NGOC & CLEARY

FAMILY COURT OF AUSTRALIA

NGOC & CLEARY

[2013] FamCA 26

FAMILY LAW - CHILDREN - With whom a child lives – the time the child spends with the other parent.

FAMILY LAW - CHILD ABUSE – Allegation – finding on the balance of probabilities.

FAMILY LAW - CHILDREN – Best interests – order made for sole parental responsibility.

Family Law Act 1975 (Cth)
Evidence Act 1995 (Cth)

APPLICANT:

Ms Ngoc

RESPONDENT:

Mr Cleary

FILE NUMBER:

ADC

5849

2007

DATE DELIVERED:

1 February 2013

PLACE DELIVERED:

Melbourne

PLACE HEARD:

Adelaide

JUDGMENT OF:

Macmillan J

HEARING DATE:

22 - 26 October 2012

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Mr Eid

SOLICITOR FOR THE APPLICANT:

Priya Subramaniam

COUNSEL FOR THE RESPONDENT:

In person

SOLICITOR FOR THE RESPONDENT:	N/A
COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER:	Mr McQuade

SOLICITOR FOR THE INDEPENDENT CHILDRE’S LAWYER:

Legal Services Commission of South Australia

IT IS ORDERED THAT

All previous parenting orders be discharged.
The mother have the sole parental responsibility for the child M born … April, 2006.
The child live with the mother.
The child spend time with the father as follows:
(a)Each alternate weekend from 3.30pm or the conclusion of school on Friday until 9.00am or the commencement of school on Monday commencing on Friday 8^th February 2013.
(b)During school term holidays from the conclusion of school on the last day of school term until 5.00pm on the middle Saturday of each such holiday period;
(c)For the first half of the long summer holidays in alternate years commencing in 2013 from the conclusion of school on the last day of school term until 5.00pm on the middle Saturday of each such holiday period;
(d)For the second half of the long summer holidays in alternate years commencing in 2014 from 5.00pm on the middle Saturday until 5.00pm on the second last day of each such holiday period:
(e)In the event that the child’s birthday falls on a school day from after school until 7.30pm;
(f)In the event that the child’s birthday falls on a weekend when he is not otherwise spending time with the father from 3.00pm until 8.00pm that day; and
(g)On Father’s day if the child is not otherwise spending time with the father from 9.00am until the commencement of school on the following Monday morning.
The father’s time with the child be suspended as follows:
(a)In the event that the child’s birthday falls on a weekend when he is spending time with the father from 3.00pm until 8.00pm that day; and
(b)In the event that Mother’s Day falls on a weekend when the child is spending time with the father he be returned to the mother at 9.00am on Mother’s Day;
The child spend Christmas Day with the father in alternate years to coincide with the child spending the first half of the long summer holidays with the father commencing Christmas Day 2013 save and except as may be otherwise agreed in writing by the parties.
Changeover for the purposes of the time the father spends with the child be at school and on non school days the father shall collect the child and return the child to the B Contact Centre or as may be otherwise agreed in writing by the parties.
The father and the mother shall forthwith do all acts and things and sign all necessary documents to register at the B Contact Centre and until the said Service is able to facilitate changeover, changeover take place as nominated by the mother or as may be otherwise agreed in writing by the parties.
Each of the father and the mother notify the other within 24 hours of any change of contact details and otherwise keep the other parent notified at all times of their residential address, telephone number and email address.
Each of the father and the mother communicate with the other by SMS telephone message or email and such communication be limited to emergency situations relating to the child or when one party may be delayed at changeover.
The mother advise and keep the father advised of the details of the child’s medical practitioners and medical appointments and that unless it is not reasonably practical to do so or in the case of a medical emergency the father attend upon the child’s medical practitioners for any medical treatment or appointments that may be required during such times as the child is in his care.
The father and the mother advise the other as soon as practicable in relation to any significant illness or injury or in the event of a medical emergency requiring the child to attend upon a medical practitioner or admission to hospital and provide to the other the name of and contact details of any medical practitioner attending the child.
The mother provide the father with details of any schools at which the child is enrolled as soon as practicable after enrolment and do all things necessary to authorise the Principal of the child’s school to provide the father, at his expense, with copies of school reports, newsletters, school photographs and all such other information that would normally be received by a parent.
The father be permitted to attend the child’s sports days, concerts and usual activities affiliated with the school and other extra-curricular activities that the child participates in.
Until further order the father MR CLEARY born … 1968 and by himself, his servants or agents, be and is hereby restrained from removing the child M born … April 2006 from the Commonwealth of Australia AND IT IS FURTHER ORDERED that the Australian Federal Police place the name of the said child on the Airport Watch list in force at all points of arrival and departure in the Commonwealth of Australia and maintain the child’s name on the Watch list until further order of the Court.
The Court forward a copy of this order to the Australian Federal Police.
The father be and is hereby restrained from:
(a)Attending or contacting the mother at her residence, place of employment or at any other place the mother may be present, save and except pursuant to these orders or with the written consent of the mother;
(b)Harassing, abusing or otherwise interfering with the mother including but not limited to discussing the mother with her official colleagues, her employers, other employees, her friends and family.
Both the father and mother together with their servants and agents be and are hereby restrained from:
(a)denigrating the other to and in the hearing of the child or either of them or allowing another to engage in such conduct; and
(b)discussing family law matters with the child.
That all extant parenting applications be otherwise dismissed and removed from the list of cases awaiting hearing.
Pursuant to s 62B and s 65DA(2), the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders, and details of who can assist parties to adjust to and comply with an order, are set out in the document which is annexed to these orders.

IT IS DIRECTED THAT

All subpoenaed and exhibited documents be returned on the usual basis to the person producing same.

IT IS CERTIFIED

Pursuant to Rule 19.50 of the Family Law Rules 2004 this matter reasonably required the attendance of counsel including solicitor acting as counsel.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Ngoc & Cleary has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

FAMILY COURT OF AUSTRALIA AT

FILE NUMBER: ADC 5849 of 2007

Ms Ngoc

Applicant

And

Mr Cleary

Respondent

REASONS FOR JUDGMENT

The father and mother met and commenced a relationship in late 2002. The father was living in Ireland and the mother was living in England at that time. Their relationship was deteriorating when the mother became pregnant with the only child of their relationship, M (“the child”), and returned to Australia to live with her parents in anticipation of the birth. The father remained in Ireland travelling to Australia with his mother to visit the child in April 2006. He returned to Australia in September 2006 and lived with the mother until final separation in November 2006 when the child was approximately 6 months old. Their son is now 6 years of age and he has been the subject of ongoing litigation between his parents since he was approximately 18 months old, including the final hearing of the matter before Federal Magistrate Simpson in 2010.
The father and the mother presently have equal shared parental responsibility for their son. The child currently lives with his father for six nights per fortnight and half of the school holidays and the remaining time with the mother. They now each propose that they should have sole parental responsibility for the child and that he should live primarily in their respective care spending alternative weekends with the other parent from after school on Friday until the commencement of school on Monday. They agree that the child should live with each of them for half of the school holidays albeit that the father suggests that it should be on a week about basis whereas the mother proposes that it be a block of time. They each propose, although the times are not always the same, that they spend time with the child on special occasions such as his birthday, Christmas Day, Father’s Day and Mother’s Day.
In addition the father seeks the following orders:
·    The child to be enrolled in C School in Suburb D;
·    The child be permitted to travel overseas for a period not exceeding four weeks, between the months of June and September;
·    The mother inform the father when she cannot care for the child;
·    The mother be restrained from allowing the child to sleep over at any location save in the company of the mother; and that
·    Both parties be restrained from initiating further proceedings.
The mother says that she has been harassed and abused by the father attending at her home and harassing her and that the child has been exposed to his behaviour towards her. She says that his behaviour demonstrates unwillingness and a lack of capacity on the father’s part to parent co-operatively or any genuine commitment to encourage the child’s relationship with her and that the child’s exposure to the father’s behaviour and attitude to her is detrimental to his welfare.
The father on the other hand put his case on the basis that the child is not safe in the mother’s care as demonstrated by her failure to protect him from being sexually abused or to act protectively following his allegation that he had been “touched on his willy” and his assertion that the mother puts her position as an elected official before the child’s welfare. It was also part of his case that the mother does not properly provide for the child’s education, has failed to parent co-operatively and promote his relationship with the child and that she has persisted in what he describes as vexatious litigation in relation to the arrangements for the child’s care. During the hearing it became clear that what the father was saying was that he was not suggesting that the child was at risk when in the mother’s care his concern was that the mother was not available to care for the child and he was at risk because she did not make appropriate arrangements for his care at those times. His answer to that is that the child should live with him for the majority of the time which he says would avoid the necessity for the mother to make arrangements for the child’s care when she is at meetings or otherwise meeting her commitments as an elected official. It is not the father’s case that the child should not spend time with the mother or that the time he spends with the mother should be supervised.
What is very clear and is conceded by both the father and the mother, although they do not agree on the cause, is that as described by the family consultant there relationship has “been one of conflict and competition”.
Even in the context of the father’s allegations that the mother failed to protect the child from sexual abuse this is not a case which it is put in any real sense on the basis that there is an unacceptable risk of abuse. However for other reasons which will become clearer in the course of my reasons the allegation that someone touched the child’s “willy”, the circumstances surrounding that incident and how the parties reacted to that incident loom large in the determination of this matter. In that context the issues I must consider include the following matters:
·    Was the child sexually abused?
·    Whether the child was or was not sexually abused did the mother act to protect him in response to the allegations of sexual abuse?
·    Can the father’s harassment and abuse of the mother be in any way explained or justified by his concern for the child’s welfare?
I must ultimately consider these issues in the context of and in accordance with the relevant provisions of the Family Law Act 1975 (Cth) in order to determine which of the parties proposals or what if any other proposals for the child’s care will best promote his interests both with respect to whether one or other or both of his parents should have parental responsibility for him and with whom he should live and for what periods.

Background

The father is 44 years of age. He was born in Ireland and until recently had no family living in Australia. He has been in a new relationship for approximately 2 years. His new partner, who like the mother is of Asian descent, has a daughter, who is almost exactly a year older than his son. The husband is in Australia on a bridging visa and has made application for a partner visa based upon his relationship with his new partner.
The father is currently working as a labourer for a friend but says that he has plans to start his own business in the construction industry or possibly Seek local certification for his professional qualifications.
The mother is 41 years of age. She is a qualified professional but is currently an elected official and works part time as a domestic worker in order to supplement her income. The mother has numerous siblings all of whom live in South Australia. The wife maintains contact to varying degrees with all of her siblings and their families. The mother is not in a new relationship.
The mother commenced proceedings in the Federal Magistrates Court in November 2007. There was a final hearing of the matter before Federal Magistrate Simpson which commenced in April 2010 and was concluded in August of that year. Judgment was delivered on 31 August 2010. Simpson FM made orders which provided inter alia:
·    That the father and mother have equal shared parental responsibility for the child;
·    That until the child commenced school he live with the father from 8.30am Tuesday until 5.45 pm Wednesday and from 8.30am Friday until 5.00pm Saturday in week one and from 8.30am Wednesday until 5.45 pm Thursday in week two;
·    Upon the child commencing school from before school or 8.30am if not a school day on Monday to before school or 8.30am if not a school day Wednesday and from after school or 5.00pm if not a school day on Friday until 5.00pm Sunday in week one and from before school or 8.30am if not a school day on Wednesday to before school or 8.30am if not a school day on Friday in week two.
·    The orders also made detailed provision for holidays and special occasions.

Documents Relied Upon

The Mother relied upon the following documents:
·    Her Initiating application filed 23 March 2011
·    Her trial affidavit filed 1 May 2012;
·    Her further trial affidavit filed 27 September 2012;
·    Her Outline of Case filed 4 October 2012
The mother in her case outline referred to a number of previous affidavits but ultimately relied upon her two trial affidavits. Some of the mother’s earlier affidavits were the subject of cross-examination.
The father relied upon:
· His trial affidavit filed on 27 April 2012
· His Outlines of Case filed 27 July 2012 and 12 October 2012
The father was representing himself and as a consequence he referred to many documents in his case outlines many of which related to the previous proceedings. In so far as they related to the proceedings conducted by Simpson FM they were not relevant other than by way of background to the proceedings before me. For the purposes of this trial the father was permitted to rely upon his trial affidavit. Whilst he sought to cross-examine the mother in relation to previous affidavits she had filed in these and the earlier proceedings and referred to transcript and other documents that had been included in the list of documents in his case outline he had, in most cases, annexed the relevant passages of those affidavits upon which he sought to rely to his trial affidavit.
The Independent Children’s Lawyer relied upon the following documents:
·    The Section 69ZW letter from Families SA and dated 17 May 2011;
·    Affidavit of Ms R filed 5April 2012 annexing the report of Mr H, the Family Report Writer.
·    Documents produced pursuant to Subpoena by SAPOL, Families SA and CPS.

Legal Principles

The objects underlying the provisions of Part VII of the Family Law Act 1975 (Cth) relating to children are set out in s60B(1) of the Act as follows:
The objects of this Part are to ensure that the best interests of children are met by:
(a) ensuring that children have the benefit of both of their parents having a meaningful involvement in their lives, to the maximum extent consistent with the best interests of the child; and
(b) protecting children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence; and
(c) ensuring that children receive adequate and proper parenting to help them achieve their full potential; and
(d) ensuring that parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of their children.
The principles underlying those objects are outlined in s60B(2). They are that unless it would be contrary to the best interests of a child:
(a) children have the right to know and be cared for by both their parents, regardless of whether their parents are married, separated, have never married or have never lived together; and
(b) children have a right to spend time on a regular basis with, and communicate on a regular basis with, both their parents and other people significant to their care, welfare and development (such as grandparents and other relatives); and
(c) parents jointly share duties and responsibilities concerning the care, welfare and development of their children; and
(d) parents should agree about the future parenting of their children; and
(e) children have a right to enjoy their culture (including the right to enjoy that culture with other people who share that culture).
The paramount consideration when making a parenting order is the best interests of the child or children the subject of that order (s60CA). In determining what is in that child or children’s best interests the Court must consider both the primary and additional considerations set out in s60CC(2) and (3) of the Act. Section 60CC(4) requires the Court to consider the extent to which each of the parents has fulfilled or failed to fulfil their responsibilities as a parent and must have regard to the circumstances since separation (s60CC(4A)).
The analysis of these statutory considerations of what is in the best interests of the particular child in the particular circumstances of the case must be made in a way that is consistent with the objectives and the principles underlying those objectives, the primary considerations directly taking up the first two of those objectives.
There is a statutory presumption that it is in the best interests of the child for the parents to have equal shared parental responsibility unless there are reasonable grounds to believe that a parent has engaged in abuse of the child or family violence (s61DA). The presumption is rebuttable if the Court is satisfied that it is not in the child’s best interests for the parents to have equal shared parental responsibility.

As these proceedings commenced prior to the introduction of the Family Law Legislation Amendment (family Violence and Other Measures ) Act 2011 family violence is defined as:
conduct whether actual or threatened, by a person towards, or towards the property of, a member of the person’s family that causes that or any other member of the person’s family reasonably to fear for, or reasonably to be apprehensive about, his or her personal wellbeing or safety.
Note: A person reasonably fears for, or reasonably is apprehensive about, his or her personal wellbeing or safety in particular circumstances if a reasonable person in those circumstances would fear for, or be apprehensive about, his or her personal wellbeing or safety.
Abuse in relation to a child is defined as “an assault, including a sexual assault of the child which is an offence under law, written or unwritten in force in the State or Territory in which the act constituting the assault occurs” or “ a person involving a 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. (s4(1)).
When that presumption applies and the Court makes an order for equal shared parental responsibility, the Court is then required to consider firstly whether it is in the child’s best interests and reasonably practical to spend equal time with both parents (s65DAA(1)) and if not, whether it is in the best interests of the child and reasonably practical to spend “substantial and significant time” with each of the parents (s65DAA(2)).

The Evidence

The relevant standard of proof in this case is the balance of probabilities. Section 140 of the Evidence Act 1995 (Cth) provides that, without limiting the matters the Court may taking account in applying that standard of proof, the Court must take into account:
a.the nature of the cause of action or defence; and
b.the nature of the subject–matter of the proceeding; and
c.the gravity of the matters alleged.
In this case I have considered all of the evidence, had the benefit of observing the appearance and the demeanour of the father and the mother and I have given careful consideration and made my findings having regard to all of the evidence, the nature of the proceedings, the seriousness of the allegations and the consequences that flow from my findings.

Was the Child Sexually Abused?

Between 1.30pm and 2.00pm on 31 July 2010 the father says that he accompanied the child to the toilet, and as he reported to Families SA on 4 August 2010, the child ran out of the toilet said to him “the naughty man touched me on the willy at [E’s] house”. E is the son of the mother’s brother who is aged 6 and a half years. The father admitted in cross-examination that he was the third notifier referred to in the Families SA s69ZW report and confirmed that when he asked the child what the man who had touched his “willy” looked like he said that “he looked like you”. The father said that what he understood the child to mean was that the alleged perpetrator of the abuse was Caucasian, like the father, and not an Asian man.
The father said in cross examination that his initial reaction to the child’s allegation was that it was a “flight of fancy”. However, he also said, although there is some inconsistency between the two statements, that he was so upset by what the child said that he was close to throwing up. His initial reaction that it was just a flight of fancy is in my view consistent with the fact that he did not contact the mother to advise her of the child’s allegation until about 6.30pm that evening. The father was asked in cross-examination about what he was doing between 1.30pm and 6.30pm or thereabouts when he sent the text message to the mother. He initially said he could not remember but then said that he had not been doing anything of “any big significance” and was most likely just playing with the child. He himself pointed out that it was necessary to bear in mind that he was talking about a four year old and that four year olds have wonderful imaginations. It is hard to believe that if he had been as upset or as concerned as he said he was that he would not at the very least have contacted the mother earlier. The fact that he did not do so is consistent with his evidence that he thought that it was a flight of fancy.
The father did not contact either Families SA or the South Australian Police that day. It is clear from the s69ZW report and the father’s evidence that he did not contact Families SA until the 4 August 2010 and did not report the matter to the Police until the 23 October 2010. Although the father says he took the child to see Ms A, a child psychologist, on 2 August 2010 he also advised Families SA that she had not directly questioned the child about the incident.
The father also reported to Families SA on 4 August 2010 that he had decided not to return the child to the mother’s care as planned and that on 3 August 2010 on the advice of his then solicitor, had filed a Notice of Child Abuse and had sought orders he said to “..ensure the child is supervised adequately”. In his affidavit sworn 3 August 2010 the father deposed that the child had informed him that “..some man had touched his penis while he was at his cousins house” and that he “..referred to the man as naughty and he told him to stop when he endeavoured to touch him”. In his Notice of Child Abuse he described the incident as follows:
Some strange man touched the child’s penis. While he was in the care of his mother. This alleged abuse occurred at [F Street, Suburb G].
The father did not in either of these documents either depose or state that he had asked or that the child had said that the alleged perpetrator looked like the father or that he assumed this to mean that the alleged perpetrator was Caucasian and not Asian.
On 11 August 2010 the matter was listed for hearing before Simpson FM. Both the father and the mother appeared in person although Simpson FM noted that the mother was seeking legal aid, ordered that she file and serve responding documents within 28 days and otherwise adjourned the matter to 5 October 2010. He also ordered that the mother be restrained from leaving the child at I Street, Suburb J, being the residence of Mr K Ngoc, the mother’s brother, where the abuse was alleged to have occurred, unless the mother remained present at all times. The father complained both in his trial affidavit and it was the subject of his cross-examination of the mother, that she had not informed the Court of “her knowledge of the person she nominated as ‘[Mr N]’” (the mother’s sister-in-law’s nephew) until she filed her affidavit on 21 October 2010. However it is clear from the evidence that it was the mother who elicited the information about Mr N from the child and not the father and that she advised Families SA accordingly which is similarly not consistent with the father’s allegations that she did not disclose the information in relation to Mr N. The father on the other hand conceded in cross-examination that he had not told Simpson FM that the child had told him that the alleged perpetrator looked like him and therefore likely to be Caucasian.
The father was also critical both in his affidavit and in cross-examination of the mother for what he says was her failure to file responding material in accordance with Simpson FM’s order however it is clear from the transcript annexed to the father’s affidavit that the mother’s solicitor had been ill and that she accepted responsibility for not having filed the mother’s material in accordance with the order.
The mother in her affidavit filed 15 October 2010 deposed as follows:
On 31 August 2010, the father sent me a text which said that [the child] had told him that someone had touched his Willy. He sent me a number of texts after the initial text and asked me to answer his questions. The father kept telling me to do something or [the child] would not be returned.
On Sunday 1 August 2010, [the child] was in my care. I asked [the child] if his “willy” was touched and he said “yes”. I then asked [the child] whether he was “naughty”. He said yes. When [the child] has his bath, he likes to run around naked and often refuses to wear clothes. I tell him that he is “naughty” or “cheeky” when he runs around without clothes and this is what I meant when I used the word ‘naughty’ or ‘cheeky’. I asked [the child] who touched his ‘willy’ and he sad ‘the man that [E] doesn’t like”. I asked [the child] if it was [Mr N] and he said “yes”.
The mother in her affidavit filed 1 May 2012 deposed that she had reported the matter to the SA Police on 2 August 2010 and that the following day she was contacted by Families SA. The s69ZW report notes that Families SA initially obtained the information about the alleged abuse from SA Police after they were contacted by the mother and that on 2 August 2010 a Child Abuse Report Line worker contacted the mother for further details. Whilst the mother deposed that she was contacted by Families SA the following day nothing turns on whether it was the same day or the following day. What is clear from the s69ZW is that the mother, as confirmed by her telephone records, did contact SA Police and that she did speak with a worker from Families SA subsequent to that telephone call. The mother is reported by Families SA as having confirmed on 2 August 2010 that she had been told by the father that the child had said that his “willy was touched” although she was not able to say whether this was a “spontaneous disclosure” or whether he had been questioned by the father and that as a result of this information she had asked the child “did you get your willy touched” to which he had replied “yes”. The mother is also reported to have confirmed that the child had identified Mr N as the alleged perpetrator. She was also reported to have told Families SA that she “..did not believe that this person would have any opportunity to touch the child in a sexual way, as at anytime the child has any contact with the person, the mother is present.” She is also reported to have told Families SA that the child “..would often be bathed at his maternal uncle’s home, and that he would run around with his cousins being silly, with no clothes on” and that Mr N had said something to the child along the lines of “..get your clothes on or I will cut your willy off.”
What is abundantly clear from this evidence and confirmed by the father’s evidence is that he had not told the mother that the child had described the perpetrator of the alleged abuse as looking like him. Clearly that information might have caused the mother to further question the veracity of the allegation of abuse and all that followed may have been avoided. The father offered no credible reason for why he had not told the mother at that time that the perpetrator of the alleged abuse looked like him.
Families SA in the s69ZW letter noted that SA Police appeared to be indicating that no police action would be taken and that “the information was assessed by Families SA as a Notifier concern and it was noted that the details were lacking regarding the initial disclosure that was allegedly made by the child - was it spontaneous/what did the child disclose/how was he questioned by the informant and the context of the touching was unclear.” The letter also noted that the questioning used by the notifier, in this case the mother, was leading and it was ultimately determined “..that there was no role for Families SA at this time; unless further details were obtained which may warrant an upgrade”. This was before the father had himself notified Families SA and provided what now appears to be pivotal information not provided to the mother, and hence not passed on by her to Families SA that the perpetrator of the alleged abuse was likely to look like the father and unlikely to be Asian. I am satisfied that the child was asked leading questions by the mother and statements to his mother must be viewed in that context and in light of the fact that it was totally inconsistent with what he had told the father.
It is also clear from the records produced pursuant to subpoena by SAPOL that SAPOL were satisfied with the explanation that was provided by both Mr N and the mother’s niece and that they did not intend to take the matter any further and that they had advised the father accordingly on a number of occasions.
If the immediate reaction of the father to whom the allegation was made was that it was a ‘flight of fancy’ it seems more likely than not in the absence of any other reliable evidence which might lead to a different conclusion that it was in fact a flight of fancy. There is no other such evidence. To the contrary for reasons I will discuss in more detail later in this judgment the evidence in this case suggests that the father’s actions were motivated by a desire to attack the mother and her parenting rather than a genuine concern that the child might be at risk of sexual abuse.
Although it is not possible to totally rule out the possibility of sexual abuse, in all of the circumstances I am satisfied on the balance of probabilities that what occurred was more likely than not to be a description by the child of what was innocent play at his uncle’s home.

Whether the child was or was not sexually abused did the mother act to protect the child in response to the allegations

The father opened his case on the basis that the mother had not acted appropriately to protect the child in response to his allegation that someone had touched him on the penis and that to the contrary, rather than protect the child she had protected the alleged perpetrator.
Pivotal to this issue is the father’s assertions that the mother, contrary to the evidence contained in her affidavit filed 15 October 2010, lied about having contacted SAPOL to report the alleged incident of abuse and went to great lengths to demonstrate that she had not done so. Ultimately the father had to concede in cross-examination when confronted with the mother’s telephone records that she had in fact done so. This is corroborated by the s69ZW letter.
Whether, as asserted by the father, the mother did not immediately inform the Court that the child had identified Mr N as the alleged perpetrator I am satisfied that she had acted appropriately to protect the child advising both SAPOL and Families SA that he had identified Mr N as the person who had touched him on his penis.
The mother said in cross-examination that when she received the text message from the father advising her that the child had said that someone had touched him on the willy she then asked for further details and was advised by the father that he intended to take the child to see Ms A, a child psychologist, the following day.
The mother said in cross-examination that although she believed the child at the time he had since told her different things and it is clear from her evidence and her discussions with Mr H that she now questions whether Mr N behaved in a sexually inappropriate manner towards the child. One can only imagine what she would have thought had she known that the child had told the father that the man who touched him was Caucasian not Asian. Clearly the child has said different things to different people.
Clearly the father’s assertions that the mother had lied about reporting the matter to either SAPOL or Families SA are without foundation. Similarly there is no evidence to support his assertion that the mother was protecting Mr N rather than the child. She not only told SAPOL and Families SA about Mr N but notwithstanding her obvious reservations about the allegations she did not, as reported to SAPOL by Mr N when interviewed on 2 March 20011, take the child to the property at I Street, Suburb G after the allegations had been made. This is notwithstanding that it was not until 22 December 2010 that Simpson FM made an order restraining the mother from taking the child to her brother’s home at Suburb J. The father did not present any evidence which would otherwise suggest that the mother left the child unattended or even took him to her brother’s home either before or after the orders had been made by Simpson FM or did not otherwise comply with those orders.
As Mr H, the Family Report Writer noted “..the detail of what happened and why it happened has become lost” however the evidence does not support the father’s assertion that the mother either did not act protectively when told by him of the allegation, did not comply with the orders that were made or that she failed to act protectively or would be likely to do so in the future.
I am satisfied on the balance of probabilities that in all of the circumstances the mother responded appropriately and took all necessary steps to protect the child in light of the allegations and the circumstances of the allegation that Mr N had touched him on his penis notwithstanding the reservations she may have had about those allegations. Notwithstanding the father’s allegations I am not satisfied on the balance of probabilities that the mother acted to protect Mr N as asserted by the father.

Can the father’s harassment and abuse of the mother be in any way explained or justified by his concern for the child’s welfare?

The mother says that the father has subjected her to “..an extreme campaign of harassment and personal character assassination since 31 August 2010”. She also complains that the father denigrates her to the child. Although she deposed that she had hoped that the father’s behaviour would subside so that they could get on with the responsibility of raising the child together with minimum conflict, she says to the contrary, that the father’s animosity towards her had increased to the point where she believed it had become an obsession. It was her view that the father did not seem to have any insight into how his behaviour had affected the child. I am satisfied that that is the case.
The father’s behaviour includes a barrage of threatening and abusive text messages to the mother, a barrage of threatening emails to the mother and her solicitor, and repeated attempts to publicly discredit the mother and to sabotage her position as an elected official.
Save and except for what I will describe as the ‘L Public Event’ incident the father does not deny the mother’s allegations about his behaviour. Rather he justified his actions on the basis of his need to protect the child. The father admitted that he had attended the mother’s official meetings, had written to the mother’s senior official between 10 or 20 times, telephoned the mother’s senior official approximately 5 times, written to other of the mother’s colleagues at least once, had telephoned two other of the mother’s colleagues, had attended at the organisation coordinating the mother’s official capacity on one occasion and made at least two telephone calls to that organisation, written to people in senior government positions and had approached O School when the mother was to be appointed to an official position with the School.
The mother said that when she arrived at the L Public Event in early 2012 the father’s partner Ms P attempted to hand her a document which she said she was giving to members of that Asian community including the community leader’s wife. When the mother did not take the document she said Ms P attempted to shove it down her top. She later observed the father and Ms P handing documents to strangers at the L Public Event. The mother says she only briefly read the document which was given to someone she was with but saw the words SAPOL, the child’s name and possibly her name and that she believed that they were handing out copies of documents produced pursuant to subpoena by SAPOL. The mother said that as a result of this incident she had avoided contact with that Asian community.

The father denied this allegation and said that the mother had made it up motivated by her desire to “have a go” at him. Although he said he did not take any documents to the L Public Event or hand out any documents he also said he did not see the alleged incident with Ms P and that it was possible that there could have been an incident between the mother and Ms P. Although he said he was not aware of Ms P taking any documents to the L Public Event he did not rule out the possibility that she was handing out documents. Although he had the opportunity overnight to do so he said he had not bothered to ask Ms P as to the truth or otherwise of the mother’s allegation.
My initial impression of the mother’s evidence was that she was somewhat evasive and distracted however it became increasingly obvious that she was totally traumatised by the father’s behaviour towards her and appeared almost terrified to answer the questions she was asked particularly in the father’s presence. This was particularly evident when she gave her evidence about the incident at the L Public Event. The mother could not look at the father and was extremely distressed when she spoke or attempted to speak about what had occurred. Notwithstanding her distress and that she gave her evidence carefully and on occasions hesitantly, her evidence including her evidence in relation to the incident at the L Public Event was quite detailed and consistent. She presented as a witness doing her best to tell the truth about what were for her traumatic experiences and in difficult circumstances. Despite her obvious anxiety about being questioned by the father that cross-examination did not cause me to question or doubt her evidence.
The father’s evidence on the other hand was facile and self serving. He was unable to make concessions until confronted with incontrovertible evidence contradicting his evidence. He frequently answered questions put to him with another question or a statement rather than addressing the question he was being asked. I find it quite extraordinary in light of the mother’s obvious distress when she described this incident that the father did not take the trouble to ask Ms P what if anything had occurred. It is inconceivable, in my opinion, given the history of the father’s behaviour and my observations of his evidence that he would not have asked Ms P what occurred if as he said the mother had lied about this incident.
In so far as there is any dispute between the evidence of the father and the mother I prefer the evidence of the mother including in relation to the L Public Event incident and am satisfied on the balance of probabilities that the father and his partner Ms P were, as the mother said, handing out documents to members of that Asian community which referred to SAPOL and named the child and possibly the mother. This is also consistent with the ongoing attempts by the father to embarrass and humiliate the mother.
The father initially said in cross-examination that he was at all times motivated by his desire to protect the child but could not provide any cogent explanation as to how his actions could be said to have protected the child other than to say that if the mother were to lose her position as an elected official she would be in position to take care of the child. The father said that if it meant the mother lost her job then “so be it”. According to his evidence the father had spoken to an official colleague of the mother’s about the case about a month before the final hearing.
The father’s evidence that his actions were motivated by wanting to protect the child and particularly that a matter of weeks before the final hearing he was still pursuing his campaign against the mother must also be viewed in light of the other evidence that:
The father had initially formed the view that what the child had told him about a man touching his penis was a flight of fancy;
That notwithstanding that the mother had told him that the child had said that Mr N had touched his penis the child had previously told him that the person who touched him looked like the father, which he took to mean that he was Caucasian. At the very least he would have known that what the child had told him and the mother was not consistent.
That although he told Families SA that the child had said that the person who touched him looked like his father the father had not raised this either in his discussions with the SAPOL or in the context of the proceedings. Even more importantly he did not tell the mother when he became aware that the child had said it was Mr N.
The father had instituted proceedings and there were orders in place which as he said were intended to protect the child from the risk of sexual abuse.
The father was reported by SAPOL to have said on 29 October 2010 that the “.victim is with his mother but that he has no concern re further abuse and that she is protective of him” and the father acknowledged having made this statement.
The father had received a copy of the s69ZW letter in or about May 2011 and had had access to the documents produced by SAPOL and Families SA since mid 2011.
Neither the father or the mother were able to say when exactly Mr N had left Australia although according to the SAPOL records the mother told the investigating officer on 8 February 2011 that she believed Mr N had been in Asia for some time and would shortly be travelling to the US with the mother’s brother and his family. The father said that he first became aware that Mr N had left Australia in about October 2010. Whilst there is some confusion about the dates I am satisfied that the father knew for a significant period that it was alleged that Mr N was no longer in Australia.
The mother deposed in her affidavit filed 1 May 2012 that although for some unknown reason SAPOL had not recorded her call to them on 2 August 2010 she had checked her telephone records which confirmed her evidence about that call. Notwithstanding that the father was served with a copy of that affidavit he did not ask to inspect the relevant telephone records in order to verify her evidence.
At the very least these matters should have caused the father to reflect upon what if anything had occurred and what risk there was likely to be to the child on an ongoing basis. That did not occur which itself raises significant questions about both the father’s bona fides and his insight as to the child’s wellbeing.
Although in the course of cross-examination the father made a number of concessions in relation to the inappropriateness of his behaviour towards the mother those concessions were generally qualified he said by the fact that he might not have been so concerned or acted as he did if he had known then what he now knew about the steps the mother had taken in response to the allegations of sexual abuse. He continued to assert that his actions were motivated by his desire to protect the child although he said that was on the basis that he wasn’t concerned generally about the child’s welfare when he was in the mother’s care and that his concern was when she was not available to care for him.
Whilst the father sent many emails to the mother and her solicitor there are two particular emails which are particularly telling and provide significant insight into his likely motivation. In his email to the mother dated 22 December 2010 the wrote as follows:
There is a local journalist taking a keen interest in this. I am arranging to talk to the [the mother’s senior official] with the information of have [sic] regarding your behaviour in relation to protecting [the child] from abuse. I will be setting out all that has happened and informing her, shall the [mother’s official colleagues] not take the appropriate steps I will allow the Journalist to bring it to the public’s attention.
You have over a period of 3 years embarked on a vicious character assassination on me, trying at all times to stop [the child] having a father.
Your first action when I returned was to report me to the department of immigration; you got people to threaten me. You said I acting like a refugee, I’m sure there are many in your constituency that will not take this well….
..Frankly I am disgusted you tried to protect this man [Mr N] from abusing [the child], by not telling me or the court or the police as it transpires now.
So I am going to do al [sic] in my power and to use your phrase “whatever it takes” to inform whoever need [sic] to know. You will also recall giving me the middle finger. And saying I [reference to participating in a sport] to kidnap [the child].
It’s simple you apologise to me, and start acting like a reasonable parent and protect my son as he should be. While you were out canvassing you left my son in a house where he was abused.
I will not stop until this matter is finalised. You have no idea where this will go, I said to you many times all you had to do was stop dragging me through the Courts, but when it comes to some man abusing my son, that is unforgivable, and you refusing to tell me….
Approximately an hour later the father sent the mother a further email. He wrote as follows:
Here is what I am willing to do. If you allow [the child] to come to newcastle from the 24th to the 28th Jan, and allow him see [sic] more of me in the weeks I don’t see if for a few days. Also let him talk to me when I call, and agree he goes to [S School].
And in the final orders agree that rather then he goes back to you on a Sunday evening he stays with me until the Monday, and agree rather then when he is 6, that he comes home next year in june or july. I will also drop the appeal.
I will not go to the trouble of informing [the mother’s official colleagues], and giving the Jurno all the information I have, and I mean everything, failing agreement or an attempt to agree by tomorrow at 5. I will see to it that you will be left with no option to resign. as you have bribed me in the past for money, I am giving you the incentive to be reasonable like I have always asked you.
frankly I want to get on with my life with [the child], as easy as possible with no more hassle that you have created [sic].
But be assured I will carry out what I say.
In the context of all of the evidence in this case these emails are telling and as submitted by Mr McQuade, Counsel for the Independent Children’s Lawyer, lay bare the real motivation for what I find to be appalling behaviour on the part of the father towards the mother. These emails make clear his dissatisfaction with the orders made by Simpson FM and that he will stop at nothing to get his own way.
I am satisfied that from the very day that the child told him someone had touched his penis that there was information available to the father, and significantly which he did not disclose to the mother, that would have cast further doubt, given his initial belief that it may have been a flight of fancy, upon the likelihood of his having been sexually abused. Mr H’s opinion was that the father “..has used extraordinary poor judgement in the way he has behaved. He paid no attention to the consequences of his behaviour either on the child or on the mother. He would appear to have been prepared to disrupt this woman’s life in a major way. He didn’t just attack her parenting of the child, but he appeared to attack her public reputation and I guess the social standing in her community…..I can’t see how he can back away from all of that and he had to have made a considered decision about everything he did.” The father’s evidence only confirmed Mr H’s observations of the father and did not in any way suggest that the father had developed any insight into the impact of his behaviour, accepted any real responsibility for that behaviour or would be likely to do so in any real sense in the foreseeable future.
I am satisfied that the father used opportunistically what he knew to be questionable allegations to punish and humiliate the mother and to redress longstanding grievances against the mother. The father’s emails make it clear that if the mother were to give in to his demands he would not pursue the mother as he has threatened to do.

What orders will promote the child’s best interests?

In determining the child’s best interests I must consider both the principle and additional considerations. There is clearly some overlap between the issues that I have already discussed and those considerations and I will endeavour to avoid unnecessary repetition.

(a) the benefit of the child having a meaningful relationship with each of the parents

Mr H described the child as “..having a good relationship with both his parents. He loves both of his parents.” He also said that the child wants to live with both his parents and is unable to choose between them. I found Mr H’s evidence very persuasive. Both his report and his oral evidence were balanced and cogent. I am satisfied that the child would benefit from having a meaningful relationship with both his parents subject to what I consider to be the significant risk the father’s behaviour poses to the child’s emotional well being.

(b) the need to protect the child from physical or psychological harm, from being subjected to, or exposed to abuse, neglect or family violence

Whilst there has been no direct physical assault or threat of assault upon the mother by the father it is clear from the mother’s evidence and I am satisfied that she has felt threatened by the father’s conduct towards her which has caused her to fear for her safety and has significantly impacted upon her physical and emotional well being and in my view not surprisingly so.
According to Mr H the child is “..far too young to understand, or be critical of the nature of the conflict between his parents”. However he also said that he is likely at about 8 years of age to become aware of that conflict, the ultimate outcome of doing so being that he may lose his relationship with either the father or the mother. Mr H described the nature of the conflict as going to the heart of the mother’s credibility as a capable and responsible parent potentially undermining the child’s trust in his mother. He also said that it was possible that if the father’s opinion about the mother did not match the child’s experience of the mother he could turn against the father. The conflict could also provide the opportunity for the child to manipulate and exploit both his parents.
It was Mr H’s opinion that the father:
...would have to have a complete change of opinion about the mother and he would have to have a complete change of perspective about her as a parent and about her ability to care appropriately for this child.
He said that although he did not know what had occurred during the course of the hearing that “..if the father can’t change his opinion, or he-becomes as obsessed about something in the future as he has about this, in terms of the mother’s parenting, then it’s inevitable that this boy’s loyalties will become under enormous stress in the next few years…”
In Mr H’s opinion:
….if the father doesn’t change his view of the mother, if he doesn’t have a respectful and supportive attitude to her, her parenting of the child, I think at some point the future, the near future, the distant future a similar level of activity will take place over some other incident that the father becomes obsessed with and he follows through as intensely as he has followed this through.
It was his view that if the father could not change and the child was living with him the bulk of the time as he proposed he did not “..think that he could help but behave in a way that would completely undermine [the child’s] relationship with the mother, even if he didn’t do it directly, he would do it indirectly.”
Although the father, as he said, fell on his sword and acknowledged that his behaviour had been appalling I have little confidence that he has any real insight or understanding of the inappropriateness of his behaviour and its impact upon either the mother or the potential impact on the child. As I have previously discussed he continued to qualify his answers and justify his behaviour on the basis that had he known what he now knew he may have behaved differently. There were in my view many opportunities when the father could and should have reflected upon what had occurred and considered his position and he chose not to do so. The father had access to the Police Records and the s69ZW letter for well over a year before the trial. He had the mother’s affidavit in which she referred to her telephone records. Not only did he make no effort to obtain copies of the records he continued until the trial to attack the mother.
I am not satisfied on the basis of the evidence before me and my observations of the father’s evidence that the father’s view of the mother has genuinely changed or that he is in fact capable of changing his view or changing or even moderating his behaviour. It is much more likely in my view that even if the father does accept that the mother did act protectively in relation to the allegation of sexual abuse that he will in the not too distant future become obsessed about some other issue in relation to the mother and the child. Given the history of this matter and the way in which the father put his case the child’s schooling is a likely source of dispute.
Notwithstanding that he acknowledged that his behaviour had been inappropriate I am not satisfied on the basis of the evidence or his submissions that he has any real respect for the mother or is supportive of her parenting of the child. His final address only highlighted my reservations about the father’s attitude to the mother. As well as his submissions in relation to the child’s education which are clearly predicated upon his belief that the mother is not likely to make the decisions about his education that will provide him with the best opportunities, a significant part of his final address was directed to what he says was the mother’s false allegation about the L Public Event incident. He described this as an attempt by the mother to demonise him and submitted that the mother should not be permitted to benefit from that false statement. I accepted the mother’s evidence about this incident however, even if I had come to the conclusion that the mother had lied about this incident there is no comparison between that and the father’s appalling behaviour.
Mr H said and I agree that he did not think that the father “..could help but behave in a way that would completely undermine [the child’s] relationship with the mother”. The father’s behaviour when he and the mother have shared the child’s care does not give me any confidence that if [the child] were to be predominantly in his care that he would promote his relationship with the mother.
It was Mr H’s opinion that even if the time the child spent with the father was cut back he would still have plenty of time to put pressure on his bonds with the mother but that it would help if he were to spend less time with the father. He said that reducing the child’s time with the father “..is a way of actually stabilising this boy’s life and settling the boy’s life” and that “clearly identifying one parent as having a primary responsibility for the child allows that parent to have some sanctuary, some space in which to parent the child.”

Additional Considerations

(a) any views expressed by the child and any factors (such as the child’s maturity or level of understanding ) that the court thinks are relevant to the weight it should give to the child’s view

The child told Mr H that he wanted to live with both his parents. Whilst I have had regard for his wishes I have given only limited weight to those wishes for the following reasons:
·    Although the child is an intelligent and articulate boy he is still only 6 years old;
·    He is aware that his parents don’t like each other although to date he has been largely spared the detail of the depth of the conflict;
·    He loves and is protective of both of his parents and is unable to chose between them; and
·    As Mr H said the child’s wish to spend equal time with his father and mother is likely to be a reflection of him wanting to make everyone happy.

In this case both the father and the mother have sought orders that the child live predominantly with them. Even if that were not the case I am not satisfied that it would be in his best interests in all of the circumstances of this case to spend equal time with each of his parents. This would in my view inevitably expose him to the father’s negative views about the mother with less opportunity for him to test those views against his own experience of the mother.

(b) the nature of the child’s relationship with each of the parents and any other person

This is not an issue in this case. As I have already discussed the child has a good relationship with both his father and his mother. The evidence also suggests that he has a significant relationship with both the father’s new partner Ms P and her daughter T.

(c) the willingness and ability of each of the child’s parents to facilitate and encourage a close and continuing relationship between the child and the other parent

(f) the capacity of each of the child’s parents or any other person to provide for the needs of the child, including emotional and intellectual needs; and

(i) the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child’s parents

(4) without limiting paragraphs 3(c) and (i) the extent to which each of the child’s parents has fulfilled or failed to fulfil, his or her responsibilities as a parent and in particularly, the extent to which the child’s parents have taken or failed to take the opportunity or facilitated or failed to facilitate the other parent participating in decision making about major long term issues and spending time or communicating with the child

Both the parents have demonstrated a significant commitment to the child’s care. The father has moved to Australia in order to involve himself in the child’s life and the mother had changed career in order to be available to care for him.
I am satisfied notwithstanding the father’s complaints about the mother’s work commitments and her attendance at meetings, that both the father and the mother are able to provide appropriate physical care and supervision for the child. I have already found that I am not satisfied on the balance of probabilities that the child was sexually abused by either Mr N or for that matter any other person. Notwithstanding the father’s complaints there is no evidence, that the mother has not made suitable arrangements for the child’s care when she is at work or attending meetings or that the arrangement she has made for his care are not appropriate. The father’s suggestion that he should have been asked to care for the child when the mother was attending meetings was in my view unrealistic, particularly in the circumstances of this case, and more about his desire to attack the mother than any real concern or need for concern about the child’s safety.
I am also satisfied, similarly notwithstanding the father’s complaints about the mother, that both the father and the mother are able to provide for the child’s intellectual needs. Apart from the fact that the father has a different view of which school the child should attend I am satisfied that both the father and the mother are committed to the child’s education.
The pivotal issue in this case is the father and mother’s ability to meet the child’s emotional needs. Whilst it is clear that both parents are committed to the child’s well being in light of the father’s behaviour I am not satisfied that the father has either any real understanding of his emotional needs or that even if he does that he is able to put those needs ahead of his view of the mother and his need to discredit the mother.
Although the child is aware that his parents do not like each other the mother appears to have protected him from the conflict and her feelings about the father notwithstanding his relentless attack upon her. Notwithstanding the father’s attack on her parenting and his threats against her the mother still left open the possibility that they might in some way be able to parent co-operatively. Whilst I have some confidence in the mother’s ability to do so I am satisfied that on the basis of the evidence before me that she should not have to and that it would not be in the child’s best interests for her to have to attempt to do so. I agree with Mr H’s observation that the mother “..comes across as a capable parent, and she comes across as a parent who has a sensible attitude to her child.” The mother’s evidence demonstrated significant insight into the needs of her son. I am satisfied that the mother will continue to promote and encourage the child’s relationship with the father.
I have no such confidence in the father’s capacity as a parent. The father, in hiding behind what he said was his desire to protect the child has mounted an ongoing, vicious and relentless attack upon the mother without any regard for the impact of his behaviour upon the mother or the child. Having seen the mother in the witness box he focused upon what he said was her lie about the L Public Event incident. Although he acknowledged that his behaviour had been appalling there was no real sense that he had any real sense of the impact of his behaviour, notwithstanding that he had observed the mother’s obvious distress in the witness box. My impression was that he was simply mouthing the words but moved quickly from that to an attack upon the mother for what he said were her lies about the L Public Event incident.
The father made many complaints about what he said was the mother’s failure to promote his relationship with the child and to parent co-operatively. These include what he says were his invitations to the mother to attend birthday parties he had organised, accompanying him on a trip to Ireland for a family wedding and taking him interstate so he could see the father competing in a sport. His evidence did not lead me to conclude as he clearly intended that it should that he was genuinely attempting to parent co-operatively with the mother. In my view his evidence in relation to these issues is either totally disingenuous or alternatively demonstrates a total lack of insight. It is hard to imagine why the mother in the face of his attack upon her would consider attending at any event or function at which he might be present.
The father complains vociferously about the mother trying to shut him out of the child’s life and not facilitating his involvement in decision making with respect to the child’s welfare. The evidence demonstrates to the contrary. It is the father who has attempted to dictate terms to the mother threatening her in the event that she did not meet his demands. I am satisfied that the mother has not attempted to shut the child out of the father’s life although one might not have been surprised in the circumstances of this case if she had done so. Mr H described her as stoic. From my observations of her evidence that is a very apt description of the mother.

(d) the likely effect of any changes in the child’s circumstances, including the likely effect on the child of any separation from the other parent or any other person

The orders proposed by each of the parties would involve some change in the child’s circumstances. Each of their respective proposals would result in the child spending significantly less time with the other parent.
I am satisfied that both the current arrangement and the arrangement proposed by the father would be likely to result in the eventual breakdown of the child’s relationship with either his father or his mother, but most likely his relationship with the mother.
The mother’s proposal on the other hand would offer the child some respite from the father’s attitude to the mother and allow him to test those attitudes against his own experience and would allow him to maintain a meaningful relationship with both his parents.
The mother was conscious of and showed significant insight into the effect it might have on the child if I was to order that he spend significantly less time with the father. Her evidence gives me confidence in her ability to address any problems that might arise.
I have also had regard for the effect of the child’s separation from the father’s new partner and her daughter T. Although the child may miss T he will still have an opportunity to spend time with her and the benefits to him of living predominantly with his mother outweigh any disadvantage to him of spending less time with T.

(e) the practical difficulty and expense of the child spending time with and communicating with a parent and how that difficulty and expense will affect the child’s rights to maintain a personal relationship and contact with both parents on a regular basis:

This is not an issue in this case.

(g) the maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the child and of either of the child’s parents and any other relevant characteristics of the child that the court thinks are relevant;

(h) if the child is an Aboriginal child or a Torres Strait islander child;

Although the father is of Irish descent and the mother is of Asian descent this is not a significant issue in this case. The child will have ample opportunity to know and experience the cultures and traditions of both of his parents whether he lives predominantly with the father or the mother.

(j) any family violence involving the child or a member of the child’s family;

(k) any final or contested family violence order that applies to the child or a member of the child’s family:

There are no extant family violence orders in this case. Although this is not a case where there were allegations of actual physical harm to the mother. Although the father’s behaviour towards the mother might not fit strictly within the definition of ‘family violence” that applies in this case as I have previously discussed however I am satisfied that the father’s threats and conduct towards the mother are such that they would be likely to cause the mother to fear for her safety and well being and ultimately have a negative impact upon the child.

(l) whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to the child;

This is the second final hearing of this matter. Whilst it would be in the child’s best interests for the litigation between his parents to be concluded and it is intended that these orders do so, that is likely ultimately to depend upon the father.
I am conscious that before Simpson FM had even delivered judgment this matter was again the subject of further proceedings. The father is highly critical of the mother for forcing him to participate in the litigation. I am satisfied that to a large extent this litigation has been instigated by the father and if not instigated by him is a direct consequence of his behaviour. By December 2010 a matter of months after Simpson FM handed down judgment the father was threatening the mother if she did not give in to his demands. Those demands related to issues that had been addressed during the final hearing before Simpson FM, albeit unsuccessfully from the father’s perspective.
Ongoing litigation is not in the child’s best interests and although I hope that the father would carefully consider the matter before issuing any further applications given the history of this matter I am not confident that he will necessarily do so.

Any other relevant circumstance

There is no other relevant circumstance in this case.

Parental Responsibility

If an order is made for shared parental responsibility the exercise of that responsibility involves the making of decisions about major long term issues in relation to the children (s65DAC(1)(b)). The order requires each of the parties to consult with the other in relation to the decisions they are required to make and to make a genuine effort to come to a joint decision (s65DAC(3)).
Each of the parents in this case seeks sole parental responsibility for the child. The mother made it clear that no matter how badly she was treated by the father she would do whatever would be best for the child even if that meant sharing his care or making decisions in relation to his welfare with the father. Having heard the mother’s evidence and the evidence of Mr H I am confident that if she was ordered to do so she would make every effort to parent co-operatively with the father. On the other hand I do not have any confidence that the father has either the insight or the capacity do so.
Notwithstanding the mother’s willingness to co-operate with the father if required to do so it is difficult to see how that could realistically occur. The father’s approach is to threaten and attack when he does not get his way. Mr H’s view was that even if the father accepted that there was no ongoing risk to the child of sexual abuse it was only a matter of time until he focussed on another issue and almost certainly another source of conflict. One obvious example is the child’s education. When the matter was listed for final hearing before Simpson FM the father proposed that the child attend Q Pre-School. Simpson FM ordered that the child should attend U Primary School which was the mother’s preferred option. It is clear however from his email to the mother of 22 December 2010 that a matter of months after Simpson FM had made his orders the father was insisting that the child should attend S School. In the hearing before me the father proposed that the child should attend either Q School or the C School in Suburb D, his clear preference being C School. The evidence demonstrates however that if the father does not get his way he will threaten and do whatever he considers is necessary to get his way.
Whilst the facts of this case may not strictly meet the definition of family violence or abuse the father’s behaviour towards the mother has been as Mr H said “quite extraordinary” and that “..if he doesn’t have a respectful and supportive attitude to her, her parenting the child, I think at some point in the future, the near future, the distant future a similar level of activity will take place over some other incident that the father becomes obsessed with and he follows through as intensely as he had followed this through”. It was his view that he didn’t know “.. how the mother can ...have any trust and confidence in him and she would probably be waiting for and anticipating the next attack upon her and the next attack could be something as straight forward or as simple as [the child] coming home saying, mum is always mean to me.”
Having listened to all of the evidence and observed the parties I have little confidence that the father has either the necessary insight into his own behaviour or the capacity to make decisions in consultation with the mother with respect to the child’s welfare. I have every confidence on the other hand, in the mother’s capacity to make major long term decisions that will promote the child’s best interests. I am also satisfied that the mother should not have to be exposed to the father’s appalling behaviour in order to do so.
I am satisfied that in all of the circumstances of this case the presumption of equal shared parental responsibility is not in the child’s best interests. In so far as the presumption of equal shared parental responsibility is rebutted I am not required to consider whether it would be in the child’s best interests or reasonably practical for him to spend either equal or substantial time with each of his parents and must determine what orders are in all of the circumstances in his best interests.

Conclusion

I am satisfied that in circumstances where the child already has a strong relationship with his father the mother’s proposal for him to spend time with the father each alternate weekend and her commitment to that relationship that he will be able to maintain a positive and meaningful relationship with his father subject to whether the father is able to acknowledge the inappropriateness of and change his attitude to the mother. As I have previously discussed I am confident that the mother will facilitate and encourage the child’s relationship with the father however, it is possible as pointed out by Mr H that if the father continues his attack upon the mother that the child may ultimately feel compelled to choose between his mother and his father. In circumstances where he is living primarily with his mother he may well choose his mother. It is in the father’s hands.
I do not have any confidence that if the child lived primarily with the father that he would be encouraged to or would be able to maintain his relationship with the mother. Mr H’s view was that living with a father who was quite negative about the mother would at the “..very least, lead to a highly disrespectful attitude by the boy toward his mother” that being the first step towards totally undermining the child’s relationship with the mother.
In all of the circumstances and for all of the reasons I have discussed I am satisfied that it is in the child’s best interests for the mother to have sole parental responsibility and that he live primarily with her. She is the parent who has demonstrated real insight into the child’s needs and will best meet his physical, emotional and intellectual needs. It is on that basis that I propose to make the orders sought by the mother. Those orders will in my view be the orders most likely to protect the child from further conflict and in particular the impact of his father’s behaviour upon his mother. I am satisfied that the mother’s capacity to care for the child extends to making arrangements for his care when she may be unavailable or for that matter social occasions such as sleepovers and I do not propose to make the orders sought by the father that the mother inform him when she cannot care for the child or that she be restrained from allowing the child to sleep over at any location unless in the mother’s company.
As I propose to make an order for sole parental responsibility in favour of the mother she will determine which school the child should attend. In those circumstances I propose to make an order requiring the mother to keep the father advised of the details of the school that the child is attending and requiring her to authorise the school to provide school reports and like information to the father, at his expense.
Based upon my findings in relation to the father’s conduct towards the mother I am satisfied that I should make an order in terms similar to the order the she seeks restraining the father from harassing her and attending at her home and her place of employment.
The father seeks orders that he be permitted to travel overseas with the child. Although Simpson FM made provision for overseas travel that has not occurred nor is there any specific proposal with respect to overseas travel put by the father.
I would have significant reservations in light of the way in which the father has conducted himself to date allowing him to travel overseas with the child. The father has, as I have previously said, demonstrated a willingness to take whatever steps he considers necessary to get his way, either not recognising or totally disregarding the possible impact upon the child. I am mindful that the father’s immigration status is somewhat uncertain, he has only one family member in Australia and his family otherwise reside overseas. Pursuant to my orders the child is to live primarily with the mother and I have no such reservations about her travelling overseas with the child and do not propose to limit her ability to do so.
The child may also require some time to adjust to the new arrangements for his care as a result of my orders. In all of these circumstances I do not consider that it would be in his best interests to be taken overseas by the father at this time and propose to make an order preventing the father removing the child from the Commonwealth of Australia.

Clearly with the passage of time if the father is able to demonstrate his acceptance of and commitment to the arrangements for the child’s care, the child is himself settled and the father has a specific proposal for overseas travel consideration could be given to the removal of the child’s name on the Watch List to enable the child to travel overseas with the father.
Finally, the father seeks an order that both parties be restrained from initiating further proceedings. I do not propose to make such an order however it is my view that it is the father’s behaviour that has primarily lead to the necessity for this hearing and whether there are likely to be further proceedings rests largely in the father’s hands.

I certify that the preceding one hundred and twenty-five (125) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Macmillan delivered on 1 February 2013

Associate:

Date: 1 February 2013

[2013] FamCA 26

Key Legal Topics

Areas of Law

Family Law

Evidence

Legal Concepts

Standing