Pepper and Rawlings
[2017] FCCA 207
•10 February 2017
FEDERAL CIRCUIT COURT OF AUSTRALIA
| PEPPER & RAWLINGS | [2017] FCCA 207 |
| Catchwords: FAMILY LAW – Interim parenting – 7 year old girl – risk of harm – whether mother facilitates and encourages relationship between child and father – parental responsibility – child to live with mother and spend time with father. |
| Legislation: Family Law Act 1975, ss.4AB, 13C , 60B, 60CA, 60CC, 60CG, 61C, 61DA, 65DAA, 65DAA |
| Cases cited: A & A (1998) FLC 92-800 SS v AH [2010] FamCAFC 13 Salah & Salah [2016] FamCAFC 100 Slater & Light [2011] FamCAFC 1 Stevenson & Hughes (1993) FLC 92-363 |
| Applicant: | MS PEPPER |
| Respondent: | MR RAWLINGS |
| File Number: | PAC 4920 of 2016 |
| Judgment of: | Judge Obradovic |
| Hearing date: | 15 December 2016 |
| Date of Last Submission: | 15 December 2016 |
| Delivered at: | Parramatta |
| Delivered on: | 10 February 2017 |
REPRESENTATION
| Appearing for the Applicant: | Mr Piggot |
| Solicitors for the Applicant: | Mark Whelan Lawyer |
| Appearing for the Respondent: | Mr Papafotiou |
| Solicitors for the Respondent: | James Papas Solicitors |
ORDERS
That the parents have equal shared parental responsibility for the child X born on (omitted) 2010.
That the child live with the mother.
That the child spend time with the father:
(a)Each Sunday from 2pm to 5pm;
(b)Each Wednesday from after school (or 3pm) to 6pm; and
(c)On 26 January each year from 4pm to 7pm.
For the purpose of Order 3 above, if changeover does not occur at the child’s school, the mother shall deliver the child to the father’s residence at the commencement of the child’s time with the father and the father shall deliver the child to the mother’s residence at the conclusion of the child’s time with the father.
The mother is restrained by injunction from changing the child’s surname or from permitting or allowing any person to refer to the child by any other surname except as that showing on the child’s Birth Certificate.
That the mother’s application for a change of the child’s surname is dismissed.
The mother is restrained by injunction from taking the child to any further session with any psychologist or counsellor without the written consent of the father or order of the Court.
That within 7 days the mother provide to the father full details of the child’s treating medical or other professionals.
That within 7 days the mother provide all such authorities as required to authorise the child’s treating medical or other professionals to provide to the father all requested information in relation to the child.
Pursuant to s.11F of the Family Law Act1975, the parties are directed to attend with a Family Consultant for the purpose of a Child Inclusive Child Dispute Conference at 9am on 8 May 2017 and:
a.The parties shall continue to attend at such times, dates and places as the consultant may advise;
b.The parties and each of them shall do all things necessary to ensure the attendance of their child the subject of these proceedings to attend at the conference and to be available to meet with the Family Consultant;
c.The Family Consultant is requested to provide to the Court (and if, in the Consultant’s view it is appropriate to do so, the parties) a memo outlining and reporting on:
i.Any agreement reached between the parties;
ii.The issues raised by the parties and which will require determination by the Court;
iii.Any views or opinions expressed by the child/ren interviewed and any comment regarding the factors perceived to influence or impact upon those views and opinions or otherwise relevant to same;
iv.Any recommendations by the Consultant including as to Case Management, referral to external (community based or private) services and/or programs and resources to be allocated to the matter including but not limited to expedition, Independent Children’s Lawyer and/or full Family Report.
List the matter for directions at 11.30am on 29 May 2017.
IT IS NOTED that publication of this judgment under the pseudonym Pepper & Rawlings is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT PARRAMATTA |
PAC 4920 of 2016
| MS PEPPER |
Applicant
And
| MR RAWLINGS |
Respondent
REASONS FOR JUDGMENT
Introduction
These are the Reasons for Judgment in relation to interim parenting proceedings regarding X, who was born on (omitted) 2010. The parties to the proceedings are the Applicant mother, Ms Pepper and the Respondent father, Mr Rawlings.
The proceedings were commenced by way of Initiating Application filed on 20 October 2016, where the mother sought a number of interim and final parenting orders. The father, by way of Response filed 29 November 2016, likewise seeks both interim and final parenting orders.
Despite these proceedings being commenced by the mother, it was the father who insisted on an early interim hearing. The matter was first listed before the Court on 29 November 2016, and consequently set down for urgent Interim Hearing at 9am on 15 December 2016 by telephone.
The central enquiry for the Court is to determine the outcome that will be best for the child the subject of these proceedings.
Parenting proceedings are governed by the provisions of Part VII of the Family Law Act 1975. Section 60CA provides that in deciding whether to make a particular parenting order, the Court is to regard the best interests of the child as the paramount consideration.
Section 60B of the Act outlines the objects and principles underlying Part VII of the Act.
In determining what is in a child’s best interests, the Court must consider the matters set out in s60CC. Section 60CC outlines the primary and additional considerations that the Court is to take into account in determining what is in the best interests of the child.
The Act does not mandate the discussion of considerations under s60CC in any particular order, and it is well recognised that additional considerations may outweigh primary considerations.[1]
[1] see for example Slater & Light [2011] FamCAFC 1at [45]
In applying the primary considerations the Court must give greater weight to the need to protect the child from physical or psychological harm, from being subjected to, or exposed to, abuse, neglect or family violence than to the benefit to the child of having a meaningful relationship with both of the parents.
It has been held that a meaningful relationship “is one which is important, significant and valuable to the child.”[2] The focus is not on the relationship as such, but on the benefit the relationship might have for the child.[3]
[2] Mazorski & Albright[2007] FamCA 520 at [26], cited with approval by the Full Court in
[3] Ibid at [122]
In addition, in considering what order to make, the Court must, to the extent that it is possible to do so consistently with the child’s best interest being the paramount consideration, ensure that the order does not expose a person to an unacceptable risk of family violence.[4] The Court may include[5] in the order any safeguards that it considers necessary for the safety of those affected by the order.
[4] S.60CG(1)(b); see the brief discussion of s60CG in Salah & Salah [2016] FamCAFC 100 at [35]
[5] See s60CG(2), such safeguards are for the purposes of sub-paragraph (1)(b)
Section 61DA of the Act provides that when making a parenting order, the Court must apply a presumption that it is in the best interests of the child for the child’s parents to have equal shared parental responsibility. The presumption does not apply where there are reasonable grounds to believe a parent has engaged in abuse of the child or family violence and the presumption may be rebutted if the Court is satisfied that an order for equal shared parental responsibility would not be in the child’s best interests. In interim proceedings, the presumption applies unless the Court considers that it would not be appropriate in the circumstances for the presumption to be applied when making an interim order.[6]
[6] s61DA(3)
In the event that the Court orders the parents to have equal shared parental responsibility, the Court must apply the provisions of section 65DAA which provides for a consideration of the child spending equal time with the parents. If the Court finds that it is not in the child’s best interests and reasonably practicable, then the Court must consider the child spending substantial and significant time with the parents. Section 65DAA is expressed in imperative terms.[7]
[7] MRR v GR [2010] HCA 4 at [15]
The Full Court in Goode v Goode[8] mandated that this legislative approach must be followed in all parenting cases, and in particular set out the procedural steps to be followed on an interim application, noting that in interim proceedings there may be little uncontested evidence to enable more than a limited consideration of these matters to take place.
[8] (2007) 36 Fam LR 422, (2006) FLC 93-286
As stated by the Full Court in Keats & Keats, in respect of the conduct of interim proceedings:[9]
…the principles that emerge from cases such as SS v AH [2010] FamCAFC 13, [are] namely, that apart from relying upon the uncontroversial or agreed facts, a judge may have little alternative than to weigh the probabilities of competing claims and the likely impact on children in the event that a controversial assertion is acted upon or rejected.
[9] [2016] FamCAFC 156 at [9]
Documents Relied Upon at Interim Hearing
The mother relied upon the following documents:
a)Initiating Application filed 20 October 2016;
b)Affidavit of Ms Pepper sworn 14 October 2016 and filed 20 October 2016;
c)Affidavit of Ms Pepper sworn 12 December 2016 and filed 13 December 2016; and
d)Case Outline document filed 14 December 2016.
The father relied upon the following documents:
a)Response to Initiating Application filed 29 November 2016;
b)Affidavit of Mr Rawlings sworn and filed 29 November 2016; and
c)Case Outline document filed 13 December 2016.
The mother tendered three documents from material produced under Subpoena to (omitted) Public School being two data records[10] relating to the child and a referral for the child to attend a learning support team[11]. These documents as a bundle became Exhibit 1 in the proceedings.
[10] Dated 17/11/16 and 17/8/16
[11] Also dated 17/11/16 - the referral is a reproduction of the contact record dated 17/11/16
Competing Proposals
The Applicant in her Initiating Application filed on 20 October 2016 seeks the following interim orders:
1. That the child X born (omitted) 2010 (“the child”) shall live with the mother.
2. That the mother shall have sole parental responsibility for the child.
3. That the child shall spend time with the father in accordance with her wishes.
4. That the father forthwith attend upon a psychiatrist for an assessment of his mental health.
5. That the father attend upon an Anger Management Course and provide a copy of a Certificate confirming completion to the mother’s solicitor within 7 days of completing such a course.
6. That the father attend upon a parenting course provide a copy of a Certificate confirming to the mother’s solicitor within 7 days of completing such a course.
7. That pursuant to section 68L of the Family Law Act 1975 an Independent Children’s Lawyer be appointed.
8. That the mother is authorised to unilaterally apply to the NSW Births, Deaths and Marriages registry to amend the Birth Certificate of the child to record her family surname namely, (omitted).
9. That to the extent required to implement Order 8, the father do all acts and things and sign all documents as requested by the mother and or the Registrar of NSW Births, Deaths and Marriages to implement Order 8.
During the hearing the mother sought an order in the alternative for the child to spend time with the father in accordance with the recommendations of the child’s treating psychologist.
The father in his Response filed 29 November 2016 seeks the following interim orders:
1. That the Applicant and Respondent have equal shared parental responsibility for the child X, born (omitted) 2010 “X”.
2. That X live with the Applicant mother.
3. That X spend time with the Respondent father as follows:
a. For a period of eight (8) weeks from 2.00pm to 5.00pm each Sunday and from 4.00pm to 6.00pm each Wednesday; THEREAFTER
b. Each alternate Sunday from 10.00am to 6.00pm.
4. That X retain the name of “X” for both formal and informal purposes and that the Applicant mother be restrained from changing X’s name.
5. That the Applicant mother be restrained from residing with X outside the Sydney Metropolitan Area.
The father’s alternate proposal was to spend time with the child for two to three hours each Sunday with his time to be supervised by his father. The father also undertook to notify the mother in the event that the child becomes upset or anxious during his time with her.
Issues in Dispute
The issues in dispute at this early interim stage are what spend time with arrangements for the child are in her best interest and whether the child is at risk in the father’s care such that there need to be safeguards put in place in respect of any time she is to spend with the father.
Like many of the interim matters which come before this Court there is significant dispute about many facts, not only as to events during the parties’ relationship but also post separation.
The main issue in dispute appears to be the child’s anxiety about spending time with her father and whether this poses a risk to the child such that she should only be spending time with the father in accordance with her wishes or the recommendations of the child’s psychologist. The mother also alleges that the father’s mental health pose a risk to the child, although this was not developed during the hearing.
The mother also raises the question of the child’s surname at the interim stage. This is an application which is ultimately dismissed, as explained later in these Reasons.
It should also be noted that the mother in her application for final orders seeks to relocate the child’s place of residence to the Adelaide metropolitan area however the mother’s Affidavit material refers to relocating with the child to Melbourne where the maternal family resides and where the mother has greater support. The mother makes no application at the interim stage to relocate the child’s residence. However, the father does seek an order preventing the mother from relocating the child’s residence from the Sydney metropolitan area.
Uncontested Evidence
The father was born in Sydney on (omitted) 1974.
The mother was born in (country omitted) on (omitted) 1981 and migrated to Australia in 1994.
The father has one child from a previous marriage who is 15 years of age.
The mother has one child from a previous relationship who is 14 years of age.
The parties met in 2007 and commenced cohabiting in 2008.
The parties became engaged during their relationship, however they never married.
The child of these proceedings was born on (omitted) 2010.
The parties separated in 2011.
On 4 October 2013, the parties agreed to an arrangement whereby the child was to live with the mother and spend time with the father each Sunday from 2 PM to 5 PM and at other times as agreed between the parties by text message.
On 21 July 2016, the parties attended mediation and came to an agreement that the child was to live with the mother and spend time with the father each Sunday for no longer than two hours in the presence of the mother.
The child has been living with the mother since separation and spending limited time with her father in the presence of the mother.
Other Relevant Evidence
Evidence in the mother’s case
The mother in her Affidavit sworn 14 October 2016 states that she believes the father to suffer from “mental health issues”. During their relationship she encouraged the father to be assessed for bipolar disorder however she says the father refused, saying words to the effect “I don’t want to be labelled as being bi-polar”.
The mother says she is aware that the father suffers from depression and has done so since he was approximately 17 years old and that he is currently being treated for depression and that he had on occasion attended counselling sessions which she accompanied.
The mother says that the father would often drink alcohol to excess and become “angry and abusive”. The mother recounts in her Affidavit an occasion prior to the birth of the child where the father became intoxicated and began threatening to commit suicide. The mother called the ambulance on this occasion and the father was taken to (omitted) Hospital and was released later that night.
The mother describes an incident where the father sprayed deodorant in the mouth and eyes of her eldest child. The child was taken to hospital by the mother and received some treatment.
After making a personal application, an Interim Apprehended Domestic Violence Order was made on 10 June 2016 naming the mother as the protected person. No final Apprehended Domestic Violence Order was made, such application being withdrawn by the mother on the basis that the father signed an undertaking on 22 September 2016 that inter alia he would not “assault, molest, harass, threaten or otherwise interfere” with the mother.
The mother asserts that the father was not involved with the care of the child and does not attend events to which the child asks the father to attend, such as school assemblies.
The mother says that the child has, since 9 September 2016, when the father picked the child up to hug her and walked to another area of the park, become fearful of her father and does not wish to see or speak to him. The mother also alleges that since this occasion the child has been having night terrors. Following this incident the mother took the child to the doctor and received a referral for a counsellor for the child. It is not clear, but it appears that this was the last occasion that the child spent time with the father.
The child saw a psychologist at the (omitted) Medical Centre on 8 November 2016. The mother’s evidence is silent as to whether she also was in attendance during this session and what, if anything, was said to the psychologist by the mother before the child’s session. The mother does however give some evidence about a conversation that she had with the psychologist but such evidence is very limited and given its hearsay nature it is of extremely limited weight.
There was no evidence from the child’s psychologist per se before the Court at interim hearing. The Court notes that the child saw the psychologist on 8 November 2016, and that by 15 November 2016 when the interim hearing occurred there was very limited time for the psychologist to prepare a report. However, a short report from the psychologist might have been of assistance to the Court particularly noting the issues which the mother raises.
The mother gives evidence that on or about 14 November 2016 the child said words to her to the effect of “I want to kill myself. I’m angry”. The mother says that the next day she booked an appointment to see the doctor and the doctor arranged for the child to see a psychologist a couple of days later.
The mother does not say when or if the child saw a psychologist after 14 November 2016. The Court is left with the mother’s evidence that the child only saw the psychologist on the one occasion being 8 November 2016.
Furthermore, the mother says the child was shortly after 14 November 2016 “texting the father and afterwards she came up to me and said words to the effect ‘I punched the side of my head.’” When asked by her mother why she did this the child indicated that she did not know and she then started to cry. The evidence is completely silent as to the mother’s actions at this point, in particular what she did to console the child and what conversation, if any, she had with the child to try to calm her down. Likewise, the mother does not tell the Court what the text between the child and the father was. The Court understands the mother wants the Court to infer that the child is so traumatised by texting her father that she punches herself in the side of the head. No such inference will be drawn.
It was after the child said this that the mother advised the school and that the child started seeing the school counsellor. There is no evidence before the Court from any school counsellor as to any issues which the child might be dealing with. This is a matter referred to in more detail below.
The mother says she has observed the child punch herself in the leg when she becomes frustrated or stressed and that she has reported this to her general practitioner who indicated that she would refer the child to a paediatrician. The mother’s evidence is silent as to whether a referral was ever made, and if such referral has been followed through by the mother.
The mother says that the current arrangements for the child to spend time with her father are not working and that she is concerned about the ongoing risk that contact poses to the child’s mental and emotional wellbeing.
Allegations of Family Violence
Family violence is defined in s4AB of the Act. The definition states:
For the purposes of this Act, family violence means violent, threatening or other behaviour by a person that coerces or controls a member of the person’s family (the family member), or causes the family member to be fearful.
There are two elements to the definition. The first is the behaviour alleged and the second is the issue of causation, both of which must be proven to satisfy the definition.
Of assistance are the various examples provided in s4AB(2) of behaviour that may constitute family violence and the various examples provided in s4AB(3) of situations that may constitute a child being exposed to family violence.
The mother makes a number of allegations of domestic violence as against the father[12], although when properly analysed only some the allegations are in fact allegations of family violence.
[12] For example, being the matters noted in the mother’s affidavit of 19 October 2016 under the heading “Domestic Violence” and other matters in the mother’s later affidavit
The mother says that she believes the father suffers from mental health issues, which per se is neither an allegation of domestic violence nor does it amount to an unacceptable risk of harm. Too many cases which come before this Court make the assertion, whether directly or indirectly, that because a person suffers from mental health issues their parenting capacity is ipso facto compromised. This cannot be the case, and the importance of relevant evidence on the issue cannot be understated.
As noted earlier, the mother says that the father would often drink alcohol to excess, and that when he was intoxicated he would become “angry and abusive”. The mother gives one example prior to the child’s birth when the father apparently threatened suicide and the mother called an ambulance which conveyed the father to (omitted) Hospital.
The only example provided by the mother of the father’s conduct when intoxicated, does not prima facie, meet the definition of family violence. In any event, the father did not attempt suicide (but rather indicated that he intended do so) and it was an incident that occurred more than seven years ago. It is not behaviour that is said to have occurred either recently or in front of the child.
The mother says that she witnessed the father’s mood swings; and that he would send text messages which were sometimes loving and sometimes “angry and abusive.” Annexed to the mother’s Affidavit is a copy of text messages from the father which she says indicates that he has been having an episode of depression; the year of which is not known.
Labelling behaviours as “angry and abusive” does not make them so. It is a conclusion and a matter which is to be determined by the Court. The text message of itself cannot be and is not evidence of anything other than the father saying to the mother on that occasion (date unknown) that he thought he was having another episode of depression for which he was in the process of getting treated for. If anything is to be drawn from this, it is that the father, through his text, is not only showing insight into his mental health condition, for which he is seeking professional assistance, but that he is being frank and open about it with the mother.
The mother says that there was an occasion when the father was at the mother’s home and that he was outside playing with the children[13]. The mother says:
As I was fixing X’s hair, I looked out the front and I could see that A was kicking Mr Rawlings and Mr Rawlings said words to the effect ‘Make him stop kicking.’ I said ‘A stop kicking him it’s not worth it.’
[13] being the children of each of the parties.
The mother’s reaction to her son kicking the father indicates to the Court that she did not consider the son’s actions were wrong, just not worth his effort.
Apparently the reason why the mother’s oldest child was kicking the father was because the father had sprayed deodorant in his eyes and mouth. The mother says that the child complained that it was stinging, and she called the “Poisons Hotline” and was given certain advice. At some stage later on the mother says that she came in to see her son, who was apparently having trouble breathing so she took him straight to emergency at (omitted) Hospital. Once at the hospital the child was treated with a drip to his eyes. The mother thought it appropriate to annex to her Affidavit a photo of the child having his eyes cleansed. The mother also annexes to her Affidavit the text message she sent to the father on 17 May 2015 where she says that spraying her son on the face where his mouth and eyes were opened was “not very clever”, and that spraying him with the body deodorant is “not right”. The mother says in the same text message “You were spraying everywhere and got him in the face”.
The text message does not indicate that either the mother or the child felt fearful, coerced or controlled at the time of the incident. Indeed, it is clear from the text that the mother did not consider at the time that the father intentionally sprayed the child in the face with the deodorant.
According to the mother not long after this occurred, her son said to her that he was scared of being home alone because the father might come and do something to him again and he might do something to his sister, and he does not want to be alone with the father. What is not clear to the Court is why there would be any suggestion by that child that the father might come and do something not only to him but to his sister, the subject child of these proceedings, and why it is that this child might be frightened of being alone with the father, in circumstances where there is no evidence that the father and that child were ever alone.
Indeed what is most puzzling to the Court is that the mother does not give any evidence about her reaction to what her son has said, and whether she considered that the son’s reaction was disproportionate to what had occurred. She considered it appropriate to take her son to counselling following this incident and states in her Affidavit that her son “continues to see a counsellor as a result of this incident.” The mother also attended the police shortly after this incident, but the police did not take any action against the father. Why the mother thought it appropriate to call the police and make a complaint is not a matter which is explained in the mother’s evidence.
The mother also asserts that the father would provoke her son and pick on him, that he would continue to rub her son’s head, put him in a headlock and intimidate him. No particulars about these matters are given, that is, the mother does not say when these things are alleged to have happened and in what circumstances. Some of the behaviour described might well be described as play while some of the behaviour might be described as more sinister. In any event, not only are there insufficient particulars for any findings of fact but the evidence was not tested.
The mother also alleges that in late May 2016 the father was driving his ute around her neighbourhood playing loud music and constantly trying to call her. She says she felt threatened and intimidated so she contacted the police who attended her home. The mother says that she learnt from the police that the father had made a report that the child of the parties was at risk of being harmed. There are no police records before the Court.
The mother states that the father, as recently as July 2016, sent her text messages which she found threatening and intimidating.
The mother twice personally applied to the Local Court for an Apprehended Violence Order. A final order was never obtained. The father provided undertakings as noted earlier in these Reasons.
Also mentioned earlier in these Reasons, is an incident which occurred on 9 September 2016 between the father and the child, in the mother’s presence.
The incident is described by the mother as follows:
39. On Sunday 9 September 2016 X had a contact visit with Mr Rawlings. As part of the agreement at Mediation I am not to be present during the contact. On this day, X said to me words to the effect “I don’t want to go” I said “We’ll go the park you can play and see your dad”.
40. During the contact, X came back over to me and Mr Rawlings said to her in my presence “Can I have a hug?” X said “no” I then said to X “Give your dad a hug?” she replied “No” then Mr Rawlings said "”Ms Pepper she’s only 6 the legal age is 12”. Ms K then said “She should get a smack”. Mr Rawlings said “Give your dad a hug I’m going home”. Then X said to Mr Rawlings“Stop forcing me”. Mr Rawlings replied “I’m not forcing you. You have to give me a hug. You can come to my house over the weekend”. Then he turned to Ms K and said “I feel sorry for her when she comes to my place and she wants her mum”.
41. Then I observed Mr Rawlings pick X up and X started screaming and crying and saying words to the effect “Let me go. I don’t want to go”.
42. Mr Rawlings then took her to another bench in the park and I could see her screaming. Mr Rawlings eventually let her go and she came running and crying over to me and said to me words to the effect “I don’t like this. I want to go home”.
43. I felt helpless because I wanted to remove X from his however, I do not want the father to accuse me of not facilitating a relationship.
44. Since then, X has been very clingy and having night terrors. She is also afraid to go outside. I know this because she said to me words to the effect “What if dad is going to come and get me like he said he would”.
45. On 10 October 2016, I took X to the doctors to get a referral to a counsellor.
In relation to the various allegations of family violence made by the mother, the father denies that he is a violent person.
Evidence in the father’s case
The father concedes that he is receiving treatment for depression and is taking prescribed medication daily. The father says that he has not had any feelings of depression for a number of years and denies that he has ever had thoughts of killing himself.
The father says that he is a social drinker and that he rarely becomes intoxicated. On the occasions that he does become intoxicated he does not become angry or abusive like the mother asserts in her Affidavit. He says that he becomes “quiet and withdrawn”.
The father says that he is not a violent person and that the incident with the deodorant was an accident and not intentional in any way.
The father says that the mother would not allow him to assist with the care of the child and that she was overly protective of the child and would not allow him to take the child to visit his family without the mother being present. This is something the father says the mother continues to do by not allowing the child to spend time with him unsupervised and further that he feels the mother is “brainwashing” the child and that she is overly controlling of “every minute” that he spends with the child.
The father says that any time the child has spent alone with him has been a “good time” and that if she could not see her mother she was still “happy and relaxed” with him.
The father believes the child tries to please the mother and that the mother does not facilitate the child spending time with the father as she “got scared” that the child was “growing fond” of her father.
The father says that when the child was about three years old, he took her to the beach where they had a wonderful time. Such excursion occurred without the mother being present. It appears that this was one of the rare occasions when the mother permitted the father to spend time with the child without her being present.
The father says that about two weeks later, the mother dropped the child off to him. After an hour the child started to cry and said to the father, after he asked her what the matter was, that “Mummy said you are going to take me away from Mummy and hit me on the head.” It was after this incident that the child started spending time with the father at the mother’s residence with the mother and her son being present.
The father says that the mother further restricted his time with the child when he requested that the child spend time with him and his family without the mother being present and that the parties exchanged text messages between them at this time.
The father says that by the mother seeking to change the child’s surname and seeking a relocation of the child that this is an attempt by her to “obliterate X’s paternal heritage completely”.
The evidence in the father’s case includes evidence of coercive and controlling behaviour by the mother. Whether it may ultimately result in a finding of fact that such behaviour occurred and/or a finding of family violence is a matter yet to be determined, if and when the evidence is properly tested.
Other Evidence
Exhibit 1, as already noted are documents produced under Subpoena from (omitted) Public School which the child attends. Those records relevantly read:
a)17 August 2016, Incident # 19962, Teacher: Ms R
Term 1 and 2
Mum notified me X had difficulty going to the toilet. Would have accidents throughout the day. She always came with spare underwear and would go during class time to avoid accidents. - This stopped in Term 2.
Took a long time to adjust coming into class as she was constantly crying and holding onto her mother. She would cry throughout assembly and if the teacher wasn’t beside her she would run back to mum.
Asked mum to say bye and walk away from class lines rather than standing there and hugging X before walking to class and not to follow us to the class and say goodbye through the window.
Term 3
X is more settled and occasionally cries. When coming late to school mum walks are to class but X no walks in without needed (sic) too much encouragement.
12.8.16
X was away for three days. Called mum who said X was constipated as she had not been going to the toilet at school because she was too scared to report to Ms R during class time. Told Mum why we send kids to Ms R and if it is an emergency we don’t.
b)17 November 2016, Incident # 21628, Teacher: Ms R
X has very high anxiety when coming to school in the morning. Every morning when her mother brings her to morning lines she is crying and doesn’t want to let go of her mother. The mother has said it’s because X is afraid that her father will take her and X has also expressed this. She is reassured by both her mother and myself that she is safe at school and no one can enter the school grounds without her knowledge and that I won’t let her father take her. Over the last couple of weeks, X has refused to see her father and has been more distressed than usual. Her mother approached me this week and said that X said that she wanted to kill herself. She said she questioned her to see if she understood what she was saying and she replied “yes - I will be dead.” I have never heard X express any of these thoughts before. We have read books in class where a character has passed away and when we have spoken about it, it’s usually been an older family member and never spoke about suicide. On Thursday (17.11.16) the mother brought X to lines and said to ask about how she hurt herself last night. X said she was upset last night because nobody was listening to her so she hit her head. She was asking her brother to pass her the spoon and he refused even though he was right next to it. She also mentioned something about piggybacks and him being mean to her. Then she mentioned how she is afraid of her father in she scared he’s going to kidnap her or that he’s hiding in a closet.
Although noted by a different incident number[14], the learning support team referral for the child reproduces the record relating to Incident # 21628 which is referred to above, as the reason for referral. The following are also noted from that referral:
[14] Being #21627
Strategies/Programs used: Reassured her that she is safe at school. Told instead of hitting herself she can get up and get what she wants.
Behaviour comment: well-behaved. No issues in class.
What was the outcome of this discussion? Mum regularly communicates with me regarding what is happening at home. She also states that she sees a psychologist and is working with X to help with her anxiety.
Expected outcome: What would you like to see as a result of this referral? X to work with our school counsellor to give her some strategies as I haven’t seen much progress
It appears at first blush that some of the mother’s evidence does not strictly accord with the detail of the records produced under Subpoena from the child’s school. For example, Exhibit 1 indicates that the child was to work with the school counsellor (something which was to occur in the future) and that the mother had indicated that the child “sees a psychologist” which on a face value reading indicates that the child has seen a psychologist on more than one occasion.
The mother’s evidence as at 12 December 2016 is that the child “is seeing the school counsellor” and that she only saw a psychologist on the one occasion, being 8 November 2016.
The date of production of Subpoenaed documents was 15 December 2016. The schedule of the Subpoena refers to “all enrolment applications, attendance records, behavioural observations, school counselling records, correspondence, writings and file notes” relating to the child. It is therefore likely that if there were any school counselling records as at 15 December 2016, not only would they have been produced but they would also have been tendered in the proceedings. As such, the Court draws a Jones & Dunkel[15] inference in respect of the absence of any evidence from a school counsellor whom the child was referred to see.
Section 60CC Factors
[15] (1959) 101 CLR 298
Views of the child
The child is just over seven years old, and her views appear to be that she does not want to spend any time with her father. The reason why the child is expressing such views are not clear. The Court was not taken to any particular incident which might have reasonably explained the child’s reaction, nor was there any expert evidence available in respect of this issue. Not only because of her age, but also given the limited relationship that the child has had with the father and her apparent reaction to spending time with him, her views are accorded limited weight.
The Court is quite concerned that the child is so resistant, according to the mother, to spending time and communicating with the father. It is a matter which the Court has carefully considered elsewhere in these Reasons.
Nature of the children’s relationships with their parents and significant others
The father’s evidence is that the child, when she is able to spend time with him without the mother being present, displays positive and happy behaviours.
It appears that both parties evidence supports the finding that prima facie there is some difficulty in the child’s relationship with her father. The extent of that difficulty and the reasons for it are matters to be further explored in due course.
It appears that the child’s relationship with the father has not been able to properly develop due to the limited way in which he has been able to spend time with the child.
The mother submits that the father has had very limited time with the child, and for that reason, amongst others, there should be an order that time between the child and the father should be in accordance with the mother’s application.
This is somewhat of a self-serving argument in circumstances where the mother has only permitted the father to spend limited time with the child since separation.
There is no expert evidence before the Court about either of the parent’s parenting capacity. Before the Court are differing accounts of the care each of the parents has provided to the child during the relationship. Of course that evidence is largely in dispute and remains untested.
There is no evidence of the child’s relationship with significant others. It is not clear why the child’s relationship with the paternal family has been limited in the way described in the mother’s evidence. There does not appear to be any objective reason as to why this should be so.
Parent’s involvement with decision making, spending time and communicating with the children and Maintenance of the children
The Court finds that the father has sought to be an involved parent, and has been insistent upon spending time with the child since separation. Those requests for time have not always been answered, although there have been two agreements reached between the parties for the child to spend limited time with the father. It was submitted on the father’s behalf that essentially the father had to agree otherwise he would not get to see the child. He did not have the benefit of any legal advice at that time. In any event, time has not occurred in accordance with those agreements.
The father is currently in arrears with respect to child support. This is not a matter of any significant weight.
Likely effect of change and practical difficulty of spending time
The orders which the father seeks would not see a significant change in the child’s circumstance, except perhaps insofar as she will now be spending regular time with the father each week.
The orders proposed by the mother would see little change in the child’s routine.
There was no practical difficulty raised by either parent in respect of the child spending time with the father.
Capacity to provide for children’s needs and the attitude to the children, and to the responsibilities of parenthood, demonstrated by each of the children's parents
The Court finds that the mother has demonstrated a poor attitude to parenting by only facilitating very limited time between the child and the father to date.
Even with her subjective views of the father, there is no reasonable basis for why the child has had such a limited relationship with the father. While the mother maintains the opinion that she facilitates and encourages the relationship, an objective view of her evidence supports a finding that she in reality does not do so. The mother annexes to her Affidavits various text messages between herself and the father. Some of the text messages from the mother in response to the father’s requests to speak to the child over the telephone or to spend time with her (both in accordance with the agreements reached between the parties) are answered with:
“I will ask and encourage her to see you tomorrow.”
“I have been encouraging X to see you but she does not want to, sorry.”
“I just asked her and she said no mum, I don’t want to.”
“… forcing a child to do something that they don’t want to do…She said that she doesn’t want to talk on phone”
“Forcing a child is not mentally healthy for them either.”
“I will ask and encourage her to see you tomorrow.”
The mother says:
I deny that I restricted any time, I have always encouraged X to spend time with the Respondent. I would reply in words to the following:
“As long as X is happy to go. I am happy.”
I did apply for an AVO because I felt as though his constant phones (sic) to us, the calls to the police and to Family and Community Services were harassing and threatening. I felt as though the father was intimidating me.
The mother’s evidence about giving her then six year old daughter the choice of speaking to the father and/or spending time with the father, in circumstances where the parents had come to an agreement that such communication and time was in the child’s best interest, is not evidence of the mother’ encouraging or facilitating the relationship. Indeed it is evidence of undermining that relationship.
Furthermore, the mother does not explain in any of her evidence why she thought that asking the child whether she wanted to speak to or see her father was appropriate.
There are many instances when forcing a child is not only mentally but physically healthy for them, for example, forcing a child to stop from running across a busy road. But it is not for this Court to speculate about such matters. The mother certainly, through her text messages, seems to be of the view that she would be forcing the child into spending time with the father or speaking to the father if the child said she did not want to do so, and that this is not mentally healthy for the child. Such opinion is not explained[16].
[16] Although some hearsay evidence is contained in the mother’s evidence which might go to this issue
The Court finds that unless there are specific orders for the child to spend time with the father the child will not spend time with the father; time which will give the child the opportunity of developing and growing her relationship with his father further.
The maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the children and of either of the child's parents; if the children are an Aboriginal
The mother is of (nationality omitted) background, having migrated to Australia in 1994. Her extended family lives in the Melbourne area.
The father is of (nationality omitted) background having been born in Australia. The child’s paternal grandfather lives in Sydney in the same household as the father.
Family Violence
The mother makes a number of allegations of family violence against the father, which have been dealt with elsewhere in these Reasons.
Some of the evidence in the father’s case about the mother’s controlling behaviours might also be considered as an allegation of family violence. Such matters are also dealt with elsewhere in these Reasons.
Many of the facts alleged by each of the parents are disputed. Even if the Court is unable to make findings of fact about many of the issues, the Court is still obliged to take into consideration the various allegations which have been made. In doing so the Court must weigh up any risk of harm to the child, all the while considering what might be in the child’s best interest. It is the existence and magnitude of the risk of harm that is a fundamental matter to be taken into account in deciding what orders are to be made in respect of where the child is to live, and what time, if any, they are to spend with the other parent.[17]
[17] M & M (1988) 166 CLR 69 at 77
Institution of further proceedings and other relevant matters
These are only interim orders, and it is likely that if the matter proceeds to final hearing, there may be a time period of at least some twelve months before the matter is decided on a final basis, much depending on whether a Family Report is to be ordered.
The length of time that the matter will take to reach readiness for a final hearing is also something which the Court has considered in making these interim orders, particularly in trying to balance the child having a meaningful relationship with both of her parents given her limited relationship with the father to date and the mother’s assertion that there is a need to protect the child from harm by only permitting time either in accordance with the child’s wishes or in accordance with recommendations of the child’s treating psychologist.
Primary Considerations
The protection of the child from harm is an important matter for the Court’s consideration when weighing up the primary considerations.
Unacceptable Risk of Harm
It was submitted on behalf of the mother that the Court needed to take a cautious approach. While a cautious approach in light of relevant authorities may be warranted in certain cases, it is not enough to simply make an allegation and to then submit that because of the allegation the Court is bound to take a cautious approach and limit time with the parent against whom the allegation is made.
The cautious approach at the interim stage is an assessment of “the likely impact on children in the event that a controversial assertion is acted upon or rejected[18]” and that surely must be based on evidence of such likely impact. If there is a lacuna in the evidence, it is not up to the Court to speculate on what may or may not be ‘a likely impact’ of something happening or not happening.
[18] Keats & Keats at supra n.9
As the Full Court made clear in A & A[19] the principles relating to risk of sexual abuse as stated in M & M[20] apply to other risks of harm to the child. However, it must not be forgotten that the resolution of an allegation of abuse is subservient and ancillary to the Court’s determination of what is in the best interests of the child.[21] In the present proceedings, the mother does not, to the Court’s understanding, make any grave allegation of abuse by the father as against the child, they allegations of family violence largely relate to the father’s conduct towards her and her other child. The mother submits to the Court that because of the child’s behaviours, including threats of self-harm and refusal to spend time with her father, the child would be placed at an unacceptable risk of harm if orders for the child to spend time with the father were made other than as sought by the mother.
[19] (1998) FLC 92-800; (1998) 22 FamLR 756
[20] (1988) 166 CLR 69
[21] M & M (1988) 166 CLR 69 at p76
As Her Honour Justice Ryan stated:[22]
If the Court determines that it cannot or should not make a positive finding that there has been abuse, the Court must determine whether in all the circumstances there is an unacceptable risk of it. Where none, rather that some only, of the accumulation of factors considered satisfy the standard of proof it is generally accepted a judge should be cautious in reaching a conclusion that an unacceptable risk of abuse has been established. Whether or not there exists an unacceptable risk involves an evaluation of the nature and degree of risk and whether, with or without safeguards, it is acceptable. The components, which go to make up that conclusion, need not each be established on the balance of probabilities. The Court may determine that a constellation of factors comprises an unacceptable risk even though none or only some are proved to that standard.[23]
[22] Roberts & Banks [2011] FamCA 662 a
[23] Referring to Johnson & Page (2007) FamCA 1235
The issue is however not simply about the risk of harm, it is about the nature of the risk, the degree of risk, what might be done about the risk and the balancing of assessed risks against the benefit of the child having a relationship with the parent against whom the risk of harm is alleged to be unacceptable.[24] The issue is the extent of the risk and the things that might be done reasonably to alleviate (not eliminate, but alleviate) the risk.[25]
[24] Jopson & Lilwall (No.2) [2016] FamCAFC 262 at [58]
[25] Jopson & Lilwall (No.2) [2016] FamCAFC 262 at [56]
At this stage of the proceedings, particularly noting that much of the evidence is in dispute and that there has been no testing of the evidence in cross-examination, the Court is not able to make any findings that the father has engaged in family violence as alleged by the mother.
When examining the issue of unacceptable risk of harm to the child, the Court finds that the mother’s evidence, even at its highest, does not support the requisite standard[26] a finding that there is an unacceptable risk of harm to the child if she was to spend unsupervised time with the father, time in accordance with her wishes or if she was to spend time with the father other than in accordance with the recommendations of the child’s treating psychologist.
[26] As discussed earlier in these Reasons
It is concerning to the Court that the child, at such a young age, is receiving counselling for the reasons stated by the mother and that her concerning behaviours appear, at least prima facie, to be tolerated and even supported by the mother.
The mother’s actions in:
a)Taking her son to counselling after he was accidentally sprayed in the face with deodorant by the father,
b)Taking the child to counselling in circumstances as described by the mother in her evidence, and
c)Seeking to put the responsibility for both children’s states of mind on the father, where both children live with the mother and very seldom see the father,
are all matters of significant concern to the Court.
It was submitted that the mother is acting protectively. This may be so. She may also either intentionally or not intentionally, be undermining the child’s relationship with the father by not giving her the emotional permissions to have a relationship with the father. She certainly seems not to hold the father in high esteem, and says she is threatened and intimidated by him. She does not give evidence of how she encourages the child’s relationship, except to say to her things such as “because he is your father and he would like to talk to you”. This is not evidence of encouraging a child’s relationship with the other parent.
Although said in the context of contravention proceedings, the comments of Justice Fogarty in Stevenson & Hughes[27] are nevertheless pertinent:
It is important that in cases of this sort custodians appreciate that they are not entitled to treat the other party as an enemy who are to be thwarted wherever possible either by active steps or by passive resistance.
[27] (1993) FLC 92-363 at 79,816
It is also important for the mother and father to enlist the child’s school in encouraging the child’s relationship with the father. Exhibit 1 shows not only an anxious child who was struggling to cope with school, but also that the school is reinforcing the child’s apparent anxiety about her father. Why the school is sending the message to the child that she is not safe when her father is around is an enigma based on the objective view of the evidence in the parties’ cases. It appears to the Court that the child’s school has sided with the mother at the suggestion that the child ought not to be seeing the father except if she is happy to do so.
The Court in coming to a conclusion about the orders which are in the child’s best interest, has certainly taken into account the evidence in the mother’s case about the child threatening self-harm and saying she has hit herself. This is a matter for the parents to handle together and to assist their child in coming to terms with the fact that she has two parents and the right to know and be cared for by both her parents. She does not need to take sides.
Benefit of a Meaningful Relationship
While there is certainly evidence that suggests that the child at present does not have a particularly positive relationship with her father, there are a number of possible explanations for this which will no doubt be the subject of some evidence at further hearing.
Both parents have something to offer the child. They both, on their own evidence, appear to be loving, caring parents, who seek to be involved in the child’s future. For those reasons, the Court finds that there is a benefit to the child having a meaningful relationship with both of her parents.
There is no expert evidence to suggest that the child will not be able to cope with being away from the mother for the periods proposed by the father, although there is some evidence to suggest that the child is at times very clingy. Her expression of wanting to harm herself when she does not feel she is being listened to is a matter both parents need to take note of, and explain to the child that she is being listened to, and that her parents are there to look after her and parent her.
There are a number of protective factors for the child. She will remain living with the mother in an environment she knows, she will be spending regular and limited time with the father that will allow the child to settle into a routine and start to enjoy spending time with her father again.
The fact that the father lives with his father is also a protective factor for the child.
Parental Responsibility
Section 61C of the Act provides that each of the parents of a child who is not 18 years has parental responsibility for the child. This section states the legal position that prevails in relation to parental responsibility to the extent to which it is not displaced by a parenting order.[28] Section 61DA provides for a presumption of equal shared parental responsibility that the Court does apply when making a parenting order.
[28] See note 1 s61C
As noted earlier, in interim proceedings, the presumption applies unless the Court considers that it would not be appropriate in the circumstances for the presumption to be applied when making an interim order.[29]
[29] s61DA(3)
The Court is mindful of what the Full Court said in Salah & Salah[30] in respect of applying a cautious approach in the context of disputed allegations of family violence, the rebuttal of the presumption of equal shared parental responsibility contained in s61DA(3) and having regard to the Court’s obligations under s60CG.
[30] [2016] FamCAFC 100
The parents do not have a good working relationship at present. There appears to be very little trust between them, but the evidence is not such that it would lead the Court to conclude that any long term decisions in relation to the child would not be capable of being made jointly by the parties.
At this stage of the proceedings the Court is not minded to make an order for sole parental responsibility, despite the difficulties in the parties’ relationship which have been identified. As such, an order for equal shared parental responsibility is made.
The Court hopes that with appropriate intervention the difficulties in the parties’ relationship will improve, hence the Order pursuant to s.13C. The Court is concerned that if an order for sole parental responsibility was made at this early stage in the proceedings it would act as a stimulus for a further break-down in the co-parenting relationship.
It is noted for the benefit of the parties that in making a final parenting order in relation to a child, the Court must disregard the allocation of parental responsibility made in the interim order.[31]
[31] s61DB
Section 65DAA was discussed earlier in these reasons, noting that this section is enlivened due to the order for equal shared parental responsibility. Relevantly, s65DAA states:
(3) In determining for the purposes of subsections (1) and (2) whether it is reasonably practicable for a child to spend equal time, or substantial and significant time, with each of the child's parents, the court must have regard to:
(a) how far apart the parents live from each other; and
(b) the parents' current and future capacity to implement an arrangement for the child spending equal time, or substantial and significant time, with each of the parents; and
(c) the parents' current and future capacity to communicate with each other and resolve difficulties that might arise in implementing an arrangement of that kind; and
(d) the impact that an arrangement of that kind would have on the child; and
(e) such other matters as the court considers relevant.
Having regard to the above criteria and the various considerations discussed throughout these Reasons, equal time is not supported by the facts in this matter, and neither is significant and substantial time[32].
[32] within the meaning of s65DAA(3)
Child’s Surname
As noted earlier, the mother seeks an order to change the child’s surname from the surname Rawlings (which is the father’s surname) to (omitted) (which is said to be the mother’s family surname, although the Court notes is not the mother’s surname).
The Court was not taken to any evidence in support of the application for a change of name for the child. Consequently, that interim application is dismissed, not only because of the complete lack of evidence in support but also because of a finding that such an order at this interim stage, is not in the child’s best interest. To permit a change of the child’s surname now, when according to the mother she is expressing anxiety about spending time with the father would no doubt send a message to the child that her father was not someone she should be associated with.
The very fact that the mother makes such application at this early stage of the proceedings may well be seen to support the father’s submission that the mother is alienating the child. It is too early in the day to make any findings about this particular issue, and it is only after a full hearing with all evidence being tested that the Court would be able to draw any conclusions about the assertion that the father makes.
Appointment of an Independent Children’s Lawyer
The orders made by the Court include an order for the parties to attend a Child Inclusive Child Dispute Conference, which may result in some recommendations about the appointment of an Independent Children’s Lawyer and will refer to the views of the child as expressed to the Family Consultant.
It was submitted on behalf of the mother that an Independent Children’s Lawyer ought to be appointed to give the child her own voice. Unfortunately, very little was said about the relevant Re K[33] factors. The Court is not persuaded by the submissions that the appointment of an Independent Children’s Lawyer at this juncture is an appropriate order to be made, particularly as the child inclusive conference is yet to occur.
[33] (1994) FLC 92-461
In Summary
The child is seven years old as at the date of these Reasons. She lives with her mother and has done so for the entirety of her young life.
Since the parties’ separation which occurred when the child was approximately 18 months old, the child has spent limited time with the father, and most of that time has been in the presence of the mother.
The child will benefit from a meaningful relationship with both of her parents. She already has a close and loving relationship with her mother. She has not had the opportunity to develop a similar relationship with her father. Absent any unacceptable risk of harm, there is no reason why the child ought not be given the opportunity of having such a meaningful relationship with her father.
Following the child’s birth, the parties lived in the same household, and the father had some involvement in the child’s early care, the extent of which is in dispute. However, post separation, the father has spent limited time with the child, with such time being on an ad hoc basis.
The parties cannot reach agreement about future parenting arrangements for the child. Indeed, they could not reach agreement about what time the father was to be spending with the child, culminating in the application presently before the Court.
It is important to reflect on the principles[34] underlying the objects of Part VII of the Act. They are, except when it is or would be contrary to a child’s best interest, as follows:
[34] S60B
(a) children have the right to know and be cared for by both their parents, regardless of whether their parents are married, separated, have never married or have never lived together; and
(b) children have a right to spend time on a regular basis with, and communicate on a regular basis with, both their parents and other people significant to their care, welfare and development (such as grandparents and other relatives); and
(c) parents jointly share duties and responsibilities concerning the care, welfare and development of their children; and
(d) parents should agree about the future parenting of their children; and
(e) children have a right to enjoy their culture (including the right to enjoy that culture with other people who share that culture).
While there have been a number of months since the child has spent time with the father, and there is evidence to suggest that she does not wish to spend time with her father and that she might be exhibiting fear of her father, the orders which the Court makes provide for limited and relatively frequent time between child and the father such that the relationship between the two may develop and grow.
The Court is not satisfied on the evidence before it, that the mother has established that there is an unacceptable risk of harm to the child such that time between the child and the father ought to be limited in the way proposed by the mother, namely in accordance with the child’s wishes or in accordance with the recommendations of the child’s treating psychiatrist[35].
[35] Who is not a witness in these proceedings
The child should be afforded the opportunity of spending meaningful time with his father in the absence of the mother, such that their relationship may be given the proper room to grow and flourish.
The father’s proposal sees the child spending limited time with the father; and the mother’s proposal sees the child potentially spending little to no meaningful time with the father.
Some protective measures are present in the Orders which the Court makes, such as to discharge the Court’s obligations under s60CG[36].
[36] The Court is also mindful of the undertakings given by the father mentioned previously
Conclusion
In all of the circumstances and for all of the reasons set out above, it is in the child’s best for orders to be made as set out at the forefront of these Reasons.
I certify that the preceding one hundred and sixty-three (163) paragraphs are a true copy of the reasons for judgment of Judge Obradovic
Date: 10 February 2017
Key Legal Topics
Areas of Law
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Family Law
Legal Concepts
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Injunction
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Procedural Fairness
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Remedies
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