PARNELL & PARNELL
[2011] FamCA 329
•13 May 2011
FAMILY COURT OF AUSTRALIA
| PARNELL & PARNELL | [2011] FamCA 329 |
| FAMILY LAW - CHILDREN – With whom a child should live – Best interest of child – Child’s views – Where mother undermines the child’s relationship with the father – Where child is unduly influenced by the mother – Where mother’s relationship with the child is not a positive meaningful relationship – Where father’s relationship with the child is positive and where the father provides a stable and supportive environment for the child – Where father supports a meaningful relationship between the child and the mother – Parenting capacity – Where views of the child are counterbalanced by overriding factors. |
| Bankruptcy Act 1966 (Cth) Evidence Act 1995 (Cth) s 128 Family Law Act 1975 (Cth) ss 60B, 60CA, 60CC, 60CG, 61C, 61DA, 64B, 65AA, 65DAA |
| Collu & Rinaldo [2010] FamCAFC 53 Goode & Goode (2006) FLC 93-286 Mazorski v Albright (2007) 37 FamLR 518 McCall & Clark (2009) FLC 93-405 |
| APPLICANT: | Mr Parnell |
| RESPONDENT: | Ms Parnell |
| INDEPENDENT CHILDREN’S LAWYER: | Legal Aid NSW |
| FILE NUMBER: | NCC | 625 | of | 2008 |
| DATE DELIVERED: | 13 May 2011 |
| PLACE DELIVERED: | Sydney |
| PLACE HEARD: | Newcastle |
| JUDGMENT OF: | Ryan J |
| HEARING DATE: | 28 February, 1, 2 & 4 March 2011 |
REPRESENTATION
| COUNSEL FOR THE APPLICANT: | Mr Duane |
| SOLICITOR FOR THE APPLICANT: | Central Coast Family Law |
| SOLICITOR FOR THE RESPONDENT: | Mr Potkonyak |
| COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: | Mr Boyd |
| SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: | Legal Aid NSW |
Orders
Excluding Orders 1 and 2 of Exhibit “A” dated 31 January 2011, all prior orders made in relation to the child J born … July 1998 are discharged.
That “the child”, J born … July 1998 live with the father.
That the father have sole parental responsibility for the child.
That the child spend time with the mother as follows:-
a. Until Order 4(b) commences supervised for a period of two (2) hours in every third week at Children’s Contact Centre 1 (“the Contact Centre”) and to this end each party must:-
i.contact the Contact Centre within 7 days and arrange to attend the first available appointment to participate in supervised visits for the child pursuant to these orders;
ii.attend the assessment;
iii.comply with any appointments made by the Contact Centre for supervised time; comply with all reasonable rules, requests and directions of the Contact Centre;
iv.The father or his nominee (who must be an adult known to the child and nominated beforehand in writing to the Contact Centre), shall deliver and collect the child from the Contact Centre at the times specified by the Contact Centre and on each occasion promptly leave the building and the vicinity.
v.The mother must not attend the Contact Centre or its vicinity before the time with the child is to start and must promptly leave the Contact Centre and the vicinity when her time with the child has expired.
b. Provided the mother has, for 12 months from the date of these orders, regularly attended counselling with a psychologist or allied health professional to whom she has provided copies of Dr R’s reports dated 21 December 2009 and 18 February 2011 and a copy of the Court’s reasons for decision published the date of these orders her time with the child shall no longer be supervised and from the weekend after she has completed 12 months of therapy and for a further period of twelve (12) months she shall spend time with the child from 5.00 pm Friday until 5.00 pm Sunday in each alternate week.
c. Thereafter, provided the mother has returned the child to the father on time at the end of each period the child has spent with her and otherwise complied with these orders, in addition to the time referred to in Order 4(b):
i.school holiday periods for the first week in each of the April, June/July, and September/October gazetted public school holiday, from 10.00 am Saturday on the first Saturday of the school holiday period concluding the Saturday immediately following at 10.00 am;
ii.for two weeks during Christmas school holidays, commencing from 10.00 am on the first Saturday in even numbered years and 10.00 am from third Saturday in odd numbered years all of which periods shall conclude at 10.00 am on the Saturday two weeks after the period started.
From when Order 4(b) commences the mother shall also spend time with the child from 10.00 am until 4.00 pm on Mother’s Day.
From when Order 4(b) commences, in the event the child is to spend time with the mother on the weekend which includes Father’s Day, the mother’s time with the child that weekend will end at 10.00 am on Father’s Day.
From when Order 4(b) commences the mother may attend one event at the child’s school to which parent’s are invited each term. The mother shall give the father no less than seven days notice in writing of her intention to attend.
Other than as is provided for in these orders the mother is restrained from approaching the child or having the child in her care without the father’s written consent.
In the event the child is not spending time with a party on Christmas Day, her birthday or the parties’ birthday, that party may speak with the child by telephone in relation to which he or she is to telephone the other party’s telephone number at 6.00 pm on the relevant day. The party in whose care the child then is must ensure she is available to speak with the other party.
Unless a different place is specified in these orders for changeover this shall take place at the Contact Centre. In the event the Contact Centre is not open at the nominated time but is open at another time on the appointed day, changeover shall take place at a time closest to that provided for in these orders. Otherwise changeover will take place at a public venue nominated by the father which is reasonably equidistant between the parties’ residences.
That each party authorise the school authorities, teachers or any other person having responsibility for the child’s education or other curricular activity to communicate directly with each party as if the parties had not separated and to record each party as a person to be notified in cases of emergency and provide to each party copies of school reports and other reports relevant to the child’s education and the provision of a sealed copy of this order is deemed sufficient authority for the educational facility.
That each party keep the other informed as to any illness or injury suffered by the child which requires significant treatment by a medical practitioner or other health professional.
Neither party is to make negative nor derogatory comments about the other party to or within the child’s hearing and must remove the child from the presence of any third persons making such comments.
That each party notify the other in writing if they change their residential address or contact telephone number within seven days, and must advise the particulars of the change.
That the father must ensure the child’s attendance upon Child Dispute Services at a time and place as directed by the Manager of Child Dispute Services for the purposes of having these orders explained to her.
Pursuant to s 65DA(2) and s 62B, the particulars of the obligations these orders create and the consequences that may follow if a person contravenes these orders and details of who can assist parties adjust to and comply with an order are set out in the Fact Sheet attached hereto are included in these orders.
All outstanding applications are dismissed.
Notation:-
A.That the father must arrange and ensure J attends counselling at Counselling Service 1 for the purposes of addressing matters raised in the Single Expert Reports of Dr R, and to this end the father must:-
i.Provide copies of the Single Expert reports dated 21 December 2009 and 18 February 2011 and the Court’s reasons for judgment to the treating counsellor;
ii.Arrange monthly appointments with Counselling Service 1 for the child and ensure her attendance or such frequency as is recommended by the counsellor.
B.Counselling as arranged pursuant to notation (A) shall continue until Counselling Service 1 advises that the child is no longer required to attend.
IT IS NOTED that publication of this judgment under the pseudonym Parnell & Parnell is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
| FAMILY COURT OF AUSTRALIA AT NEWCASTLE |
FILE NUMBER: NCC 625 of 2008
| Mr Parnell |
Applicant
And
| Ms Parnell |
Respondent
REASONS FOR JUDGMENT
Introduction
These are parenting proceedings in relation to 12 year old J (“the child”). She was not quite two when her parents, Mr Parnell (“the father”) and Ms Parnell (“the mother”) separated. After separation the child lived with the mother and had extensive contact with the father.
A few months before the child’s 10th birthday urgent interim orders were made in a Local Court for her to live with the father and spend time with the mother each alternate weekend. She has lived with him ever since.
In the intervening period further interim orders were made, generally by consent. Essentially, these orders increased the child’s time with the mother and reaffirmed the original decision she reside with the father. Unfortunately the mother has allowed the child to believe these later consent orders were made at the father’s behest and against her will. To the child, the mother has presented a façade of her and the child being victims of the father’s perfidy and the Court’s lack of regard for the child’s desire to live with the mother. There is no dispute that from when the father assumed the child’s care she wanted to return to the mother. However, as I will later explain, the child lacked the maturity and capacity to appreciate the damaging effect on her of the mother’s chaotic lifestyle and animus towards the father and his family and how these influenced her opinions.
After the child was placed in the father’s care, the mother’s animus towards him and his family escalated. Since then, in an almost unrelenting fashion, she has exposed the child to her negative opinions of the father. It appears that the mother inculcated the child with the idea she is unsafe in his care. This is untrue but worries the child and is the reason she gave for running away from the father’s home in November 2010.
After five days, during which the child stayed with a neighbour of the mother’s, police returned the child to the father. As though nothing had occurred, somewhat naively the father facilitated continuing time between the child and the mother. The mother failed to return the child and it was only after the father commenced an urgent application, she was returned for the commencement of school 2011. Again, the mother allowed the child to believe that, at the father’s behest and against her will, the Court ignored the child’s views and ordered the mother return her. The reality is that, whilst represented by a lawyer, the mother signed consent orders which the Court adopted. Although the child has been settled at school and cooperative in the father’s home since then, shortly before the hearing, she told Dr R, who is a child and family psychiatrist, her strong desire is to live with the mother.
When the hearing commenced, the father sought orders which would terminate contact between the child and mother. However, at the end of the hearing he proposed three weekly supervised contact between them at a contact centre.
Because of the complex issues involved in the proceedings, an Independent Children’s Lawyer (“ICL”) was appointed. When the hearing started the ICL indicated his support for recommendations made by Dr R in her second report, dated February 2011. However, after Dr R was provided with further documents produced by the Department of Human Services (“DHS”) and apprised of evidence given by the mother, she changed her recommendation to the mother having a period no longer than 12 months of supervised time prior to regular unsupervised time with the child. At the end of the hearing, the ICL provided a Minute of Order[1] broadly consistent with Dr R’s ultimate recommendation. The father did not support orders that changed the mother’s time in a defined fashion from supervised to unsupervised time. It was asserted by him he had demonstrated a generous and flexible approach to the child’s time with the mother and could be trusted to facilitate unsupervised time when circumstances suggested this would be to the child’s benefit.
[1] Exhibit “U”
When the hearing commenced, the mother’s proposed orders were those set out in her Response. Summarised, these provided that the child live with her, she have sole parental responsibility and, absent agreement between the parties, the child spend time with him from Saturday morning until Sunday afternoon each alternate weekend, at Easter and Christmas. No provision was made for the child to spend time with the father during school holidays or for more than one night overnight on any given occasion. The Court was later informed she sought orders along the lines of Dr R’s recommendations contained in her second report, which were, in short, that the child reside primarily with the father in 2011, divide her time equally between the parties on a week about basis in 2012 and thereafter choose herself how much time she spent with either party.
Although the mother remained to hear closing submissions by counsel for the ICL she was absent for those made by counsel for the father and her solicitor. Her solicitor informed the Court that the mother sought orders she have substantial and significant time with the child. By implication, it was conceded the child’s best interests were advanced if she continued to reside primarily with the father. This stance was at odds with the gravamen of the submissions the mother’s solicitor made in relation to the weight which should be attached to the child’s views and the gravity of the risk to her if orders were made contrary to them. Because these closing remarks were made in the absence of the mother and were inconsistent with the evidence she gave, I am not satisfied I can infer this apparent concession about the child’s best interests demonstrated insight by her into the child’s needs.
Background facts
The mother’s partner, Mr M, was born in 1964.
In 1966 the mother was born.
The father was born in February 1970.
P, who is the mother’s son by a former partner, was born in 1991. Documents produced from Town 1 Medical Centre reveal his father returned to New Zealand a couple of months after he was born. He subsequently returned to Australia and, although the full extent of his relationship with his son is unclear, it appears he regularly spent time with P.
Following P’s birth the mother suffered post natal depression. Documents from Town 1 Medical Centre reveal this included suicidal ideation. Following her diagnosis of post natal depression, the mother took antidepressant medication for about two years. The mother’s medical and counselling records show that at 14 she had a “dizzy spell” and, while still a teenager, she commenced counselling at Unit P which continued for years. Unit P is the psychiatric unit at Hospital 1. The words “dizzy spell” are the mother’s terms for the first time she recalls an unusual mental health moment.
The mother’s partner, Mr M, injured his back in 1993. At that time, he was employed as a factory hand. He did not resume paid employment and is in receipt of a disability pension.
Although it is not entirely clear, it appears that in about 1995 the mother and P, who was then 4, moved away from her parents’ home. It is from this time the mother was primarily responsible for her sons care.
The parties began dating in about February 1997. The mother was friendly with the father’s sister through whom she became acquainted with the father’s family. At that time, the mother resided with P in a house she rented at Town 1. The father lived with his parents in their home at Town 1.
In September 1997, the parties began living together. They moved into a rented home at Town 2. P lived with them. When the parties commenced cohabitation the father worked in his family’s business in the construction industry. This is where he has worked since he completed high school. His father oversees all operations. The father is manager and his brother, Mr J, oversees part of the business. Throughout the parties’ cohabitation the father worked fulltime. It was not uncommon for him to work long days six days a week and on occasion to travel away for work.
Almost immediately the parties’ relationship was under pressure and prior to December 1997, when the mother informed the father she was pregnant, more than once he said they should separate. However, he stayed and upon the mother becoming pregnant he felt duty bound to marry.
Shortly before their wedding the mother told the father she had $20,000.00 in credit card debts. In lieu of the “dream” wedding which she planned, $20,000.00 of the father’s $22,000.00 saving went towards her debts.
The child was born in July 1998.
As well as continuing to work fulltime in his family’s business, after the child was born the father commenced significant renovations to a property owned by him at Town 3 (“Property 1”). It appears the parties and children moved into Property 1. However, the child developed eczema and, in order to remove her from that environment, the father leased a home at A Street, Town 3 which the family occupied pending completion of the renovations.
The combined effect of the father’s fulltime work and renovation work was that overwhelming responsibility for running the home and caring for the children fell to the mother.
Although the mother denied it, she developed post natal depression following the child’s birth. In September 1998 she and the child attended Family Care Centre 1. To her doctor she described being anxious and upset and was prescribed antidepressant medication.
In October 1999, while renovating Property 1 the father accidentally set the house alight and it was destroyed. The house was insured with HIH Insurance which failed before his claim was paid. He had contents insurance with another company from which he was paid $60,000.00. He later sold the Property 1 land for $120,000.00 nett. Police and fire authorities determined the fire was an accident. Nonetheless, the mother said in cross-examination she suspected the father deliberately destroyed the property. She gave no reason for her suspicion. This was but one of many examples of her animus towards the father and, notwithstanding her oath to tell the truth, her preparedness to dissemble for perceived forensic gain.
In about April 2000 the parties separated. The mother told the father to leave and not to return. Their relationship was very difficult and he moved into a residence owned by his family at Town 4. The mother and children stayed at A Street, Town 3. The parties agreed the child would spend every weekend with the father. Thereafter, he collected her on Saturday afternoons and returned her Sunday evenings.
Although they were separated, the father continued to maintain the mother’s home which included tasks such as mowing lawns, cleaning the gutters, housework and the like. She had no difficulty with him coming to and from her home even when she was absent. It would appear that for a time they contemplated reconciliation. The father was strongly motivated by his desire to ensure the child had as comfortable a lifestyle as was within his gift.
Following separation the father became depressed. He consulted his doctor who prescribed antidepressant medication which the father took for approximately 15 months.
In early 2001, the father was advised that the owners of A Street, Town 3 would not renew the lease. In order to ensure the mother and child had somewhere secure to live, he decided to purchase a home which they would occupy. The mother was happy with this arrangement. At that time, she told the father she was again in financial trouble and had borrowed $18,000.00 which she could not repay. From the insurance on Property 1 the father gave her $20,000.00 to clear her debt. He then purchased a three bedroom, two storey house with a swimming pool at Town 5 for $255,000.00. He put $120,000.00 towards the purchase and borrowed the balance.
In March 2001, the father and his brothers moved the mother and children into the Town 5 property.
In April 2001, the father’s doctor referred him to Ms D, who is a clinical psychologist, from who the father sought advice about how to improve his relationship with the mother. The mother was seeing a counsellor at an outreach centre. The father told Ms D the mother was very difficult to live with and that she was very controlling and pathologically jealous. He was concerned the children were suffering. Ms D proposed she see the mother and for the parties to participate in therapy. Ms D noted the antidepressant medication taken by the father had helped his depression.
The mother consulted Ms D for the first time in 2001. She has seen Ms D on and off since then with her last appointment being in mid 2009. It is Ms D’s opinion the mother “has low self esteem, body dysphoria, labile affect, is impulsive and she has a passive aggressive dependence on [the father]. She fits the diagnostic criteria for borderline personality disorder”. Dr R agrees the mother has a borderline personality disorder.
In January 2002, the mother consulted a plastic surgeon. In his report to her referring doctor, the plastic surgeon wrote:
I could not find anything wrong with her nose nor her eyelids, both of which she wanted changed. The more I talked to her the more I realised that this lady had an emotional problem that I couldn’t possibly fix. In the end I told her that she has emotional problems and she should see a psychiatrist, to which her response was “That I have been seeing one since the age of 14”. I am concerned about this lady because if she shops around she will get someone to do her nose but I think that will make matters even worse.
On Christmas Eve 2003, the father’s brother, Mr L was accidentally killed. The father was devastated by his brother’s death. He became depressed and on his doctor’s advice took antidepressant medication for three months.
On her own petition the mother was made bankrupt on 3 June 2004. She did not tell the father about this and he only learned of it during these proceedings.
From when the mother moved into the property at Town 5 the father paid all outgoings in respect of the property, specifically mortgage instalments council rates and charges and insurance. He personally maintained the property, cleaned the pool, mowed the lawn and did running repairs. He purchased chemicals for the swimming pool, paid telephone and electricity bills when disconnection was threatened, purchased and maintained the mother’s motor vehicles. The father did this to ensure the child had a secure home and would be transported in a roadworthy vehicle.
In late 2004, the mother began to agitate about the property at Town 5 and told the father she wanted him to sell and give her half the sale proceeds. Although he was reluctant, in late 2004 he gave into her demands and agreed to rent a home in his name for her and the children. Unbeknown to the father this later demand probably related to the mother’s bankruptcy.
The property at Town 5 sold in 2005 for $345,000.00. From the sale proceeds the father gave the mother $60,000.00. She misled him with her claim she was in debt and did not tell her trustee in bankruptcy about the $60,000.00 (which was after acquired property). The mother gave this evidence equipped with a certificate issued pursuant to s 128 of the Evidence Act 1995 (Cth). The idea the mother might require warning and a s 128 certificate was raised by counsel for ICL. Although one might have anticipated this issue would have been raised by the mother’s solicitor nothing was said by him. He subsequently informed the Court he was unfamiliar with the Bankruptcy Act 1966 and appeared to be unfamiliar with s 128. The intervention by counsel for the ICL on the mother’s behalf is but one example of the even-handed stance which was adopted by the ICL and his counsel throughout the hearing.
After contracts were exchanged for the sale of the property at Town 5, the mother found a house at Town 6. True to his word, the father rented this property and thereafter, he paid $326.00 per week rental and, on occasion, the mother’s telephone and electricity accounts. When she and the children moved into the property at Town 6 the parties agreed the child’s weekend time with the father would increase and thereafter he collected her on Friday evening between 6.30 pm and 7.00 pm and returned her on Sunday between 7.30 pm and 8.00 pm. Thus, as was the situation before the child moved to the property at Town 6, she spent every weekend with the father.
Although the mother denied she was depressed and suicidal in early 2006 and said it was the father’s idea the child lives with him for a period so as to give her the opportunity to improve her health, I prefer the father’s evidence that this was originally her idea. Counsel for the ICL submitted that where there was a conflict between the parties’ uncorroborated evidence the Court should prefer the father’s. The only qualification related to the father’s initial denial he smacked the child when she was little. I agree with the ICL’s analysis about how inconsistencies between the parties’ evidence should be evaluated.
In any event, Ms D’s notes of her consultation with the mother on 27 February 2006 record her informing Ms D “[P] is rude and angry all the time. [The mother] thinks of suicide. She had stopped taking antidepressant medication to lose weight and the situation was ‘all too hard’”. This is consistent with the conversation the father said he had with the mother. In any event, whether it was the father’s or mother’s idea does not really matter, the more significant matter is the parties agreed the child would, for a time, live with the father and his parents at Town 4. Although the nature of the property has not changed, the mother now claims its industrial nature makes the child unsafe. If the mother believed the father’s parenting capacity was compromised, he was violent or that the child’s needs were more adequately met in her care, she would not have allowed even this temporary change in the child’s living arrangements.
No later than 9 March 2006, the child began to live with the father. Before he withdrew her from Town 6 School, the father spoke with the child’s teacher. The teacher informed him the child’s school attendance had deteriorated and she usually arrived at school between 10.30 am and 11.00 am. Understandably, the teacher saw this as the reason for the child falling behind educationally.
The child started at Town 4 School on 9 March 2006. She quickly made friends in the area and happily and regularly attended school. The child had friends to play and visited Town 4 based friends.
While the child lived with the father, the father took her to see her mother each Wednesday. The arrangement was that he delivered the child to the mother’s home at about 6.30 pm and returned to collect her at about 8.30 pm. On Friday evenings he delivered the child at about 6.30 pm and she was collected on Sunday evening or Monday morning.
Documents produced by Town 4 School[2] raise serious questions about the mother’s capacity and willingness to have the child at school on time and in relation to her education generally. In relation to her attendance at Town 6 School in Kindergarten, the school records report “[the child] is frequently late for school. Many partial absences with at times what appear to be questionable excuses”. For Year 1, the school reported “[the child’s] punctuality and attendance has improved. They still occur but [the child] appears to be very keen to be at school”. When the child lived with the mother for about the first five weeks of Term 1 2006, the school records showed 4 partial and 14 full day absences.
[2] Exhibit “J”
In early 2006, DHS received Child at Risk Notifications about P. These mainly emanated from the mother and the Mental Health Team at Hospital 1. To them, the mother and P reported an incident, probably in early May 2006, during which the father pulled P’s hair and kicked him a number of times around the legs. There was an incorrect suggestion the parties recently separated. P reported to his counsellor that when the father was present there was verbal fighting between the parties. There was no reference by P to there being physical violence between the parties.
By 2006, P weighed about 130 kg. His time was spent on a computer where he maintained friendships with girls overseas. His school attendance was appalling and his weight resulted in him being bullied at school. P’s school avoidance, however, also related to his concerns for the mother. The DHS records:
[P] has been pawning his belongings to assist his mother financially. He is not attending school, because he stays at home to look after his mother. The mother is on antidepressants at the moment and talks of suicide when financial situation gets too hard or there are problems between her and [the father] … She has made these statements to [P] mainly, but [the child] has also been present. [P] … was previously suicidal. He is very concerned and worried about [the mother].
DHS assessed P “to be at risk of psychological harm due to the emotional pressure” the mother’s emotional or mental health placed on him. P’s counsellor referred him to a Mental Health Community Team. It would appear the counsellor conferred with the mother who reported “feeling depressed”. She denied thoughts of self harm. There was no reason for P to tell his counsellor the mother spoke to him and in the child’s presence about suicide. Despite her denial I am satisfied she did.
Notwithstanding her and P’s problems, in September 2006 the mother told the father “I have sorted myself out, I want [the child] back”. The father thought the mother seemed happier and her home better kept. He believed the child missed the mother and, on the basis he would have regular contact with her, he returned the child. With the benefit of hindsight, he says this was not the right decision. I agree.
The mother re-enrolled the child at Town 6 School. Immediately, her “very erratic pattern of attendance” resumed. In Term 3 she was partially absent 29 times and absent for a full day twice. In Term 4 she was partially absent 65 times and fully absent on four occasions. Given the length of school term, it would appear the mother failed to get the child to school on time almost every day.
After the child returned to reside with the mother the prior pattern whereby she spent her weekends with the father resumed. Arrangements during school holidays were flexible with the child spending the majority with the mother.
By the end of 2006, P stopped attending school. His mental health worker reported that when the mother attempted to take P’s computer “he got a knife to stab/kill himself so mother gave computer back. Mother is afraid of [P]”.
On 4 January 2007, P’s mental health worker notified DHS:
[P] has been violent and abusive towards mother and sister. [P’s] mother is scared of [P]. [P] pushes, kicks, swears at his sister, and tells her that he wishes she was dead. [P] spoke of suicidal thoughts however guaranteed his safety. Mother suffers depression and is finding things difficult.
P was referred to a psychiatrist. Although the mother denied it, I am satisfied P behaved in the manner referred to in the above notification.
In early January 2007, the mother contacted the father and told him the real estate agent wanted her out. An inspection of the property had been undertaken by the agent, who also contacted the father and complained about the condition of the property. The father agreed he would pay the rent on another place chosen by the mother.
The mother located a rental property at M Street, Town 7. Before the father signed the lease, he told her he could not keep this up indefinitely. Her response was to the effect that unless he continued to pay her rent, he would not see the child. Thereafter the father paid $280.00 to the real estate agent being $260.00 per week rent plus utilities.
From about the time the mother moved into M Street, Town 7 the father said it was increasingly evident she was not coping. He spoke with the child every night and continued to see her on weekends. One evening he received a telephone call from the child who was very upset. She said “Mummy isn’t home. There is nothing to eat. Please Daddy bring something around”. Immediately the father went to the mother’s home. He discovered the children were alone and there was no food. P told the father the mother had left because she “is very cranky and … she isn’t coming back”.
Unsuccessfully the father tried to contact the mother on her mobile telephone. He left a message that he was at the home and asked her to return his call. That and a subsequent message did not prompt a response. The father took the child to a supermarket and bought food for the evening meal and the next day. When the mother returned at about 3.00 am she explained “I was just having a really bad day. I have no money, I had a gut full of everything and I just had to go”. The father encouraged her to call him if she was not coping and said he would care for the children if she needed a break.
Over the following months the child’s telephone calls to the father about the mother’s absences and lack of food became more frequent. He responded to each call and observed the children were less upset each time they called and he responded. His point being, the children came to rely upon his willingness to help them when they called.
In late September 2007, the father purchased two computers by lease for the children.
In October 2007, having first provided the mother with 14 days notice, the real estate agent who managed M Street, Town 7 inspected the property. The agent deposed “[w]hen I went to walk into the front door of the home I smelt a terrible stench that I described as animal urine coming from the home”. The mother was provided with a warning and advised that animals were not to be kept in the home.
In November 2007, the mother pawned the children’s computers. She did not tell the father. Tearfully the child told him in late January 2008 “[m]ummy gave away the computers”. When the father raised this with the mother she told him they were stolen. He realised her answer was a lie, which she conceded and, then told him the name of the pawnbroker. The father contacted the pawnbroker who, on learning the computers were leased, said he would notify police and have the mother charged. To avoid this possibility the father paid out the pawnbroker.
The mother withdrew the child from Town 6 School on 20 February 2007 and the following day she commenced school at Town 7 School. The school records show the child was absent two full days in Term 1, five in Term 2, 13 in Term 3 and 27 in Term 4 2007.
In mid January 2008, Ms D reported to the mother’s doctor in relation to her consultation with the mother on 7 January 2008. In this consultation the mother discussed the state of the parties’ relationship. She told Ms D she raised the issue of divorce to “frighten [the father] back” to the marriage. Ms D reported “… to [the mother’s] chagrin [the father] has told her he wants a divorce. [The mother] is unable to adjust to the finality of the separation. She is depressed and very anxious for her future”. Ms D recommended “cognitive behaviour therapy, dialectic cognitive therapy and supportive therapy for the mother” which she said would commence with their next session. Unfortunately the mother did not maintain contact with Ms D and it was not until June 2009 she saw her again. The mother has not consulted her since.
In early February 2008, the mother received notice the real estate agent intended to inspect her home on 27 February 2008.
On 11 February 2008, the father filed an Application for Divorce.
The mother refused permission for the inspection to take place on 27 February 2008 which subsequently occurred on 4 March 2008. I accept the real estate agent’s evidence that “the second and third bedrooms which appear to be the children’s bedrooms smelt strongly of urine and animals”. The mother was given a Termination Notice which required her to vacate the home. A few days later she refused permission for the owner’s agent to carry out necessary repairs. In the face of the mother’s refusal to vacate, the owner commenced eviction proceedings.
In cross-examination, the mother suggested her eviction was orchestrated by the father and postulated he may not have been up to date with her rent. The agent was not cross-examined and I accept her evidence. This includes that the rent was up to date and the eviction related to actions by the mother. This was another example of the mother’s refusal to accept responsibility for the ills which have befallen her and, to the greatest extent possible, to shift blame for her and the children’s misfortunes to the father.
The mother informed the father of the proposed eviction and, after he contacted the real estate agent, he received a Notice of Termination. For some time it had been his habit to wait curb side for the child when he collected or returned her. Until he spoke with the real estate agent he had been unaware of the extent of the problems in relation to the mother’s tenancy. In any event, the mother told the father he had to find her somewhere else to live.
These events prompted the father to visit the mother’s home to establish what was happening. He arrived mid afternoon. P and the child were present. The child had not attended school and was in her pyjamas. There is no suggestion she was unwell and I am satisfied she was not. The father’s evidence “[t]he home was a putrid mess and he observed animal faeces on the carpet and there were dirty dishes and rubbish and dirty clothes strewn around the home” is accepted. This is corroborated by photographs he took[3]. The mother said the father’s evidence was exaggerated and the brown horseshoe shaped matter on the floor was dirt and not animal faeces. I do not accept her evidence. The photographs show the father’s evidence was not exaggerated. Sadly, it is necessary to record they depict unhygienic squalor.
[3] Exhibit “F”
When P saw the father taking photographs, he contacted the mother on her mobile telephone. The father asked P to join him and the child at a location, which P declined. They left and when they returned the mother was present. She said to the father “[g]ive me back those fucking pictures or you will never see your daughter again, you filthy asshole bastard”. He said “[c]alm down in front of [the child]”. She said “[g]et out, get the fuck out of here”. He said “[y]ou’re not coping again, I am not going to let you do this to [the child]”.
The father left the child with the mother and contacted her school. The school informed him the child had been absent 19 days that year. It will be recalled this was mid March 2008 and thus, of about 6-7 weeks of term, the child missed four weeks.
The father contacted the mother again and tried to talk to her about the situation. In response to his remarks about [the child] not going to school she said “[w]ell, I can’t fucking control them. I don’t have a car. It’s been pawned. I’m getting chucked out. What the fuck do you want me to do about the school? You can take her to school, if you want her to go”. The father said “I want you to let [the child] come and stay with me, I’ll put her in the [Town 4] School again”. The mother said “[y]ou can go and get fucked”.
On 14 March 2008, the father filed an Application Initiating Proceedings in the Local Court at Town 8. He sought final and interim parenting orders for the child to live with him. Shortly after the mother was served she called the father and said “[y]ou fucking bastard! I’ll call you a drug addict if you don’t drop this”. The father replied “[d]o what you want. You know I have never touched drugs”. The father has never used drugs. The mother’s remarks were probably a desperate albeit dishonest, attempt to frighten him into giving up his application.
On 18 April 2008, interim parenting orders were made at Town 8 Local Court. These provided that the child lives with the father, attend Town 4 School and spend time with the mother each alternate weekend from 9.00 am to 7.00 pm Saturday and Sunday. It was ordered the child be immediately placed with the father. The proceedings were transferred to this court. During this hearing there was confusion about whether these orders were made by consent. So that it is clear, they were not. Nonetheless, had the mother been able to consider the situation from the child’s perspective, there is little reason to doubt the child needed to be with the father.
The child joined the father and his parents in their home at Town 4. She was re-enrolled at Town 4 School for the commencement of Term 2 2008. Her school attendance immediately improved. For the remainder of that year, she was absent three days in Term 2, two days in Term 3 with a partial absence on three occasions, did not miss any full days in Term 4 with one partial absence. While the child lived with the father her attendance has been good and (subject to those occasions when she has been with the mother) she is at school on time, with either him or his mother delivering and collecting her. The school principal reported “[t]he fact that [the child] has had very few absences since she began attending [Town 4] School has assisted her to work consistently and her achievement of outcomes has improved considerably”.
After the mother was evicted from M Street Town 7, she and P moved to a rented property at Town 9. For the first time since separation the father did not agree to pay her rent. Within a few months the mother found herself in difficulty as a consequence of which they moved to her parents’ home at Town 1.
On 21 April 2008, the mother contacted police to whom she wrongly claimed the father had been to her home and broken into her back yard. Police appropriately declined to take further action.
On 22 April 2008, the parties were divorced.
A Children’s & Parents Assessment was prepared in June 2008. When the family consultant interviewed the child, she was 9. To him, she presented as quiet and somewhat anxious. She made plain her desire to live with the mother who she said “has to get better”. When asked what she meant by this, the child said “mum needs help not to get cranky”. She had no understanding about why orders had been made for her to live with the father. In relation to the father, the child complained about the amount of time he spent working and not with her. She raised numerous safety concerns about the industrial setting of the father’s home, as well as snakes, even though she had never seen one. She claimed to dislike her new school where she said she was bullied. It later became clear the child did not understand the word “bullying” and was not bullied at Town 4 School.
The child also spoke about family violence which she said the father inflicted upon her, P and the mother. The mother’s reports about the father’s parenting capacity and violence were the same as the child’s. She told the family consultant “[t]he children had regularly witnessed the father verbally and physically assaulting her”. When the family consultant suggested the mother seek assistance in relation to “the chronic severe domestic violence” she accused him of calling her a bad mother. To him, the mother appeared anxious, very upset, angry and psychologically troubled.
The father was described as polite and friendly. He reported the child’s negative remarks about him reflected the mother’s influence. When pressed he said the child was probably also motivated by her desire to return to the mother, where there was no discipline and in one sense, life was easier. The family consultant considered the father demonstrated “a very limited ability to understand [the child’s] emotional needs”. In particular, his insistence the child have the telephone on loud speaker when speaking with the mother, his wandering into the bathroom when she was in the shower or using the toilet and in his refusal “to allow [the child] to spend even one night each fortnight overnight with the mother despite the fact that [the child] has spent 99% of her entire life with the mother and [the child] is clearly desperately missing her mother at this time”.
Following feedback from the family consultant, the parties agreed the child would spend time overnight with the mother as soon as possible. This was conditional upon the mother providing written assurances which addressed the father’s concerns.
It is appropriate here to observe subsequent events have shown the father’s concerns to be strongly based in fact. Almost certainly it would have been preferable to persevere with the operative orders so that the child had a proper opportunity to adjust to her changed living circumstances. One of the consequences of increasing the child’s time with the mother has been the child has been placed under intense pressure to align with the mother and view the father and his family in an inappropriately negative light.
In any event, the family consultant recommended:
·…that the mother seek appropriate professional counselling support to assist her following the domestic violence she reports experiencing and to assist her to manage her two children and her work / home balance.
·…that both parents complete a parenting after separation type program to assist them to improve their co-parenting relationship.
·…that the father complete a program to help him understand his own emotional response including his past use of physical force to manage the behaviour of children.
·…that [the child] spend significantly more time with her mother, including, time overnight, than she currently does, and that this occurs as soon as possible.
The child spent the weekend of 2-3 August 2008 with the mother. She was due to be returned to the father at Town 8 at 7.00 pm. Early that afternoon the mother sent him a text message in which she requested he collect the child from her home. The father declined and asked her to adhere to the orders and arrangements. For the following 3½ hours the mother sent him text messages demanding he collect the child from her home. The father made plain that he would not.
Accompanied by his father, the father arrived at the changeover place just before 7.00 pm. Shortly afterwards the mother, P and the child arrived. Habitually, at changeover the child moved alone from one parties’ car to the other. However, on this occasion, the mother shepherded the child to the far side of her car where she, P and the child stood with their backs to the father. The father and paternal grandfather waited by the father’s car. Eventually the child turned around, pointed to the mother and then beckoned the father to come over. The father suspected the mother would scream at him and cause a scene in front of the child. When she beckoned he shook his head to indicate he would not go to her. He then received a text message from her which said “[w]ell come and get [the child] then”. The winter night standoff continued. Because he did not know how to resolve the situation, the father telephoned local police who declined to become involved.
At 7.49 pm the father sent the mother a text message in which he said, inter alia, “[y]ou only have to send [the child] over. It is as simple as that”. He asked her to stop playing games and suggested she “start acting like a responsible parent”. The mother refused to send the child over, as a result of which the father telephoned his solicitor. Twice the father’s solicitor telephoned the mother, with the effect she agreed the child would come to the car. The father could see the mother smiling and pointing at the now upset child. The mother and P accompanied her to the father’s car. When the child arrived the father said “[a]re you ready to come home sweetheart?” The child responded “I need to stay with mummy”. The mother said “[i]t’s not enough time”. The father said “[i]t’s going to be okay sweetie, let’s go and see nanny, it’s getting late and you need to go to bed so you can go to school tomorrow”.
The mother hugged the child and whispered in her ear whereupon the child burst into tears. Nicely, the father encouraged the child to get into the car. The father held his mobile telephone with the line open so that his solicitor could listen to what was unfolding. When the mother realised what was happening she grabbed the father and tried to take the telephone. He said “[j]ust go [the mother], go away and stop this”. She replied “[y]ou had no right to take her away from me you fucking bastard. I’ll bring you down if it’s the last thing I do”. The child was now extremely distressed. She said “[s]top, please just stop”. Gently the paternal grandfather spoke to the child. When the mother heard the father’s solicitor she said “[t]ell your fucking little solicitor to mind his own business”. P pulled the mother away. She pushed P and told him to “[s]hut up”. The paternal grandfather said “[the mother] please just go, stop this, everybody is upset, please just go”. The mother said “[s]hut up you big pig”. By this stage the child was hysterical and repeating “stop, please just stop”. In a demonstration of vulgarity, the mother made a one finger sign at the paternal grandfather. In this instance the mother demonstrated her capacity for foul language as well as vulgarity. The father did not behave in the same poor fashion.
The father managed to get the child into the car. Before they could leave, the mother pushed into the back seat, held and spoke to the child. The child became even more upset and cried uncontrollably. The mother screamed at the father “I fucking hate you, look at what you are doing”. She then alighted from the car, grabbed him by the jacket and, holding herself only inches from his face said “[i]f you stop me from seeing my daughter I will fucking kill you”. P said “[y]ou only took [the child] so you would not have to pay maintenance or the rent any more for us you scumbag, you don’t care about [the child]”. The mother then slammed the car door shut. As the father began to reverse P punched the back window and kicked the car.
As they drove home, the father and paternal grandfather calmed the child. She said to the father “[y]ou don’t understand. Mummy is sick, she will die without me”. The father reassured her and told her the mother would be fine. Over and over the child said “I’m sorry, I’m sorry”. The father and paternal grandfather assured her she had done nothing wrong. When the father pulled over and sat with her, she squeezed his hand and told him she loved him.
In response to the issues raised by the family consultant, the father obtained a referral for him and the child to attend Counselling Service 1 where they commenced counselling on 12 August 2008. Dr R commented favourably upon the father doing so. I agree this is an example of competent parenting.
The parenting proceedings were listed for further hearing on 19 August 2008. That day, the following orders were made by consent:
1.That the child of the relationship namely …. live with the Applicant Father.
2.That the said child spend time with the Respondent Mother at the following times:
a)Each alternate weekend from Friday 5 pm until Sunday at 7 pm.
b)Each Wednesday afternoon with the Respondent Mother to collect the said child from [Town 4] School after the said child finishes school with the mother to return the said child to the carpark of the McDonalds Restaurant [Town 1] at 7.30 pm.
3.That despite the provision of any other order the Applicant Father shall spend the second half of the mid year gazetted school holidays with the said child from Sunday 5 pm and then the following week and weekend, and the Respondent Mother shall spend time with the said child for the first week of each mid year gazetted school holidays with the Respondent Mother to collect the said child on the Saturday after the last day of school at 9 am and return the said child to the Father the following Sunday at 5 pm.
4.That despite the provision of any other order each party shall spend alternating block weeks of time with the said child during the gazetted Christmas school holidays with the Mother to have the first week from Saturday 9 am to the following Sunday at 5 pm and each alternate week thereafter and the Applicant Father spend time with the said child in the alternate weeks.
5.That despite the provision of any other order the Respondent Mother spend time with the said child from 3 pm Christmas Eve until 3 pm Christmas Day and the Applicant Father spend time with the said child from 3.00 pm Christmas Day until 5 pm Boxing Day.
6.That the party not spending time with the said child on either of the said child’s or that parties’ birthday shall spend 3 hours time with the said child as agreed and failing agreement from 5 pm until 8 pm.
7.That despite the provision of any other order the Respondent Mother shall spend Mothers Day from 9 am to 7.00 pm with the said child and the Applicant Father shall spend time with the said child on Father’s Day from 9 am to 7 pm.
8.That the parties within 14 days from the date of these orders do all acts and things and sign all documents necessary to enrol and then attend the “[Program relating to contact arrangements]” run by [Counselling Service 2].
9.That for the purposes of facilitating the handover of the said child at the commencement and conclusion of time that the parties spend with the said child otherwise as provided for in these orders such handover shall take place in the carpark of the [Town 8] McDonalds Family Restaurant with the Respondent Mother to deliver or collect the said child to or from the pedestrian crossing immediately out the front of the restaurant with the Respondent Mother to wait in the verandah area of the restaurant and the Applicant Father to collect or return the said child from the pedestrian crossing on the side of the crossing closest to the Pacific Highway.
10.That the Applicant Father and Respondent Mother be prevented by injunction from denigrating the other party in front of or within hearing of the said child or allowing any other party to denigrate the other in front of or within hearing of the said child.
…
Thus, the mother’s time with the child increased in accordance with the recommendation made by the family consultant.
The child’s time with the mother was again increased following further orders made by consent on 29 October 2008. Alternate weekends were extended until Monday morning when the mother was to return the child to school as were Wednesdays. Thus, from this time, during school term the orders provided the child spend five nights in 14 with the mother.
In early December 2008, the mother and Mr M met on the internet. He separated from his wife two months earlier. Mr M’s wife was unhappy with him and on 13 December 2008 she attempted to run him and the mother off the road. The child was not in the car. This incident attracted more notoriety in the hearing than was warranted. Fortunately, no-one was harmed and Mr M’s wife has not continued to harass him or the mother. I do not consider this incident relevant to whether the child should live or spend significant time with the mother.
In late 2008, the mother contacted the Fire Arms Registry to ascertain whether the father’s guns were registered. This was the first of a number of calls she made to agencies, including police, about “safety” issues at the father’s property. She misled police when she accused the father of having unlicensed guns. She contacted Workcover and persuaded them to inspect the “unsafe” property.
During December 2008 the mother introduced the child to Mr M. The child spent time with her at his bedsit at Sydney Suburb 1. Although they had known each other only a few weeks by early 2009 the mother and Mr M were engaged.
In January 2009, the mother’s parents evicted her. According to the mother, in error Centrelink wrote to Mr M at her parents’ address. The mother said that her father was unhappy about this and told her to leave. If the mother’s explanation is correct her father’s response was a serious overreaction to something done by a third party. The mother did not call evidence from her parents. I consider it unlikely their evidence would have assisted her case. It is more likely there is a less benign reason the mother’s parents evicted her. While the letter may have been the catalyst, if the mother and her parents enjoyed affectionate and mature relationships, something as inconsequential as the letter would have been resolved without her eviction.
The mother faced a number of decisions. Critically, these included whether to remain on the Central Coast and close to the child and whether P would leave with her. P wanted to stay with his grandparents and thus the mother left him and moved to Town 10, where Mr M now lived. Town 10 borders the Southern Highlands south of Sydney. Mr M’s premises were insufficient to comfortably accommodate the child or P. According to the mother she took the only option and any suggestion she placed her needs ahead of her children’s is misplaced. At that time the mother was reliant upon Centrelink benefits. Her problematic history as a tenant and bankrupt status would have been impediments to her obtaining rental accommodation in her name. Thus, although the mother did not try to find somewhere to rent on the Central Coast, I am not critical of her for moving to Town 10. That she and her children found themselves in this situation, however, is of her making and a reflection of her inability to make adequate arrangements for her children. Because of the distances involved it was impossible for the child to stay overnight prior to school or travel that far during the school week. At the father’s instigation the arrangements were varied so that the child returned to him on Sunday evenings.
The child repeated Year 3 in 2008. By arrangement with the school she undertook an accelerated learning program so that she was able to enter Year 5 in 2009. For the child to have caught up educationally within 12 months demonstrates her poor academic performance whilst she lived with the mother almost certainly related to the mother’s failure to ensure her regular attendance at school and lack of interest in her education. There are no such difficulties for the child in the father’s care.
The proceedings came before me on 31 March 2009. An order appointing an Independent Children’s Lawyer (“ICL”) was made. The issues for trial were agreed as the following:
a)Child’s views concerning the living arrangements.
b)Whether in the father’s care there is a risk she will be exposed to family violence.
c)The effect on the child of long term separation from the mother who it is agreed was her primary carer.
d)The mother’s capacity to provide for the child’s educational needs.
e)The parties’ respective capacities to provide for the child’s emotional and psychological needs.
f)Whether the mother is able to provide the child with stable and appropriate accommodation.
g)The nature of the child’s relationship with her parents, half siblings, and the mother’s fiancé.
h)The nature of the parents’ relationship.
At the mother’s behest, the father gave an undertaking not to approach premises at which she resides. It was also noted the Court recommended she obtain a referral from her general practitioner to the Better Outcomes Program and/or attends counselling.
In May 2009, the mother applied to the Department of Housing for accommodation.
On 4 June 2009, the mother re-established contact with Ms D. I infer this was partly in response to the Court’s recommendation made on 31 March 2009. Unfortunately, although Ms D recommended the mother continue seeing her, the mother did not.
Dr R was appointed the single expert on 11 June 2009.
Mr M was allocated Department of Housing accommodation at Town 11 in August 2009. Although he had lived in Sydney his entire life he accepted the offer so that the child could spend time with the mother. The mother and Mr M moved to Town 11 during August 2009. After they moved, the child’s time with the mother reverted to five nights in 14 during school term.
The therapist at Counselling Service 1 completed his final session with the child on 5 September 2009. It was his assessment she was generally doing well socially and at school. It was noted the father had arranged tutoring and, although the therapist noted she wanted to live with the mother “all evidence says she appears to be functioning very well where she is at”. The therapist did not schedule further appointments for the child. I infer he was satisfied with the child’s general functioning and the care provided by the father.
During mid/late October 2009, Dr R conducted the interviews for her report.
Dr R’s first report is dated 14 December 2009. It was provided to the parties about one week later. Dr R recommended that:
·the child reside with the father; and
·spend time with the mother – week 1 overnight Thursday and week 2 from Friday after school until Monday morning and half the school holidays
In relation to the mother, Dr R agreed with Ms D the mother has a borderline personality disorder. Dr R expressed the opinion that a borderline personality disorder can adversely affect a person’s parenting capacity “particularly if long-term therapy has not been undertaken to assist the person develop emotional regulation and a more mature style of cognitive interpretation of events”. She correctly pointed out the mother had not undertaken therapy of this type and said she “demonstrated no insight into her need to work on her psychological functioning”.
Dr R assessed the mother’s relationship with Mr M to be supportive and amicable which could stay that way for so long as they were in agreement. It was Dr R’s opinion the mother lacked the personal and social resources to be “the preferred residential parent”. In relation to the mother’s time with the child, she said it was important for the mother “to protect [the child] from her emotional distress and not question her about the [father’s] household”.
In relation to the father, Dr R concluded he had no current psychiatric disorder. His past history of depression had been precipitated by significant losses and it was evident he is particularly vulnerable to separation and loss. She did not assess him as particularly aggressive and did not consider him to have been abusive in an ongoing way towards the mother and children. It was her opinion any inappropriateness in his discipline of the children appeared to arise from his lack of parenting experience which he has subsequently addressed. As was mentioned earlier, the father’s attendance with the child at Counselling Service 1 moderated concerns about his ability to understand the child’s emotional needs. She thought aspects of his play with the child indicated he needed further guidance “in terms of age appropriate play and boundaries”. It was her assessment that with his family’s support the father was able to facilitate “all domains of her development”.
Dr R described the child “as being caught up in the conflict between the parents and in the mother’s distress. She appeared to be an emotionally unsophisticated 11 year old, able to cheerfully play when with her father but more withdrawn and anxious when with her mother”. To Dr R, the child indicated unreservedly her wish to reside with the mother. Nonetheless, Dr R concluded “[the child’s] need for security (home, school, routine, available adults) and parents who are in reasonably good mental health outweighs her wishes for residency with her mother”.
The father’s birthday is … February. Provision was made in the 19 August 2008 consent orders for the child to spend time with him on his birthday for three hours as agreed and failing agreement from 5.00 pm until 8.00 pm. In 2010 the father’s birthday fell on a Thursday which is a day the child usually spent with the mother. A couple of days before his birthday the father proposed the parties swap time on Thursday so that the child spend overnight Wednesday with the mother and the father’s birthday with him. He was not obliged to offer make up time and his actions are consistent with his generosity towards the mother and child. The mother refused. Naively the father went to the child’s school on his birthday, apparently hopeful the mother had reconsidered her refusal. Such was her disregard for the orders and the child’s relationship with the father that the mother withdrew the child from school early. I infer she did this to deny the child and father the pleasure of sharing his birthday.
On 1 July 2010 the child’s school principal sent the father an absentee notice in relation to the child’s unexplained absence from school on 25 June 2010. The child had been in the mother’s care and no explanation was provided by her to the father or the school for the child’s absence.
The mother completed a one session post-separation parenting course named “[…]” on 3 August 2010. This was the third parenting program undertaken by her. The two prior programs were undertaken in mid 2008[4]. Unfortunately the mother’s actions after she completed these programs indicate they were of little benefit. It is not my intention to be critical of the programs, rather to indicate the mother lacked the will to heed the messages conveyed.
[4] Exhibit “H”
The proceedings were not reached in September 2010 and adjourned for final hearing for three days commencing 28 February 2011.
On a weekend in early November 2010, the child and mother visited Ms Y and her daughter, S. Ms Y lives across the road from the mother at Town 11. The child and S are friends. Ms Y has known the child for about 12 months. While the mother, S and the child were in S’s bedroom, Ms Y heard the child tell S (in the mother’s presence) she planned to run away from the father. Ms Y intervened and explained to the child the inherent dangers involved in running away. She told her if she ever ran away she could come to her where she would be safe. Nothing was said by the mother to dissuade the child or to point out the inherent dangers. The mother later told Ms Y she believed the child would run away. The mother did not tell the father about the child’s remarks or her belief.
On the weekend of 19 November 2010 the child was with the mother. On the following Monday afternoon the father met her at the school bus and they walked home. He noticed the child was not as happy as was usual and, after his attempts to persuade her to join him in an activity failed, she went to her room. At about 5.20 pm a family friend arrived at which time the father discovered the child was gone. He, his family and friends searched for her on adjacent properties and streets and telephoned neighbours. By about 6.00 pm it was clear she was missing. The father contacted police who, after he was questioned, said they would telephone the mother. About 15 minutes later police informed him the mother’s mobile telephone did not answer and a message had been left for her to call them. On any version of the mother’s evidence she knew by then the child had run away. Her failure to answer her telephone is troubling. In my view it would have been reasonable for the mother to anticipate that at the father’s behest, people including police, would be searching for the child and may attempt to contact her. In any event, at 6.53 pm the father received a text message from the mother which said:
Is [the child] with you. She rang me distraught. Needed to see me urgently and to meet her but when i got there she wasn’t there i went looking for her but i cant find her. Where is she.
The mother did not inform the father or police she knew the child was on her way to Ms Y. After the father received the mother’s message, he telephoned her. In this conversation the father said “[the mother]? Where’s [the child]?” The mother said “I want to know where she is too”. The father said “[y]ou don’t seem very upset for someone whose child has gone missing”. The mother said “[w]ell you don’t seem upset”. She then hung up. Twice the father called her back however she did not take his calls. The father then sent a text message which said “[w]here are you? I’m coming to meet with you to work out a search plan”.
At 7.23 pm the father received a text message from the mother which said “[s]he is here”. He informed the police. The mother then called him and said “[the child] is at her friend [B’s] house”. The father said “[w]ho is [B] and where does she live?” The mother said “I’m not telling you” then hung up. The mother knew the child was not at B’s and had probably arrived at Ms Y’s. Precisely when Ms Y told the mother the child was with her is unclear. Ms Y’s evidence was given in such an excitable manner at times it was hard to follow. In relation to this event, the mother’s evidence was inconsistent, as well as inconsistent with correspondence sent by her former solicitor. Although I am satisfied the mother knew about the situation before police arrived, I am uncertain whether she knew the child had arrived before Ms Y telephoned the father.
Ms Youseff telephoned the father at 7.32 pm. The details of their conversation are set out at paragraph 21 of his affidavit sworn 24 January 2011. In essence, she told him the child was safe with her and would live with her. She declined to give her details and asked him to make the child’s belongings available. Ms Y was unmoved by his protestations she was not entitled to keep the child. There is no doubt Ms Y was in a difficult position. However, she must have known she lacked any legal authority to announce the child would live with her. In short, the situation required a considerably more mature response from Ms Y.
Again the father contacted police. I infer that from Ms Y’s telephone number they were able to locate her. Police attended her home and satisfied themselves that the child was safe and did not want to return to the father.
Ms Y kept the child for five days. During this period, the child did not attend school. The mother and Ms Y contemplated she attend Town 12 School for the remainder of the year. According to the mother and Ms Y, the child did not visit the mother’s home, with all contact between them taking place at Ms Y’s home. They agree the mother spent time with the child every day. Mr M denied the mother spent time with the child during this period. As the mother spent significant amounts of time with the child and Mr M spends the majority of his time at home I do not believe he was unaware the mother and child saw each other every day. Regrettably, it is my view that in relation to this matter Mr M attempted to mislead the Court.
While the child was with Ms Y the father waited at her school each day in the hope she would be returned. He kept in contact with police and, when they were unable to assist him, he sought legal advice. After his lawyer’s intervention, on 26 November 2010, police collected the child from Ms Y. The mother, Ms Y and Mr M anticipated this might occur yet did nothing to resolve the situation without the risk of causing the child to be involved in a potentially distressing incident.
The most reliable account of the child’s return to the father on 26 November 2010 is contained in NSW Police records[5]. These reveal police arrived at Ms Y’s home at about 8.00 pm. When police told Ms Y that the child needed to return to the father, she became verbally abusive. In front of the child, she told them the child said if she was sent back to the father’s she would self-harm. The police then interviewed the child, who was very upset. She denied saying she would self-harm if returned to the father. In response to questions about why she did not want to return to the father the child said “I’m scared of dad, because he might hit me”. Police questioned her further and the child told them that about five years previously the father hit her and left his hand mark on her leg. She told police he had not touched her since. She told them she had seen two long brown guns in the father’s clothes cupboard. When police asked her whether she thought her father might use his guns to harm her, the child said “no”.
[5] Exhibit “Q”
While police talked with the child, Ms Y telephoned the mother and told her police were there to take the child. The mother arrived immediately and demanded of police “[w]hat’s going on here? Do you have a recovery order?” Nothing constructive was done by the mother to assist police calm the child or return her to the father. Police took control of the situation and guided the child to their car. Once they arrived at the father’s home, police checked his house for firearms. According to the police records “checks were conducted in [the father’s] clothes wardrobe but no firearms were located. The police then checked on the storage facility for the other firearms owned by [the father]. The firearms were located in a very large storage container. The police were satisfied that all firearms were secured properly”.
Before the child went to the father, the police spoke to her again and asked if there was anything she wanted to say. In effect, they gave her another opportunity to raise anything about being returned to the father that worried her. The child responded “no, there’s nothing”. A police officer gave the child his card. The child said to the father “could you please carry me Dad?” He replied “how about a piggy back?” She said “no Dad, I want you to carry me in your arms, just like when I was a baby” which he did. When the child returned to the father, her hair was covered in head lice; she had a rash on her face and insect bites on her arms and legs.
The father is suspicious about the mother’s involvement in the child running away. Her evidence is unlikely to allay his disquiet. Although the mother denied participating in a conversation with the child about the child possibly running away beforehand, I prefer Ms Y’s evidence to the contrary. It appears the child took an old bike and rode towards Town 13 shops. In her affidavit, the mother said at about 5.30 pm the child called her at home and said “[m]um, it’s me, can you please meet me somewhere? I need to talk to you”. The mother said “where are you?” The child said “I just left Dad’s, I’m on my bike and I’m really scared”. According to her affidavit, the mother drove towards Town 13 shopping centre and the father’s home. Unable to locate the child she drove to Town 8 Railway Station then returned home.
In her oral testimony, the mother said that the child telephoned her between 4.30 pm and 5.00 pm and that the child said she was on her bike and asked to meet her at Town 13 shops. The mother said something like “[i]f I come and meet you there I will have to take you back to your Dad’s”. According to her nothing more was said and the mother headed to Town 13 when after she was unable to locate the child, she drove to the places referred to in her affidavit.
It is 6-7 km from the father’s home to Town 8 Railway Station which is the closest railway station. Town 12 Railway Station is the closest station to the mother’s, B’s and Ms Y’s homes. Trains take about 21 minutes from Town 8 to Town 12. It is about 2 km from Town 12 Railway Station to B’s and about 15 minutes walk from B’s to Ms Y’s. Ms Y saw the child’s train ticket from Town 8 to Town 12. A train timetable was admitted[6] which showed eight trains depart Town 8 for Town 12 between 5.25 pm and 6.34 pm, with the last arriving at Town 12 at 6.52 pm. It will be recalled the child had not been seen from at least 4.30 pm and she departed before the father realised she was gone. Because the child’s bike was at home, he assumed she was on foot and unlikely to have travelled any distance. The distance is too great for her to have made it to Town 8 Railway Station on foot in time to catch a train which would have her arrive at Ms Y’s when she did. If, however, the child rode another bike she could have arrived at Town 8 Railway Station in time at least for the 6.09 pm train to Town 12. This gave her enough time to walk to B’s, then to Ms Y and in time for Ms Y to inform the father at 7.28 pm the child was with her. On balance, I am satisfied it was possible for the child to make it to Ms Y’s home without the mother having taken her even part of the way. However, even on this scenario the mother’s actions warrant adverse comment.
[6] Exhibit “C”
When the child contacted the mother she said she was scared and wanted her mother to meet her. Nothing was said by the mother to dissuade the child from continuing her attempt to run away. Nothing was said by the mother to allay the child’s fears or devise a plan which at least initially addressed the child’s concerns whilst keeping her safe. Instead, the mother exacerbated the situation by telling the child if she came to the mother she would have to return to the father. While this was correct, if the mother wished to diffuse rather than exacerbate the situation, she should have met the child at Town 13. Even if the mother nominated a different place, she should first have ensured the child’s safety and, then addressed what might follow. It was incumbent upon the mother to tell the father what was happening. Because he is closer to Town 13 than the mother, had he known where the child was he could have quickly addressed safety issues.
In any event, the mother’s actions diverted the child from Town 13 and resulted in her travelling unaccompanied, in the early evening, in the manner described. Although the mother knew the child had her mobile telephone with her, she did not make any attempt to stay in contact. Although the mother said she did not think about calling the child, I have real reservations about her evidence. The mother’s failure to remain in contact suggests either the mother had greater knowledge beforehand about the incident and met the child or, notwithstanding the obvious risks to the child, she was willing to have the child so exposed in the hope this would force the father to agree the child could live with her. Both alternatives cast serious doubts over the mother’s parenting capacity, particularly in relation to the extent to which she prioritises her needs over the child’s, as well as serious lack of judgment in relation to keeping the child safe. The mother’s lack of judgment in relation to this incident continued until police returned the child to the father.
Apart from instructing her solicitor to ask the father to agree that the child, pending further order, could live with her, nothing constructive was done by the mother to resolve the situation. Rather, she co-operated with Ms Y and the child in keeping the child away from school and the father. No attempt was made to allay the child’s concerns about being returned to the father or to arrange for the father to talk the child’s issues through with her. Rather, he was given misinformation about the child’s location and it was made as hard as the mother could make it, for him to retrieve the child. Consistent with her actions on 26 November 2010, I am satisfied the mother was content for the situation to continue until the father felt he had no choice other than to concede interim orders in her favour or to put him, the child and police through the inevitable distress of forcing compliance with orders that the child live with him. The mother and Ms Y’s actions during the period the child was with Ms Y warrant serious criticism. Although less troubling, Mr M’s failure to even attempt to resolve the situation raises issues in relation to his judgment about the child’s needs. It also shows him to be a passive participant in relation to the mother’s actions, even when these are contrary to orders.
I accept the solicitor for the mother’s contention that the evidence establishes the mother had post natal depression following her son’s birth and the father had two depressive episodes in the circumstances suggested. I do not accept that the solicitor’s cross-examination was curtailed. Dr R was available for three hours and, before her cross-examination commenced, a reasonably equitable sharing of her time was agreed. In the event, because Dr R’s evidence seemed unlikely to assist the mother’s case it was agreed her solicitor would cross-examine last. More time was given than was allocated to the father or ICL. The point being, that before the mother’s solicitor commenced cross-examination of Dr R, he knew how much time he had available. It was something of a surprise that time was taken questioning a psychiatrist in relation to her lack of qualifications as a psychologist etc and having her repeat evidence. In other words, I am satisfied the mother’s solicitor had sufficient time to challenge the basis upon which Dr R diagnosed the mother as having a borderline personality disorder yet did not.
Thus, there is strong and credible evidence the mother has a borderline personality disorder in relation to which the mother lacks insight and which seriously undermines her parenting capacity. Dr R explained that a person who lacks insight presents particular challenges to their therapist in the sense that a lot of time and effort is required to achieve improved functioning. For therapy to achieve successful outcomes ideally the patient wants assistance, including with how to learn healthy ways of thinking differently.
The mother has had more than 12 months to reflect upon Dr R’s opinion. She has not, however, accepted Dr R’s or Ms D’s opinions and, unfortunately, remains effectively insightless about this matter. I am not confident the mother will, if left to her own devices, embark upon a therapeutic relationship with a psychologist or allied health professional designed to assist her to think and behave differently, particularly in relation to the father and child. Even these proceedings have been insufficient motivation. Without insight and effective and enduring therapy, it is extremely likely the mother will not achieve adequate “emotional regulation and a more mature style of cognitive interpretation of events” or improved “psychological functioning”. However, the mother is motivated to resume her relationship with the child and there is some prospect if, in order to achieve increased contact with her, the mother was required to constructively engage in regular therapy some improvement in her functioning is possible. Even so, the pace and magnitude of any improvement is unlikely to be sufficiently rapid for the mother to assume primary care or have substantial and significant time with the child even in the medium term.
Even if there had been a successful challenge to the notion the mother has borderline personality disorder and/or is vulnerable to depression her actions and attitude towards her parental responsibilities (which include the child’s relationship with the father) raised serious questions. My point being, even if the mother is correct in her rejection of Dr R’s and Ms D’s opinions about her mental health there was a paucity of evidence from her which indicated she was genuinely motivated to change. For example, her evidence that the child would regularly attend school was hollow. More would have been done by her while the child was with Ms Y to ensure the child’s attendance at school and she would not have withheld the child from the first day of school this year if she was serious about this. Long before now the mother would have commenced sustained therapy and/or changed the way she spoke to and about the father in the child’s presence, for example. Thus, whether her parenting deficits have their genesis in a borderline personality disorder or something else is not critical. The point being that whatever the genesis for her difficulties as a parent, the Court is ultimately concerned with the mother’s actions and attitudes and, where these create difficulties for her as a parent, the risk these will in the future present for the child.
On each occasion the father became depressed he sought medical advice which was accepted by him. While I agree the father is susceptible to depression I am satisfied he is sufficiently insightful to obtain and accept medical advice. With support and advice his periods of depression have been relatively short lived and have not compromised his parenting capacity. Should the father become depressed it is likely he would again obtain assistance and it is highly unlikely his parenting capacity would be compromised.
There are no further factors under s 60CC(3)(g), (i), (j) or (k) which require consideration.
As far as possible it is preferable to make orders least likely to lead to the institution of further proceedings. Litigation is expensive and stressful. It is difficult to discern which of the various options the Court may consider is least likely to result in further litigation. If the mother is predominantly successful the father faces the real prospect he may need to take action to enforce her compliance with orders for him to spend time with the child and her return. Orders along the lines proposed by the father are contrary to the child’s views and are likely to provoke manipulative behaviour by the mother which may result in further proceedings. On the other hand, orders which place clear boundaries around the mother’s time with the child and restrict, for a period at least, her capacity to manipulate the child to act out could well see this child settle. With the father’s and his parents’ gentle support and reinforced by the Court’s authority, the child may settle and the mother not be able to provoke further litigation. Be this as it may it remains difficult to determine which suite of orders minimise the prospect of further proceedings. Consequently, this subsection warrants little weight.
There is considerable overlap between s 60CC(4) and (4A). So that it is clear I am strongly satisfied the father has actively sought to participate in making major long-term decisions in relation to the child and to spend time and communicate with her. While the mother has co-operated in relation to this she has also failed to facilitate the father’s involvement in numerous major long-term decisions and in recent years refused to reliably permit the child to be with and to communicate with him, even when pursuant to orders. The failures in this regard are particularly noteworthy and more recent. Accordingly they warrant greater weight than those earlier instances where the mother facilitated the father’s involvement in the child’s life.
The father has fulfilled his obligation to maintain the child.
Conclusion and structure of the orders
When making a parenting order the Court must apply a presumption that it is in a child’s best interests for the child’s parents to have equal shared parental responsibility. The presumption does not apply in the circumstances specified in s 61DA(2) and may be rebutted if the Court is satisfied application of the presumption would not be in the child’s best interests. The highly conflicted relationship which exists between the parties, their chronic inability to communicate constructively and the mother’s disregard for the father’s role in the child’s life are factors which persuade me that an order for equal shared parental responsibility would not be in the child’s best interests. Such an order would probably result in an escalation in the already high tension which exists between the parties and may well hold the child hostage to their inability to agree about matters such as education and other necessary decisions. There are no signs this situation would be likely to improve in the medium to long-term. Thus, the parent with whom the child primarily resides will have sole parental responsibility.
Notwithstanding the child’s views to the contrary, I am strongly satisfied her best interests are promoted if she continues to live with the father. In his care her relationship with the mother is respected. Her school attendance and performance has dramatically improved from when she lived with the mother and she is far more likely to have a good educational outcome if she lives with the father long-term. Involving the mother in a significant way in the child’s life will put the child’s relationship with the father and paternal relatives in grave jeopardy and, may well result in these relationships being lost. Such an outcome would deprive the child of healthy role models and the stability of home, school and relationships which is particularly important for this child’s wellbeing. While there are some difficulties in relation to the father’s ability to fully appreciate the child’s emotional needs he is not emotionally abusive in the way the mother is. Again, in the way the mother has not, the father has demonstrated his willingness to seek professional guidance to better equip him to meet the child’s needs.
While the mother’s attendance at three parenting courses is to her credit, this is an inadequate response to the very serious issues raised in relation to her parenting capacity. Notwithstanding that the mother said Mr M is her “soul mate’ I am not satisfied her circumstances are so improved that the problems which have beset her in the past may not at some stage recur. Nor that because she says she is settled with Mr M, that she is more amenable to effective therapeutic intervention. True it is, as was postulated by the mother’s solicitor and agreed by Dr R, that a person who has a settled relationship, job and accommodation, is more likely to successfully engage in therapy than someone who is anxious about these matters. However, it does not necessarily follow that merely because the mother’s believes her situation has improved from, say 2008, she is likely to engage in a sustained and constructive therapeutic relationship which in the foreseeable future would result in improvements to her psychological functioning. The weight of evidence against the mother achieving such an outcome is very strong.
Notwithstanding my view the child is likely to continue to want to live with the mother, I am satisfied the father has strategies in place which will help her adjust to a contrary outcome. Thus although this will result in real disappointment for the child about which she says she will be angry, this ought not increase the risk she may become depressed during adolescence. The point made by Dr R was that the best antidote was for the child to live with the father so that her overall needs were met in a way the mother would not. Thus although the orders which will be made are contrary to the child’s views, I am persuaded there is a considerably greater risk she may develop depression if she lives with the mother than if she continues to live with the father.
Consideration of the time which the child will spend with the mother is difficult. I agree with Dr R for the initial 12 months after these orders, the child’s time with the mother should be limited and supervised. It is of the utmost importance for the child to adjust to the outcome that the mother is unable to continue to undermine the child’s relationship with the father and paternal relatives.
Mr M has not shown a willingness to encourage the mother’s compliance with orders or intervene, for example, at changeover, to encourage the mother to moderate her behaviour. His failure to take positive steps to resolve the situation when the child was with Ms Y demonstrates how ineffective or unwilling he is in relation to this issue. I have no confidence Mr M would be able to contain the mother’s criticisms about the father and his family or ensure the child’s return. These matters render Mr M an inappropriate supervisor.
Simply put, for supervision to be effective, it must be undertaken by people trained and experienced in this role. The Contact Centre nominated by the ICL is reasonably convenient and appropriate. Thus, for the first 12 months the child’s time with the mother will occur every three weeks at the Contact Centre. Two hours is nominated, which, it is the Court’s understanding, is the maximum period usually available at contact centres.
Provided the mother participates in counselling with a psychologist or allied health professional for 12 months supervision of her time with the child will end. So that the mother’s counselling is able to address those matters referred to in Dr R’s reports and discussed in these reasons for judgment, the mother’s therapist must be provided with copies of Dr R’s reports and these reasons. Although it may be a triumph of hope over experience, it is the Court’s hope there may be some slight improvement in the mother’s attitudes towards her parenting responsibilities and the child’s relationship with the father during this period.
However, because I am not satisfied that even 12 months of therapy is likely to result in a significant improvement in the mother’s attitudes and behaviour in this regard, it is necessary to limit the child’s time with her. Although it is less than recommended by Dr R, for the following 12 months the child will spend each alternate weekend with the mother. Because the child will have been working with Counselling Service 1 and, having heard the father and his relatives and Ms M’s evidence I am more confident than was Dr R about their ability to deal with manipulative behaviour by the child, a short time during school holidays is not included during this period. My point being I have greater confidence in the father’s capacity to address the child’s disappointment and contain her behaviour even if holiday time is not included at that stage. Thereafter, at the expiration of this second twelve months period, provision is made for block periods during school holidays. While I have some misgivings about the child spending these longer periods with the mother, I accept it is important she and the mother have these longer periods as motivators to enhance their ability to accept the child will reside with the father.
Provision has not been made for variations to the regime of the child’s time with the mother on special occasions, other than Mother’s and Father’s Days. The child has apparently coped with spending Christmas with one parent and not seeing the other for a week or more. Arrangements for birthdays have been the cause for tension, even when orders are in place. Rather than create an opportunity for disagreement adjustment to the orders for birthdays and Christmas will not be made. It is sufficient these occasions are recognised by telephone contact. This will mean in the years ahead the child will spend the majority of her birthdays and Christmas Days with the father. She is less likely to spend time with the mother on her birthday and will probably celebrate most of the father’s birthdays with him. The reason I have provided for a variation of the orders in relation to Mother’s and Father’s Day is that these are accepted in the community as special days for families and celebrated across the community on the same day. It is reasonable for this family to do the same.
From when the child has unsupervised time with the mother, the mother will be able to attend one event each term at the child’s school provided the event is one to which parents are generally invited. For example, during Education Week, parents and teacher interviews, sport and speech days and the like. A more liberal approach runs an unacceptably high risk the mother would intrude into the child’s time at school. To avoid unpleasantness between the parties it is a condition precedent to the mother’s attendance at school events that she gives the father no less than seven days written notice of her attendance. Written notice can be provided, for example, by SMS. The father can then decide whether he will also attend. Prudence would suggest that unless the event is particularly significant for the child, he does not.
I have included as a notation rather than an order the father’s obligation to ensure the child attends Counselling Service 1. Because these arrangements are already in place and the father has demonstrated his commitment to working with and ensuring the child attends Counselling Service 1, an order is unnecessary.
The remaining orders are self-explanatory and are designed to ensure compliance with these orders and facilitate the flow of information between the parties. The existing recovery order will continue until by virtue of the legislation it expires. I have not extended the period of the recovery order beyond the 12 months provided for in the legislation. If issues about recovery arise after the current order has expired, it is appropriate there be a further application.
For these reasons I make the orders identified at the beginning of this judgment. I am satisfied the orders are in the child’s best interests.
A matter unrelated to the parties
It will be recalled evidence was given by the parties about the father’s financial support post separation of the mother. Written submissions about this issue were made by the mother’s solicitor. These are set out below:
[C] Father’s “Generosity” towards the Mother
·The father claimed that he supported the mother financially beyond and above his legal obligations under the child support assessment
·The father claims that he was paying the mother’s rent $360 p.w.
·He claims to have been paying her bills (e.g. phone and energy $284 per quarter)
·He claims to have been buying food for the mother and children (say $50 p.w.)
·His taxable income (for the child support purposes) declared by him was $32,000 to $42,000 p.a. that is, $615 and $805 p.w. gross or $540 to $680 p.w. net
·The above will leave to the father $110 to $250 p.w. to live on and pay his own other expenses
THE TRUTH
·The father is either lying, cheating on child support and cheating on tax or all of the above[9] [original emphasis]
[9] Exhibit “Z”
The mother’s solicitor did not question the father’s evidence about his financial support of the mother and child. No suggestion was made by the mother’s solicitor to the father in cross examination that he was either “lying, cheating on child support and cheating on tax or all of the above”. Even on the mother’s solicitor’s written submissions which I observe in relation to the father’s paying her bills and buying food misrepresents the evidence given by him, the solicitor’s calculations show the father had the capacity to pay the mother as alleged by him and have funds upon which to live. Although the amount is modest, there is no dispute that throughout this period the father lived with his parents in a home owned by them. There is no evidence the father’s parents required him to contribute to the outgoings.
Thus, it seems clear the submissions made by the mother’s solicitor lacked a proper foundation. In circumstances where the submission constitutes allegations of fraud and the commission of offences under federal legislation this is a very serious matter. Prima facie, the submissions constitute a serious breach of the Revised Professional Conduct & Practice Rules 1995. Because the matter is so serious it cannot be overlooked. Thus I will take submissions from the mother’s solicitor in relation to the Court’s preliminary view that the matter should be referred to the Legal Services Commissioner of New South Wales for investigation.
I certify that the preceding two hundred and seventy seven (277) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Ryan delivered on 13 May 2011.
Associate:
Date: 13 May 2011
Key Legal Topics
Areas of Law
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Family Law
Legal Concepts
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Procedural Fairness
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Remedies