapses in baby talk. His report was that [X] looked at him ‘differently’ in a ‘more centred’ and ‘more aware’ way.” It is difficult to see how Mr R could have made such comments unless he had seen [X] for longer and more directly than he admitted.
I cannot make a finding that Mr R has an unhealthy interest in [X]. However there are many reasons to be concerned about him. He was dishonest when he gave evidence in June 2009. He was dishonest with Mr Vidot. He has smacked [X] hard, and acted in a way in relation to his own daughter [Z] which led Mrs R to make a complaint to the police. He committed acts of family violence during his relationship with Mrs R. He was at least complicit in, and perhaps the instigator of, the mother breaching the December 2008 orders. His behaviour and presentation during his May 2009 interview with Mr Vidot were sufficient to arouse concerns in Mr Vidot, an experienced psychologist.
In my view it would not be in [X]’s best interests, and would expose her to an unacceptable risk of harm, to allow her to have any contact with Mr R in the future.
A solution to the problem is of course for me to make an order that the mother not allow [X] to have contact with Mr R, but such an order was made in 19 December 2008 and it appears that the mother did not strictly obey it. As a result [X] had repeated telephone communication with Mr R and Mr R was permitted by the mother to have at least two glimpses of [X] in the mother’s home.
Mr Vidot was concerned about the mother’s compliance with the order of December 2008. He said as follows:
“I have grave concerns that Mr Neal, for whatever reason, has apparently played a very careful hand in regard to [X]’s contact with Mr R and his children. On the one hand, she expresses the diligence she has exacted in keeping [X] away from direct face to face contact with him, while attempting to limit the [child care] contact with [Y] and [Z]. On the other hand she seems to have actively encouraged, along with Mr R, the speaker phone interactions. It might be argued that it is in [X]’s emotional best interests to salve her feelings of missing the [R]s through the telephone contact. It might also be argued that encouragement of that contact has actually stirred up feelings of missing them, thus creating a level of confusion in her that was supposed to be precluded as much as possible by the non contact orders.
It appears that Mr Neal and Mr R have acted with considerable deliberation in allowing and encouraging this level of contact for [X] to continue unabated…..It might be going too far to conclude that they have set out consciously to get around the intention of the orders (namely the physical and emotional protection of [X] from them until further notice) but it is hard to escape that conclusion.”[12]
[12] Family Report paragraph 76, 77
In May 2008 the mother while intent on trying to establish a blended family with Mr R refused to accept that [X] was being exposed to unacceptable behaviour by [Y] and [Z]. This led to [X] being exposed to unacceptable behaviour for much longer than she should have been.
In 2009 the mother in concert with Mr R acted in ways which breached either the letter or the spirit of the orders made on 19 December 2008.
The single most difficult issue in this case is deciding whether the mother can be trusted in the future to obey an order that [X] spend no time with Mr R, or whether she is so determined to pursue the relationship with Mr R that she might be drawn for one reason or another into breaching the order.
I take some comfort from the fact that while over the last two and a half years the mother has been trying to pursue her own goal of forming a new relationship, she has also shown a very strong desire to spend time with [X], and a strong desire to maintain her relationship with her.
The mother gave up her relationship with Mr J once she realised that it was unlikely that she would be able to take [X] back to the United States. If it is made clear to the mother that she will either have to give up Mr R, or at least strictly comply with any order about [X] having contact with him, or face the possibility of losing meaningful contact with her daughter, I have some optimism that she will make the choice which enables her to maintain her relationship with her daughter.
Turning to the additional considerations in s.60CC(3), I must first consider any views expressed by the child, and any factors (such as the child’s maturity and level of understanding) that the court thinks are relevant to the weight it should give to the child’s views.
In the August 2008 Family Report Mr Vidot said as follows about [X]’s views:
“While noting that her mother was sometimes too serious, [X] said that she liked her a lot. She also liked her father a lot. Significantly, immediately after saying this she looked at me and said that she preferred to ‘spend more time’ with her father. I checked that preference with her two or three times through the interview, and each time she was very confident and unwavering in her preference. Her reasons were that her father was more fun to be with, he gave her lovely surprises and she had her own room, something she really cherished.”[13]
[13] Family Report August 2008 paragraph 27
[X]’s views as reported to Mr Vidot had changed in June 2009. She told Mr Vidot that she missed her mother and that it was not really fair that she spent more time with her father than her mother.
Mr Vidot was not entirely convinced that [X] had not been coached by the mother. He said that:
“[X] has changed her mind about [Y], [Z] and Mr R in several respects. She now holds them in a highly positive emotional state, seeing the rough play as no longer relevant and now denying that Mr R ever smacked her. In much of what she says she identifies with what her mother reports about her. Whether one can conclude readily that Mr Neal is an accurate reporter or whether she has coached [X] successfully remains an open question for me.”[14]
[14] Family Report June 2009 paragraph 73
[X] is only six almost seven years old. Even if her views were based on her immediate feelings uninfluenced by the mother [X]’s views are only one matter to be taken into account.
I must consider the nature of [X]’s relationship with each of her parents and any other significant persons.
In the August 2008 report Mr Vidot’s said that [X] has “had a strong attachment to both [her parents].”[15] He said as follows:
“In my observation she was affectionate, cheeky, smiling a lot, very confident and relaxed with her father. She appeared to interact with him comfortably. With her mother she was playful, at ease and attentive to her instructions. She hugged both parents with great affection.”
[15] Family Report August 2008 paragraph 26
In the June 2009 report Mr Vidot said that:
“During the observation with each parent, [X] reacted warmly and confidently with each of them. Her attachment to both was strong and unambiguous.”[16]
[16] Family Report June 2009 paragraph 72
I am satisfied that [X] has a strong relationship with both of her parents.
Mr Vidot observed [X] with Mr R during the August 2008 interviews and said as follows:
“When Mr R was present [X] seemed ill at ease, although she did display some playfulness with him around taking his apple off him, which he clearly enjoyed.”
Mr Vidot further commented that:
“Because he had hurt her a few times with heavy smacks to her bottom, [X] did not like Mr R. She talked about him quite differently in her tone with some degree of sadness compared to the playful way she had interacted with him in the waiting area when he was with her mother.
In June 2009 [X] told Mr Vidot that “liked being with Mr R, because like her mother he did fun and silly things with her.”[17]
[17] Family Report June 2009 paragraph 71
[X] also denied that Mr R had ever hit her.
By June 2009 [X] had not spent any significant face to face time with Mr R for six months. It is possible that in the telephone communication which the mother and Mr R orchestrated Mr R went out of his way to be friendly and charming to [X]. I cannot place any weight on the views [X] expressed about Mr R in June 2009 and I am not persuaded that she now has a good relationship with him.
As to [Y] and [Z], Mr Vidot reported in August 2008 that:
“[X] did not like [Y] because he took things off her, yelled at her, fought with her, cheated at games and once had punched her. She did not disclose any sexual abuse (nor did I expect [her] to given the very limited time we had) but her tone and facial expression when talking about [Y] was one of distaste and some bitterness. She liked [Z]…”[18]
[18] Family Report August 2008 paragraph 28
[X]’s comments to Ms H during her counselling sessions in 2008 also confirm that she liked [Z]. I also accept Mrs R’s evidence about an occasion which occurred prior to July 2008 when she was having a meal in a café with [Y] and [Z] and the mother was there with [X]. Mrs R said that [X] came over to [Y] and [Z] and the three children played happily together for about two hours.
When interviewed in June 2009 [X] said that she missed [Y] and [Z] and that [Y]’s rough play with her was no longer an issue.[19]
[19] Family Report June 2009 paragraph 63
[X] seems to have had a generally good relationship with [Z] prior to the injunction being imposed in July 2008, despite [Z]’s apparent involvement in the night time activities. She may well have had an ambivalent relationship with [Y].
[X] knew [Y] and [Z] for only a few months prior to the injunction being imposed. Since July 2008 she has spent no time with them other than at [child care] in 2009 which was a group situation. She has spoken to them on the telephone in 2009.
[X]’s relationship with [Y] and [Z] is really that of acquaintances.
I must consider 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.
The father was highly critical of the mother’s parenting, but he has not attempted to withhold [X] from her since separation on any spurious pretext. He agreed to the mother spending time with [X] in Australia in June 2007 even in the absence of court orders, although he did insist, not unreasonably, on the mother handing over her passport. I am satisfied that the father has reasonable willingness and ability to facilitate and encourage a close and continuing relationship between [X] and the mother.
I am less convinced that the mother has this willingness and ability as regards the father. The mother showed scant regard for [X]’s relationship with her father when she took her to the United States in February 2007 and it was many weeks before any telephone communication commenced.
The mother said during the June 2009 hearing that she had put a picture of the father in [X]’s room, but this was probably simply to counter the father’s evidence that [X] had a picture of her mother in her room at the father’s home.
I have misgivings about whether the mother truly values the father’s role in [X]’s life.
I must consider the likely effect of any change in the child’s circumstances, including the likely effect of separation of the child from:
a)either of her parents; or
b)any other child, or other person (including any grandparent or other relative of the child) with whom she has been living.
[X] has been living with her father since March 2007. She has been spending five nights per fortnight with her mother since March 2008.
If I make an order for equal time as sought by the mother it will result in a considerable change for [X].
[X] has a strong relationship with her mother as well as her father.
Mr Vidot in his June 2009 report was certainly of the view that [X] could cope with an equal time arrangement. His “nagging hesitation” about recommending such an arrangement was because of his concern about Mr R and the mother’s involvement with him.
Equal time would be detrimental for [X] if it resulted in her coming into contact with Mr R, perhaps because the mother was unable to manage compliance with the order and a relationship with Mr R.
Equal time also has the potential to be detrimental to [X] if the parents are unable to communicate effectively and become embroiled in disagreements over minor issues.
The parties’ ability to communicate effectively with each other in 2007 and 2008 was woeful. During the hearing in September and December 2008 the father complained bitterly and at length that the mother would not speak to him on the telephone but rather insisted that he communicate with her by email. The mother was deeply suspicious of the father’s claim that he did not know her email address.
In December 2008 the parties agreed to trial an arrangement for [X]’s care. In his June 2009 report Mr Vidot reported that communication between the parties had improved. He said as follows:
“Both parents indicated some satisfaction in their communication about [X], showing me some email exchanges and describing congenial conversations at handovers. In particular, there was an exchange about [X] having itchy toes and sharing of their respective remedies for the condition. Mr Garnett was using tea tree oil, while Mr Neal preferred aloe vera ointment. The condition cleared up, reportedly. Mr Garnett reported [X] informing him about her mother telling her that the communication between the parties had improved.”[20]
[20] Family Report June 2009 paragraph 11
Nevertheless at the hearing in June 2009 each party gave lengthy and detailed evidence about the issue of whether the mother had purchased the correct dental chewing gum for [X] and whether or not the father had given the mother the right or wrong name for the gum.
It is a positive development that the parties are now willing and able to talk to each other face to face. I am not necessarily convinced that they yet have a particularly good ability to co-operate and resolve disputes.
The father has [X]’s best interests at heart but when he makes only too human mistakes (which he may well have done with the name of the chewing gum) he cannot bring himself to admit it. The mother is still pre-disposed to reject the father’s criticisms of her out of hand. The parties come from very different cultural backgrounds and have very different personalities. The potential for further misunderstanding and conflict between the parties still exists.
One of the father’s proposals was that [X]’s time with the mother be cut back to alternate weekends from Friday to Sunday and this would also represent a change for [X].
The father conceded that [X] would not be happy “now” if her time with her mother was reduced but said that she might be happy “later”. Certainly if cutting back [X]’s time with the mother protected her from exposure to indifferent parenting and poor decision making by the mother, then the father is correct and a decision to cut back the mother’s time with [X] might be in [X]’s long term best interests.
I must consider the practical difficulty and expense of the 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 a parent on a regular basis.
The parents live in a small town and their homes and [X]’s school are all within easy distance of each other. There will be no practical difficulty and expense involved in [X] spending time with and communicating with each of her parents no matter what orders I make.
I must consider the capacity of each of the parents to meet the needs of the child, including her emotional and intellectual needs.
[X] is a healthy six year old girl. Over the last two years she has had a number of minor health ailments such as conjunctivitis and colds and flu, but she has no significant health problems.
The father lives with [X] in the former matrimonial home. It provides a good standard of accommodation and [X] has her own room.
[X] attends school regularly and the father has enrolled [X] in extra-curricular activities including swimming and gymnastics.
The mother raised several two concerns about the father during the hearing namely that he regularly used cannabis and that he possessed and viewed pornography.
The mother said that the father had regularly used cannabis during the marriage on weekends. She had no direct evidence that he continued to use it but she was suspicious that he might be.
The father denied that he currently used cannabis. He agreed that he had used it in the past, but said had not used it for many years.
It was the mother’s word against the father’s on this issue and I cannot be satisfied on the state of the evidence that the father continues to use cannabis.
The mother alleged during oral evidence, although she had not mentioned it in her affidavits nor did she mention it to Mr Vidot as a concern, that the father viewed pornography.
The whole extent of any independent evidence that the father had a propensity to view anything which might come within the definition of pornography was an email dated 8 February 2007 which the father sent to the mother while she was in the United States he asked her to “please get the latest American Playboy magazine for me. Don’t let our daughter see it”[21]
[21] See email dated 8 February annexed to father’s affidavit filed on 27 September 2007
The father denied that he had collection of pornography or that he viewed pornography on a computer and the mother gave no evidence that [X] had ever been exposed to pornography in the father’s care.
During the hearing the mother made some references to the father drinking excessively during the marriage, but there was no evidence that the father had a problem with alcohol consumption which might impact on his capacity to parent [X].
The mother has an apartment in Alice Springs. It provides a reasonable standard of accommodation for [X]. The mother has involved [X] in many entertaining educational and craft activities while spending time with her in the last twelve months or more.
Save for a complaint about the mother leaving [X] at home on one occasion the father made no complaints about the mother’s day to day parenting of [X] prior to separation. However he complained at length about her parenting of [X] post-separation.
He complained in early affidavits about the mother being insensitive to [X] for example being unsympathetic on one occasion when she injured herself and about having yelled at her. However[X] made no complaint about the mother to Mr Vidot in either August 2008 or May 2009 and I am not satisfied that there is any reason to be concerned about the mother’s parenting capacity based on complaints of this nature.
The father raised as a concern that the mother was still allowing [X], aged 5, to suck on her breast. The mother said that this was acceptable in Vietnamese culture. The father said that the mother was making this up. The father clearly found this distasteful and in terms of the community in which [X] lives it is inappropriate.
During the hearing in June 2009 the mother said that she had ceased this practice. It is to be hoped that she has because it would seem to be out of line with mainstream practice in Australia and if it became known to [X]’s friends might expose her to teasing.
The father’s greatest criticisms were reserved for the mother’s response to [X]’s health needs.
He complained that she did not give [X] her eye drops which resulted in her conjunctivitis not clearing up and that she failed to properly treat [X]’s cracked toes. He was particularly critical of her for failing to ensure that [X] chewed the correct preventative chewing gum for one hour each day.
I do not accept that the mother has been neglectful of [X]’s health needs since separation. The father did not complain about the way the mother dealt with [X]’s health needs when she was [X]’s primary carer prior to separation, and the post-separation disputes about medical issues in my view have been the result of the high level of distrust between the parties, their refusal (at least during 2008) to communicate effectively with each other and perhaps the situation where the father took over and wanted to do differently the role previously played by the mother in managing [X]’s health needs.
I consider that the father has been far too ready to blame the mother when [X]’s ailments have not cleared up as quickly as he expected or would have liked, when he should have been first considering other possibilities, such as that a particular ailment needed longer treatment before it was likely to clear up or that the homeopathic medicines the parties were using were not sufficiently effective. Some of the father’s emails to the mother about issues such as dental health are somewhat overbearing and dictatorial in tone and not best designed to secure the mother’s co-operation.
The father’s attendance to [X]’s medical needs has not always been perfect in any event, and an incident in July 2008 illustrates this.
[X] was suffering from a fever and had swollen glands and on 16 July 2008 the father took her to Dr C (not her usual doctor) who prescribed amoxil (penicillin). On Friday 18 July 2008 the father handed [X] over to the mother for the weekend and gave the mother the medicine.
The father said that when he collected [X] from the mother on Monday 21 July 2008 he asked her where [X]’s medicine was and she told him that she “threw it away!”[22] He also added that the mother told him that when [X] came into her care on Friday 18 July 2008 she had “rashes all over her body.” The father added “Not true, and if it was she certainly should have told me.”[23]
[22] Father’s affidavit filed 25 July 2008
[23] Father’s affidavit filed on 25 July 2008
The father took [X] back to Dr C who had prescribed the penicillin and sought confirmation from him that [X] ought to continue to take the medicine. Dr C gave that confirmation.
The mother sent the father a letter on Wednesday 23 July 2008 explaining why she did not want to give [X] the medicine. The father rang the mother’s then lawyers and told them that unless the mother agreed to give [X] the medicine he would not allow the mother to pick [X] up later that day.
Faced with that threat the mother agreed to give [X] the medicine. After she did so [X] suffered a severe allergic reaction. This was confirmed by photographs tendered during the hearing. The following day the mother took [X] to Dr C who wrote the following letter:
“This is to certify that I have today examined [X]. In my opinion, she was suffering from AN ACUTE ALLERGIC REACTION TO AMOXIL (PENICILLIN) THIS SHOULD BE CEASED AND THE PATIENT NOT TREATED WITH PENCILLIN AT ANY TIME IN THE FUTURE….APPARENTLY SHE HAD A REACTION INITIALLY WHEN AMOXIL WAS FIRST COMMENCED – BUT THIS WAS DENIED BY HER FATHER WHICH MADE ME BELIEVE SHE WAS NOT ALLERGIC INITIALLY.”[24]
[24] Annexure 3 to mother’s affidavit filed on 4 September 2008
The father agreed during cross-examination that he knew prior to taking [X] to Dr C that she was allergic to penicillin, and that he had observed the severe rash on [X] when she was returned to him.
The father’s actions had the potential to have catastrophic consequences for [X]. However he not only filed an affidavit on
25 July 2008 in which he set out his only partially accurate version of events but on 28 July 2008 he demanded that the court make an order that the mother give [X] any medication which was prescribed for her. The mother through her then solicitor consented to such an order being made. The mother did not produce a copy of Dr C’s letter at that time.
I am not satisfied that there is any reason to be concerned about the mother’s capacity to meet [X]’s health needs and I am satisfied that mother like the father has the capacity to provide for [X]’s needs in terms of feeding her, clothing her, ensuring that she attends school and attending to her health needs.
The issue of concern about the mother however is whether she has the capacity to meet [X]’s emotional needs and to keep her safe when [X]’s needs conflict with the mother’s own chosen path.
After the mother formed a relationship with Mr J in early 2007 she made a unilateral decision to take [X] to the United States and she gave not a moments thought to the harm she was inflicting on [X] by arbitrarily removing her from her father and the life she had known to that point.
There is no particularly compelling evidence that Mr J was bad in himself, and I cannot place much weight on a criminal history check obtained by the father. It reveals mostly traffic offences and makes reference to one more serious offence of burglary but no outcome is given. [X] told Ms H that she liked Mr J better than Mr R.
Mr R has in hindsight turned out to be a poor choice. While the mother was with Mr R she refused to believe the father’s claims about what was happening between [Y] and [Z] and [X].
There is force in the father’s argument that the mother placed her strong desire to establish a new, blended family with Mr R ahead of [X]’s interests, and rejected the information provided to her by the father out of hand because it threatened her new family life.
As a result [X] was exposed for much longer than she should have been to an unsatisfactory situation in the mother’s home, and consequences such as being obliged to undergo a physical examination by Dr D.
The mother’s failure to properly comply with the orders of
19 December 2008 also occurred at a time when the mother appeared intent on trying to maintain her relationship with Mr R and it again looks as if the mother was more focused on her desire to achieve a new alternative family life than on [X]’s particular needs.
Mr Vidot considered that the speaker phone contact which the mother, with the connivance of Mr R, had initiated between [X] and Mr R and his children had the capacity to undermine [X]’s psychological stability.
Mr Vidot thus had, and I share, reservations about the mother’s capacity to meet [X]’s emotional needs.
The father is not completely without fault when it comes to meeting [X]’s emotional needs. In respect of the [Y] and [Z] issue Mr Vidot said in his report that:
“It is highly inappropriate behaviour, increasingly harmful to [X]’s emotional well-being the longer it persists and the longer it is denied by the mother and Mr R. Mr Garnett’s pushing the sexual abuse line too stridently could also have the potential to damage [X] emotionally and developmentally over the long term.”[25]
[25] Family Report August 2008 paragraph 30
During cross examination Mr Vidot maintained the same view, saying that “neither party handled the issue of the games appropriately…the mother was too relaxed and the father too stressed.”
However the father has to a much greater extent that the mother has capably provided for [X]’s emotional needs since separation. I thus have greater confidence that he will continue to properly provide for her emotional needs in the future, whereas with the mother I can only hope that she will be able to do so.
I must consider the child’s 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.
[X] was born in Australia. She has Vietnamese heritage through her mother and this is reflected in her appearance.
To the best of my knowledge the mother is the only member of her family in Australia. It is through her mother that [X] will best be able to maintain a connection with her Vietnamese heritage and with the Vietnamese language.
The father is from the United States. To the best of my knowledge he is the only member of his family living in Australia. It is through the father that [X] will best be able to maintain a connection with the father’s family in the United States.
I must consider the attitude of each of the parent’s to the duties and responsibilities of parenthood.
The mother has in a number of respects failed to demonstrate a good attitude to the duties and responsibilities of parenthood.
Firstly in February 2007 she took [X] to the United States surreptitiously. She mother usurped to herself the right to make a decision of far reaching consequence for [X] and appears to have naively believed that the father would eventually go along with her decision. In none of the documents filed by the mother since that time has the mother expressed any remorse for her actions or shown any recognition that her actions may not have been in [X]’s best interests.
Secondly the mother has made little financial contribution to [X]’s support since separation. Ms H reported the mother as telling her during 2008 that she should not have to pay child support as [X] was not living with her. During the hearing in 2008 the mother indicated that it was still her view that if [X] lived with the father the father should support her.
While the mother’s attitude is not good, I cannot make any findings about the extent to which, even if she was earning more income from Mr R than she declared, she might have been required to pay child support, as the father earns an above average income.
In 2009 the mother began paying half of the cost of piano lessons for [X] which the father viewed as a positive development.
The mother has in some respects shown a good attitude to the duties and responsibilities of parenthood. She has striven to spend as much time as possible with [X] since February 2008.
The father has shown a good attitude to the duties and responsibilities of parenthood in capably parenting [X] since March 2007.
I must consider any family violence involving the child or a member of the child’s family.
There were no allegations by either party that any violence occurred during their relationship.
The mother alleged that at a changeover at the former matrimonial home on 29 January 2008 the father was aggressive and she “grabbed his arm with a pinch” to keep him away from her. The mother said that the father punched her in the ribs with a closed fist. She said that she went outside and rang the police and then returned inside because she was concerned about [X]. The mother said that the father was “throwing things around and violently pushed her out the door.”[26]
[26] Mother’s affidavit filed 4 September 2008 paragraph 43
The father denied that he was violent to the mother on this occasion. The police records do not corroborate the mother’s claim. The police took no action. I am not satisfied on the balance of probabilities that the father was violent to the mother on 29 January 2008.
There are no family violence orders in place between the parties or between any other relevant persons.
I must consider whether it is preferable to make orders which are least likely to lead to further proceedings.
If, because of my concerns about Mr R and about whether the mother will comply with a court order that [X] be kept away from him, I make the more restrictive orders about the mother’s time favoured by the father, it almost inevitable that the mother will bring further proceedings in the future, especially if she feels that she can demonstrate to the court after a period of time has passed that she has in fact complied with the orders.
These are the orders which in my view are most likely to lead to the parenting matters coming back before the court, but there is no outcome which is guaranteed to ensure that the parties will never return to court.
If I make an order for equal time the mother will be satisfied, at least for the time being, but the father has in the past filed several contravention applications. He is vigilant, and at times hyper-vigilant, about [X], and he has a tendency to react readily to gossip and hearsay. He and the mother come from different cultures and appear to have little understanding of and little sympathy toward each other. There is certainly a possibility that the father will file further contravention proceedings in the future.
Looking to a slighter longer time frame, neither the mother nor the father have a strong connection with Alice Springs, and I do wonder how long it will be before one or the other of them seeks to vary the orders to allow for a relocation. In addition each parent is originally from overseas and it is likely to be only a matter of time before one of them will be keen to travel internationally with [X].
Parental responsibility
Pursuant to s.61DA of the Family Law Act I am required to apply a presumption that it is in [X]’s best interests that her parents have equal shared parental responsibility for her absent a finding that there are reasonable grounds to believe that one of the parents or a person who lives with one of the parents has abused the child or engaged in family violence.
The presumption does not apply if the I consider that it would not be in the best interests of the child for it to apply.
I am not satisfied there has been any family violence or that either of the parents or any other person has abused [X]. I am not satisfied on the balance of probabilities that [Y] aged 5 sexually abused [X] also aged 5. I cannot be satisfied on the balance of probabilities that Mr R hitting [X] was abuse as defined in the Family Law Act.
On 19 September 2008 the parents consented to an order that they have equal shared parental responsibility for [X].
I have reservations about whether the parents will be able to agree about major issues such as relocation or overseas travel in the future, but this is not a reason to prematurely give one parent sole decision making responsibility. In my view it is in [X]’s best interests that her parents have equal shared parental responsibility for her.
Conclusion
For reasons given earlier in this judgment, I am of the view that an order should be made that [X] have no contact or communication with Mr R.
I am conscious of the fact that this order may affect the mother’s ability to pursue a relationship with Mr R and may be disappointing and distressing for her, but I consider that [X]’s best interests require that this order be made.
The father also sought an order that [X] have no contact or communication with [Y] and [Z]. I am troubled about whether to make that order.
Alice Springs is a small town and [Y] and [X] are the same age. They have already found themselves attending the same day care centre and they could easily and for no sinister reason find themselves at the same school, vacation care program, children’s birthday party or extra-curricular activity. I am also not persuaded that [Y] and [Z] in themselves currently pose any great threat to [X].
I intend to make the order because it will help to ensure that connection between [X] and the [R] family is broken and should lessen any risk to [X] from Mr R, and it will give the father peace of mind, but I consider that the order should only remain in place for twelve months. Making such an order for an indefinite period might well create more problems than it solves.
The issue I then need to consider is whether it is in [X]’s best interests and reasonably practicable for her to spend equal time with each of her parents.
There is much to be said in favour of equal time. [X] has a strong relationship with each of her parents. It is particularly important that she maintain a connection with her Vietnamese heritage and more rather than less time with her mother will increase her opportunities to do this. I am satisfied that the mother as well as the father has the capacity to meet [X]’s day to day needs, including her health needs.
There would be no practical difficulties with an equal time arrangement in a town the size of Alice Springs.
Mr Vidot considered in May 2009 that the father was not necessarily irrevocably opposed to equal time. A major concern for the father at the end of the hearing however was whether the mother could be trusted to comply with the order about Mr R.
One of the father’s proposals was that [X] should live with him and spend each alternate weekend, or two nights per fortnight with her mother. This would certainly mean that there would be less opportunity for the order to be breached and it might also reduce the risk to [X] because it would allow the mother to compartmentalise her life so that she could continue her relationship with Mr R if she wanted to and still spend time with [X] in Mr R’s absence.
If I made such an order [X] would continue to be well cared for by her father. He has shown himself to be the more dependable and child focussed parent since separation. Mr Vidot summed up the situation very accurately in the August 2008 Family Report in which he said as follows:
“[[X]’s] life over the past twenty months or so has been an enormous emotional rollercoaster, going to California twice with her mother, having her father come and collect her from there, being heavily involved with both her mother’s partner’s in that time and coming to terms with the brick-wall like conflict between her parents. She had hardly had any time to adjust to being with her parents prior to their separation, being around Mr J and his daughter so soon after that separation before leading very quickly into the advent of Mr R and his two children when they swept into her life after her mother ended her relationship with Mr J.
Her one constant through all of this has been her father who appears to have faced up to considerable difficulties raised by [X]’s accounts of what was happening to her, while doing his best at contributing to preservation of his daughter’s equanimity and composure. Mr Neal has contributed to this in part in accord with her capacity, but my sense is that her loyalties have been under considerable strain as she seeks to balance consolidation of her current relationship with Mr R’s family and accommodation with the strong pull of her parental obligations toward [X].”[27]
[27] Family Report August 2008 paragraph 34
I accept that under this arrangement [X] would be well cared for and would still be able to spend time with her mother and I accept that it might reduce the risk of the mother breaching the order, but I am not persuaded that it would be in [X]’s best interests if her time with her mother were cut back to two nights a fortnight.
In my view the matters of greatest importance are that [X] has a strong relationship with her mother and that she needs adequate time with her mother because the mother, due to her age, her background and the fact that she is [X]’s mother and not her father, can bring something unique and valuable to [X]’s upbringing.
I accept that the risk of the mother failing to comply with the restraint in respect of Mr R may be increased if she does not give up her relationship with him and has [X] in her care more than two nights a week. However as outlined earlier in the judgement I consider that there is reason to be cautiously optimistic that the mother will comply with the order concerning Mr R when she realises the seriousness of not doing so.
There are some ways of managing the risk of harm. One would be to require the mother to sign an undertaking to keep Mr R away, which will reinforce to her the penalties including imprisonment which she may face if she breaches the order. Another would be requiring that
Mr Vidot arrange for Ms H or some other person nominated by him to again explain the orders concerning Mr R to [X] herself.
It does not necessarily follow however that if the father’s most restrictive proposal is rejected then an order should be made for equal time.
Mr Vidot in his second report said that:
“…….owing to my nagging hesitation about Mr R in respect to his possible way of relating to [X] and my concerns about the speaker phone contact in particular, but also including other forms of [X]’s contact with the [R][s], I also recommend consideration be given by the court to maintaining the current arrangement. Consideration of that arrangement would require consideration of excluding the [R]s as much as practicable from having any form of direct or indirect contact with [X].” [28]
[28] Family Report June 2009 paragraph 92
The existing arrangement of five nights per fortnight gives the mother substantial and significant time with [X] as it is defined in the Family Law Act. [X] has done well in the existing arrangement for more than twelve months. The parents’ ability to communicate is far from perfect but they have been able to communicate sufficiently well to make this arrangement work. [X] spending slightly more time with her father is to be preferred given that I have some reservations about the mother’s willingness and ability to facilitate and encourage a close and continuing relationship between [X] and the father.
Because I cannot entirely do away with my concerns about the mother’s compliance with the court orders, during submissions I canvassed the possibility that I might make further interim orders in this matter, so that the mother could be given time to show that she was able to keep Mr R away from [X].
I am concerned that if I do this however the parties may come rushing back to the court with every little grievance or alternately horde up grievances for use in future court proceedings rather that discussing difficulties as they occur.
The parties have been in the court system one way or another since March 2007. They need to get out of the court system and attempt to manage [X]’s care between them. If small grievances arise they should attempt to work it out through discussion or family dispute resolution rather than rush back to court or horde the grievance up for use in future proceedings.
In my view [X]’s bests interests would be met if final orders are made at this time.
As I intend to make final orders I must grapple with the issue of holiday time.
It is important that [X] has holiday time with each of her parents. Because there is still a high level of distrust between the parties I intend to order that this Christmas holidays the time be week about. From the first school holidays in 2010 the holidays will be shared equally. I am satisfied that spending holidays with her mother will not place [X] at unacceptable risk of harm if the mother signs the undertaking and the prohibition in the orders covering the [R]s are explained to [X].
For all these reasons the orders of this court are set out at the beginning of these reasons.
I certify that the preceding two hundred and ninety nine (299) paragraphs are a true copy of the reasons for judgment of Terry FM
Associate: Barbara Cameron
Date: 5 November 2009
0
0
1