PEARCE & ARTHURSON
[2017] FamCA 893
•8 November 2017
FAMILY COURT OF AUSTRALIA
| PEARCE & ARTHURSON | [2017] FamCA 893 |
| FAMILY LAW – CHILDREN – Final orders – Equal shared parental responsibility – Spend time with – Unacceptable risk – Where the mother seeks that the father spend no time with the child and seeks sole parental responsibility – Where the father ultimately seeks an equal care arrangement for the child and equal shared parental responsibility – Consideration of the best interests of the child – Consideration of the child having a meaningful relationship with both parents and any risks posed by the father – Where it is held the father does not pose an unacceptable risk to the child – Where it is ordered that the child shall live with the mother and spend significant and substantial time with the father Evidence Act 1995 (Cth) s 55 |
| M v M (1988) [1988] HCA 68 | ||
| APPLICANT: | Ms Pearce | |
| RESPONDENT: | Mr Arthurson |
| INDEPENDENT CHILDREN’S LAWYER: | Legal Services Commission of SA |
| FILE NUMBER: | ADC | 3849 | of | 2013 |
| DATE DELIVERED: | 8 November 2017 |
| PLACE DELIVERED: | Adelaide |
| PLACE HEARD: | Adelaide |
| JUDGMENT OF: | Berman J |
| HEARING DATE: | 6 March 2017 |
REPRESENTATION
| COUNSEL FOR THE APPLICANT: | Ms O'Connor SC |
| SOLICITOR FOR THE APPLICANT: | Joanna Richardson |
| COUNSEL FOR THE RESPONDENT: | Mr Bowler |
| SOLICITOR FOR THE RESPONDENT: | Family Law Project |
| COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: | Ms Fuda |
| SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: | Legal Services Commission of SA |
Orders
That all previous parenting orders be discharged.
That the parties have shared parental responsibility for C (“the child”) born … 2010 subject to paragraph 3 hereunder.
That the mother do have sole parental responsibility in respect of all health issues affecting the child subject to a requirement that she will advise the father in writing (electronically or otherwise) and provide her views about any major issues affecting the child’s health (including dental) and shall consult with the father about such issues but if no agreement is reached between the parties THEN the mother shall make the final decision and advise the father accordingly.
The child shall live with the mother.
The child shall spend time with the father as follows:-
(a) Until 31 March 2018 (for three nights per fortnight):-
(i)From the conclusion of school Friday (or 4 pm if a non-school day) until the commencement of school the following Monday (or 9 am if a non-school day) and each alternate weekend thereafter; and
(ii)In the intervening week from the conclusion of school (or 3 pm if a non-school day) on Thursday until 7.30 pm;
(b) As and from 1 April 2018 (for four nights per fortnight):-
(i)From the conclusion of school Friday (or 4 pm if a non-school day) until the commencement of school the following Monday (or 9 am if a non-school day) and each alternate weekend thereafter; and
(ii)In the intervening week from the conclusion of school (or 3 pm if a non-school day) Thursday until 9 am the following Friday (or the commencement of school);
(c)As and from the commencement of the 2019 academic year for four nights per fortnight from the conclusion of school Friday (or 4 pm if a non-school day) until the commencement of school the following Tuesday (or 9 am if a non-school day) and each alternate weekend thereafter.
(d)During all school holiday periods as follows:-
(i)For the 2017/2018 Christmas school holidays, the father’s weekend time shall be extended by one (1) day to 4 pm on the fifth day;
(ii)For the 2018 short end of term holidays, with the father for five (5) nights such that the father’s time with the child shall commence at the conclusion of school on the last day of each school term until 5 pm on the sixth day;
(iii)For the 2018/2019 Christmas school holidays, the father’s weekend time shall be extended by two (2) days to 4 pm on the sixth day;
(iv)For the 2019 short end of term holidays, with the father for six (6) nights such that the father’s time with the child shall commence at the conclusion of school on the last day of each school term until 5 pm on the seventh day;
(v)For the 2019/2020 Christmas school holidays, the father’s weekend time shall be extended by three (3) days to 4 pm on the seventh day;
(vi)For the 2020 short end of term holidays, with the father for seven (7) nights such that the father’s time with the child shall commence at the conclusion of school on the last day of each school term until 5 pm on the eighth day;
(vii)For the 2020/2021 Christmas school holidays and each year thereafter the father’s weekend time shall be extended by four (4) days to 4 pm on the eighth day.
That the child will spend time with the parties on special occasions as follows:-
(a) On Mother’s Day and Father’s Day in each year:-
(i)Between 9 am and 5 pm on Mother’s Day with the mother;
(ii)Between 9 am and 5 pm on Father’s Day with the father;
(b) On the child’s birthday:-
(i)If the child’s birthday falls on a day that is not a school day and the father would not otherwise be spending time with her THEN the child will spend time with the father from 2 pm until 7 pm;
(ii)If the child’s birthday falls on a day that is not a school day and the father has the care of the child THEN the child will spend time with the mother from 2 pm until 7 pm;
(c) At Easter:-
(i)In 2018 and in each alternate year thereafter the child will spend time with the father from the conclusion of school (or 4 pm if not a school day) on the Thursday immediately before Good Friday until 5 pm on Easter Saturday and with the mother from 5 pm on Easter Saturday until 5 pm on Easter Monday;
(ii)In 2019 and in each alternate year thereafter the child will spend time with the mother from the conclusion of school (or 4 pm if not a school day) on the Thursday immediately before Good Friday until 5 pm on Easter Saturday and with the father from 5 pm on Easter Saturday until 5 pm on Easter Monday;
(d) At Christmas:-
(i)In 2017 and in each alternate year thereafter the child will spend time with the mother between 3 pm on 24 December until 3 pm on 25 December and with the father between 3 pm on 25 December until 3 pm on 26 December;
(ii)In 2018 and each alternate year thereafter the child will spend time with the father between 3 pm on 24 December until 3 pm on 25 December and with the mother between 3 pm on 25 December until 3 pm on 26 December;
(e) Such other times as may be agreed.
That the father’s time with the child during each school term shall be suspended during all short end of term school holiday periods.
That each party be at liberty to travel interstate with the child PROVIDING they give the other party no less than fourteen (14) days’ notice in writing.
That each party be restrained and an injunction granted restraining them from denigrating the other or any member of the other’s family to or in the presence of the child or allowing any other person to do so.
That all handovers that do not take place at the child’s school shall take place at D cafe E Street, Suburb E or at such other venue or in such other manner as may be agreed by the parties.
That the mother do facilitate the child receiving a telephone call from the father each Monday between the hours of 6 pm and 7 pm PROVIDED that the child is in the mother’s care and the father will facilitate the child receiving a telephone call from the mother each Monday between the hours of 6 pm and 7 pm whilst the child is in the father’s care.
That each party advise the other of any change of address or telephone number or residential address of the child within twenty four (24) hours of such change occurring.
That the mother shall inform the father of the identity and contact details of any health professional (including dental) involved with the child and shall authorise the health professional to communicate with the father and to release any information to him as he may request at his sole expense.
That each party do all things necessary to authorise the other to obtain from the child’s school any reports, notices and letters and that each of them shall be entitled to attend parent/teacher interviews or other school based activities to which parents are invited, permitted or usually attend.
That the order appointing the Independent Children’s Lawyer be discharged.
Note: The form of the order is subject to the entry of the order in the Court’s records.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Pearce & Arthurton has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).
| FAMILY COURT OF AUSTRALIA AT ADELAIDE |
FILE NUMBER: ADC 3849 of 2013
| Ms Pearce |
Applicant
And
| Mr Arthurson |
Respondent
REASONS FOR JUDGMENT
INTRODUCTION
By Further Amended Initiating Application filed 9 December 2016 Ms Pearce (“the mother”) seeks orders with respect to parenting arrangements for the child C born in 2010 (“the child”). Mr Arthurson (“the father”) opposes the orders sought by the mother in his Amended Response filed 9 February 2017.
It is the mother’s position that the father is an unacceptable risk to the child. The mother seeks orders that:-
(1)She have sole parental responsibility for the child;
(2)The child live with her;
(3)The child spend no time with the father;
(4)The father be permitted to forward to the child (with the mother at liberty to screen) cards, letters and gifts;
(5)The mother shall provide to the father the child’s school reports each year;
(6)The father be restrained from contacting the mother or the child or attending at their home, workplace or school or any other place where the child may be from time to time.
In the event that the father does not pose an unacceptable risk to the child, the mother seeks the orders above but in the alternative to paragraph 2(3), she seeks an order that the child spend time with the father as ordered by the Court.
The father seeks orders that:-
(1)The parties have equal shared parental responsibility for the child;
(2)The child initially live with the mother;
(3)The father spends time with the child on a graduating basis; initially from the conclusion of school Friday until the commencement of school Wednesday and each alternate weekend and that such times increases to 6 nights per fortnight in 2018 and 7 nights per fortnight in 2019.
The parties’ relationship is marred by an inability to co-parent. The mother is highly critical of the father’s parenting from mundane issues such as what the child eats and when the child sleeps to more substantial allegations that the father has engaged in improper touching of the child. The father denies these allegations and asserts that the mother is trying to undermine his relationship with the child.
The current care arrangements for the child are those set out in the orders of Dawe J made 11 August 2016 which provide for the child to live with the mother and spend time with the father each alternative weekend from 9 am Saturday until 6 pm Sunday with handover to occur at D Café on E Street.
An Independent Children’s Lawyer (“ICL”) was appointed pursuant to orders made by Judge Cole in the Federal Circuit Court on 26 May 2014.
The final hearing commenced on 6 March 2017 and proceeded as a 7 day matter from 6 to 10 March 2017 and from 3 to 4 August 2017.
I have had the benefit of receiving Case Outline documents prepared by counsel for the parties and the ICL and a List of Objections filed by each of the parties and the ICL.
DOCUMENTS RELIED UPON
The mother relies upon the following documents:-
(1)Further Amended Initiating Application filed 9 December 2016;
(2)Affidavit of the mother filed 2 March 2017;
(3)Trial Affidavit filed 12 December 2016;
(4)Trial Affidavit of the mother filed 22 September 2014;
(5)Affidavit of Dr G filed 9 December 2016;
(6)Affidavit of Ms H filed 9 December 2016;
(7)Affidavit of Ms J filed 9 December 2016;
(8)Affidavit of Ms K filed 9 December 2016;
(9)Affidavit of Ms L filed 22 December 2016;
The father relies upon the following documents:-
(1)Amended Response to Initiating Application filed 9 February 2017;
(2)Trial Affidavit filed 9 February 2017;
(3)Affidavit of the father filed 4 August 2017;
(4)Affidavit of Ms M filed 9 February 2017.
The ICL relies upon the following documents:-
(1)Affidavit of Ms F filed 8 February 2017;
(2)Affidavit of Ms O filed 9 February 2017.
CHRONOLOGY
1974
The father is born
1974
The mother is born
1988
The mother gains part-time employment as a public servant
2004
The mother gains full-time employment as a public servant
October 2008
The parties commence a relationship
2009
The parties marry
2010
The child is born
July 2011
The parties separate (both parties remain living in the former home)
2013
The father commences a relationship with Ms P
15 October 2013
Mother initiates Family Court proceedings and seeks orders for property settlement
November 2013
The mother vacates the former home with the child
January 2014
The father commences spending overnight time with the child
14 January 2014
Mother amends her application to include parenting orders
6 May 2014
The parties’ property proceedings are settled by consent
October 2014
The father consults with Ms O
10 June 2015
The child consults with an occupational therapist to improve her ability to interact and self-regulate
Later 2015
The father separates from Ms P
Early 2016
The father commences a relationship with Ms M
21 March 2016
The child allegedly discloses information to the mother that the father sexually abused her
21 March 2016
The mother calls the National Home Doctor Service to examine the child
22 March 2016
The mother contacted the Child Protection Service at the T Hospital
22 March 2016
The mother contacts the Child Abuse Report Line of Families SA
22 March 2016
The mother takes the child to consult with Dr G
29 March 2016
The mother files an Application in a Case to suspend the father’s time with the child
March – August 2016
The father did not spend time with the child due to the allegations of sexual abuse
19 May 2016
SAPOL complete the investigation of sexual abuse against the father and notify the parties that no further action will be taken
26 July 2016
Child Protection Services report produced
11 August 2016
Dawe J dismisses the mother’s Application and makes orders that the child spend each alternate weekend with the father
3 February 2017
Further updated family report produced
BACKGROUND
The father was born in 1974 and was 43 years old at the time of trial. He is engaged in employment in a senior managerial position and is undertaking a course of study to obtain a Bachelor degree in a different field.
The mother was born in 1974 and was 42 years of age at trial. She is employed as an executive officer in the public sector.
The parties commenced a relationship in October 2008 and were married in 2009. There is one child of the relationship in 2010 (age seven).
The parties separated in July 2011 and remained living in the same premises until the mother relocated her primary residence in November 2013.
Both parties make allegations of domestic violence against the other in the lead up to separation.
Both parties acknowledge their use of dating websites utilising an alias throughout the marriage. The mother further alleges that the father created a fake profile of her on the dating website ‘...’. She denies that the profile was created or written by her.
In or about 2013 the father commenced a relationship with Ms P. The pair cohabitated together for some time before separating in late 2015. There are no children of that relationship.
At the time of trial the father was engaged to Ms M. Their first child was born in 2017.
At the commencement of the relationship both parties held interests in property, motor vehicles and savings. The parties’ property proceedings were settled by consent on 6 May 2014. The effect of that order was that the father paid the mother $87,500 and contemporaneously the mother transferred her title in the former home to the father.
On 14 January 2014 the mother filed an Amended Initiating Application seeking parenting orders. At that time, the child was 4 years old. Inter alia, she sought orders that the child live with her and spend time with the father:-
[5.2] Every Wednesday from 3.00pm until 6.00pm
[5.3] Every Sunday from 8.30pm until 2.30pm
[5.4]Every second weekend from Saturday 3.00pm until Sunday 3.00pm
[6]That the [father] have care of [the child] during the school holidays on such time and days and on such terms and circumstances as agreed by both parties.
The father commenced overnight time with the child in January 2014. He would collect her from early learning on Wednesday and return her to the mother’s care on Thursday morning.
The father’s Amended Response was filed 21 February 2014. He sought orders for sole parental responsibility of the child and proposed that the mother spend time with the child from 8 am Monday until 8 am Wednesday and each alternate weekend from 9 am Saturday until 4 pm Sunday.
On 24 February 2014 orders were made which provided for the parties to have equal time. It is the mother position that the changes to overnight time were too substantial for the child. She said the child was often returned tired and exhausted. The father denies such behaviour.
The orders were amended on 26 May 2014 and the child subsequently spent five nights per fortnight with the father. The mother says the child continued to behave exhausted, unsettled, distressed and stressed by the arrangement.
The child suffers from an array of medical conditions. She has been diagnosed with borderline obesity disorder, fructose malabsorption and iron deficiency. Her dietary needs require a low sugar diet.
The child has had ongoing involvement with a paediatrician to monitor her health.
The parties consulted with Ms F (“family consultant”) in June 2014. The first family report was subsequent produced on 31 July 2014.
Pursuant to the recommendations of the family consultant the father consulted with psychologist Ms O from October 2014 until September 2015. He had a total of 11 sessions. The focus of the consultations was his “psycho-education” in regards to the child. The psychologist produced reports in March 2015 and September 2015. It was ultimately her position that the father did not need to continue the consultations.
The father also completed the “Kids Are First” parenting program as recommended in the first family report.
An updated family report was produced on 3 March 2016. At the time of interviews the child lived with the mother and spent time with the father each alternate weekend and overnight on the intervening Thursday. The family consultant recommended no increase to the father’s time with the child.
On 29 March 2016 the mother filed an Application in a Case seeking that the father’s time with the child be suspended and that he be restrained from contacting the child or the child’s school. An order was made on 12 April 2016 suspending the current parenting arrangements.
The basis for the mother’s application was a disclosure of sexual abuse by the child. The mother reported that on 21 March 2016 the child was complaining of pain in her vagina and that it started hurting when the father “pressed on me” with his finger. The mother made various attempts to consult a doctor on that day and ultimately consulted with an after-hours Doctor.
The mother subsequently contacted Child Protection Service (“CPS”), arranged an examination of the child by Dr G and contacted Families SA (“FSA”) to report the disclosure. She was subsequently advised by the police that they were investigating the matter.
The father was categorical in his denial of the allegations. He believes the mother was fabricating the issues to bring his character and credit into disrepute.
In May 2016 the ICL received a letter from SAPOL stating that they had investigated the matter and would not be proceeding further. The mother’s Application was dismissed on 11 August 2016 and orders were made for the father to spend time with the child each alternate weekend from 9 am Saturday until 6 pm Sunday.
Prior to trial, a further updated family report was produced on 3 February 2017. In preparation of that report, the father’s current partner Ms M was also observed during the father’s interaction with the child.
At trial the mother relied upon her Further Amended Initiating Application filed 9 December 2016. It is her position that the father presents as a risk to the child and accordingly she seeks sole parental responsibility, that the child live with her and spend no time with the father. If the father is found to present no risk to the child she seeks that he spend time with the child as ordered by the Court.
She seeks ancillary orders that she provide school information to the father and that he be restrained from contacting or attending upon the home or school of the mother or the child.
PROCEDURAL HISTORY
The proceedings first came before Judge Cole in the Federal Circuit Court of Australia on 27 November 2013. An order was made by consent on that occasion in relation to property valuations.
On 24 February 2014 an order was made by Judge Cole that was not by consent but not opposed during the period of adjournment which provided for the care arrangements for the parties to have equal time with the child on a fortnightly roster.
On 6 May 2014 an order was made by consent which settled the parties’ division of property.
An order was made for the preparation of a family report on 9 May 2014.
The ICL was appointed on 26 May 2014. That order also provided for the child to spend time with the father from Wednesday to Friday each alternate week and from Friday to Monday each intervening week.
On 1 October 2014 the Court ordered by consent that the parties should have equal shared parental responsibility for the child. That the child should live with the mother and spend time with the father from Friday until Monday in each alternate week and overnight on Thursday in the intervening week. Orders were also made for the father’s Christmas and holiday time with the child.
Following the recommendations of the family consultant, an order was also made for the father to engage with Ms O or Ms Q for psycho-education regarding the child’s separation anxiety with the psychologist to prepare a report of the father’s progress. If the report is favourable to the father then the father’s time is to increase to five nights per fortnight and half school holidays.
An updated family report was ordered on 9 September 2015 by Judge Cole. The proceedings were also transferred to the Family Court of Australia.
By order of Registrar Paxton the matter was placed in the list of material awaiting trial allocation on 25 September 2015.
The updated family report was produced on 3 March 2016.
On 12 April 2016 Dawe J made orders suspending the father’s time with the child pending further consideration of the mother’s application filed on 29 March 2016.
The father was next provided time with the child by orders of Dawe J made 11 August 2016 which provided for the father to spend time with the child each alternate weekend from 9 am Saturday until 6 pm Sunday with handover to occur at D Café on E Street. That order also dismissed the mother’s Application in a Case filed 29 March 2016.
FAMILY CONSULTANT
The parties and the child first met with the family consultant in June 2014. They were interviewed alone and an observational session was also conducted between each party and the child. The father’s partner at the time, Ms P was also observed as part of the father’s interaction.
At the time of the assessment the child lived with the mother and spent time with the father pursuant to the orders made 26 May 2014.
The family consultant considered that the mother presented as warm and child-focused. She was more concerned about the presentation of the father and in particular his credibility given his confession that he had lied to health professionals in the past.
The child was observed to have a positive relationship with both parents and exhibited signs of separation anxiety when separating from her father. She postured that the child’s anxiety was due to the father’s ambivalence towards the mother rather than a poor relationship between the mother and the child.
Given the poor co-parenting relationship between the parties, it was the family consultant’s view that the child should live primarily with the mother.
The family consultant made the following recommendations:-
(1)That the child live with the mother and spend three to four nights per fortnight with the father;
(2)That the recommended change in the parenting arrangements be made as soon as possible given the child’s vulnerability may be heightened if the current shared care arrangement continues;
(3)That the child may benefit from a longer period of time in the father’s care during school holidays (of up to four to five nights);
(4)That both parties complete the “KidsAreFirst” parenting program;
(5)That the father receive additional advice regarding the child’s separation anxiety;
(6)That if the father has lied to the family consultant during the interview process, the mother have sole parental responsibility.
An updated family report was produced on 3 March 2016 by the family consultant. At the time, the child was six years old and spent alternate weekends and each Thursday (overnight) in the intervening week in the father’s care.
The family consultant’s most noteworthy comment in the preparation of the updated family report was her lack of confidence in the father’s capacity to meet the child’s needs. She adopted a cautious view that the parenting arrangements should not be changed. She considered that if the father was to be given more time with the child then “there would need to be confidence in [the father’s] capacity for attuned and consistently child-focused behaviour”.
The family consultant recommended that the parenting arrangements for the child remain the same, that the child’s school holiday time with the father be gradually extended to four to five nights when she is 10 years old.
A further updated report was prepared by the family consultant on 3 February 2017. At the date of assessment the child was seven years of age.
The family consultant reviewed her previous reports and considered the history of the matter in particular the allegation that the child had disclosed sexual abuse by her father, that the mother was strong in her belief that the father presented as a risk to the child but also the strong denial by the father of any allegation suggesting inappropriate conduct. The family consultant was therefore on notice as to the complex situation in which the parties and the child found themselves.
The family consultant considered that the dysfunctional nature of the relationship between the parties engendered an almost complete lack of trust exacerbated by the mother’s strong belief that the father presents as an unacceptable risk.
The father presented with a new partner and the child was observed to be “becoming more confident and competent and her relationship with her mother was clearly positive whilst aspects of her relationship with her father were concerning.”
The allegation of sexual abuse and the resultant investigation was a substantial disruption to the child spending time with the father. The impact of the hiatus in their relationship was the subject of reflection by the father and the basis of his view that the “connection had waned”.
It was an important consideration for the family consultant that the father no longer held the concerns expressed in the initial family assessment that the mother was not child focused and lacked a secure emotional attachment to the child.
Whilst the family consultant was not necessarily persuaded that the more measured presentation was a true reflection of the father’s current position, nonetheless it represented a significant step forward.
For the purposes of the proceeding the Court is entitled to accept that the father was no longer concerned as to the mother’s parenting capacity other than in her lack of support of his relationship with the child whereas the mother’s mistrust of the father was unabated.
The family consultant recorded that the child did not wish to increase her time with the father and perhaps would like less time. She did not want to spend two days with him and inherent in her presentation was a concern that insufficient weight was being afforded to her wishes.
There is a lacuna in the evidence as to the basis to explain the child’s reluctance. The following appears in the report:-
At times [the child] was unwilling or unable to explain why she wanted less time with her father, telling the writer “I just don’t want to”. Specific concerns [the child] raised included that her father often watches television, leaving her to play by herself. She also said that she usually has to get her own breakfast and that she did not like the lunches that he used to make for her (both what was included and that she did not feel it was enough food). [The child] also spoke about her father tickling her, reporting “Sometimes I don’t like it, sometimes I do”.
Consistent with allegations made by [the mother], [the child] said her father had recently pushed the bathroom door into her face as she was following him into the bathroom, where he was planning to take a shower. She also said that on another occasion she hit her face on a pole when running around in his backyard (part of the playground). [The child] said her father treated her with an ice pack. [The child] prefers it when she can see her paternal cousins during visits, not enjoying visits when she does not get to see them. [The child] said that she was sad that they will be moving to Queensland next year (2017).
Notwithstanding her expressed reticence in spending extended time with the father, the child spoke positively of Ms M, (the father’s partner) and was excited as the prospects of a half-sibling. The observation of time both in the presence of Ms M and in her absence was positive. The father was observed to present as more child focused and for her part, the child appeared more “animated (e.g. talking more) and as enjoying herself more (e.g. smiling)”.
The father provided a credible report to the family consultant in respect of the benefit he had received from counselling and attending a parenting program with its focus being to develop parenting skills and his ability to relate with the child. He did not appear to be able to reconcile his distress at having been investigated for allegations of sexual abuse. He considered that as the investigation had progressed, whether it was the mother’s intention or not, his relationship with the child had suffered irreparable insult.
It had been a focus of the earlier assessments that the father may have been diagnosed with Narcissistic Personality Disorder (NPD). The family consultant contacted the father’s treating psychologist and recorded that whilst NPD was not a credible diagnosis, it was likely that the father had an Adjustment Disorder with Anxious and Depressed Mood (ADADM).
The family consultant was faced with the observations of Ms M that he appeared entirely committed to the care of the child. She observed that when with him the child was his “utmost priority” and the entrenched position of the mother that the father was violent, unpredictable and presented as an unacceptable risk to the child was not accurate.
The mother considered his mental health to be a “time bomb”. She unequivocally accepted the child’s allegation that the father had slammed the bathroom door into her face and that in some way her running into a pole in the father’s backyard was either his fault or at his instigation.
The family consultant considered that the child was confident and was meeting developmental milestones and there were no issues of concern raised by the child’s school reports and whilst the family consultant considered her to be impulsive, she also needed to be kept busy. The relatively long history of assessment and observation afforded to the family consultant lent confidence to her opinion that the mother appeared to be more attuned to the needs of the child. She considered that the mother was a skilful parent. Of concern to the family consultant was the dysfunctional parental relationship which had the potential for adverse impact upon the child. Given the entrenched positions of the parties but in particular the mother’s ongoing mistrust and strongly held belief that the father presented as an unacceptable risk, it was unlikely that there was any prospect of consensus.
The family consultant was not prepared to provide any opinion as to whether there was a risk of sexual abuse to the child in the father’s care but was concerned for the ability of the father to be appropriately attuned to the emotional needs of the child. The family consultant was not able to express any opinion in respect of whether the father could be diagnosed as having NPD. Nonetheless if such a diagnosis was confirmed then this could have an adverse impact on the ability to be child focused rather than self-focused.
She considered that if the Court found that sexual abuse had occurred or that the father presented as an unacceptable risk then his time spent with the child should be significantly reduced. Whereas if there was no risk of sexual abuse and he is able to be child focused then the current arrangements should continue with no support for a change at this time.
There did exist the possibility that the mother may have either exaggerated or fabricated the allegations of sexual abuse. If this was found to be the case then this may suggest that the child should spend more time with the father as a counterfoil to the negative environment engendered by the mother’s inability or refusal to trust the father or support the child’s relationship with him.
Senior counsel for the mother questioned the family consultant as to her general experience and expertise in the forensic consideration of child sexual abuse. She conceded that she did not have much experience and that considerations of sexual abuse represented only a small part of her training.
She was asked to reflect on the history and details of the allegations as set out in the summary of interview in the CPS report of 26 July 2016. The following is reported:-
When invited to discuss the allegations, [the mother] reported that ensuing a contact visit with [the father], [the child] became teary while she was preparing to go to bed and commented that her “bottom” hurt. She said that [the child] used the term “bottom” to describe both her vaginal area and her buttocks area. [The mother] said that she left [the child] to obtain some “Derma” cream and upon return [the child] had removed her pants and was lying on the bed. She went on to report that in the past [the child] had returned from contact with [the father] with redness to her genital and “bottom” area and [the mother] had associated this with [the child] experiencing enuresis. According to [the mother], she observed no redness to the area on this particular occasion; however, she reported that [the child] had complained that it had hurt at [the father’s] house in the bath when he had reportedly poured cold water on to the area. [The mother] reported that she asked [the child] when she had first noticed the area hurting and that [the child] said, “When Dad pressed me there. He pressed me there, there, there” and pointed to three areas of her genital region. She went on to say that [the child] reportedly added that it had hurt a lot and that she had felt [the father’s] finger and that he had done this to make it feel better. [The mother] said that when she specifically asked [the child] whether [the father] had applied cream to her genital area, [the child] reportedly said no. [The mother] reported that following [the child’s] reported statements, she took the child to a doctor and that the child also reported that [the father] had “pushed me there”.
According to [the mother], in December 2015, after attending weekend contact with her father, [the child] was waiting to attend a piano lesson and reportedly said “Daddy and I have secrets” and asked if the mother would keep her secret…
The family consultant was asked to consider whether the child being asked to keep a secret may be consistent with a “grooming” process.
Notwithstanding that the family consultant had indicated that it was not within her sphere of expertise she nonetheless considered that a secret is concerning and even an innocent secret should not be part of a dialogue with a child. There was no evidence that supported a finding of grooming.
In Makita (Australia) Pty Ltd v Sprowles [2001] NSWCA 305 Heydon JA said at [85]:-
…the opinion of an expert requires demonstration or examination of the scientific or other intellectual basis of the conclusions reached: that is, the expert’s evidence must explain how the field of “specialised knowledge” in which the witness is expert by reason of “training, study or experience”, and on which the opinion is “wholly or substantially based”, applies to the facts assumed or observed so as to produce the opinion propounded…
Further at page 744 the following is stated:-
…If all these matters are not made explicit, it is not possible to be sure whether the opinion is based wholly or substantially on the expert’s specialised knowledge. If the court cannot be sure of that, the evidence is strictly speaking not admissible, and, so far as it is admissible, of diminished weight. And an attempt to make the basis of the opinion explicit may reveal that it is not based on specialised expert knowledge, but, to use Gleeson CJ’s characterisation of the evidence in HG v R(1999) 197 CLR 414, on “a combination of speculation, inference, personal and second-hand views as to the credibility of the complainant, and a process of reasoning which went well beyond the field of expertise” (at [41]).
The consideration of the family consultant in respect of areas where she has clearly disavowed any expertise does not raise issues of the weight to be given to the evidence but rather whether it is relevant and therefore admissible under s 55 of the Evidence Act 1995 (Cth) (“EA”).
The family consultant was asked to consider the child’s reports of being tickled by the father and an assertion that he “blew” on parts of her body.
The topic was raised in the forensic interview with the child and recorded by the CPS clinician at page 6 of her report in the following terms:-
…She was then asked a series of hierarchical questions that invited her to speak about the allegations, as reported in the Families SA intake. [The child] was initially asked about reports that she told her mother that someone had “blown on her body” and that she did not like it, the child immediately responded, “it was my Dad”. When asked to tell the clinician everything that had happened, [the child] reported, “I was sitting down and then, then he started blowing on my body”, adding, “and I didn’t like it”...
The child was then asked to consider when the blowing had occurred. She was unable to do so. When asked as to where on her body the father had blown, the following is recorded:-
“Um[sic] I don’t know. Um [sic] I forget where, where [sic] he was blowing um [sic] he was just blowing on my tummy. Yeah, just on the tummy.” When asked what else had happened when [the father] had blown on her “tummy”, the child stated, “Um [sic] ah [sic] was he doing again? He was, he was, he was trying to, he was trying to make, he was blowing everywhere and I couldn’t stop and I and I kept saying to him um [sic] “what are you doing” and he keeps blowing on it…”
The child was not able to provide further detail.
The family consultant was more comfortable when being asked about the father’s observed parenting skills. She considered that he lacked the skill to be able to retain the quality of the relationship that he says he had with the child notwithstanding the period of time when he was prevented from doing so. The family consultant was concerned that as at the date of trial the father may not have made all necessary efforts to spend time with the child as provided for in the orders. She was also concerned as to his veracity and in particular his admission that he had lied to experts in order to find out about the mother’s own online activities.
The family consultant considered that if the Court found that the father did not present as a risk in respect of sexual abuse it might still be considered a risk that the father appears to struggle to maintain a bond with the child. It was her opinion that the father did not present as child focused and that he was out of tune with the needs of the child.
She was asked to reflect upon her recommendations at the conclusion of the report of 3 March 2016 where she recommended that the child should live with the mother and spend time with the father in accordance with the arrangements that then were in place however upon obtaining 10 years of age the child may benefit from spending four nights per fortnight with the father as a block time and longer periods during school holidays leading to equal time in holidays over 2017.
The family consultant now appears to resile from that opinion that there should be half school holiday time.
The family consultant maintained a reluctance to support extended time with the father even if the evidence pointed to the mother either fabricating or exaggerating the allegations.
She was not impressed with the father’s presentation and he failed to persuade her that he had achieve a level of focus that would engender extended or block time with the child in particular during school holidays.
Her evidence raised the question as to how much weight should be attached to the father’s concession that he no longer has concerns in respect of the mother’s parenting skills.
Subject to the caveat that the father does not present as a risk, the family consultant considered that a more cautious approach should be implemented.
Cross-examination by the father’s counsel elicited evidence of a concession by the mother that if the child spent no time with the father then the child would miss him.
Whilst outside her expertise, the family consultant accepted that notwithstanding the matters raised in the various notices of risk the mother did agree to the child spending five nights per fortnight with the father.
When asked to consider whether it was an issue that the mother’s behaviour and allegations did not match the orders sought, the family consultant conceded that the attitude of the mother was not properly reflected in the report and was suggestive of exaggeration or perhaps even fabrication.
It was put to the family consultant that she had lost perspective in placing more emphasis than was warranted in respect of the following matters:-
(1)That the father had shared a bed with the child. This was not raised by the child and the family consultant conceded that she was not concerned about this.
(2)An allegation that the father had used inappropriate language in the presence of the child. The child raised the issue and whilst it was not significant it nonetheless warranted caution.
(3)That the father had admitted to health professionals that he had lied but even so the first report provides evidence of positive engagement as described by the child namely tucking her into bed at night and making her breakfast.
The family consultant confirmed that the results of the family relationship test highlighted a positive relationship between the child and the parties.
The family consultant considered the mother’s regard of the CPS report. A summary of the mother’s position appears at pages 10 – 11 of the report dated 3 February 2017:-
[The mother] was not reassured by the CPS report, as it was not definitive, and she did not feel it was based on sufficient information (e.g., the report writer had not recognised the independent confirmation that [the father] has NPD, the writer was not sufficiently aware of the history, including [the father’s] reported violence). [The mother] felt this was because so much of the time she spent with the writer was based on detailing the allegations and discussing [the child’s] capacity to answer questions, and there had not been sufficient time to the extent of her concerns regarding [the father] to be discussed…
Whilst it was not the thrust of the cross-examination to seek the opinion of the family consultant as to whether the father presents as a risk, she was asked to consider the litany of complaints by the mother about the father and the proposition that if the evidence doesn’t support the allegations what conclusions can be drawn about the mother’s ability to parent.
If the mother is not able to compartmentalise her mistrust and dislike for the father then this must impact upon an assessment of her ability to support the child’s relationship with the father.
The observations of the child with the father in the report of 3 March 2016 demonstrates that the child appeared more settled however this must be considered against the arrangements in place namely that the child was spending four nights per fortnight with the father.
The family consultant accepted that the father had attended extensive counselling with a family therapist together with appropriate parenting courses. She was uncertain as to the extent of the mother’s engagement in any therapeutic process.
Whilst the family consultant confirmed that the child told her that there was a period when she did not spend any time with the father, she did not explore with the child what she had been told as to the basis upon which she had not seen the father for five months.
The father’s counsel put to the family consultant that she was biased in that she had accepted the presentation of the mother without any critical consideration of the impact on the child of the mother’s mistrust and dislike of the father.
Whilst the family consultant was not prepared to concede bias she did accept that the child was flourishing at school which would be contraindicative of a child fearful of her father.
Unacceptable risk
In M v M (1988) [1988] HCA 68 the Full Court gave consideration to the treatment of allegations of sexual abuse. The Court considered that treating an allegation of sexual abuse as the paramount issue was an error.
In Vasser v Taylor-Black (2007) FLC 93-329 the Full Court considered that the High Court decision in M v M (supra) had become the “touchstone” of the principles to be applied in cases of asserted unacceptable risk of any kind. Their Honour’s quoted, with approval, the following passages from M v M (supra) at pages 77,080-82:-
…In proceedings under Pt VII of the Act in relation to a child, the Court is enjoined to "regard the welfare of the child as the paramount consideration" (sec 60D). The paramountcy of this consideration in proceedings for custody or access is preserved by sec 64(1). The consequence is that the ultimate and paramount issue to be decided in proceedings for custody of, or access to, a child is whether the making of the order sought is in the interests of the welfare of the child. The fact that the proceedings involve an allegation that the child has been sexually abused by the parent who seeks custody or access does not alter the paramount and ultimate issue which the Court has to determine, though the Court's findings on the disputed allegation of sexual abuse will naturally have an important, perhaps a decisive, impact on the resolution of that issue.
But it is a mistake to think that the Family Court is under the same duty to resolve in a definitive way the disputed allegation of sexual abuse as a Court exercising criminal jurisdiction would be if it were trying the party for a criminal offence. Proceedings for custody or access are not disputes inter parties in the ordinary sense of that expression: Reynolds v. Reynolds(1973) 47 ALJR 499; 1 ALR 318; McKee v. McKee(1951) AC 352, at pp 364-365. In proceedings of that kind the Court is not enforcing a parental right of custody or right to access. The Court is concerned to make such an order for custody or access which will in the opinion of the Court best promote and protect the interests of the child. In deciding what order it should make the Court will give very great weight to the importance of maintaining parental ties, not so much because parents have a right to custody or access, but because it is prima facie in a child's interests to maintain the filial relationship with both parents: cf. J. v. Lieschke (1987) 162 CLR 447, at pp 450, 458, 462,463-464.
Viewed in this setting, the resolution of an allegation of sexual abuse against a parent is subservient and ancillary to the Court's determination of what is in the best interests of the child. The Family Court's consideration of the paramount issue which it is enjoined to decide cannot be diverted by the supposed need to arrive at a definitive conclusion on the allegation of sexual abuse. The Family Court's wide-ranging discretion to decide what is in the child's best interests cannot be qualified by requiring the Court to try the case as if it were no more than a contest between the parents to be decided solely by reference to the acceptance or rejection of the allegation of sexual abuse on the balance of probabilities.
In considering an allegation of sexual abuse, the Court should not make a positive finding that the allegation is true unless the Court is so satisfied according to the civil standard of proof, with due regard to the factors mentioned in Briginshaw v. Briginshaw (1938) 60 CLR 336, at p 362. There Dixon J. said:
“The seriousness of an allegation made, the inherent unlikelihood of an occurrence of a given description, or the gravity of the consequences flowing from a particular finding are considerations which must affect the answer to the question whether the issue has been proved to the reasonable satisfaction of the tribunal. In such matters 'reasonable satisfaction' should not be produced by inexact proofs, indefinite testimony, or indirect inferences.”
His Honour's remarks have a direct application to an allegation that a parent has sexually abused a child, an allegation which is often easy to make, but difficult to refute. It does not follow that if an allegation of sexual abuse has not been made out, according to the civil onus as stated in Briginshaw, that conclusion determines the wider issue which confronts the Court when it is called upon to decide what is in the best interests of the child.
Further as 77,081 the Court said:-
In resolving the wider issue the Court must determine whether on the evidence there is a risk of sexual abuse occurring if custody or access be granted and assessing the magnitude of that risk. After all, in deciding what is in the best interests of a child, the Family Court is frequently called upon to assess and evaluate the likelihood or possibility of events or occurrences which, if they come about, will have a detrimental impact on the child's welfare. The existence and magnitude of the risk of sexual abuse, as with other risks of harm to the welfare of a child, is a fundamental matter to be taken into account in deciding issues of custody and access. In access cases, the magnitude of the risk may be less if the order in contemplation is supervised access. Even in such a case, however, there may be a risk of disturbance to a child who is compulsorily brought into contact with a parent who has sexually abused her or whom the child believes to have sexually abused her. But that is not the issue in this case.
The Evidence
The mother
The mother relied upon her trial affidavit filed 12 December 2016 consisting of 90 pages and a further 239 pages of annexures. On 2 March 2017 she filed an affidavit in reply to the father’s trial affidavit.
I made it clear to the parties that I did not consider it appropriate for the Court to be overwhelmed by unnecessary affidavit material. Annexures to the affidavit have not been read into the evidence other than where it was the subject of cross-examination or tender.
For reasons best known to the father at annexure “DA7” of his trial affidavit dated 9 February 2017 he annexes copies of documents he describes as “the mother’s … dating website profiles”. I am uncertain as to the import of the documents and there is no explanation as to why he considers the documents may have relevance to the proceedings.
In the ordinary course I would have ignored the annexures to the father’s affidavit however in examination in chief the mother is asked to consider the detail of the documents and in particular the profile page found at page 67 of the annexures. It is the mother’s evidence that this is not her profile. Some of the information is apparently correct but other parts of the purported profile were not authored by the mother. Her evidence is that someone and probably the father created the false profile.
Whilst it may be open to the mother to assert that she did not author the site, her evidence implicating the father is weak. Whilst it is probable that the website profile site is the creation of the mother, in the absence of an issue of adverse credit against the father for falsifying the information on the site, the topic is entirely irrelevant to the parenting considerations relevant to the child.
The parties are also in dispute as to an appropriate handover arrangement. The father would wish handover to occur at a contact service whereas the mother says handover could occur across the road from a coffee outlet on E Street. There have been some difficulties with handover. The father’s new partner is present but always remains in the car. The mother considers that sometimes the father parks either close to her car or further away. In any event she walks the child to the father’s car.
There have been some safety issues. Sunday at 6 pm is a busy time and there is a lot of activity in the carpark. The implication of the mother’s evidence is that car park traffic may present as a risk to the child.
The father’s counsel put to the mother that she had never been supportive of the father’s relationship with the child. As early as 2013 the report of the family consultant notes that the mother did not want the child to spend time with the father.
She alleged that the father was not necessarily concerned in respect of the time he was to have with the child but rather that he took the opportunity to say negative things about her. In June 2014 the mother considered that the child should spend only supervised time with the father arising out of concerns in respect of how the child was returning to her care. Her behaviour was oppositional and defiant.
The mother agreed that it was her position that the child’s time with the father should be limited to relatively few hours and that this was enough to maintain a relationship in circumstances where her presentation was of concern.
The mother’s concerns were set out on page 13 of her affidavit filed 22 September 2014.
The mother alleged that the child was over-tired following orders made and she considered that this was a result of “inappropriate sleeping arrangements and bedtime routines”.
She also was of the view that the lack of routine involving late nights and “irregular and unbalanced provision of meals took its toll on [the child’s] capacity to participate in activities”.
On 1 March 2014 the mother alleges the child made a disclosure in the following terms:-
Daddy slept with me every night in my bed, all night with his top off. He was just in his underpants. We watched the Wiggles.
She further believes that the child would not be able to regulate her emotions because of the father’s conduct and holds the strong view that the child ran the risk of “mimicking the father’s behaviour”.
The mother was challenged as to whether the disclosure by the child that she slept with the father in his bed was considered by her to be sexually inappropriate. She agreed that she had told a previous family consultant that the father had displayed and demonstrated inappropriate sexualised behaviour with the child. When pressed she conceded that the co-sleeping was not necessarily sexual nor was “blowing raspberries on her bottom” but it was borderline sexual behaviour.
When pressed the mother did concede that there was nothing overtly sexual or inappropriate in terms of “the blowing of raspberries”. It seems the mother’s principal concerns are in respect of the father manipulating the child to consider the mother in a poor or negative light. Historically the mother considered that the father was not able to provide for the dietary needs of the child in that the food given to her was high in sugar and lacked nutritional content.
In her 2014 trial affidavit it was put to her that she considered the father to be both a liar and a thief.
She agreed that as of 1 October 2014 she considered that the father suffered from NPD.
The mother was asked to reflect upon her allegations contained in her trial affidavit of 22 September 2014 that the father exhibited violent and aggressive behaviour at paragraphs 60, 63 and 70, the father’s neglect of the child and exposing the child to risk in paragraphs 79, 80 and 82.
The mother considered that the father’s conduct in paragraphs 80 and 82 was inappropriate and constituted borderline behaviour that may have been consistent with the father grooming the child to engage in sexualised activity.
It was put to the mother that if they were her concerns why then did she consent to an order that the father have significant and substantial time with the child.
The mother agreed that she had reported to the child protection service’s clinician that the father had been diagnosed with NPD, OCD and anxiety. At that stage there had not been any diagnosis of any disorder exhibited by the father.
The child’s alleged disclosures on 21 March 2016 prompted the mother to take the child to a clinic at about 8.15 pm then to a different clinic at 9 pm and then return to home to await a house visit after 10 pm. The mother was asked to reflect on the child’s history that her bottom began to hurt at school.
The mother agreed that she had made a complaint to the family consultant that she was not satisfied by the outcome of the CPS report. She was asked to consider how the clinician could do more than to note the mother’s concerns in respect of her allegations that the father suffered from significant behavioural disorders.
The mother agreed that she was “shattered” at the lack of any findings of sexual assault. She thought that the clinician had either disbelieved her or had given the allegations minimal weight.
The mother agreed that the child had clearly suffered from a urinary tract infection and was prepared to concede that the pain in the child’s bottom had started at school. The CPS report records the following description by the child:-
[The child] was then asked where she had been when her bottom first began to hurt. She said “At home. No no [sic]. It was at school and it started hurting a little bit…and then um [sic] it started hurting in the day, when, when I was having my lunch…and then and then when it was night time it started hurting more and more”. The clinician asked what had happened after [the child] had reported this to her mother and she said “Um [sic] um [sic]. I had, I [sic] had a drink…Can I have a break” and asked the clinician, “Do I have to say anymore words or anything? I don’t want to say anymore”. The clinician agreed to take a break from the discussion and [the child] and the clinician returned their focus to playing with the doll’s house.
Why the child made the statements that she did may not be capable of rational explanation.
What is certain is notwithstanding extensive forensic investigation conducted in a timely manner following the referral to CPS there is no evidence to substantiate the mother’s allegations.
Whilst the thrust of the mother’s case was to seek a finding that on the balance of probabilities the father had sexually abused the child the Court’s obligation is to make orders that will “best promote and protect the interests of the child”.
I am obliged to consider whether there is a risk of sexual abuse occurring if orders are made that would either continue the current arrangement or the expanded proposal of the father are made.
In having carefully considered the evidence I do not find that the father presents an unacceptable risk to the child. The mother concedes that the relationship prior to 21 March 2016 was beneficial in that the child enjoyed her time with the father.
The observations of Ms M were important.
The family consultant following extensive involvement with the parties and the child formed the view that whilst there may be certain deficiencies in the father’s parenting capacity that may impact upon the appropriateness of the orders that the father seeks it would not speak in support of severing the child’s relationship with the father. Consideration must also be given to the potential risk to the child of the mother’s clear mistrust and dislike of the father. There is little or no evidence in support of any contention that the mother is able to put her differences aside to work with the father to achieve parental consensus.
The father’s presentation to the family consultant as recorded in the first two reports portrays the father in a similar light. He had scant regard for the mother and his assertions of the mother’s excessive discipline and lack of attunement were exaggerated if not fanciful.
The aspect of the father’s presentation that was under clear consideration by the family consultant is whether his more moderate presentation in the preparation for the third report is an affectation or a true reflection that he now wishes to move on and reduce the palpable level of conflict between the parties.
I find that the evidence points to significant advancement in the father’s outlook. I do not accept the allegation of the mother that weight should be given to the child’s complaint that she has to get her own breakfast and that her father does little more with her than watch television.
The father is able to demonstrate adequate or good enough parenting and with the assistance of his partner is able to provide an appropriate environment for the child to spend time with him. It is the extent of time that is now the subject of focus.
The child’s wishes
There is some evidence to assist the Court in understanding the wishes of the child. In the third report the family consultant records that “she would either like parenting time to stay the same or she would like even less time with her father than she currently has”.
The child suggested that she could see her father on Sunday but did not want two days with him. It appears that she has some concept of there being an obligation for her to attend and that she does not like it that she has to go.
The difficulty with the child’s presentation is that when asked to explain why she wanted less time with her father she was not able to do so. It was in the context of this discussion that the child raised the assertion that she has to get her own breakfast and that she wasn’t happy with the quality or quantity of food that the father provided.
As discussed, I have determined that no weight should be placed on the child’s statement as to the extent of the father watching television, that she has to get her own breakfast or that the food is of differing quality and quantity.
Whilst it is perhaps at best speculation, the family consultant recorded that the child has her mother as the person with whom she has the closest relationship and may well have been inadvertently influenced by the mother’s clear dislike and mistrust of the father.
The mother’s presentation in evidence was redolent of barely disguised hatred of the father. She considers that he has nothing to offer and there was certainly nothing to suggest that she was able to compartmentalise her mistrust and dislike to promote the child’s happy transition between the parties.
I do not consider that significant weight should be placed on views expressed by the child in circumstances where she is integrally embroiled in the internecine conflict. It is difficult to assess the adverse impact on a child that has been the subject of frequent assessment, interview, examination and observation. It is also difficult to assess the effect on the child of the significant period when she spent no time with her father whilst the allegations were the subject of investigation.
The nature of the relationship of the child with the parties
In circumstances where I have found the father does not pose a risk to the child the underlying observations of the family consultant is that there is a good relationship between the parties and the child and that each of the parties has much to offer the child.
I accept at least as a credible position put by the father that notwithstanding his belief that the mother has either exaggerated or fabricated the allegations of sexual abuse which lead to the investigation and suspension of his time with the child, that he nonetheless is able to move on with his life which now involves his partner, their child and the subject child.
Ability of parents to communicate with each other
There is little or no likelihood that the parties will be able to engage with each other at other than the most superficial level.
There is personal hostility that exists between the parties and whilst there is some hope that the father may now have a different focus, the mother’s presentation is unequivocal in her deep mistrust of the father.
Communication between the parties is of the most cursory nature and it is likely that even that most benign communication will be viewed with suspicion.
The parties are not able to communicate directly. The communication book has been a catalyst for further disputation.
The involvement of the father’s partner in making entries in the communication book has not assisted.
It is difficult to see how it is suggested that the parties have an ability to communicate with each other and this has significant impact in terms of the administration of the child’s health issues.
The mother seeks sole parental responsibility whereas the father seeks equal shared parental responsibility.
The inability of the parties to communicate and the underlying and unyielding mistrust is likely to be the very antithesis of co-parenting.
Effect of any change on the child’s circumstances
The mother seeks that there be little or no time or in the alternative that there be such time spent with the father as the Court considers appropriate. Whilst that proposal provides little assistance to the Court, I have interpreted the underlying intention of the mother as seeking the current orders to remain and not be the subject of extension.
The father seeks a transition towards equal time.
The family consultant considers that the current arrangements are working well. The ICL proposes that the child spend from the conclusion of school Friday to the commencement of school Monday and each alternate week and an overnight from Friday through to Saturday and one half of all short-term school holiday periods with the Christmas school holiday period to be on a week about basis.
The family consultant considers there should be a more cautious approach in particular in respect of any periods over school holidays.
Obviously orders that maintain the current arrangements will not see any disruption to the arrangements for the child and given my finding that little weight should be placed upon the wishes of the child there should be little or no disruption.
What is proposed by the ICL is an extension of time from one overnight to a block of three overnights. That represents a significant change but in the circumstances of this case a change that has been considered by the family consultant and accords with her recommendations subject to a more cautious approach with respect to school holidays.
The capacity of the child’s parents and other relevant parties to provide for the needs of the child
Other than the concerns by the father that the mother is not likely to support his relationship with the child and therefore presents as an emotional and/or psychological risk to the child, he does not allege that the mother is not able to provide for the child’s physical needs. He considers the mother to be a good parent other than in respect of her inability to promote his relationship with the child.
Moreover the observations of the family consultant were compelling in respect of the mother’s level of attunement and capacity to parent.
The focus has however been on the adequacy of the father’s parenting. The 2014 and 2016 reports were not complimentary of the extent of the father’s attunement to the needs of the child, his capacity to parent and his level of insight.
Those observations are to be considered in contrast to his presentation in the 2017 report.
Whilst I do not discount that the father has had a number of partners post separation the evidence of his current partner was important and persuasive in respect of the circumstances in their home.
The evidence of the father in respect of the activities that he undertook with the child together with his involvement with the child’s school was impressive.
Given appropriate inducement, I consider that both of these parties are high functioning adults, are able and have the capacity to provide appropriately for the needs of the child.
Parental responsibility
The determination of parental responsibility is to be guided by the best interests of the child.
The dominant factor is the deep mistrust between the parties and the uncertainty as to which they are able to put their differences aside.
The practicalities of the child’s care have highlighted an inability of the parties to reach an easy accord in respect of the child’s health consideration. The parties were not able to reach agreement and the father was difficult in terms of the dental requirements of the child. There are issues in respect to food allergies and potential behavioural concerns that are not likely to be easily resolved if consensus is required.
Whilst I consider that the parties may well be able to communicate at a level necessary for some aspects of parental responsibility, they are incapable of doing so in respect of matters affecting the child’s health.
The proposal of the ICL has merit and I propose to order that the parties have shared parental responsibility but that the mother has sole parental responsibility for matters affecting the child’s health.
Conclusion
Notwithstanding the determination of parental responsibility I consider it reasonable to have regard to the separate proposals of the parties. The mother seeks that the child primarily live with her and spend limited or no time with the father. The father seeks equal time but his predominant position is that this should be a return to five nights per fortnight.
I do not consider that the parties have a relationship that would enable them to effectively co-parent. Whilst there is a potential for communication which would be sufficient for shared parental responsibility with the more contentious issue of the child’s health being the mother’s responsibility, the child would be placed in an intolerable position by the father’s proposal.
The father may well hold the view that following separation the child’s care was shared, that whilst reduced he enjoyed significant and substantial time with the child and that the current position is not as a result of his conduct but rather the mother’s behaviour, nonetheless I am obliged to focus on the needs of the child and to bring to account the prevailing circumstances.
I am easily able to find that the child’s primary attachment is with the mother and that she is highly attuned to the child’s needs. I am not able to make that finding with respect to the father.
It may be that as time passes the father is able to rebuilt and re-establish a more solid foundation to his relationship with the child. There may also be a beneficial effect as the child ages and gains a greater degree of maturity and some level of independence from the parties.
I propose to adopt the proposal of the ICL namely that the father’s time with the child should be extended to each alternate weekend from the conclusion of school on Friday to the commencement of school on Monday. After a period of time a further period overnight in the intervening week should be introduced thereafter without increasing the number of nights. There would be advantage in the father having block time comprising four nights per fortnight.
The father’s time during school holidays should increase incrementally resulting in an equal division of the holidays to occur as and from the child’s 10th birthday.
I will do the best that I can to reflect ancillary orders in relation to special occasions and the extent to which each of the parties shall receive information affecting the child from time to time.
I certify that the preceding three hundred and forty-nine (349) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Berman delivered on 8 November 2017.
Associate:
Date: 8 November 2017
Key Legal Topics
Areas of Law
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Family Law
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Evidence
Legal Concepts
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Appeal
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Injunction
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Jurisdiction
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Procedural Fairness
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Remedies
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