PALMERO & FABIEN
[2018] FCCA 755
•29 March 2018
FEDERAL CIRCUIT COURT OF AUSTRALIA
| PALMERO & FABIEN | [2018] FCCA 755 |
| Catchwords: FAMILY LAW – Parenting –dispute as to where 7 year old is to live – where mother maintains father is unacceptable risk to the child – where father maintains that a relationship between father and child will not occur if child remains with mother – Held in best interests of child to live with father, for there to be a moratorium of time between mother and child of two months and for the mother to spend time with child progressing to overnight and holiday time. |
| Legislation: Family Law Act 1975, ss.60CA, 61DA, 65DAA, pt VII |
| Cases cited: Johnson & Johnson (2000) 201 CLR 488 |
| Applicant: | MR PALMERO |
| Respondent: | MS FABIEN |
| File Number: | BRC 8192 of 2014 |
| Judgment of: | Judge L. Turner |
| Hearing dates: | 12 February 2018 and 13 February 2018 |
| Date of Last Submission: | 13 February 2018 |
| Delivered at: | Brisbane |
| Delivered on: | 29 March 2018 |
REPRESENTATION
| Counsel for the Applicant: | Mr Ehlers |
| Solicitors for the Applicant: | CQ Legal |
| The Respondent appeared in person |
| Counsel for the Independent Children's Lawyer: | Ms McArdle |
| Solicitors for the Independent Children's Lawyer: | C M Bint Family Lawyers |
FINAL PARENTING ORDERS
That all previous parenting plans and parenting orders are hereby discharged.
That forthwith the child, [X] born 2010 (“the child”), live with the father.
That the father have sole parental responsibility for the child.
That in exercising sole parental responsibility, the father consult with the mother about the decision to be made and where possible reach agreement about the decision.
That in the event of a disagreement about the decision, the father make the decision for the child and inform the mother of the decision made.
That a moratorium on any spend time with arrangements and communication between the child and the mother is imposed for a period of two (2) months from the date hereof.
That at the expiration of the moratorium period as referred to in Order (6), the mother spend time with the child as agreed in writing between the parties and failing agreement as follows:
(a)For a period of three (3) months for two (2) hours each fortnight such time to be supervised at the Town A Contact Centre.
(b)At the expiration of time in accordance with Order (7)(a) for a period of three (3) months for four (4) hours each fortnight from 10.00am to 2.00pm on a non-school day in Town A with the mother to provide to the father fourteen (14) days written notice as to when such time is to occur.
(c)At the expiration of time in accordance with Order (7)(b) for a period of two (2) months from 9.00am to 6.00pm twice a month on a non-school day in Town A with the mother to provide to the father fourteen (14) days written notice as to when such times are to occur.
(d)At the expiration of time in accordance with Order (7)(c) then:-
(i)For a period of two (2) months one weekend a month from 9:00am Saturday until 6.00pm Sunday with the mother to provide to the father fourteen (14) days written notice as to when such times are to occur.
(ii)At the expiration of time in accordance with Order (7)(d)(i) during school terms from after school (or 3.30pm if a non-school day) Friday to 6.00pm Sunday one weekend a month with the mother to provide to the father fourteen (14) days written notice as to when such times are to occur.
(iii)At the expiration of time in accordance with Order (7)(d)(i) during school holidays for the first week of each school holiday period with the mother to provide to the father fourteen (14) days written notice as to when such times are to occur.
That changeover for the purposes of Order 7(a), Order 7(b) and Order 7(c) unless otherwise agreed occur at the Town B Police Station.
That changeover for the purposes of Order 7(d) unless otherwise agreed occur:-
(a)At the commencement of time at the child’s school if a school day or at Town B Police Station if a non-school day.
(b)At the conclusion of time at the Town C Police Station.
That at the expiration of the moratorium period as referred to in Order (6) the child telephone the other party at all reasonable times that the child expresses such a desire to do so and the party who has the care of the child shall make every endeavour to facilitate this telephone call in a quiet and private environment.
That each party keep the other informed as to their respective address and telephone number and notify the other party of any changes within seven (7) days of such change.
That in the event of the child becoming ill or injured such as to require attendance at a medical professional whilst in the care of one party, that party notify the other party as soon as practicable.
That the parties engage with and adhere to all treatment regimes and programmes recommended by the helping professionals nominated by the Independent Children’s Lawyer.
That the parties not use any illegal drugs and/or drink in excess of .05BAC twelve (12) hours before spending time with the child or when the child is in their care.
That the parties not discipline the child or other children in their care with physical punishment.
That the mother not refer to any man as “Dad” of the child, other than to exclusively use this term in relation to Mr Palmero.
That the father not refer to any woman as “Mum” of the child, other than to exclusively use this term in relation to Ms Fabien.
That the father forthwith make arrangements for the child to be referred to a professional for counselling and continue to facilitate her attendance for such counselling at the recommendation of her general practitioner and/or counsellor.
That the father be at liberty to provide to the child’s treating health professional and any counsellor a copy of each of the family reports prepared by the family report writer in these proceedings.
That this order is an authority to any child care/educational facility and medical/allied health professional to provide to each of the parties information relating to the child’s education and health requested by either of them.
That the parties do all such things and sign all such documents as are necessary to have the father’s name included on the child’s birth certificate.
That after the delivery of the reasons for judgment, these orders be explained to the child by the independent children’s lawyer.
That after explaining the orders to the child the independent children’s lawyer is hereby discharged.
IT IS NOTED that publication of this judgment under the pseudonym Palmero & Fabien is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT BRISBANE |
BRC 8192 of 2014
| MR PALMERO |
Applicant
And
| MS FABIEN |
Respondent
REASONS FOR JUDGMENT
Introduction
The parties, the parents of [X] aged 7, are in dispute as to the future parenting arrangements for the child.
Agreed orders
The parties were unable to agree on any orders.
Proposals
The father’s preferred position (which is supported by the ICL) is for:-
a)The child to live with the father.
b)The father to have sole parental responsibility for the child.
c)After a two month moratorium period, the child spend time with the mother building up from supervised time to alternate weekend and some school holiday time.
If the court orders that the child remain living with the mother then the father is seeking time with [X] for one weekend a month and half of the school holidays.
The mother’s preferred position is that:-
a)The child live with the mother.
b)The mother have sole parental responsibility for the child.
c)The father undergo drug testing.
d)The father not spend any time with the child due to his abuse towards the child.
If time was court ordered, the mother proposes that the father spend one weekend a month with the child.
Issue
The issues requiring determination are:-
a)With whom the child is to live?
b)What time the other party is to spend with the child?
Evidence
In considering this issue regard has been had to:-
a)The material as marked on the court file.
b)Notices of Risk.
c)The three family reports prepared by Mr K in 2015, 2016 and 2017.
d)The oral evidence of the parties.
e)The exhibits.
f)Part VII Family Law Act 1975.
g)Relevant authorities.
The father is legally represented.
The mother is self-represented.
In accordance with Johnson & Johnson (2000) 201 CLR 488 and Re F Litigants in Person Guidelines [2001] FamCA 348 the court process was thoroughly explained to the mother and every attempt was made to ensure that there was fair process afforded to the mother throughout the final hearing.
The court has the benefit of an independent children’s lawyer (ICL).
For the father the following witnesses were called and cross-examined:-
a)The father.
b)Ms L (the father’s partner) (Ms L).
I find the father and Ms L to be credible witnesses.
For the mother the following witnesses were called and cross-examined:-
a)The mother.
b)Ms E (the maternal grandmother).
As to the evidence of the mother, I find that the mother presents as opinionated, always right, inflexible and not always forthright with her answers.
The family report writer notes that the mother, during the family report interviews, presented:-
a)“As being a somewhat challenging woman who says she is willing and/or able to cooperate with the process and to offer an account of event and issues and her thoughts and feelings but does not provide a coherent or cogent account of the matters. She invites others to understand that she is anxious and finds it difficult to recall and recount past traumatic or upsetting events or issues” ([24] 2015 family report).
b)“As being challenging, at times rude and belligerent in her inter-personal dealings, as lacking a sensitivity to insulate [X] from adult angst, antipathies and/or agitation” ([41] 2017 family report).
c)As “being uncontained and trying – the mother, that is, trying to manage or control the process including my capacity to have an unfettered conversation, in my opinion, with [X] by trying to impose herself” (cross-examination).
d)Being critical of “her own solicitor, the ICL, her Honour and I think the police at times” (cross-examination).
I find that the mother is a credible witness in that she believes everything she says, even when such beliefs are not based in truth.
I find the maternal grandmother, who presented as a hard and bitter woman, as being a credible witness.
The family report writer was cross-examined.
I find the family report writer to be a credible witness and give significant weight to his oral and written evidence.
Findings of fact are made on the balance of probabilities having regard to the evidence and in what follows statements of fact constitute findings of fact.
Relevant history
Before considering the law and its application to the issues it is necessary to capture the relevant history:-
a)The father, of aboriginal heritage, is aged 42 and is on a disability pension.
b)The mother is aged 32 and is a stay at home mother.
c)In 2010 the parties commenced cohabitation.
d)At the time of cohabitation the father had a child from a previous relationship (Mr L aged in his twenties) to Ms J (the sister of the mother).
e)In 2011 [X] was born but the father’s name was not put on the child’s birth certificate.
f)In 2013 the parties separated when [X] was aged 2.
g)At the time of separation the mother moved with the child to live with the maternal grandmother at Town D.
h)In 2013 the mother had a medically required termination (a pregnancy to the father).
i)In December 2013 the father’s time with the child ceased.
j)In 2014 the mother commenced a relationship with Mr S (Mr S).
k)In September 2014 the father commenced parenting proceedings to spend time with the child.
l)In 2014 the father commenced a relationship with Ms L who is of aboriginal heritage (Ms L).
m)At the time of the commencement of the relationship Ms L had four children from a previous relationship (aged 5 to 20), two of which still live at home with Ms L.
n)In 2015 the mother gave birth to [A], a child from her relationship with Mr S (although the mother questions whether Mr S is the father).
o)In early 2015 the father moved to Town B to live with Ms L and her children.
p)In 2016 the mother gave birth to [B] (the father of whom has not been made known to the court).
q)In 2017 the child [C] was born to the father and Ms L.
r)In or around 2017 the mother’s relationship with Mr S ended with Mr S not spending time with the children.
s)In February 2018 the father and Ms L underwent urine drug tests which returned as negative for cocaine, marijuana, amphetamines, benzodiazepine, methamphetamine and opiates.
As at the date of the final hearing:-
a)The father, Ms L and the children live in Town B.
b)The father and Ms L have completed the Triple P Positive Parenting Program.
c)The mother lives with the children near the maternal grandmother in the Town C district.
d)The travelling distance is some 8 ½ hours each way driving time.
e)The father is spending no time with the child.
f)There are no current domestic violence orders (DVO) between the parties.
The law
I now turn to the law.
The principles governing the determination of competing parenting applications are set out in Part VII Family Law Act 1975.
In essence, when making a parenting order the Court must consider what is in the best interests of the child pursuant to section 60CA.
But, as succinctly put by Murphy J in Hardie & Capris [2010] FamCA 1046 at [48]:-
“‘Best interests’ is not the application of a theoretical construct but rather, the practical application of a number of considerations relevant to the individual needs, desires, health and aspirations of the particular child… of this parenting relationship.”
As discussed by the Full Court in Moose & Moose [2008] FamCAFC 108 at [66] the role of the judicial officer in making orders which are in the best interests of the child is to determine the best interests having regard to “the matters set out in section 60CC(2) and (3), guided in …consideration of the provisions by the objects set out in section 60B(1) and the principles underpinning it contained in section 60B(2).”
As to the primary considerations and the leading authority of Mazorski v Albright (2007) 37 Fam LR, Brown J refers to such considerations as “the twin pillars”:-
a)Where the first pillar is the importance of a child to have a meaningful relationship with both parents; and
b)The second pillar is the need to protect a child from physical and emotional harm.
In deciding what is in the best interests of the individual child, sections 61DA and 65DAA come into play, because if the child is subject to an equal shared parental responsibility order, then equal or substantial and significant amount of time to be spent by the non-resident parent, if reasonably practical, must also be considered.
This distinct pathway, which applies to parenting matters when an equal shared parental responsibility order has been made, is the subject of much discussion by the High Court in MRR v GR (2010) 263 ALR at [368] and this pathway applies also to relocation cases.
I now turn to the considerations.
Primary considerations
The benefit of the child having a meaningful relationship with both of the child’s parents
What is meant by the term “meaningful” was discussed at length by Brown J in Mazorski, with the Full Court in Moose stating at paragraph [68] that “Her Honour’s discussion was helpful and her conclusions about section 60CC(2)(a) are cogent.”
At [26] Brown J concluded:
“What these definitions convey is that ‘meaningful’, when used in the context of a meaningful relationship, is synonymous with ‘significant’ which, in turn, is generally used as a synonym for ‘important’ or ‘of consequence’… A meaningful relationship or a meaningful involvement is one which is important, significant and valuable to the child. It is a qualitative objective and not a strictly quantitative one.”
Kay J in Godfrey & Sanders (2007) 208 FLR 287, spoke of the legislation promoting a “meaningful relationship, not an optimal relationship”.
The Full Court in McCall & Clark (2009) FLC 93-405 at [117] adopted the approach discussed by Bennett J in G & C [2006] FamCA 994 and said the enquiry as to whether a relationship is meaningful is “a perspective one which requires the Court to evaluate the extent to which a meaningful or significant relationship with both parents is going to be of advantage to a child”.
In this matter [X] does not have a relationship with the father.
As noted by the family report writer, “setting aside how and why it evolved, [X], nearly 7, has had a primary, or exclusive, care and parenting experience with Ms Fabien, and the Fabien family, and limited or absent care and parenting experience with Mr Palmero, and Palmero family….it seemed sensible to extrapolate that [X] was primarily, or exclusively, attached to, dependent on and/or identified with Ms Fabien and the Mr S-Fabien blended family, and the girl largely, had not formed or was in the process of forming attachments to, dependencies on and/or identifications with Mr Palmero or the Ms L-Palmero family” ([98] 2017 family report).
Conclusion
I find that the father does not have a meaningful relationship with the child.
Therefore, this is a consideration which must be factored heavily in determining the future parenting arrangements for the child, if it is held to be in the child’s best interest to spend time with the father, as any parenting orders made must allow for this relationship to develop.
Need to protect the child from physical or psychological harm from being subjected to or exposed to abuse, neglect or family violence
The mother is of the view that the father poses an unacceptable risk to [X] and, therefore, time between the father and the child should not take place.
In support of the mother’s concerns there are a number of issues raised where findings are required.
Family violence by father
Although somewhat minimalised by the father, the evidence supports that the father had an extensive family violence history with the mother’s sister, Ms J, during their relationship.
The father’s previous DV history with Ms J consisted of four DV applications, one DV referral and one breach.
The family report writer notes that “written material has included references to at least 2006 and 2007 QPS attendances at the home of Ms J and Mr Palmero, and notations relating to their son Mr L, with Ms Ms J observed to have black eyes and a bleeding nose. Mr Palmero has also been quoted as conceding punching Ms J on this and/or another occasion” ([26] 2017 family report).
The evidence supports that family violence continued in the father’s relationship with the mother.
The mother in the Notice of Risk stated that “there was family violence when living with her father, since been away there is no more risk”.
The mother informed the family report writer that “there was a lot of DV” but “does not recount specific incidents or events” stating “I can’t remember” ([36] 2015 family report) although the mother could recall that the father “kicked me down some stairs” and “threw the baby carriage at me…[X] was in my arms” and “where he is asserted to have withheld [X]” ([36] 2015 family report).
The DVO history of the father in respect to the mother includes a two year DVO in 2011, a breach of the DVO in 2012 and a further two years DVO in 2015.
The police records refer to the following DV incidents between the parties:-
a)2011 “A verbal argument has occurred and resp then kicked the agg in the back. Police observed no injuries and agg stated she did not receive any…. No previous DV incidents. Frequency of DV incidents: first instance. Severity of DV is minor. No weapons were involved. There were no injuries. There was no damage…the respondent and aggrieved were moderately affected by alcohol. Threats by respondent to harm or abduct children: No. The child’s level of involvement in the DV incident is: Baby/child in arms….Medical attention required: Nil. Direct harm or likely emotional harm to child given DV history: Nil”
b)2011 “Respondent had in his possession a six pack of Jim Beam cans…aggrieved appeared to be intoxicated and asked for some of the alcohol. The respondent refused…a verbal argument ensued after which the aggrieved left the address. There was nil assault to any party or any wilful damage to any property or any threats made….Severity of DV is minor. No weapons were involved. There were no injuries. There was no damage. Alcohol/drugs were involved, alcohol by aggrieved. Threats by respondent to harm or abduct children: No. The child’s level of involvement in the DV incident is: was in view/hearing range of the incident”
c)2011 (Possible breach of DVO) Father texted the mother “‘I Miss my [X]. Thank you I am a good dad’. “This is a minor breach”
d)2011 (Possible breach of DVO) Father posted a message to the mother on Facebook “Thanks for taking my little girl, so sad now, I am glad we are over”.
e)2012 (Possible breach of DVO) “Respondent and the aggrieved had been involved in a verbal argument over the visitation rights of their daughter. The respondent has attempted to take the child and leave the dwelling. The aggrieved has then taken the child back and gone into her bedroom. The respondent has followed the aggrieved and grabbed the child back with his fist raised leaning over her yelling ‘I am going to kill you if you take my daughter’. The respondent then left the dwelling. The aggrieved has followed asking for the child to be returned to her. The respondent has yelled to some people in a unit complex nearby ‘come down and bash this woman that is following me’. He then yield at the aggrieved with fist raised standing over her in a threatening manner ‘don’t follow me or I’ll get my sister to bash you’….Severity of DV is moderate. No weapons were involved. There were no injuries. There was no damage. No alcohol or drugs were involved. Threats by Respondent to harm or abduct children: Yes. The Respondent took the child and threatened the aggrieved. The child’s level of involvement in the DV incident is Baby/child in arms…….Respondent… was issued with a ….breach….The respondent left the child at the (police) station …where aggrieved then collected the child from Town C Station. No visible injury to aggrieved or child”
f)2012 (Possible breach of DVO) “The aggrieved was at her home address, at which time a vehicle containing the respondent has driven past…with the respondent yelling out “Burn Ms Fabien”…..Severity of DV is minor. No weapons were involved. There were no injuries. There was no damage. No drugs or alcohol were involved. The child’s level of involvement in the DV incident is ‘was in view/hearing range of incident’”
g)2012 (Possible breach of DVO) “The respondent was staying at the aggrieved residence….1 year old child has woken….verbal argument has started between the two……..respondent has head butted the aggrieved hitting her nose and causing it to bleed….Severity of DV is severe. NO weapons were involved. There were injuries to the aggrieved; there was no damage. It is unknown if drugs or alcohol were involved. The child’s level of involvement in the DV incident is ‘was in view/hearing range of incident’”
h)2012 (Possible breach of DVO) Father sent to the mother derogatory text messages including “dumb slut” and “wonder if you look in the mirror ugly fat arse veins showing ugly sores everywhere yuk”
The father acknowledges in the Notice of Risk filed in September 2014 that “there was family violence during when the parents were in a relationship. Both parents were perpetrators of family violence”.
The mother maintains that the family violence has continued since separation with the father “stalking” her; a claim denied by the father.
Between October 2016 and March 2017 the father attended and completed a Stop Family Violence Course at Relationships Australia which focused on anger management, drugs and family issues.
In 2017 a DVO was taken out against Mr S naming the mother and three children (including [X]) as the aggrieved.
The incident leading up to the DVO application being made by the police against Mr S included the following:-
a)Mr S and the mother had had “a verbal argument”.
b)“No known threats to harm the children.”
c)The mother said that they had argued about Mr S’s “drug use and non-contribution to household duties”.
d)The mother “stated that she has been in an on off relationship with” Mr S “for the past three years and in that time” Mr S “has shown intimidating behaviour towards her by getting in her face and calling her names like ‘scum’ and ‘putrid’….has not been physically violent towards her but still fearful of his behaviour”.
The family report writer notes that “when asked about this, and her seeking of QPS attendance or orders, including against Mr S, a man she had endorsed in 2015 and 2016 as a significant and appropriate care figure and role-model for [X], and as father to their 2 sons, Ms Fabien states, ‘I ring as soon as someone raises their voice’” ([46] 2017 family report).
Ms L states that “there has been no domestic violence in our house and Mr Palmero has never shown aggression towards me, nor me towards Mr Palmero. We do not always have the same opinion, however if we are not in agreement we always speak to each other, usually at night after the children living in the household are all in bed” (Ms L’s January 2018 affidavit).
Findings
Having considered all of the evidence, I make the following findings as to family violence:-
a)The father has a history of family violence in his relationship with Ms J and the mother.
b)The mother contributed to the family violence which at times was fuelled by the parties’ alcohol and/or substance abuse.
c)The child was exposed by both parties to the family violence during the relationship.
d)Since separation there is no evidence to support that family violence has continued between the mother and the father.
e)Since separation the child has not been exposed to family violence between the mother and the father.
f)Since separation the father has sought professional help for his anger management issues.
g)The father has not been violent to his current partner Ms L and there is no family violence within the father’s household.
h)Since separation the father has not exposed the child to family violence.
i)The mother has exposed the child to family violence during her relationship with Mr S.
j)As the relationship with Mr S has finished, then the child is currently not being exposed to family violence in the mother’s household.
In light of these findings, I find that the issue of family violence is not a consideration that needs to be factored in when determining the future parenting arrangements for the child.
Physical harm by father towards child
In the Notice of Risk the mother states that the child is at risk “if she is placed in the father’s care” that the father “loses his temper to easily” and that after spending time with the father “she became bruised all over her body”.
The mother informed the family report writer that “with the 2 late-April and an early-May 2017 Court-ordered father-daughter visits supervised by Ms L, [X] was reputedly physically assaulted and left bruised by Mr Palmero, ‘biting and hitting’….her information is that, after talking with the child following the April 2017 visits, ‘it was like someone had told her to make up stories…I didn’t think she was telling the truth’ so she persisted in questioning [X] and also presented her to the QPS, CPIU, where, ‘she told the officer about Mr Palmero hitting and biting her’” ([67] 2017 family report).
The mother states for the purpose of the final hearing that “the police report where a child detective interviewed [X] indicates that he intentionally hurt her, domestic discipline, how naughty must a child be to receive such bruising in just one day” ([18] mother’s trial affidavit).
However, the evidence supports a differing version of events.
On 2 May 2017 the mother reported the father to police about an alleged assault by the father of [X] on 29 April 2017.
The police records note that the reported injuries to the child was bruising on the arm and back and sore hips and that medical treatment was “unknown”.
On 17 October 2017 the police conducted a taped interview with [X] where [X] informed police that the father had, during a supervised visit with the child, punched her in the face using his fist, kicked her in the ribs and pinched her under her right arm causing the skin to break.
The mother produced photographs which as noted by police depicted “some faint bruising to the child” and a “small ‘spider bite’ mark under her left arm’”.
The police records note “that the child displayed obvious signs of being coached about her statement most likely by her mother and stepfather about what to say about the suspect”.
During the police interview [X] also spoke of being disciplined at home by the mother and Mr S (including being hit on the buttocks which leaves red marks) which the mother told [X] not to tell the police.
The police reached the following conclusions:-
a)“The actions of the suspect in response to the behaviour of the victim child fall under the realm of domestic discipline….as they are father and daughter, the injuries are very minor in nature…and therefore the assault is normal”
b)“The disclosures made by the child regarding her mother and father smacking her are also domestic discipline and no report will be furnished re those actions”
No further action was taken by the police against the father or the mother.
The mother used the police intervention as an excuse to cease all time between the father and the child in May 2017 telling the family report writer that “‘the visits stopped because of the bruises and [X] was absolutely terrified…and told me she didn’t want to go’ to see or visit Mr Palmero” ([67] 2017 family report).
The taped section 93A interview was viewed in its entirety during the final hearing and was supplied to the family report writer.
As to the interview the family report writer opined in cross-examination that:-
a)“The sense that I had was that we had a little girl who largely came in prepared”
b)“She, without being invited to talk about general things, appeared to go straight to a specific topic that she seemingly already had in mind and to deliver things with little in terms of questions that might have been prompts or queries that might have taken her …to topic”
c)“So it seemed, if I could put it this way, a fairly funnelled – as though she started off very specifically within a funnel of focus”
d)“I’m mindful when I see that interview with the police that the child follows, at least in my opinion, largely a script and I think that’s a script that’s provided by someone else, her mum, and I think her way of managing her mother would be, you would have to imagine extrapolating from things, collapsing into, or adhering to the script as her mum tells her that script to be”
e)“Some of the things where the child talks about ‘mum told me this’ and ‘mum said that’ or ‘I learnt that from mum’ or ‘I was a baby when this event took place’ when clearly there’s no direct recollection or recounting but it’s something that has been a narrative delivered to her.
f)“I’m also mindful the child talks, at one stage, about having receiving instructions from her mum about what not to say. I have to assume it’s reasonable to extrapolate from that she is, at times, also told what to say. So those are some of the things that inform and shape my response”
Findings
Having considered all of the evidence, I make the following findings as to physical harm by the father towards the child:-
a)That physical harm was not perpetrated by the father against the child.
b)That the child was coached to say things to the police.
c)That this coaching was at the hands of the mother and/or Mr S.
d)That it was the intention of the mother to raise false allegations of physical abuse against the father and to use this as an excuse for the father’s time with the child to cease.
I find, based on the findings, that the child has not been physically harmed and is not at risk of physical harm from the father and, therefore, this is not a consideration that needs to be factored in when determining the future parenting arrangements for the child.
Neglect by father of child
The mother states that during the April/May 2017 visits, the children were “driven in an overloaded car without a designated seat and/or seat belt and deprived of food”([67] 2017 family report).
The father and Ms L deny these allegations and gave comprehensive evidence as to the activities that occurred on that day, including photographs depicting a family get together and a picnic.
Findings
I find that there is nothing in the evidence to support that the child was neglected whilst in the father’s care.
In light of these findings, I find that the issue of family violence is not a consideration that needs to be factored in when determining the future parenting arrangements for the child.
Is father an unacceptable risk to the child?
The standard of proof in determining whether unacceptable risk exists is the civil standard based on the balance of probabilities.
The factors to be considered in applying the civil standard were addressed by Dixon J in Briginshaw v. Briginshaw (1938) 60 CLR 336 at [362]:-
“The seriousness of an allegation made, the inherent unlikelihood of an occurrence of a given description, or the gravity of the consequences flowing from a particular finding are considerations which must affect the answer to the question whether the issue has been proved to the reasonable satisfaction of the tribunal. In such matters ‘reasonable satisfaction’ should not be produced by inexact proofs, indefinite testimony, or indirect inference.”
As to what amounts to unacceptable risk was the subject of extensive discussion by the Full Court in Johnson & Page [2007] FamCA 1235.
In conclusion, the Full Court adopted the seven principal points to be applied in determining acceptable risk as set out by Hon. John Fogarty A.M. in his paper ‘Unacceptable risk – A return to basics’ within the Australian Journal of Family Law:
In summary the seven points are as follows:-
a)The best interest of the child will always be the decisive issue.
b)Unacceptable risk involves an evaluation of the nature and degree of the risk and whether, with or without safeguards, it is acceptable.
c)Where past abuse is alleged, the court is not required to reach a conclusion as to its existence but if the court does consider its existence then the Briginshaw civil standard of proof applies.
d)A failure to prove past abuse in accordance with the Briginshaw test does not prevent the court from considering the circumstances in determining whether unacceptable risk exits.
e)Focus in these matters should always be on the question as to whether there is an unacceptable risk for the child.
f)The onus of proof to be applied in reaching any conclusion as to unacceptable risk is the ordinary civil standard.
g)The individual components in reaching that conclusion need not be proven on the balance of probabilities. The court may reach a conclusion of unacceptable risk based on an accumulation of factors where none or only some of which are established to that standard. The Full Court, however, expressed a word of caution in making a finding of unacceptable risk where none of the components are proven on the balance of probabilities.
Findings
The findings support that the mother has failed to establish any risk that the father poses to the child, let alone unacceptable risk.
Therefore, unacceptable risk has not been established.
Conclusion
I find that as the father poses no risk to the child, then this is not a consideration that needs to be factored in when determining the future parenting arrangements for the child.
Conclusion as to primary considerations
The primary considerations support that orders need to be made which will establish maintain and nurture a meaningful relationship between the father and the child.
I now turn to the additional considerations
Additional considerations
Any views expressed by the child and any factors such as the child’s maturity or level of understanding that the court thinks are relevant to the weight it should give to the child’s views
[X] (then aged 6) told the family report writer that:-
a)“Her favourite adult is, ‘Dad…Dad Mr S…he likes to play hide-and-go-seek’, while, ‘like the real Dad, he’s very mean’ is the adult it is a challenge to get on with” ([56] 2016 family report).
b)“Her parents are, ‘not friends because they be mean…Mr Palmero is mean to Mum…and mean to me. He’s trying to steal me…Mum telled me’” ([57] 2016 family report).
c)“When her mother talks about or explains the adult separation, Ms Fabien reputedly says that, ‘It was because Mr Palmero was mean to Mum all the time so we got Dad [Mr S] now’” ([57] 2016 family report).
d)“The aspect of her care and/or contact arrangements she is not happy with or challenged by is, ‘that it’s not good…seeing Dad…because he’s mean…one day he said my hair was icky [sic]…it looks like a boy…we learned that from police’” ([57] 2016 family report).
e)“When her mother talks about her father, she sounds ‘cross’ and, ‘her says…when I talk about it, ‘We won’t talk about it’’, while, when her father talks about her mother, “he looks like he’s happy to see me…and I’m sad when I see him…he says he don’t like…he thinks Mum’s mean”” ([58] 2016 family report).
f)“In relation to Mr Palmero, [X] offers, ‘he kisses and hugs…he takes pictures of me…he’s a bit mean’” ([58] 2016 family report).
g)“Her understanding, in relation to care arrangements, is that her mother wants her to, ‘not see Daddy…hers a bit worried’, while she does not recount an understanding of her father’s care aspirations” ([59] 2016 family report).
The family report writer notes that the mother “is observed to use words in front of, and away from, the child in her attempt to persuade others [X] is ‘terrified’, ‘scared’ and/or ‘intimidated’ by the report process and/or dealing with Mr Palmero. Since the preceding report, Ms Fabien has presented [X] to counselling and police. In the time after the late-2016 UFR, Ms Fabien reveals questioning the child, declining to accept her initial responses and interpreting them to be lies or untruths, with the child then seemingly making statements which have accorded with the mother’s apparent expectations. [X] was previously aware of the tensions or conflicts between Ms Fabien and Mr Palmero. Indications were that this awareness was primarily, perhaps exclusively, through her exposure to her mother’s angst in relation to her father. [X] has been told, or she has learned, that Mr Palmero is allegedly ‘mean’ to Ms Fabien, and/or to her, at least in terms of allegedly wanting to ‘steal’, her from her mother” ([97] 2017 family report).
The family report writer opines that:-
a)“Within the limits of her age, developmental stage, personality, temperament and relationship circumstance, [X] renders some of her thoughts and feelings, and her perceptions and experiences” ([85] 2016 family report)
b)“The child reveals that she is aware that there are tensions or conflicts between Ms Fabien and Mr Palmero” ([85] 2016 family report).
c)“Indications are that this awareness is primarily, perhaps exclusively, through her exposure to her mother’s angst in relation to her father” ([85] 2016 family report).
d)“[X] has been told, or she has learned, that Mr Palmero is allegedly ‘mean’ to Ms Fabien, and/or to her, at least in terms of allegedly wanting to ‘steal’ her from her mother” ([85] 2016 family report).
Conclusion
The leading authority on children’s wishes, (now referred to as views) is R & R : Childrens’ Wishes [2000] FamCA 43 where after analysing the earlier decisions of H v W (1995) FLC 92-598 and Doyle & Doyle (1992) FLC 92-286 the Full Court states at [44]:
“It is quite clear that their Honours were not saying that if the child's wishes are valid then they are to be acted on by the Court and indeed this is not the law. What is required is that they be given appropriate and careful consideration and not simply treated as a factor in the determination of the child's best interests without giving them further significance. When validly held reasons are departed from by the trial Judge, it is apparent that good reason should be shown for doing so”
I find that no weight can be given to the views expressed by the child and I base this finding on the following:-
a)The child is very young and is too young to understand the concepts of any views and the long term implications of such views.
b)The child, as illustrated by the police interview, is easily influenced.
c)The mother has influence over the child and has extensively shared with the child her views of the father.
d)The comments made by the child of being afraid of the father cannot be accepted as independently formed views of the child.
I, therefore, find that this is not a consideration which can be factored in when determining the future parenting arrangements for the child.
Nature of the relationship of the child with each of the child’s parents and other persons
Mother and father
The family report writer notes after the first family report interviews:-
a)That “[X] has been parented in circumstances where there have been few and/or limited mother/daughter relationship interruptions or gaps for” the mother “and [X]. Conversely, there have been more, and significantly extended, father-daughter relationship gaps for” the father and “[X], with no father-child in-person contact, outside a report setting since early 2014” ([44] 2015 family report).
b)That “such a care history and circumstances would be congruent with the extrapolation that the girl would be markedly more attached to, dependent on and/or identifies with” the mother ([44] 2015 family report).
c)“Conversely, she would have not formed secure, intact attachments to, dependencies on and/or identifications with” the father ([44] 2015 family report).
By the second family report interviews the father had spent supervised time with [X] which according to the contact centre’s records progressed well and without incident.
During the second family report interviews it was noted that “once in play with” the father “the girl appears to enjoy her father’s company or dealings with her”. The father “seems intent on demonstrating his commitment and capacity to engage with [X] and is almost incessant in talking with and to the girl, with questions or comments. The girl is also noted to not settle into prolonged play with a particular activity but to move between several sets of toys or activities and to not maintain a focus on one activity or set of toys”. The father “asks for or suggests a hug with [X], which she initially avoids or declines, before returning to give him a cuddle” ([61] 2016 family report).
Conclusion
I find that the child has a strong relationship with the mother.
As the child has had little time with the father, I find that her relationship with the father is in its infancy.
As a consequence this is a consideration which needs to be factored in when determining the future parenting arrangements for the child and supports orders whereby the child can get to know and establish a relationship with the father.
Extended family members
The family report writer concludes that “such a care history and circumstances would be congruent with the extrapolation that [X] would be markedly more attached to, dependent on and/or identified with the” mother’s “family members” and “at least relative to” the father’s “family members” ([45] 2015 family report).
Conclusion
I find that the child has a loving relationship with her maternal siblings and the extended maternal family.
As is the situation with the father, the child has not had an opportunity to establish a relationship with her paternal sibling or stepsiblings, her stepmother or the father’s extended family.
As a consequence, this is a consideration which needs to be factored in when determining the future parenting arrangements for the child and supports orders whereby the child can get to know and establish a relationship with the paternal extended family.
Extent to which each of the child’s parents has taken or failed to take the opportunities to participate in making decisions to spend time with and to communicate with the child
The family report writer notes that:-
a)The mother “invites the understanding that she is [X]’s primary or exclusive parent, with” the father “being unavailable and uninvolved as a care and relationship figure” ([83] 2016 family report).
b)The father “invites the understanding that, while” the mother “has been [X]’s primary, if not exclusive, parent and he has been less available and/or involved as a care and relationship figure, this is in the context of him being purportedly excluded from, or limited in, care and parenting opportunities” ([83] 2016 family report).
The mother states that “I have never withheld [X] from seeing” the father and maintains that the father has not “tried to call” [X] “when he was allowed to, or even asked the school for her end of year report card” ([30] mother’s trial affidavit).
The evidence supports otherwise.
It demonstrates that ongoing attempts by the father to establish a relationship with [X] and to spend time with the child has been met by defiance by the mother:-
a)After the parties separated the mother from December 2013 ceased time between the father and [X].
b)The father attempted mediation in April 2014 but the mother failed to participate.
c)When the father commenced parenting proceedings in September 2014 the mother and child’s location were unknown.
d)It was not until January 2015 that the mother made her first appearance in court, having not filed any response material.
e)During a court mention in March 2015 (where despite court orders the mother had still not filed response material) the following verbal exchange occurred between the bench and the mother:-
Judge: “What’s your position, because you’ve not participated to date? So what’s your position in this matter? You’ve read the initiating application of the father?”
Mother: “I do have a few concerns about…..”
Judge: “Well, tell me”
Mother: “About her spending time with him”
Judge: “Okay. So you don’t want [X] to spend time with the father?”
Mother: “I did allow him to see her in the past, but it didn’t work out, and that was privately between us”
Judge: “Why didn’t it work out?”
Mother: “Because he got a bit verbally abusive with me and wanted money from me a lot”
Judge: “Okay. Right. So when was that? When was the last time you allowed the child to see the father?”
Mother: “It would have been November two years ago”
Judge: “So since November two years ago, you’ve not allowed the father to have any time with the child”
Mother: “Well, I’ve been advised in the past from welfare and the police to keep away from him, so I’ve been doing so”
Judge: “Have you had any legal advice?”
Mother: “I’ve had a little – not really”
Judge: “No. It shows, because what you, in effect, have done, you’ve severed the relationship between the father and the child over adult issues between you and the father, haven’t you? You’ve not really considered the child in this.”
Judge: “I don’t think mediation is going to be effective if the mother is setting a very clear view about the father, because you don’t want dad to see the child, do you?”
Mother: “Well, it’s not so much that. It’s just a few concerns, maybe his anger management and drug use”
Judge: “Well, how come you haven’t offered any time to the father?”
Mother: “I have before in the past, your Honour, but….”
Judge: “What are you offering now?”
Mother: “Well, because of his abusive behaviour, I’ve been trying to keep away from him so that it’s not around her”
Judge: “What time are you offering the father now, if any, with the child?”
Mother: “There has been nothing at the moment….”
f)In March 2015 an ICL was appointed.
g)In April 2015 after a child inclusive conference, it was recommended by the family consultant that the father spend supervised time with the child.
h)By the next mention date on 17 April 2015 the mother still had not filed her response documents.
i)At the interim hearing date on 18 May 2015 the parties (with the mother having filed her response and the mother being self-represented) reached interim consent orders whereby the father spend time with the child at the Suburb 1 Contact Centre for no less than two hours a fortnight with costs to be shared equally between the parties.
j)Time between the father and [X] did not occur in accordance with the May 2015 interim consent orders.
k)In July 2015 the first family report was released which recommended that the child live with the mother, the mother have sole parental responsibility for the child and the father spend supervised time with the child at a contact centre or with a supervisor.
l)On 28 July 2015 the parties (with the mother legally represented) reached interim consent orders whereby the father spend time with the child at the Suburb 1 Contact Centre for four hours a fortnight with costs to be paid by the father.
m)In August 2015 the father completed intake with the Suburb 1 Contact Centre.
n)After five phone calls from the Suburb 1 Contact Centre to the mother during October 2015, it was agreed that time between the father and the child would commence in November 2015.
o)The father commenced spending supervised time with [X] on 20 November 2015.
p)Over the next year the father spent time with the child at the Suburb 1 Contact Centre as follows:-
i)4 December 2015
ii)15 January 2016
iii)27 February 2016
iv)12 March 2016
v)23 April 2016
vi)7 May 2016
vii)2 July 2016
viii)16 July 2016
ix)13 August 2016
x)September 2016
xi)22 October 2016
q)The father cancelled some visits at the Suburb 1 Contact Centre due to financial restraints.
r)During this time the mother cancelled the following visits for the father with the child at the Suburb 1 Contact Centre:-
i)17 December 2015 (mother’s son sick)
ii)29 January 2016 (mother failed to attend with the child)
iii)9 April 2016 (child sick)
iv)4 June 2016 (due to weather)
v)18 June 2016 (due to child attending birthday party)
vi)30 July 2016 (child sick)
vii)5 November 2016
viii)3 December 2016 (don’t have the money to get there)
s)On 8 December 2016 the mother sent an email to the ICL which included the following comments:-
i)“I have read the family report that Mr K has done….most of this report is wrong”
ii)“I am not jumping through these hoops any more for him to get what he wants over me, when no one is listening to me”
iii)“He would just go back to the same old ways after having won her putting her in danger and smoking drugs around her and drink driving”
iv)“It’s like everyone are ignoring how dangerous this man is for her to be around when it’s all there in proof”
v)“I am not going to sign any new orders or allow him to have her unsupervised outside the center”
vi)“[X] is so happy right now and doing so well and healthier then ever she would be destroyed being torn between 2 families that don’t get along”
vii)“I have had a talk to her and asked her if this is what she wants but she just keeps crying and saying that she doesn’t want to go with him”
t)The family report writer notes that the mother “is uncertain, or vague and unreliable, in rendering information such as when and why she was absent, with [X], for a protracted period of 2016. Her related statement is, ‘I didn’t have to notify the ICL…Court that I was going on holiday’” ([64] 2017 family report).
u)In December 2017 the second family report was released which recommended that the child live with the mother, the mother have sole parental responsibility for the child, the child spend supervised time with the father, Ms L and [C] at the contact centre for three months then part day visits supervised by Ms L who is to complete education to be supervisor.
v)At the next mention date on 16 December 2016 the mother failed to attend court, citing illness as the excuse.
w)The mother’s legal representative informed the court that “now, unfortunately, the email could be taken one of two ways, your Honour, that she has just got this recalcitrant stand, or that she is truly in fear of the father and the repercussions of contact. I can’t go into detail on that, because your Honour would benefit from the mother being present and she will be cross-examined, and for your Honour to make your determination onto the veracity and also the belief of what the mother – and the fears that the mother may have”.
x)On that day interim orders were made by the court (with the consent of the ICL and the father):-
i)For supervised time to continue at the Suburb 1 Contact Centre until such time as Ms L complete a psycho-educational process (as to how to be a volunteer supervisor).
ii)That after completion of the course, then spend time periods supervised by Ms L to increase to full days with such time to increase to overnight times after three day visits.
y)After the December 2016 interim orders the father spent time with [X] at the Suburb 1 Contact Centre on 14 January 2017.
z)After the December 2016 interim orders the mother cancelled the following visits at the Suburb 1 Contact Centre:-
i)17 and 18 December 2016 (child sick)
ii)31 December 2016
iii)28 January 2017 (mother complained that father did not complete required drug test)
iv)11 February 2017 (mother complained that father did not complete required drug test)
aa)The mother complained to the family report writer that “‘the Court doesn’t listen to me…the Judge doesn’t believe me when I’m right…they are biased against me…..the ICL, the Judge and you in your last report bagged me out…and my family…Ms P and the ICL argued with me…the Judge doesn’t listen to the evidence…I’m not going to answer…his lawyer comes up with excuses and the Judge just shrugs it off’”. The mother “asserts that, following December 2016 Orders, ‘I took her [[X]] to lots of visits…some I didn’t because she had school…friends’ parties…they’re important…and for some I was sick, or [X], [A] and [B]” ([66] 2017 family report).
bb)As a consequence of the cancellations by the mother the Suburb 1 Contact Centre wrote to the parties on 13 February 2017 informing the parties that their services had been withdrawn.
cc)In February 2017 Ms L attended in accordance with the December 2016 court orders upon a clinical psychologist who informed her as to the roles and responsibilities of a volunteer contact supervisor.
dd)On 11 April 2017 the matter was back before the court where again the mother failed to attend in person producing through her legal practitioner a medical certificate stating that she was “not fit” to attend court that day.
ee)The ICL informed the court that time between the father and the child was not occurring and that she was “gravely concerned that the mother is controlling the time that the child is spending with the father”.
ff)The matter was then listed for interim hearing the following day.
gg)On 12 April 2017 the mother again failed to attend the interim hearing which prompted an observation from the bench that “it’s becoming quite evident that she’s playing the system I don’t say that lightly, but it’s just every – there’s roadblocks at every turn in this matter. And the end result of it is that the father’s not spending time”.
hh)During the interim hearing the following exchange occurred between the bench and the ICL:-
ICL: “That’s right, and the longer that goes on, the more difficult the father’s position becomes, because his relationship with the child becomes so fractured that he’s not a resident candidate until he’s able to break that”
Judge: “That’s right. That’s right, and we’ve got to work out how that can be done. So whilst the mother explains away some of the reasons why she has not taken the child to the contact centre, we’re now in April and the last visit was in January”
ICL: “In my view, those reasons given in that affidavit really are excuses, rather than reasons for her non-attendance. She simply does not intend to comply with the orders that were made”
ii)The matter was listed for a further interim hearing on 26 April 2017 with the following comment from the bench to the mother’s legal representative “I require the mother to be here, in person, with the child. If the mother fails to attend, then I’m not going to hesitate in issuing a warrant for her arrest. She needs to understand that I’m going to be getting very serious about this matter, and let’s see if mum comes along and, if mum comes along, I will be having some very strong words with her …..about the fact that we are having continued non-compliance and what appears, now, to be a habit of her avoiding what is going to ultimately have to be the outcome, and that is dad’s time with this child has to be re-established, so that it can grow”.
jj)At the interim hearing on 26 April 2017 the mother attended court but did not bring the child, as ordered.
kk)At the interim hearing the following exchange occurred:-
Mother’s legal representative: “We have mum here today, your Honour….. Your Honour’s order was for mum and child, but the child is at school today”
Father legal representative: “Dad hasn’t had any time with the child, [X], since January, your Honour, hence why the order was made for the mother to be produced”
Judge: “So I take it, Ms P, from what you’ve said that the mother doesn’t have concerns about supervised time”
Mother’s legal representative: “The contact centre she’s comfortable. Not – she’s comfortable insofar as it’s an independent supervisor that – because she does have concerns about the drug use of the father and the father’s partner. She has concerns about whether the – Ms L is going to be a suitable supervisor. That is in earshot and sight at all times of this child. She instructs me that – and it is in the material – that she suffered severe domestic violence throughout their relationship and she has a genuine fear that this child is at risk if it’s not supervised by an independent supervisor, not someone related to his family, and she says the risk of harm in her mind is so great that she cannot function knowing this child is going there….”
ICL: “Your Honour, there is no evidence….She makes a submission that her solicitor has conferenced with her client. Still, we do not have an affidavit from the mother to that effect: that she’s suffering from PTSD, that she has been referred to a mental health plan. We don’t have anything from the solicitor which – who says apparently that they have assessed the mother as being – as suffering and that she will not be able to facilitate the relationship. In the circumstances, your Honour, I’m – I would ask you to make the orders for time”
Judge: “And I’m concerned, too, that Mr K, who’s an extremely experienced family report writer – it has not really been addressed in the family report, has it… about any concerns of the mother to such an extent that she can’t allow time to occur ‑ ‑ ‑ because she’s so worried?”
Judge: “And the concern I have is that since time has stopped in January 2017 there has been a – and it may be for legitimate reasons, but it has been a battle to get us to here today, and I’m concerned that the only reason the mother is here today is because of the threat – and I have to use the word threat – that if the mother didn’t turn up, that I would issue a warrant, and that – you know, that order provided for the child to come, too. And I appreciate the child is at school. I understand that. I know the importance of children attending school, but it is also important for the child to have a relationship with the father, and one of the reasons why I wanted the child here was to facilitate and discuss about facilitating time today between dad and the child, and that’s not able to take place because – what’s your client’s proposal now?”
Mother’s legal representative: “Contact centre”
Judge: “With all due respect, Ms P, because I know that it is a very difficult role often to play when conveying the instructions received from a client, and I appreciate that, but I doubt very much if anything that the father did is going to appease the mother in this matter because the mother has just repeatedly not followed any court orders. And I’m concerned – which is why I asked whether or not the father’s position might change because I’m concerned that the next time the matter comes before me no matter what the court does today, the mother, again, is not going to follow the orders, and it’s going to happen another time. It’s going to happen another time. It’s going to happen another time……and this court has to question whether she’s going to take any steps at all to facilitate a relationship between the child and the father. And whilst I hear what you say today, a psych report is not going to wave a magic wand and do anything. If mum is having that much angst about going onto unsupervised time, then I would have thought that she would be under therapy or counselling, or she would be proactive in getting some assistance to give her the tools to handle that angst, but, you know, the dilemma I’m faced with today is (1) she’s not even agreeing to supervised time with Ms L. We have no evidence by her that Ms L is unsuitable. She agreed to Ms L in December 2016. (2) Even when it has happened at a contact centre, it hasn’t been followed through. (3) She hasn’t proposed anyone else who could be a suitable supervisor. (4) Unsupervised time isn’t occurring. (5) I wanted the child here today so dad could, at least, see the child, and that has not happened. So there’s all these things which are continuing and I suspect are going to continue”
ll)The court ordered make-up time for the father for the child for 29 April 2017 and 30 April 2017 and then for overnight time the first weekend of each month, with such time to be supervised by Ms L.
mm)After the April 2017 interim orders were made the father spent time with the child on:-
i)29 April 2017 (with the child arriving an hour late)
ii)30 April 2017
iii)6 May 2017 (with the child arriving 30 minutes late)
nn)The mother then ceased the father’s time with the child on 7 May 2017 resulting in the father filing an application in a case.
oo)At the next mention date on 4 September 2017 the following exchange occurred:-
Judge: “I’m sure you will have a very strong conversation with the mother that I expect that the mother will continue to turn up at the police station and that there is every attempt made to find the father so that time can occur because I want time to occur between now and February, so that that can be reflected in the updated family report as to how that’s progressing”
Mother’s legal practitioner: “I have and I will take your Honour’s advice”
Judge: “And there’s a risk for mum that she might lose the child if she doesn’t start facilitating time if I was to make a finding, and I say ‘if’ because nothing has been tested today, that the mother perhaps has misrepresented to the court the attempts that she has made to facilitate time with the father”
pp)Interim orders were made by the court for the father to spend time with the child overnight (with such time to be supervised by Ms L) where for one of the visits the child be collected from school.
qq)In September 2017 the mother’s solicitors withdrew.
rr)At the next mention date on 17 October 2017 the mother attended in person.
ss)The court was informed by the ICL that the father “hasn’t spent any time with this child since May; he still hasn’t spent any time with this child. What concerned me, and why I asked for the matter to be relisted for mention, was that it appeared from information that I received from the father’s solicitor that the mother had removed the child from school, despite orders being made….with the mother being present, that the father collect the child from school. Your Honour, the mother filed an affidavit fairly recently; it was sworn on the 14th of September, and she annexes to that affidavit, at F3, a report from the school, School 1 Primary School…. That report is dated the 31st of August, some four days of that report informs us that [X], until recently, was a student at School 1… Your Honour, the mother sat here, in this court, heard your comments about your expectations in respect to complying with orders knowing that the child was no longer at School 1 allowed you to make orders that the father collect the children from school; did not inform the father or his lawyer or myself”
tt)At the mention the following exchange occurred:-
Judge: “What’s your excuse this time, for not complying with orders?”
Mother: “Your Honour, I didn’t change my residential address; we simply moved away for two months, for work, and she – she’s back at the same school. I have reasonable grounds and necessary steps to protect my daughter’s health and safety, and she was returned from her first visit, covered in bruises, broken skin, and complaining of sore hips. Now, I’ve reported this to the…..”
Judge: “And how long ago was that?”
Mother: “It was on the 30th of April, your Honour, and the following visit, my daughter had told me that she had gone to visit (omitted), which is a steep mountain climb, with no seatbelt whatsoever in an overloaded vehicle, and there’s photos evident in Mr Palmero’s affidavit that she had no safety restraint on the first visit on the 30th as well, and she had also told me, in an eight-hour visit, she was not fed any food whatsoever, only the school snacks which I had supplied to her, and I have reported this to the CPIU and it’s currently an ongoing investigation”
ICL: “Well, I was aware that it had been reported to the department and the police…..”
Judge: “But no investigation?”
ICL: “And that there’s been nothing….. that I have become aware of”
Judge: “I take it, Ms Fabien that it wouldn’t matter what I ordered. You’re not going to comply, are you? Just be honest with me. Don’t waste my time, don’t waste Ms Bint’s time, and don’t waste the father’s time. If I was to make any orders for spend time with arrangements, you’re not going to do it, are you? Please be honest”
Mother: “My daughter came back covered in bruises, your Honour”
Judge: “Are you going to do it? It’s a simple question”
Mother: “She has been telling me that she’s scared of Mr Palmero”
Judge: “Are you going – no, no, no, no, no, no, no. Listen to me. Mr Associate, could you please put this woman under oath, please, oath or affirmation, because I want to get this recorded”
Judge: “And I ask that you answer my questions only. I don’t want an explanation, I want an answer. If I order any time to take place between the child and the father, are you going to comply with that order?”
Mother: “No, your Honour”
Judge: “…..I have already spoken to you at length about this, and just be aware that one of the options open to me is to change the residence for [X] to live with the father, because one of the concerns, if you are unable to establish that the child is at risk, is that you are never, ever going to facilitate…I know this is difficult for the father to hear, but it’s ridiculous for me to continue to make orders that are not going to be complied with. The mother is on record, very clearly, that she’s not going to comply with any order in any event”
uu)The father has not spent any time with the child since 6 May 2017.
vv)In December 2017 for the last of the family report interviews the mother failed to bring the child to the interview with the family report writer noting that “[X] is not interviewed in the report as a direct result of Ms Fabien. Prior to the report, she initiated contact to seek to be able to be with [X] during the child’s interview, talked of [X] being ‘scared’ and anxious about attending, and variously stated that she had a right to sit in with the girl, and others she had consulted assured her of this described ‘right’. On the day of the report, Ms Fabien proposed, and agitated for, her sister Ms E, to sit in with [X], asserting that this was a neutral participation. On stating that [X] was likely to be ‘intimidated’ by the report meeting with her, or she allegedly found the report writer ‘intimidating’, I made a decision that it was not appropriate, through a duty of care, to put [X] through an UFR meeting. It is noted that Ms Fabien used words such as ‘scared’ with or in front of the girl, persisting even when asked to curb her use of such a term” ([42] 2017 family report).
ww)During the last family report interviews the mother informed the family report writer that:-
i)She was “resolutely opposed father-daughter visits outside of contact centres” and that there were “unreasonable risks to [X]’s welfare with anything other than contact centre supervision of” the father’s “dealings with the child” ([63] 2017 family report).
ii)The mother’s “position is that, ‘I listen to her. I’m her mother…she’s a little girl’ whom she says she is acting to protect from” the father’s “contended abuse and neglect, ‘for her safety and well-being’. She is robust in asserting that systems, processes and legal and/or welfare practitioners are failing in their roles in acting protectively and, ‘I want this thing out of Court and I have full custody…I’ve been saying this the whole way along’.... “I’ve [sic] done nothing but protect and provide all needs to my children…I will appeal it and ask for another Judge ICL and have your one sided reports ripped apart by someone qualified in domestic violence…I’m the only one who can see his much [sic] this is damaging this little girl’” ([69] 2017 family report).
xx)In December 2017 the third family report was released which recommended that the child live with the father, the father have sole parental responsibility for the child and after a two month moratorium the mother spend time with the child, such time progressing over time from supervised time to weekend and holiday time.
yy)In February 2018 at the final hearing the court was informed that the father had not spent time with [X] since 7 May 2017.
zz)At the conclusion of the final hearing, the mother indicated that if it meant that the child’s “life would not be destroyed” then the mother will “comply” with orders for the father to spend time with the child.
The family report writer opines that:-
a)That the mother’s “presentation…. and her rendered views about the ICL, her Honour and/or others, in addition to her dismissal or devaluing of [X]’s Aboriginality, and effective non-compliance with Orders and directions, compel comments that she appears to not have capacity or willingness to work cooperatively and/or inclusively with” the father “or others” ([92] 2017 family report).
b)“It appears to be apparent that while” the mother “has primary care of [X] she will not act-out inclusive attitudes or behaviours to” the father’s “part in parenting or co-parenting” ([98] 2017 family report).
c)When asked in cross examination whether it was a concern as to the “mother’s ability to support” the child’s “relationship with her father” the family report writer responded “it is. I could find nothing that would allow me to be able to speak through the reports to any hopeful aspirations that Ms Fabien had any semblance of commitment to valuing the father daughter relationship or propagating it”.
d)When asked about the mother’s ability to comply and support court orders for the father to spend time with [X] the family report writer further opined that “I have not been able to locate any support for being confident that Ms Fabien would bring a genuine, lasting, valid and reliable commitment, I would imagine that if she were to comply with orders, looking at past history, that some event or something would happen that I think would interpret as reaffirming her original position of being suspicious or concerned about the father and I would think arriving at the same stance which is to withdraw or oppose father daughter contact”.
Conclusion
Based on the evidence I make the following findings:-
a)The father has done everything possible to try and spend time with the child.
b)The mother has deliberately interfered in attempts by the father to spend time with the child.
c)The mother does not accept any responsibility for there not being a relationship between the father and the child.
d)The mother has not, does not and will not comply with court orders that provide the father with time with the child.
As a consequence of these findings, I find that this consideration weighs heavily in determining the future parenting arrangements for the child and supports orders whereby the child live with the father, because any orders for time between the father and the child will not be complied with by the mother.
Extent to which each of the child’s parents has fulfilled or failed to fulfil the parents’ obligations to maintain the child
The mother states that the father “has shown no care for the child in the form of maintenance payments….has not helped pay for any of her school fees or school needs” ([30] mother’s trial affidavit).
Conclusion
I find that there is nothing in the evidence that supports as to why this is a consideration which needs to be factored in when determining the future parenting arrangements for the child.
The likely effect of any changes in the child’s circumstances, including likely effect on the child of any separation from either parent or any other child or other person
There are two concerns raised.
The first is a concern raised by the family report writer that if the father is not seen as an unacceptable risk and time does not occur with the father then this will have a negative impact on [X].
The family report writer states that “there are uncertainties and/or risks in [X]’s healthy, functional development and life-adjustments in her remaining in her current placement, including in relation to incorporating positive elements of her father, paternal family, kinship and culture into her sense of her identity and self-worth and her sense of belonging or place in the world” ([100] 2017 family report).
In cross examination the family report writer opines “we have a little girl who has, as I recall, gone through a number of disruptions in the last period of time. She has had a birth father who has largely been, I think, devalued and displaced. He is a man of aboriginal culture. We have the mother who is devaluing and, at least in my experience in dealings with her, dismissive of the importance of [X]’s aboriginal culture and I think the child would be deprived of the opportunity to know who she is, where she comes from and where she belongs in this world. No matter what the mother’s view, [X] will be seen by other children, and dealt with by other children, as being non-Caucasian or non-white. We have a child who also has a representation that her bad dad is her bad black dad. At both the cultural and the personal level, this little one is being asked to build a sense of self, of identity, which we would like to be functional and healthy and robust in almost broken building block pieces that they’re missing. She doesn’t have the experience of her dad, doesn’t have the experience of culture and that the ascription or the assertions about her father are that he’s a bad person. So how does she build a sense of self which is intact and health and healthy when some of these parts are missing or described by her mother as being broken, bad or dirty”.
The second concern is “that there are uncertainties and/or risks in the adjustment challenges for [X] in accommodating a possible change of residence, from her mother to her father” ([100] 2017 family report).
The family report writer commented in cross-examination that a change of living arrangements for the child from the mother to the father:-
a)“Was not an easily promulgated decision that would reasonably create adjustment challenges for [X] in both the separating and leaving from Ms Fabien and in the joining with Mr Palmero”
b)“Will be a huge wrench and I accept that. Unconditionally, I accept that. I’m also mindful though that the mother’s functioning over the past year or 18 months, we’ve had a father figure, Mr S, who was previously valued, is now devalued and displaced. We have contentions about what will be his future role with the other children and with [X]. We’ve had moves of school, moves of home and, if it is reliable, the insertion or introduction of another fellow, Mr R, I think from memory at least according to some sources that the mother accepts she has had a dating relationship but there’s another father figure. So we’ve had multiple disruptions, uncertainties, changes, instability whilst with the mum. So, yes, we have the stability of that primary relationship but it’s not in a vacuum. It has also happened in a context where there has been lots of other uncertainties, disruptions, displacements of significant people, school, carers, father figures”
Ms L acknowledges that “[X] coming to live with us…will be a significant emotional change for her” (Ms L’s January 2018 affidavit).
The family report writer notes that “in discussing how they would envisage managing such a seminal change in [X]’s care and relationship landscape, Mr L and Mr Palmero indicate that they have researched or put on notice the School 2 State School counsellor, individual and family RA, Town B, counselling services and Central Queensland Indigenous Development agency, said to do a deal of work with DOCS and post-placement support services, to assist them, and [X]” ([40] 2017 family report).
As to how such difficulties arising from such change can be addressed by the father, the family report writer agreed during cross-examination that counselling organised by the father through an indigenous community service provider for [X] and the father’s family would support such change.
Conclusion
This is a matter where the child will be impacted no matter what the outcome.
If the child remains with the mother, then the father will be excluded from the child’s life which may lead to numerous issues for the child going into the future.
If the child is removed from the mother to live with the father, this will result in enormous change for the child which may, if not properly handled, have a negative impact on the child.
This is, therefore, a consideration which weighs heavily in determining the future parenting arrangements for the child and supports an order for the child to live with the father if the transition can be appropriately managed.
Practical difficulty and expense of child spending time with and communicating with their parent and whether that will substantially affect the child’s right to maintain personal relationships and direct contact with both parents on a regular basis
The parties live a distance apart of some 8 ½ hours.
Travel is going to be difficult.
In the past the father has attended to all of the travelling; often travelling when time with the child has been denied.
Conclusion
This is a consideration which must be factored in when determining the future parenting arrangements for the child and orders must be practical to ensure that time can realistically occur with the child and the non-resident parent.
Capacity of each of the child’s parents and any other person to provide for the needs of the child
In her Notice of Risk the mother states that the father “has always been a drug and alcohol abuser…is not capable of looking after [X]”.
In the evidence the mother raises three issues as to why the father cannot care for [X].
Father’s drug and alcohol use
The father informed the family report writer that “‘I don’t really drink now’…..and ….that he no longer uses illegal drugs. He reveals using ‘pot’ from age 13…..up to 2014” ([23] 2015 family report).
There is no evidence before the court that the father is currently using drugs and the urine test conducted just prior to the final hearing returned a negative and clear result.
Conclusion as to drug and alcohol use
In the absence of any evidence that the father is currently using drugs and in the absence of any evidence that in the past his drug use impacted on his parenting abilities then a finding cannot be made that drug use prevents the father from being a capable parent.
Father’s mental health history
The mother argues that the father has mental health issues.
The family report writer notes:-
a)The father’s “contact with helping professional was said to have begun after he and” the mother “had a medically advised termination, adding that, ‘it was pretty bad…losing a baby…breaking up with Ms Fabien and losing [X]…they put me on anti-depressants’” ([23] 2017 family report).
b)That the “written material includes 2013 and 2014 medical notes describing” the father “as disclosing having had suicidal thoughts and/or feelings, as well as reporting self-inflicted injuries from punching walls and /or doors” ([20] 2015 family report).
c)“2014 hospital notes refer to” the father “having some mental health issues as well as drug and alcohol issues and going through ‘a downhill spiral’” ([24] 2015 family report).
Since the 2014 incident, there have been no indicators of poor mental health being experienced by the father.
Conclusion as to mental health
In the absence of evidence, I am unable to find that the father is unable to meet the child’s needs due to poor mental health.
Father’s criminal and traffic history
The mother complains of the father and his criminality as being an issue in caring for the child.
The father informed the family report writer that “his criminal record is limited to matters prior to having Mr L and ‘when I was younger’” although the family report writer notes that “the written material indicates a 1998 to 2012 adult criminal record” ([20] 2015 family report).
A snapshot of the father’s criminal and traffic history consists of:-
a)1990 Break & enter and attempted stealing
b)1994 Stealing
c)1998 Break, enter & steal, unlawful use of motor vehicle
d)1999 Breach probation
e)2015 Motor vehicle offences including failing a road side drug test for cannabis and methylamphetamines.
f)2015 Possession of a drug implement.
g)2017 Littering
Conclusion as to criminality
The father does have a criminal history, although the severity of the convictions has diminished over time.
In the absence of any evidence that the father is currently involved in any criminal activity, then I am unable to make a finding that his criminality impacts on his ability to care for and meet the child’s needs.
Conclusion
Given the findings, I find that this is not a consideration which needs to be considered in determining the future parenting arrangement for the child.
Maturity, sex and lifestyle of the child
Life for [X], in the mother’s household, is constantly full of changes.
The mother has had changes in residence, changes in partners and three children to three different fathers.
[X] in her short lifetime has experienced these changes, especially in recent times, as captured by the family report writer “there has been a period of multiple changes, and their inherent uncertainties, risks and/or adjustment challenges for [X] during her 2017 primary care with” the mother “leaving aside the start-stop father-daughter contact with” the father.“[X] being withdrawn from School 1 State School, and enrolled at a Town E school; the Fabien-Mr S blended family’s relocated from Town C to Town E, or stayed away from Town C and time spent in Town E; there has been a relationship crisis for, and separation between, Ms Fabien and Mr S, with QPS and/or others’ involvement; the Fabien and Mr S household has been dismantled; there has been a stepfather-step-daughter separation between [X] and Mr S; the Fabien household has returned or relocated to Town F, after leaving Town E, and; Ms Fabien has been dating Mr R, who has had dealings with [X], [A] and [B]” ([101] 2017 family report).
Just prior to the final hearing, the mother alleged that the father may not be the biological father of [X] naming three other men who could be the possible fathers.
The family report writer notes that the mother “seemingly has further or pending instability with her apparently percolating post-separation parenting conflict with Mr S generally, and her stance on his paternity of [B], as well as her stance on Mr Palmero’s paternity of [X]” ([103] 2017 family report).
But can the mother be believed?
The family report writer comments that “when questioned or challenged” about her relationship with her current partner the mother “concedes lying, with her stance being, ‘if I don’t feel like saying, I won’t… I’ll tell you what you need to know…it’s not relevant…we never really lived together, he just stayed…I’m not sure if Mr S is [A]’s father…No, he’s not significant…for [X]” ([103] 2017 family report).
In contrast the father, who has been in a stable relationship with Ms L and living in Town B since 2014 attracts the following observations from the family report writer “there do not appear to have been such significant personal, relationship and/or other shifts or uncertainties in the circumstances of Ms L and” the father “or changes or crises for the children in their care” ([102] 2017 family report).
Conclusion
Based on the evidence I make the following findings:-
a)The mother has led a chaotic and unpredictable life.
b)In this chaos the child has changed residence and schools and has become attached to father figures like Mr S; where such persons are no longer in her life.
c)As to whether the mother can be believed when the mother disputes the paternity of all three of her children is an unknown, but given the lateness of the allegation when it comes to the father, the propensity of the mother to create drama and to lie to get what she wants and the lack of evidence to support her claim that one of three other men could be the father of [X]; this is not an issue which can be given any consideration at this hearing.
d)The father in contrast has led an orderly and structured existence; a lifestyle that may be beneficial to [X].
Given the findings this is a consideration that factors heavily in determining the future parenting arrangements for the child and supports orders for the child to live with the father.
The child’s right to enjoy his or her Aboriginal or Torres Strait Islander culture
I was fortunate not only to see [X] in photographs but to view her during the taped police interviews.
[X] is a beautiful, animated and somewhat cheeky little girl who is clearly of aboriginal heritage with her dark hair and rich brown skin.
The father is a proud aboriginal man.
The father explains “I am of Aboriginal descent and my indigenous family is from Town F and Town C community. I identify as an Aboriginal person and I am recognised and accepted as an aboriginal by the Town F and Town C community in which I formerly lived” ([2] father’s trial affidavit).
The father informed the family report writer that “he is associated with an Aboriginal spirituality, and he is identified with an Aboriginal ethnic and/or racial heritage” ([19] 2015 family report).
The father wants [X] to be aware of her aboriginal heritage and to be given an opportunity to be involved in the aboriginal culture.
The family report writer commented during cross-examination that “the interaction” between the father and the child during contact centre visits were “appropriate” and “culturally based in some respects talking about…..the indigenous community that the father belongs to”.
The father believes that this cannot occur whilst [X] remains in the care of the mother.
The family report writer notes that the father has concerns that “there is an inherent power-imbalance in the co-parenting relationship where” the mother “has been empowered by systems and processes to exclude him and to deprive the child of access to direct, positive experiences of her Aboriginal kinship and culture” ([84] 2016 family report).
The evidence supports that the father’s concerns are justified.
The mother refers to the father as the “black dad” who is bad; language which has been picked up by [X] and used by her during the police interview.
The mother seems condescending of [X]’s aboriginality informing the family report writer that “[X] has become quite upset about her complexion” as an Aboriginal child who is, “more like him…not like the rest of her family…feels like she doesn’t fit in…that’s abuse”” ([67] 2017 family report).
The mother told the family report writer in the last family report that “[X] isn’t just Aboriginal…she learns Japanese and about other cultures…languages at school…she can learn about her ancestry later…Mr Palmero pushes it…that she’s like him…more than she’s like me…I’ve got to correct these things…I tell her, her family is also (nationality omitted) and English…I think [Aboriginals] try and use it for their advantage…Stolen Generation stuff…there’s wars where they would have been wiped out if not for white people…it was generations and generations ago”([61] 2017 family report).
The mother has only recently introduced the child to her aboriginal heritage by organising some generic books for her to read.
The family report writer concludes that the mother “does not acknowledge or value [X]’s need or rights to know and identify with her Aboriginal cultural and kinship ties” ([95] 2017 family report) and that “[X] appeared to be largely uninformed about or unsupported in her Aboriginal cultural heritage and identity” ([97] 2017 family report).
Conclusion
I find:-
a)That the evidence supports that if the child remains with the mother then [X] will not be made aware of her aboriginal heritage or exposed directly to her aboriginal culture.
b)That in the mother’s care, [X] may be made to feel embarrassed and an outcast due to her aboriginal heritage.
c)That the father will ensure that [X] learns about her aboriginal heritage and culture.
This is, therefore, a consideration which weighs heavily in determining the future parenting arrangements for the child and supports orders for the child to live with the father.
Attitude to the child and to the responsibilities of parenthood demonstrated by each of the child’s parents
The mother is of the view that co-parenting with the father is not achievable.
The family report writer notes that:-
a)The mother “invites the understanding that she meets [X]’s global physical and psychological needs and co-parenting conflict with” the father “would erode her personal functioning and hence, the girl’s receipt of parenting, as well as reputedly placing [X] at avoidable and unreasonable risk” ([83] 2016 family report).
b)The mother proposes “that there is a power-imbalance, where she is disempowered, in dealing with” the father “by his contended abusive and violent attitudes and/or behaviours” ([84] 2016 family report).
The evidence supports that the mother will never support a co-parenting relationship with the father.
The family report writer, however, holds the view that the father “may have a capacity and willingness to work cooperatively and/or inclusively with Ms Fabien or others” ([95] 2017 family report).
Conclusion
I find that if the child remains living with the father that co-parenting is not achievable due to the mother’s attitude towards the father and the unlikelihood of the father spending time with the children, despite any court orders to the contrary.
I find that if the child was to live with the father that the father will use his best endeavours to co-parent the child.
This is, therefore, a consideration which must be factored in when determining the future parenting arrangements for the child and supports an order for the child to live with the father.
Family violence involving the child or a member of the child’s family
This is an issue which has already been addressed and, therefore, is not a consideration that needs to be factored in when determining the future parenting arrangements for the child.
Whether it would be preferable to make the orders that would be least likely to lead to the institution of further proceedings
The parties and the child need final orders in this matter.
Any other facts and circumstances
There have been no other facts and circumstances raised by the parties.
Conclusion on additional considerations
The findings made as to the additional considerations overwhelmingly support an order whereby the child live with the father.
Overall conclusion on primary and additional considerations
Overall the findings on both the primary and additional considerations support that it is in the best interest for [X] to live with the father.
As concluded by the family report writer “it appears to be apparent that [X] may have the opportunity to have an inclusive care and parenting experience, and cultural experience, were she to transfer from Ms Fabien to Mr Palmero’s more primary parenting” ([99] 2017 family report).
The reality for this young child is that if [X] remains living with the mother, then:-
a)The child will be deprived of any relationship with her father, her stepmother, her sibling, her step siblings and her paternal extended family.
b)The child will be deprived of any input from the father as to her upbringing.
c)The child will be deprived of learning about her aboriginal heritage and culture.
d)The child will live in varying states of chaos within the mother’s household.
e)The child may be exposed to other adult father figures who are only temporarily involved in the family unit.
f)The child will be exposed to the mother’s set views, lies and attitudes and may resort to lying to provide support to the mother’s views, lies and attitudes.
But if [X] lives with the father the child will be able to:-
a)Establish, maintain and nurture a meaningful relationship with the father.
b)Establish a relationship with the stepmother, sibling, stepsiblings and paternal extended family.
c)Learn about and be immersed in her aboriginal heritage and culture.
d)Be part of a stable supportive family unit.
e)Continue to have a meaningful relationship with her mother, her siblings and extended maternal family.
The father has given considerable thought to how the transition can occur and what needs to take place to ensure as little stress as possible for [X].
I, therefore, find that it is in the child’s best interests for [X] to live with the father.
Moratorium on mother seeing child
The family report writer has recommended that if there is a change of live with arrangements for the child, then a moratorium of two months needs to be put into place before the mother commences spending time with the child.
During cross-examination the family report writer explained that the “father daughter relationships are …limited and the child’s overall influence is much more markedly imposed by the mother, including the mother’s perception or presentation or packaging of her perceptions of the father and inviting the child to join that negative perception” and that “I’m very concerned about….what sort of reaction - what sort of contained unmanaged negative reaction. I’m worried about [X] having to deal with her mother’s reaction on top of going through her own…process of adjusting to change. That that would be a burden on the child that she would have to carry that she really should be protected from therefore, if there were such a decision for a transfer, that the mother be assisted or seek assistance to coming to terms with such a decision and managing that as an adult separately from [X] so [X] is not burdened”.
Conclusion
I find that a moratorium of time before the mother spends time with the child is necessary for the following reasons:-
a)The child will be protected from any negativity expressed by the mother as to the change in the live with arrangements.
b)The child needs time to adjust to her new living arrangements as well as her new surroundings and school.
c)This will enable the child to obtain the necessary counselling to adjust to the changes.
d)The mother needs time to adjust to the change of arrangements.
e)This will provide the mother with time to reflect on the situation and obtain professional assistance if required.
Parental responsibility
The father is seeking an order for sole parental responsibility.
The mother has by her own choice and without consultation or consent of the father, made all the major long term decisions for the child.
The mother cannot co-parent with the father and holds the strong view that the father should not be part of the child’s life.
Conclusion
Given the history of this matter, I find that the presumption of equal shared parental responsibility as set out in section 61DA has been rebutted pursuant to section 61DA(4) as the evidence supports that it is not in the best interests of the child for the parties to have equal shared parental responsibility.
I find that it is in the child’s best interests for the father to have sole parental responsibility.
The orders include provision for the father to consult with the mother as to the major long term decisions and to inform the mother as to the outcomes.
Spend time with arrangements for the mother
In essence I have adopted the proposed orders sought by the father and the ICL as to the mother’s time with the child, which after the moratorium period is to be firstly supervised and then build up over time to weekends and holiday periods.
I have, however, reduced the regularity of time due to the distance between the parties.
The orders, however, contain flexibility so that the parties can agree to arrangements outside the ambit of the orders especially if the mother moves closer to the father.
I certify that the preceding two hundred and four (204) paragraphs are a true copy of the reasons for judgment of Judge L. Turner
Date: 29 March 2018
Key Legal Topics
Areas of Law
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Civil Procedure
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Administrative Law
Legal Concepts
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Judicial Review
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Jurisdiction
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Procedural Fairness
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Standing
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Costs
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