Orr & Pinter (No. 3)

FAMILY COURT OF AUSTRALIA

ORR & PINTER (NO. 3)

[2014] FamCA 1147

FAMILY LAW – CHILDREN – Best interests – with whom the child shall live and spend time – where the child has thrived in the father’s care with the assistance of the broader paternal family for five years – where the child has his most meaningful relationship with the father – where the mother is likely to be unable to resist questioning the child about events in the father’s household – where the mother presents as being unwilling to inconvenience herself or take on financial obligation for the benefit of the child – where the mother’s motivation has been punitive towards the father, rather than towards the needs of the child – child to live with the father – where there is an unacceptable risk that the mother will not desist from trying to prove through court proceedings or relevant authorities that the child is at risk in the father’s care – where the psychological harm to the child of having his most important relationship destabilised is the primary consideration – mother to spend supervised time with the child on four occasions each year – where the mother’s time with the child should cease immediately if she makes rude and critical remarks to the child about the father or extended paternal family.

FAMILY LAW – CHILDREN – Parental Responsibility – the presumption of equal shared parental responsibility does not apply – where there is ample evidence that satisfies the court that the parents could not share parental responsibility – father to have sole parental responsibility – father to advise the mother in writing of decisions he has taken in relation to the long term issues of parental responsibility.

FAMILY LAW – PROPERTY SETTLEMENT – Where the Court has jurisdiction to determine the application of the mother for de facto property settlement – where it would be unjust to alter interests in the parties’ property to any extent – mother’s application dismissed.

Family Law Act 1975 (Cth) ss 60CC, 62B, 64B, 65DA,

APPLICANT:

Ms Orr

RESPONDENT:

Mr Pinter

INDEPENDENT CHILDREN’S LAWYER:

Geldard Sherrington Lawyers

FILE NUMBER:

(P)BRC

4156

2009

DATE DELIVERED:

2 October 2014

PLACE DELIVERED:

Brisbane

PLACE HEARD:

Brisbane

JUDGMENT OF:

Cleary J

HEARING DATES:

8, 9 & 10 September 2014

REPRESENTATION

APPLICANT:

In person

COUNSEL FOR THE RESPONDENT:

Mr George of Counsel

SOLICITOR FOR THE RESPONDENT:

Payne Butler Lang

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER:

Mr Kissick of Counsel

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER:

Gelard Sherrington Lawyers

Orders

That all prior parenting Orders are discharged.
That the father shall have sole parental responsibility for the child S born … 2008 (“the child”).
That the child shall live with the father.
That the child shall spend time with the mother supervised on four occasions per year, such supervision to be in a Contact Centre at C Contact Service, Town E commencing November 2014 and thereafter on the last Saturday in February, May, August and November each year.
The father shall advise the mother in writing, at the address provided by her pursuant to Order 8, of decisions he has taken in relation to the long term issues of parental responsibility including but not limited to:
(a)the school in which the child is enrolled;
(b)any surgery and/or medical treatment provided by a medical specialist; and
(c)Religious instruction for the child.
The father shall provide a copy of these Orders to the Principal of any school in which the child is enrolled subsequent to these Orders.
The Independent Children’s Lawyer shall provide a copy of these Orders to:
(a)       the Department of Child Safety Office;
(b)       the Principal of the school in which the child is currently enrolled;
(c)       the Co-ordinator of C Contact Service.
The mother shall provide her contact details to the father sufficient for her to receive written correspondence from the father, and shall keep those details updated.
The father shall provide to the mother an address (which may be a Post Office Box) sufficient for the mother to comply with these Orders.
The mother is restrained from making rude and critical remarks to the child, or in his presence, about the father and members of the extended paternal family NOTING that supervised time should cease immediately if the mother, in the opinion of the supervisor, makes any such remarks.
The father may establish a residence for the child outside Town C and within the State of Queensland.
The mother may send letters, cards and birthday and Christmas gifts to the child which the father may in his absolute discretion give to the child if he considers the content of the correspondence/nature of the gift appropriate.
Pursuant to s 65DA(2) and s 62B of the Family Law Act 1975, particulars of the obligations that these orders create, particulars of the consequences that may follow contravention of these orders, and details of assistance to comply with these orders are set out in the attached Fact Sheet, which forms part of these Orders.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Orr & Pinter 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 BRISBANE

FILE NUMBER: (P)BRC4156 of 2009

Ms Orr

Applicant

And

Mr Pinter

Respondent

And

Independent Children’s Lawyer

REASONS FOR JUDGMENT

Introduction

These are competing applications for parenting orders and a property application. The applicant is the mother, aged 49. The respondent is the father, aged 48.
The parties met in 2004, began an intimate relationship in 2005 and in September 2007, began to live together in a property owned by the father. There is one child of the parties’ relationship, a son, now aged six. The parties separated more than once but final separation occurred no later than October 2009.

Short history of the relationship

An early application regarding the child was made by the mother in a Magistrate’s Court in Town C and orders were made in April 2009 effectively allocating the parents shared care of the child. At that time, the mother gave an undertaking that she would not consume alcohol at all whilst the child was in her care and further, that she would attend counselling and other therapeutic services as identified in the undertakings.
The father and the mother’s son from a prior relationship returned to the family home after those early orders were made. The father says their personal relationship was not restored, but they lived amicably enough in the same house caring for the child. The mother asserts that the relationship was restored.
In July 2009 the parties each discontinued their applications in the State Court.
In September 2009 the mother moved away with the child and decided not to return to the family home.
In October 2009 the Department of Child Safety negotiated terms for the child to live with the father and a Safety Plan was put in place. A temporary protection order was made for the protection of the father and the child from the mother. The child has lived with the father since.
The father’s household consists of himself and the child. The father has within the last 12 months moved inland to a country town approximately 10 hours’ drive away. This year he returned pending the outcome of these proceedings.
The mother’s household consists of herself and her son from a previous relationship, now aged 15.

The applications

Parenting

The mother seeks orders for:
·Shared parental responsibility; and
·The child to live with her and her other son, to spend alternate weekends and half holidays with the father and other special occasions.
The father seeks orders for:
·Sole parental responsibility;
·Residence for the child with him; and
·No time and communication between the child and the mother.

De facto property

The mother filed her first property application on 13 April 2011. She seeks an order that 20 per cent of the net asset pool of the parties be paid to her. The father seeks dismissal of the application. There is a dispute between the parties as to whether the Court has jurisdiction: the father asserting that the relationship ended before the critical date;[1] the mother asserting that final separation did not take place until September 2009. There is also a dispute over the timing of the application.

[1]1 March 2009

The parties relied on the following documents:
Mother:
a)Affidavit in response to Notice to Admit Facts filed 21 July 2011;
b)Parenting Questionnaire filed 16 September 2013;
c)Affidavit of mother filed 22 November 2013;
d)Affidavit of mother filed 12 April 2014;
e)Financial Statement filed 12 April 2014;
f)Case Information filed 28 April 2014;
Father:
g)Notice to Admit Facts filed 11 July 2011;
h)Notice of Child Abuse, Family Violence or Risk of Family Violence filed 22 June 2012;
i)Notice of Child Abuse, Family Violence or Risk of Family Violence filed 17 October 2012;
j)Further Amended Amended Response filed 24/12/2012;
k)Financial Statement filed 11 April 2014;
l)Affidavit of father filed 14 April 2014;
m)Affidavit of father filed 24 April 2014;
n)Case Information filed 24 April 2014;
o)Affidavit of Mr H, Forensic Accountant filed 9 May 2014;
p)Joint Balance Sheet filed 26 August 2014;
Independent Children’s Lawyer:
q)Case Information filed 23 April 2014;
r)Family Report of Mr D released 30 August 2011; and
s)Family Report of Mr D released 27 November 2013;
t)Reports of Dr M, Psychiatrist filed 24 March 2011 and 8 April 2011.

History of the proceedings

On 30 April 2010, about six months after the child had been placed with the father by the Department of Child Safety, the mother filed an Initiating Application in the Federal Magistrates Court (as it then was), seeking orders for equal shared parental responsibility, residence of the child with her and time for the child with the father as agreed.
On 1 July 2010 the father filed a Response seeking sole parental responsibility, residence of the child with him and time and communication between the child and the mother as agreed or ordered.
Those applications were returnable in the Federal Magistrates Court at Brisbane on 27 July 2010. On that day, interim orders were made for:
·The discharge of all prior orders;
·Residence for the child with the father;
·Supervised time with the mother twice a week at P Support Service;
·The proceedings to be transferred to the Town C list; and
·The mother was directed to file an affidavit of a proposed supervisor.
On 13 August 2010 orders were made for the child to spend supervised time with the mother twice a week at P Support Service in Town C.
On 17 August 2010 an order was made for the parties to file and serve an affidavit in relation to supervised time having commenced.
On 1 September 2010 the mother filed an Application in a Case seeking orders for the child to live with her, or otherwise for the father to comply with the orders for supervised contact twice a week at P Support Service.
On 23 November 2010 orders were made that the child spend supervised time with the mother at C Contact Service, Town Y, for two hours per week on days and times to be agreed with the Contact Centre, the father to contribute to the mother’s travel costs and the father to pay the supervision fees.
On 31 January 2011 a court appointed psychiatrist interviewed the mother and on 28 February 2011 the father was interviewed by that psychiatrist.
On 24 March 2011 the report of the psychiatrist was released with an addendum report released about two or three weeks later.
On 13 April 2011 the mother filed an Amended Application seeking property orders for the first time.
On 16 May 2011 directions and orders were made for the preparation of the property aspect.
In July 2011 the mother was convicted for driving with a blood alcohol reading of 0.07.
On 30 August 2011 the first family report of family consultant Mr D was released. The conclusion was that the child was well cared for by the father and assessed to be bright, healthy, happy and secure. There was a recommendation for an extension of contact with the mother to be unsupervised, with day time contact progressing to more. The family consultant sounded a note of caution that the mother’s recent conviction for drink driving was indicative of the need for further change in the mother to occur before overnight contact could be considered.
On 1 November 2011 the mother notified concerns to the Department of Child Safety,[2] including her concerns for the safety of the child in the father’s care, a belief that the child was showing signs of abuse (“the child gets so angry”), a belief that “someone is interfering with the child” and reported that the father “palms the child off to other people.” Significant are the following concerns raised by the mother: “The notifier believes it possible that either the father or the paternal uncle have been interfering with the child”, a report that the child had had a sore bottom on the previous Sunday and did not want the mother to apply cream, a belief that the child would sometimes spend time in the home of the paternal grandmother which the mother reported as being “filthy and disgusting when last observed two years ago”. The notifier [the mother] alluded to possible sexual harm to the child by an unknown person, possibly the father or the uncle, conceding no knowledge of either the father or the uncle having any known criminal history related to sex offences against children or otherwise.
[2]Exhibit 5
On 7 November 2011 directions were made for the preparation of the property aspect.
On 31 January 2012 the mother filed a Further Amended Initiating Application seeking sole parental responsibility and incorporating the property orders sought.
The parenting aspect was set down for a one day hearing on

21 February 2012. On that day, parenting orders were made by consent on a final basis as follows:
·That the child live with the father;
·Father to have sole parental responsibility;
·
Child to spend time with mother each Tuesday from 10.00 am until

4.00 pm and after three months, each week on Saturday from 9.00 am until 5.00 pm;
·Provision for mother to undertake a Driving with Care Level 1 course through the Alcohol and Drug Foundation with provision for increased time conditional on that happening;
·Other ancillary orders in relation to special occasions and restraint on parental behaviour;
·The Independent Children’s Lawyer was discharged and the property aspect was adjourned to May 2012.
On 29 March 2012 there was a further allegation of sexual abuse of the child made to the Department of Child Safety by a notifier, who was not the mother. The mother said, and I do not accept, that she was unable in cross-examination to identify the notifier.
The notifier reported that the child was “mimicking” violence from the father. The notifier had heard the child say, “I’m going to slap your fucking face” and “I’m a nudie man” and “I want a picture of a nudie man” and was concerned that the child may be being sexually abused by the father. The notifier reported that the mother had disclosed to the notifier that she was unable to take the child to a doctor or a counsellor because the father “prohibits it.” The notifier reported that the mother had also disclosed that “she can’t fight … [the father] and the child has been with his father for so long that access visits with her are traumatic for him”.[3]
[3] Exhibit 4
On 5 May 2012 the summary of the response to the allegations from Child Protection was that there was insufficient information to suggest that the child had been significantly harmed, or was at unacceptable risk of harm. Ultimately, it was considered unlikely that the child’s father posed a significant risk.
On 2 July 2012 the father filed what was described as an ‘Amended Amended Response’, but was in fact a fresh application to vary the final orders made in February 2012, by discharging orders 3 to 6 inclusive, which related to time between the child and the mother.
On 14 September 2012 the mother filed a document described as a ‘Second Further Amended Initiating Application’ seeking property orders and additionally spousal maintenance orders.
On 5 October 2012 the mother filed a document titled ‘Third Further Amended Initiating Application’ seeking property and spousal maintenance orders, with some slight variation.
On 17 October 2012 the father filed an Application in a Case urgently pressing for orders 3 to 6 inclusive of the final consent orders to be discharged.
On 23 October 2012 the final orders made on 21 February 2012 were suspended and the mother was directed to file a response and affidavit in response to the application in a case.
On 24 December 2012 the father filed a document titled ‘Further Amended Amended Response’ seeking that the child continue to live with him and have no contact with the mother, that the father be permitted to change the child’s residence to Town E and orders restraining the mother from making contact with the child. In relation to the property aspect, the father sought a declaration that the relationship between the parties broke down before the commencement of Pt VIIIAAB of the Family Law Act 1975 (Cth) (‘the Act’)
On 25 February 2013 orders were made that:
a)The child spend supervised time with the mother two hours per week at the Town E Contact Centre;
b)The mother be restrained from discussing the sexual allegations with the child;
c)The father be restrained from leaving the child in the sole care of the paternal uncle; and
d)An Independent Children’s Lawyer to be appointed for the child.
The matter was then transferred to this Court.
In August 2013 the family consultant, conducted further interviews with the parties and the child and prepared an updating family report. On or around that time, the father moved from Town C to Town E.
On 14 November 2013 the father filed a document titled ‘Second Further Amended Amended Response’ to Initiating Application, proposing no further time between the mother and the child and seeking restraining orders.
On 25 November 2013 the father filed an Application in a Case pressing for permission to relocate and for the discharge of the orders for time between the child and the mother.
On 27 November 2013 the second family report was released. The family consultant’s conclusion was that despite the father having moved away without applying to vary the orders, the child continued to be better placed with the father than the mother. He described the competing issues as being the need for some restriction on the mother initiating child protection investigations and “ultra-firm guidelines” for the father in relation to contact between the child, the mother and his older brother.
I note that the family consultant considered that the move had been to the child’s benefit socially and emotionally and had allowed the father to get back on a better financial footing. In the absence of adverse findings by the court, it was also recommended that the child’s time with the paternal uncle return to being unrestricted.
There was a recommendation for contact between the child and the mother, supervised initially and then for several hours unsupervised.
On 7 March 2014 interim orders were made for supervised time between the mother and the child at C Contact Centre on the last Saturday of each month. There was also a Contravention hearing on this day, and the father was found without reasonable excuse to have contravened certain orders made in February 2012. No penalty was imposed.

On 12 March 2014 the matter was listed for final hearing and on 8 September 2014 the matter commenced before me. At the commencement of the hearing the child had been having monthly time with the mother in Town C at the Contact Centre since the orders of 7 March 2014 were made.

Issues

The issues identified are as follows:

Parenting

a)The capacity of each of the parents to meet the child’s needs;
b)Allegations by the mother and others that the child is at risk of sexual assault in the care of the father and paternal uncle; and
c)Contravention by the father of the orders.

Property

d)Whether the Court has jurisdiction to hear the application of the mother; and if so
e)Should leave be granted for the application to be made; and if so
f)What appropriate orders should be made?

The evidence

Prior to the cross-examination of the mother commencing, two recordings were played; the recorded Icare interview, and the questioning by the mother of the child using her phone.[4]
[4]Exhibits 2 and 3
On 22 May 2012 the mother had arranged for her older son to audio record her questioning of the child. The child appeared to be quite reluctant and irritated and put his hand over the camera of the mother’s phone repeatedly. She was interrogating him, “What happened; what else did he say?” The mother suggested words and ideas to him which the child, even at his very young age of almost four, largely rejected. Much of the conversation between mother and child was impossible to understand. The most serious leading question asked by the mother was this:
Q:       Does he show you his private parts or anything?
A:      Not private parts. You put in your radio you put them in the air            conditioning.
The questioning ended with the mother urging:
Q:       What else darling, what else?
A:       Nothing else, that’s all.
There was absolutely nothing in that interview that gave rise to concern of risk to the child in the care of the father or the paternal uncle to any extent.
The ICare interview on 4 June 2012 was also shown with the mother present. The child described an incident where there had probably been some vigorous play between the child and his older brother, which had left him with an injury on his head and a bruise. The child was inclined to blame his brother:
Q: Do you like being at mum’s house?
A: No. [N] just keeps playing up.
But there is nothing to suggest in that interview that the child was deliberately injured.

Ms Orr, the mother

The mother represented herself. She presented as sad, pressured and intent on having the child “returned” to her care. She has an unshakeable belief that he should always have been with her and that she has been thwarted by various third parties in achieving his return. Her own consent in 2012 to orders for the child to live with the father was dismissed by her as irrelevant.
The mother agreed that since the final orders were made by consent in February 2012, she has attempted to record all changeovers. The mother was also clear to say that she continued to have a gut instinct that the paternal uncle was a risk to the child.
She did not appear to understand that her own eager questioning of the child, “What did you do today, who looked after you, what happened,” may have led to the child trying to give detailed descriptions of the events of the day in the care of the paternal uncle; nor did she understand that she suggested answers to the child which had not come from him. Indeed, during her cross-examination, the mother enhanced her own previous notification and asserted that the child had said to her on this occasion that his uncle had shown his private parts to him. That is not something that had been included in any previous material and seemed to be a reflection of the mother’s own willingness to develop the story. It was spontaneous invention.
The mother denied that she would continue to pursue her belief that the child was at risk in the care of the paternal uncle. However I am not confident that she would be able to resist questioning the child about events in the father’s household. She expressed more than once how frustrated she was by not seeing the child and also how difficult she found it not knowing what happened in the father’s household.

Use of the phone

The mother was questioned about an enormous number of phone messages she left on the father’s telephone, some insulting, some accusatory. But as the details were explored, I concluded that the mother has been in the habit, when she was brooding about issues, of leaving such messages on the father’s telephone so often that she is unable to recall them all.

The brother’s document

Unfortunately annexed to the mother’s affidavit[5] was a statement said to have been independently created by her now 15 year old son. The language was quite sophisticated, contained knowledge of court documents and detailed the history of conflict between the parties. It was difficult to accept that the document was created by a young teenage boy. However if that is the case and he did hand such a document to his mother asking to make a statement, she willingly took it from him. By doing so she put him squarely in conflict with the father and also revealed him as somebody who would likely be freely critical of the father in front of his much younger brother. It was certainly an ill-considered addition to the mother’s evidence.
[5]Affidavit of Mother filed 24/04/2014, Annexure F

Financial support

The mother does not pay child support. Her explanation was that “she hadn’t been asked to do so,” or that “the father had indicated he wanted child support collected privately but hadn’t provided her with a bank account.” I formed the very strong impression that the mother did not feel she should have to pay child support and has no intention of doing so. The father has not pushed the issue, but he has been privately funding litigation for many years and working to support the child. It is a serious failure of a parental obligation to make no financial contribution to his upkeep, particularly as the mother is working and has the capacity to contribute.

Use of alcohol

In relation to her drink driving conviction in 2011, the mother was quite airily dismissive of its significance, “I wasn’t intoxicated, it was [my son’s] birthday, a celebration, I had a couple of drinks.” She was driving to collect her son from school. Another car collided with her and she was subsequently breath tested.
The real significance of this incident is that subsequently, especially because of the recommendation of the family consultant, an order was made by consent for the mother to participate in a program run by the Drug and Alcohol Foundation.[6]
[6]Order 3 of Orders made 21/02/2012
I accept that the Independent Children’s Lawyer explained to the mother at the time the orders were made that the course would cost $700 and would oblige her to come down to Brisbane once a week for six or seven weeks.
The mother did not complete the course. I do not accept her evidence that she rang and found that because the course was not run in Town C where she was, she was unable to afford to come down to Brisbane. She had known what was involved when she consented to the order. She is working and has the capacity to have paid those costs.
She knew that the satisfactory completion of the course was her entrée into extended unsupervised time with the child.
This was a very clear example of the mother being unwilling to inconvenience herself or to take on financial obligation for the benefit of the child. Taken together with her failure to pay child support, I conclude that a part of the mother’s motivation has been punitive towards the father, rather than to meet the needs of the child to have an ongoing relationship with her and his brother.

Mental health

Likewise, the mother was quite cavalier about her past serious difficulties with her mental health arising from a painfully difficult childhood. She attempted suicide using Normison in March 2010, but denied any knowledge of the drug. Her response to whether or not she was being seen and monitored by a psychiatrist or any other practitioner was dismissive.

Property

The mother gave very little detail about the financial side of the relationship. Assuming that a relationship began in 2004/2005, it was a relationship of courting with occasional time together until September 2007, when the mother and her son moved into the home purchased by the father.
The mother made no concession about the financial contribution of that home by the father, or the fact that he went on to buy a business in order for her to run it. She repeated more than once that the father had “controlled the money. I wouldn’t know anything about that. He controlled everything. I don’t know”.
The mother conceded that the father bought a Suzuki motor vehicle for her as a gift. She attributed no significance to the fact that the father had continued to meet all the debts associated with the assets for the five years post separation.
Q: Since separation he’s paid all the outgoings?
A: I have no knowledge of what he’s done.
Post separation the father transported the mother’s furniture, crockery and effects to her at no cost. He sold the vehicle that she had previously driven and gave her the proceeds of sale. He has supported the child exclusively for five years. It does seem to me that the property application was not well considered by the mother.

Mr Pinter, the father

The father presented as a straight forward, straight talking man. I had the impression that he did not anticipate, when his only child was born, that he would be the one to raise him as a sole parent. His likely expectation was that he would continue to work in his occupation as a tradesman and that the mother might provide more of the day to day care of the child.
That was not how events developed. He took on the carer role immediately, willingly and effectively. He has made the adjustment together with the assistance of members of his extended family, particularly his two brothers. The father is one of seven adult children; there are cousins the same age as the child and the paternal family is supportive.
The father also presented as embattled and frustrated, almost to the point of being defeated by the number of court attendances required of him in this Court, the Federal Circuit Court and previously State Magistrates Court in respect of domestic violence orders. Nevertheless, in my assessment, he has remained focused on the safety and wellbeing of the child.
Unfortunately, he has been so antagonised by the mother’s actions that he has come to believe that there is no value for the child in maintaining a relationship with her. I do not consider that the father is unkind or insensitive. What appears to have happened is that the accusations made by the mother about him and his brother, and more broadly about his family, have had a significantly adverse impact on him. To his great credit, he must have protected the child from his feelings. There is no sign in the assessments by the family consultant or in the accounts given by the contact centre of the child being presently frightened of, or negative towards, the mother.
The father made the move to Town E in mid to late 2013 for two reasons; he was readily able to find work there more lucrative than in Town C and also because he needed a break away from the area. He felt particularly disadvantaged by an order that was made restraining his brother from being alone with the child. The paternal uncle had been in the habit of coming to the house at least two to four days per week at times as needed, to look after the child while the father was working. It was a flexible and effective arrangement for the child. He went to the library, to the zoo, shopping and to visit his grandmother in the company of his uncle whom he clearly loves. The father was then free to work in two hour blocks and otherwise care for the child.
The father has no doubt become quite an angry and confronting person in some contexts. He described the litigation and the complaints as relentless, “The financial burden has been overwhelming”.
It was suggested to the father that his notification to the Department of Child Services on the evening of the day when final consent orders were made (2012) was undermining of the orders. I do not accept that proposition. I do accept that the father had been told by Departmental officers that if unsupervised time was permitted by a court that he was to advise them and “they would step in.”
A decision was made by the Department to close the IPA (Intervention with Parental Agreement) on 20 May 2010. However there have been notifications made by the mother and others since. Counsel for the Independent Children’s Lawyer quite properly conceded that there was no evidence to rebut the father’s evidence that he had that obligation to advise the Department. I have no reason to doubt that the father has taken the conditions of the safety plan put in place on 7 October 2009 very seriously. Under the heading, ‘What must other people do immediately (such as extended family CSO other professionals)’, these words are included:
Not allow [the mother] to have unsupervised contact with [the child]. Not reside [the mother] with [the child]. Contact police for assistance if required.
I consider that the father has been quite anxiously aware of his position as the parent available to care, which obviated the child being taken into the care of the State in 2009.
The father has reflected on the impact on the child of seeing very little of the mother or not seeing her at all. The conclusion he apparently reached was that the level of tension and conflict and repeated interviews were so harmful that it was likely to be better if all contact with the mother was cut off.
I accept his evidence that the father had, after the final consent orders were made, thought that he would try to make the orders work. Most unfortunately, there was immediately the allegations raised by the mother with the police in June 2012, which have had ongoing repercussions for the father, the child (who had to be interviewed), the paternal uncle and the family in the community. The father no longer has a shred of trust and confidence in the mother. It has to be said that that is also the position for the mother in relation to the father.
The father had also reflected on the relationship between the child and his older brother. The fact that the older brother had prepared the statement[7], so highly critical of the father and so knowledgeable about these proceedings, led the father to conclude that he was against him and that the mother had manipulated events to such an extent that it would not be beneficial for the two children to spend time together.
[7]Affidavit of Mother filed 24/04/2014, Annexure F
The mother questioned the father in particular about the report she had commissioned by a forensic psychiatrist, Dr J, about her mental health. The father replied that his knowledge of the mother’s mental health had come from something that the mother’s sister had told him in the past and also from Dr M’s report, the Court appointed psychiatrist and single expert.
I accept that the father did rely on the opinion of Dr M. The doctor was not made available for cross-examination, partly because she had retired, but also because the report had been released three and a half years ago. However, Dr M’s report is the best evidence available to me on the issue of the mother’s mental health, which was the purpose of the commissioning of the report. The report says this:[8]
As noted the father gives a history of the mother’s difficulties with alcohol and also behavioural disturbance. Whilst the mother admitted to some abuse of alcohol she minimised its importance. She described at least two admissions after self-harming. Her presentation was indicative of a personality disorder with narcissistic and histrionic traits and this would fit with the account of [the father]. She has a history of sexual abuse as a child and although she tended to minimise the effect of this upon her it is probable that it could be a causative feature in her presentation with personality disorder.
[8]Affidavit of Dr M filed 24/03/2011 par 54
Whether or not Dr M would have continued to hold that view if she had reassessed the mother for the purposes of these proceedings, the significance is that the father had read that report and I accept his explanation that he relied on that diagnosis for understanding the mother’s conduct.

Mr B, paternal uncle

The paternal uncle is 44; he is a fulltime carer for his mother and lives in the family home with her.
From 2009 until the Order was made restraining him on 25 February 2013, the paternal uncle assisted the father in caring for the child. He obviously did so with considerable enjoyment. I accept his evidence that the child has been quite sad and upset about not being able to spend as much time with him as he previously had, and that he has asked him whether he still likes him or still loves him.
The family consultant noted in his first report that the child was:
… receiving constructive, affectionate care from within the family circle.[9]
[9]Family Report released 30/08/2011, par 45
There is no basis on the evidence before me for concluding that the father or the paternal uncle represent a risk to the child to any extent; quite the reverse.
The interviews conducted by the mother reveal a child irritated and resistant to the mother’s attempts to put words into his mouth and to encourage him to criticise his uncle. At almost four, he was quite stout hearted in opposing what the mother was saying and suggesting to him.

Mr D, Family Consultant

The family consultant had last interviewed the family in August 2013, a year before this hearing. He may have been under the misapprehension that the father had defied Court orders for a significant period of time, rather than as set out in these reasons. He was also unaware that the father had returned to Town C and had been compliant with the most recent orders made in March 2014, that is that the child spend supervised time with the mother for two hours once a month in a contact centre.
I had the impression that the family consultant was strongly motivated not to be overly critical of the mother, especially not to discourage her from making efforts to overcome personality and mental health problems, which gave rise in the past to alcohol abuse and disruptive behaviour.
Unfortunately the father interpreted this careful approach as bias against him. When this proposition was put to the family consultant, he responded, “He doesn’t know when he’s on a winner.” I infer that the family consultant meant that he was strongly supportive of the father’s position that the child continue to live with him, but not so supportive of the father’s critical attitude to the mother.
I particularly note the observation of the family consultant that the child blossomed in Town E:[10]
It is felt that this move has been to [the child’s] benefit, socially and emotionally, plus it has allowed the father to get back on a better financial footing.
[10] Family Report released 27/11/2013, par 45
It may be that a comment by the mother is correct; that the child would have blossomed once he went to school wherever he was, but it is of some significance that the father and the child are observed by the family consultant to have been doing well and have benefitted from the move. I take that into account.
When asked about the significance of the letter written by the mother’s son, the family consultant referred to it as possibly “a red herring.” Having interviewed him, the family consultant was confident to say that the sentiments expressed in the letter, that is of negativity towards the father, were probably his, although he had doubts about his ability to have written such a document.

The family consultant expressed the view that it would be “disastrous to separate brothers.” I have given some thought to this view. The mother’s son is now 15, nine years older than the subject child. They lived together in the same house from August 2008, when the child was born, until September 2009, with periods of time when the older child was staying with his own father.
There is no doubt that the relationship between the brothers could be very important to them as young adults. They have the same mother and all of the benefits of being siblings, with at least some shared family knowledge, could open up to them. However, right now, they know very little about each other. The older child is unlikely to be spending much time with the subject child. His interests, including his school work, sports and aspirations for university, will quite properly dominate his life. The subject child knows very little about his older brother, although he would no doubt enjoy spending time with him if the older child was willing to do it.
In these circumstances, I am inclined to accept, at least to some extent, the submission made on behalf of the father that the mother has strongly advocated for the significance of the brothers maintaining their relationship in an attempt to reunite the family; rather than because there is a strong bond created by common experience. The latter is not the case.

Ms A, co-ordinator of the contact service at Town Y

Ms A was quite warmly supportive of the mother and had observed what she described as a “lovely brotherly relationship” between the two brothers and a guarded relationship initially between the child and the mother, warming up to be a very loving and affectionate experience.
I have no reason to doubt the observations of Ms A, made when she last saw the brothers together. However, the older child last spent time with the subject child in the centre three years ago.
There is also the matter of the father’s complaints at the centre, which have been somewhat forceful, if not aggressive. He has been unhappy for the centre at Town C to be used because of security concerns. The father’s fear is that the mother will remove the child from the centre and it would take the intervention of police for him to be recovered.
There was a concession both by the family consultant, who is familiar with the centre, and by Ms A, that the fencing of the play area is not secure in the way the purpose built contact centre in Town Y is. I had the impression that Ms A, and perhaps other supervisors, have felt affronted by the father’s apparent lack of confidence in their ability to effectively supervise and have become more sympathetic to the mother who has been compliant in every way. However, I accept that Ms A has no reservations about the centre in either location continuing to supervise, if that is asked. Nor do I doubt that supervision would be undertaken professionally with the child the focus of decision making.

The law

The objects of the Act in relation to parenting Orders are to ensure that:
a)Children have the benefit of both of their parents having a meaningful involvement in their lives to the maximum extent consistent with their best interests;
b)To protect children from physical and psychological harm;
c)To ensure that children receive adequate and proper parenting to help them achieve their full potential;
d)To ensure that parents fulfil their duties and meet their responsibilities concerning the care welfare and development of their children.
These are applications for parenting orders pursuant to s 64B(2) of the Act. In deciding whether to make a particular parenting order in relation to a child, a Court must have regard to the best interests of the child as the paramount consideration. The way a Court determines what is in a child’s best interests is by considering the matters set out in s 60CC(2) and (3).
There is also a presumption when making a parenting order; that it is in the best interests of the child for the parents to have equal shared parental responsibility for the child. The presumption may be rebutted by evidence that equal sharing of parental responsibility would not be in the best interests of the child in question.
I have contemplated the issues of parental responsibility, residence, time to be spent and communication between child and parent as well as any other specific issues.
I have considered the mandatory factors and conclude that the following matters are relevant to the best interests of this child.
The application that is before me was made after the amendments to the Act in respect of family violence. The final orders were made in February 2012. It is conceded that although it was described as an Amended Amended Response by the father, when he filed that document on 2 July 2012, in fact that was a fresh application for parenting orders. On that basis the amendments apply.
There is a presumption when making a parenting order in relation to a child that it is in the best interest of the child for the child’s parents to have equal shared parental responsibility. The presumption does not apply if there are reasonable grounds to believe that a parent of the child has engaged in abuse of the child and/or family violence. The presumption may also be rebutted by evidence that satisfies the Court that it would not be in the best interests of the child for the child’s parents to have equal shared parental responsibility.
In this matter, there is ample evidence that satisfies me that the parents could not share parental responsibility. Each of the parents consented to orders in February 2102 that the father would have sole parental responsibility and that he would advise and engage with the mother about decision making. Those orders were suspended eight months later in a context where serious accusations by the mother against the father and members of his family had been made through notifications to the Department; where interviews with the child, the mother’s son and the mother had all taken place. Any hopefulness that may have existed that there would be an end to what was described in these proceedings by counsel for the Independent Children’s Lawyer as “the war” was shattered.
My impression of the mother is that she has felt driven by her sense of injustice at the child having been removed from her care and not returned to her and that she has actively sought to pursue any avenue which would sufficiently discredit the father, or enhance her position in order to obtain orders for the return of the child to her care. She has been derogatory to the father’s family and has left rude and insulting messages on the father’s telephone. She has contacted the paternal uncle with no positive benefit for the child. She has made notifications to the Department on gut instincts and feelings, rather than anything that would satisfy a reasonable person with no knowledge of the law in this area. She has pursued the return of the child at the expense of the child, because he is the one that has to be questioned.
There is no prospect whatsoever that these parents could consult and compromise about the important decisions in the child’s life, including his education, his health and any religious instruction.
The child has thrived in the father’s care with the assistance of the broader paternal family for five years. The mother, in my view, had begun to recognise by the conclusion of the proceedings that her methods of proving that she was able to have the child returned to her care may not have been the best ones in retrospect. That may be the beginning of development of some insight into how the parties could have come to this impasse. However for the child’s ongoing stability, it is in his best interests that it is the father who continues to make the long term decisions and an order for sole parental responsibility will be made in favour of the father.
Likewise, continuing residence with the father is the appropriate course, when the child has done well in the father’s care and there is no legitimate criticism of the care that has been provided. An order for the child to live with the father is made accordingly.
The most contentious issue is time and communication between the child and the mother. The Independent Children’s Lawyer pressed for a period of supervision, perhaps two years, progressing to unsupervised time. The father was pressing for no time at all. The mother continued to present her application for the child to live with her and to spend weekends and other times with the father.
The difficulty is that the orders made by the consent of the parties provided for some unsupervised time, progressing to greater periods of time after:
a) the effluxion of time; and
b) after the completion by the mother of a particular course related to her drink-driving conviction in 2011 which the mother did not undertake.
Instead the mother took the opportunity to interrogate the child about what was happening when he was in the father’s household and worse, to attempt to capture, by repeated attempts with her mobile telephone, sufficient evidence to establish that he had been sexually assaulted by the paternal uncle or the father. The thinking which gave rise to the mother concluding that she had captured persuasive evidence of wrongdoing to take to the police by June 2012 is of utmost concern.
When the police concluded that not only was there insufficient evidence to justify an enquiry into sexual abuse of the child, but rather a conclusion that the child had been coached, the mother complained to the Minister of Police. This determination by the mother to succeed in establishing deficiency in the father is at the heart of my concern about ongoing regular supervised time, progressing once again to unsupervised time. The mother’s evidence was that she continued to have a mother’s feeling, a gut instinct, that something was wrong. No other person holds this view and no evidence could support such a conclusion. Indeed her allegations gave rise to a detrimental outcome; that is the loss for the child of the regular time with the paternal uncle and suspicion in the community around his family.
There is no basis on which I can conclude that the mother would behave differently outside of a supervised setting. There is no reason to doubt that the mother behaves very well in a supervised setting and reveals the side of herself which would be of most benefit to the child in terms of warmth and engagement and interest in his life. The unsupervised conduct of the mother is the problem.
The Court is discouraged by authority from making long term orders for supervision unless there is hope of progression to unsupervised time. Supervised time was consented to by the parties on that basis in 2012 but the progression failed to lead to a good outcome for the child. It would not be in the child’s best interests to hope or speculate that implementing the same or similar progression would lead to a better result.
In looking at the factors which I must take into account in considering what order to make in the best interests of the child, I note the following factors.

Section 60CC(2)(a) – the benefit to the child of having a meaningful relationship with both of the child’s parents

The child has his most meaningful relationship with the father and has a relationship of interest, recognition and some affection with the mother.

Section 60CC(2)(b) – the need to protect the child from physical or psychological harm from being subjected or exposed to abuse or family violence

This is the consideration to which I must give greater weight. The child has been exposed to family violence in his very early life by the mother. I accept that he has heard derogatory taunts about the paternal uncle, if not the father as well.
The conduct of the mother when he was an infant led to him being removed from her care and a condition being imposed on the father that the child not be left unsupervised with her. Part of that was her abuse of alcohol, which led to violent uncontained behaviour. There is no basis for considering that the mother has that kind of problem now. She has sought professional help, although she has been unwilling to do the one thing that was a condition of the orders for more time.
The risk for the child, and it is in my view an unacceptable risk, is that the mother will not desist from trying to prove through court proceedings or relevant authorities, such as police and the Department of Child Safety, that the child is at risk in the father’s care. The psychological harm to the child of having his most important relationship destabilised is the primary consideration.

Section 60CC(3)(a) – any views expressed by the child and (3)(b) the nature of the relationship of the child with each of their parents and other persons

I take into account that the child is lovingly attached to the father, the paternal uncle and probably other members of the paternal family and has no basis for knowing what it would be like to live any other way. The child would likely have no memory of living with the mother.

Section 60CC(3)(c) – the extent to which each of the child’s parents has taken or failed to take the opportunity to participate in making decisions, to spend time and to communicate with the child

The mother has very much wanted to participate in making decisions about the child, to spend time with him and to communicate with him. She has been hurt and is resentful about the restrictions imposed on her. She has never, it seems to me, accepted the need for it. The mother is more focused on her own loss than the stability of the child with the father.

Section 60CC(3)(ca) – the extent to which each of the child’s parents has fulfilled or failed to fulfil the parent’s obligations to maintain the child

The mother has failed entirely to contribute to the maintenance of the child. She has been in employment; she gave evidence that she set money aside for him, $1,500, but has not paid anything to the father. Indeed, I had the impression that she could not understand why she would be expected to.

Section 60CC(3)(d) – the likely effect of any changes in the child’s circumstances

There is a very real risk that if the child spends significant unsupervised time with the mother, an attack would be made on the relationship with the father with significant adverse effect. The child was irritated by the mother’s questioning on the tape she supplied to the police.
Given the overt hostility of the mother and apparently her older son, the child’s love and loyalty towards the paternal family would be under direct threat.

Section 60CC(3)(e) – the practical difficulty and expense of a child spending time with and communicating with a parent

The father has a wish to return to Town E where a range of work is available to him, more lucrative than in the Town C area. Both he and the child are observed by the family consultant to have done well in that community.
The father, in a resourceful way, has managed to work from home, earn a living, support the child, pay the mortgage on the house and still provide a good level of care. If he is able to maintain a better financial footing by moving, then although there will be practical difficulty and expense for the child in spending time with the mother, some of that will fall on the father in travel, but should not be onerous for the child.
The father should be free to establish a residence where he is able to work productively to support himself and the child whilst maintaining connections with the paternal family and complying scrupulously with Orders. If he does decide to return to Town E, travel four times a year will be manageable for the child.

Section 60CC(3)(f) – the capacity of the child’s parents and any other person to provide for the needs of the child, including emotional and intellectual needs

The mother has a restriction on her parenting capacity, which is a focus on her own emotional distress at the loss of the opportunity to raise the child in her own home. The child is something of a stranger to her and quite understandably, it is enormously painful for her. She has been more focused on her needs in that regard than in supporting the child’s stability; no matter how upsetting that is for her.
The father has revealed himself as somebody with the capacity to meet all of the child’s needs; emotional, financial and psychological. He has not undermined the memory and relationship the child has with the mother and older brother.

Section 60CC(3)(g) – the maturity, sex, lifestyle and background of the child and either of their parents and any other characteristics of the child that the court thinks are relevant

The child is a six year old boy who has lived with the father as long as he can remember.

Section 60CC(3)(j) – any family violence involving the child or a member of the child’s family and 60CC(3)(k) – if a family violence order applies, or has applied, to the child or a member of the child’s family

The following orders have been made:
a)Temporary Protection Order made 12 March 2009;
b)Protection Order made 21 July 2009;
c)Temporary Variation to Domestic Violence Order made 15 October 2009;
d)Temporary Variation to Domestic Violence Order made 12 November 2009;
e)Temporary Variation to Domestic Violence Order made 3 December 2009; and
f)Variation to Domestic Violence Order made 22 December 2009.

Section 60CC(3)(l) – whether it would be preferable to make the order that would be least likely to lead to the institution of future proceedings

I have come to the conclusion that it is in the child’s best interests to maintain a realistic knowledge of the mother and older brother by supervised contact with them often enough that he is able to keep them in mind, but not so often that the pressure of the situation, being somewhat artificial over a long period of time, becomes counter-productive.
The child has been able to maintain memory of the mother and a positive feeling about her, although he has been more guarded.
In my view it is better for the child to understand who the mother is over time, so as to avoid the following:
a)   any feelings he might develop that he is responsible for a lack of relationship with the mother;
b)     any sense of abandonment; or
c)     an unrealistically positive or negative view of the mother.
On that basis, the most appropriate orders appear to me to be supervised contact four times a year on a three month basis, which will fall approximately around the time of Mother’s Day, the child’s birthday and not long before Christmas. There will also be orders for a copy of these orders to be provided to the Department of Child Safety and to the child’s school.
To the extent that the proposal was put that the mother should be restrained from making further notifications, I consider that such an order is against public policy and represents a risk to the child of a legitimate notification not being made. However, it would be helpful for the Department to have the Orders and Reasons for Judgement to understand the context for the child living and spending time in the way that he will.
There will also be an order for the mother to be able to send gifts and cards to the child and for the father, if he considers them appropriate, to pass those communications and gifts on.
The outcome will be a difficult one for the mother, who has struggled with limited time and done her best, in her own view, to try and rectify a wrong. However, I do think that the mother understands that for the child’s sake, there must be no more litigation. The burden of that ceasing falls more on her. In the best interests of the child, I make the orders outlined above.

Property

The father agreed that he and the mother had met in 2004 and that he would visit her in Brisbane irregularly, never staying for any length of time. In his view the relationship did not develop until May 2007. The parties do agree that they began living together in September 2007, when the mother and her son moved in with the father to his property at F Street, Town U and subsequently in June 2008 to another property in that town.

The father says that he considered that the relationship had ended near the end of 2008. I accept that he may well have regarded the relationship as over. However, the evidence suggests that in March 2009, there was a significant blow up between the parties, which gave rise to a temporary protection order for father and child on 12 Mach 2009.
On 21 April 2009 there was then an application for parenting orders by the mother and those orders were made on 23 April 2009. The mother gave various undertakings about her use of alcohol and therapeutic assistance. At the end of April 2009 the father returned to live in what had been the property the parties lived in together; taking up residence downstairs. The mother’s older son also returned to live with them, having stayed with his own father during tumultuous events.
The parties continued to live in the house and I accept that each of them, but particularly the father, were responsible for the care of the child. The mother was working in her business; the father was working from home and took on the obligation of feeding and bathing the child most of the time. He had a cot in his self-contained flat for the child and there was also a cot apparently for him upstairs with the mother. It seems to me that the parties, although their sexual relationship had broken down, were maintaining the relationship with a view to raising and caring for the child at that time, such that the relationship was on foot at the relevant date. I conclude that the Court has jurisdiction to determine the application of the mother for de facto property settlement.
On 6 July 2009 each party filed a Notice of Discontinuance of their competing applications in the Magistrate’s Court at Town C. It is consistent with their having been, if not reconciliation in the full sense, a commitment to continuing on together to provide care for the child.
In September 2009 the mother moved away to another township with her older son and the child and soon after the child was placed with the father pursuant to the safety plan. There is no doubt at that time that the relationship was in every aspect, broken down.
The mother filed her first property application on 13 April 2011. I consider that the application was filed within time.
In terms of the merits of the application, the mother’s single asset was a motor vehicle. The father operated a company which runs the business in which he is self-employed. He owned real estate and the parties lived in two of those properties which provided a home for the parties during the period from September 2007 until September 2009, although there were periods of separation even during that two year period.
The father purchased a business for the mother and the mother did not contribute to the purchase price; that is conceded. The arrangement was that the mother would be employed in that business as a sub-contractor and was paid $500 per week. I accept that she also ran a related business, ‘V’, throughout this time. After the mother left, the father sold that business at a loss. He was also left with the debts associated with the mother having operated the business irregularly.
The motor vehicle that the father bought for the mother for approximately $23,000 was bought in the name of the company. She retained it. The father has had to contend with the associated debt in the company’s finances. I accept that the mother probably contributed some of the $500 towards food and other items for the child, but she concedes that the father paid all of the household bills and the outgoings in respect of the properties and the business.
In respect of home making, the parents both, and to a significant extent the father more, provided the day to day care, feeding, bathing, dressing and entertaining of the child. The father made a significant contribution to the mother’s older child by providing a home for him, paying for some of his costs and being involved in some of his activities.
I am obliged to consider whether it is just and equitable to adjust the interests of parties in property. In this case, I do not consider that it would be. The initial contribution of the father by the provision of the home, the purchase of the business, the financial and home-making contribution is overwhelmingly greater than that of the mother. I have no reason not to accept her statement that she considered that the relationship would be a lifetime one and the parties would live in the property as their family home whilst the child grew up. That proved not to be the case.
At the conclusion of the relationship the mother had a motor vehicle, the proceeds of sale of the motor vehicle she had at the beginning and no debt. Her personal effects and furniture were returned to her at no cost. Most particularly, in circumstances where the father has the full financial burden of the child, no matter how willingly taken on, it would be unjust to alter interest in property to any extent. I also take into account that the father made full financial disclosure through his affidavit[11], his financial statement and the provision of documents to a valuer who valued his company.[12] The mother did not dispute that there had been no disclosure form her at all; no bank statements, no tax invoices from her business, no tax returns.
[11]Affidavit of Father filed 14/04/2014, pars 443 and following
[12]Affidavit of Mr H filed 09/05/2014
The cost of preparing for hearing on these financial matters fell disproportionately on the father.
Accordingly I dismiss the application of the mother, as amended, for adjustment to interests in property.

I certify that the preceding one hundred and sixty (160) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Cleary delivered on 2 October 2014.

Associate:

Date: 2 October 2014.

[2014] FamCA 1147

2 October 2014

Key Legal Topics

Areas of Law

Family Law

Equity & Trusts

Legal Concepts

Remedies

Injunction