PETERS & PATTERSON
[2013] FamCA 295
FAMILY COURT OF AUSTRALIA
| PETERS & PATTERSON | [2013] FamCA 295 |
| FAMILY LAW – CHILDREN – Allegations of sexual abuse made against father – Father denied Allegations – Allegations of Violence – Orders made that child live with mother and that father spend significant and substantial time with the child |
| Family Law Act 1975 (Cth) ss 60B, 60CC, 61DA and 65DAA Births, Deaths and Marriages Registration Act 2003 (Queensland) s 8 |
| Heath v Hemming (No 2) [2011] FamCA 749 |
Black’s Law Dictionary (West Group, 7th Edition 1999)
The CCH Macquarie Concise Dictionary of Modern Law (CCH Australia Ltd, Business Edition 1988)
| APPLICANT: | Mr Peters |
| RESPONDENT: | Ms Patterson |
| INDEPENDENT CHILDREN’S LAWYER: | Purcell Taylor Lawyers |
| FILE NUMBER: | CSC | 347 | of | 2009 |
| DATE DELIVERED: | 3 May 2013 |
| PLACE DELIVERED: | Hobart |
| PLACE HEARD: | Cairns |
| JUDGMENT OF: | Benjamin J |
| HEARING DATE: | 4 & 5 September 2012, 28 February 2013 & 5 March 2013 |
REPRESENTATION
| COUNSEL FOR THE APPLICANT: | Ms Sinclair |
| SOLICITOR FOR THE APPLICANT: | Bottoms English Lawyers |
| COUNSEL FOR THE RESPONDENT: | In person |
| SOLICITOR FOR THE RESPONDENT: |
| COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: | Mr Fellows |
| SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: | Purcell Taylor Lawyers |
Parenting Orders
Prior orders
All prior parenting orders with respect to K born … December 2008 (“the child”) are discharged.
Parental responsibility
IT IS DECLARED that the presumption of equal shared parental responsibility is rebutted in the best interests of the child.
Subject to these Orders, the mother shall have, to the exclusion of the father, parental responsibility in respect of all major long-term issues (as that expression is defined in the Family Law Act 1975 (the Act)) in respect of the child, save that the mother shall, prior to making the sole ultimate decision about any such issue:-
(a)advise the father in writing of the decision intended to be made;
(b)seek the father’s written response in relation to such decision;
(c)consider, by reference to the best interests of the child consider any such responses prior to making any such decision; and
(d)advise the father in writing as soon as reasonably practicable of her ultimate decision.
In the exercise of parental responsibility the mother shall not relocate the permanent residence of the child more than thirty (30) kilometres from the Town A central business district without first obtaining the written consent of the father or further order of a Court exercising jurisdiction under the Act.
The mother shall have sole parental responsibility for decisions regarding the day-to-day care, welfare and development of the child whilst in her care.
The father shall have sole parental responsibility:-
(a)for decisions regarding the day-to-day care, welfare and development of the child whilst in his care; and
(b)to do all acts and things necessary and sign the birth registration application and/or other document/s to enable registration of the child’s birth including that the father to be shown, on the child’s birth certificate, as the father, provided that such application for registration shows the following:-
i.The child’s first names are ‘[K] …’;
ii.The child’s surname is ‘[Patterson]’;
iii.The child was born on … December 2008;
iv.The mother is the child’s mother; and
v.The father is the child’s father.
IT IS NOTED for the purpose of s 8(2)(b) of the Births, Deaths and Marriages Registration Act 2003 (Queensland) that the mother is unable, unlikely or unwilling to sign such application.
The father shall have parental responsibility to speak to and obtain records from the child’s health care professional, school or day care in relation to the health, welfare and development of the child.
Residence, time and communication
The child shall live with the mother except as otherwise ordered or alternatively as agreed in writing between the parties.
The child shall live with the father from:-
(a)9.00am Thursday until 9.00am Monday each alternate week; such alternate weeks to commence in the week when the father is not otherwise working in his employment at … and each alternate week thereafter; and
(b)from 3.00pm Christmas Day until 3.00pm Boxing Day in all even numbered years and from 9.00am Christmas Eve until 3.00pm Christmas Day on odd numbered years.
The father shall forward to the mother, within fourteen (14) days his roster for the period from the date of these orders a roster for the twelve months from 31 March 2013 to 31 March 2014 or such lesser period if the full year roster is not available and shall provide such roster, each year, on that basis.
Commencing after 30 June 2013 the father may give the mother notice, up to four times per year, extending the time he spends with the child, for periods of up to seven days, for his holidays, such seven days to exclude Mother’s Day, Easter, Christmas Day and the child’s birthday.
Notwithstanding these orders the child shall be returned to the mother three (3) days before the commencement of school term at the start of each school year.
Handover shall be as agreed between the parties; however in the absence of agreement it shall be at school when the child attends school otherwise handover shall occur at the child’s day care centre, play group or school or where that is not possible in the precincts of the Town A Police Station.
The child shall live with the mother from 9.00am Christmas Eve until 3.00pm on Christmas Day on even numbered years and shall live with the mother from 3.00pm on Christmas Day until 3.00pm on Boxing Day on odd numbered years.
Injunctions
The parties are restrained from discussing with the child, or with any other person when the child is present, or in hearing range of the child, any adult issues including future living arrangements for the child.
Each of the parties are restrained from denigrating or belittling the other party or the other parties’ family either directly or indirectly and shall not permit other people to do so in the presence or hearing of the child.
Each of the parties shall be restrained from using or being affected by alcohol and illicit substances during any time the child is in their care.
The mother shall be restrained from removing the child’s principal residence from the Town A area without the written consent of the father or without an order of a court exercising jurisdiction under the Act.
Communication
Each of the parties shall keep the other advised as to their residential address, mobile telephone numbers and email addresses and inform the other of any change, within two (2) days of any such change.
Communications between the parties in relation to the child shall be by email or text message (except in the case of a genuine emergency).
Each parent shall immediately notify the other if any child is seriously ill or is to be admitted to hospital on any occasion when the child is in that parent’s care.
Generally
Pursuant to s 65DA(2) and s 62B, the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders and details of who can assist parties adjust to and comply with an order are set out in the Fact Sheet attached hereto and these particulars are included in these orders.
Pursuant to s 121(9)(g) of the Act the Court approves the publication of these Orders and/or reasons for judgment by the Independent Children's Lawyer to the Director General of the Department of Communities, Child Safety and Disability Services.
All other extant applications (other than costs applications – which are able to be made in accordance with the rules) be otherwise dismissed and removed from the list of cases awaiting finalisation.
Following the expiration of the appeal period, all subpoenaed documents be returned to the persons or institutions from which they emanated and all exhibits are returned to the person or persons who tendered the same.
IT IS CERTIFIED
Pursuant to Rule 19.50 of the Family Law Rules 2004 it was reasonable to engage counsel to attend.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Peters & Patterson has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
| FAMILY COURT OF AUSTRALIA AT HOBART |
FILE NUMBER: CSC 347 of 2009
| Mr Peters |
Applicant
And
| Ms Patterson |
Respondent
And
Independent Children’s Lawyer
REASONS FOR JUDGMENT
INTRODUCTION
These are proceedings relating to the parenting arrangements for K, (“the child”) who was born in December 2008 and is now aged four.
The father is the applicant and he now seeks orders as set out in his further amended initiating application filed 10 August 2012.
Those orders included that the child live with the father and that he have sole parental responsibility for the child. The father seeks an order that he have permission to register his name as the child’s father on the child’s birth certificate and further, formally change the child’s surname from ‘[Patterson]’ to ‘[Peters]’.
In terms of the time the mother communicates with the child the father seeks orders that the mother not spend any time with the child or communicate with the child for a period of three months after the orders were made and then the child would spend time with the mother each alternate weekend from after school Friday to the commencement of school Monday, on the child’s birthday, Mother’s Day, half of the school holidays and three weeks over the Christmas holidays with arrangements made for Christmas Day.
The father seeks orders that the mother be restrained from discussing adult issues with the child and denigrating the father and that the mother be restrained from approaching the father at his place of residence.
The father seeks various other injunctions and other orders.
The mother seeks orders as set out in a document she forwarded to the Independent Children’s Lawyer and the father earlier this year.[1] She seeks orders that the child live with her and spend three days per week with the father until the child’s fourth birthday, then two days on a Wednesday and every second Saturday and Sunday between the child’s fourth and fifth birthday and thereafter after school Wednesday for a few hours and every second Saturday through to Sunday during school term.
[1] Exhibit M1.
This arrangement would continue into school holidays but it would be suspended for half of the school holidays. The mother seeks certain specific other orders but does not seek any particular orders with regard to parental responsibility.
In cross-examination by the Independent Children’s Lawyer the mother conceded that the parents could not communicate and that it is likely that whoever has the primary care of the child ought to have parental responsibility.
In cross-examination the mother further conceded that it would be her preference that the father spends no time with the child apart from supervised time.
In final submissions the Independent Children’s Lawyer asserted and I agree that (at that time):-[2]
…the tragedy of this case is the extreme positions with which the court is confronted. On the one hand an application that the child should go into the primary care of the father after a long status quo of living with the mother and the alternative proposition of the mother that the father’s time now and into the future be very significantly limited.
Perhaps the more important position is that in a sense neither of these parties have necessarily believed in the orders that they [seek]. That is to say until very recently the father’s position was that his time with the [child] should be shared with the mother, and presumably because of his working environment, an order that there be approximately five days each fortnight with him would have been satisfactory for him.
And so he now finds himself making an application for quite some years he has never advanced. On the other hand the mother makes an application to your Honour for orders which, with respect to her, she doesn’t really believe in. That is to say her true position is that [the child] probably shouldn’t have a relationship at all with his father or that it should be even more limited than that which she proposed. This case has been underway for three years and three months. It must be one of the longest running cases in this registry in recent times and this child still has no overnight time with his father and we need to ask how did this come about? [3]
[2] Transcript of Proceedings dated 5 September 2012, page 50 at lines 11 to 14.
[3] Ibid at lines 27 to 29.
ISSUES
The primary issues in these proceedings are whether the child should live with the mother or father, who should have parental responsibility and what time the child should spend with the other parent. There are issues of injunctions and other aspects.
There is an issue as to whether the child is at risk of abuse in the care of the father and whether the mother has fabricated allegations of abuse, there is a significant issue as to the conflict between the parties.
In these proceedings the mother represented herself and as such was exposed to greater scrutiny by the Court and from the father who was represented. That was a disadvantage to the mother and I have had regard to that in this determination.
The father is aged 39 and works seven days on and seven days off. The reality is that he is some eight hours away from the start of work and the end of work. He starts on a Tuesday and finishes on a Monday. That means that he would not be back in Town A until Tuesday afternoon and would need to leave for work on Monday morning. The work undertaken by the father is physical work and as such the time he could reasonably spend with the child is essentially from Wednesday through to Sunday afternoon or Monday morning.
BACKGROUND
The mother is aged 35 almost 36. The father has four children; B aged 17 who lives with him in Town A, C aged 14, almost 15. The father has another child D who is aged 6. The father does not know the birthday of this child and does not see this child. He apparently has an arrangement with the mother that she looks after the child and calls another person his father. That child has taken his mother’s surname.
The mother has two children from previous relationships, her daughter G aged 16 and her son F aged 10. They live primarily with her. F spends time visiting his father on a fortnightly basis. The mother conceded in evidence that she moved away from F’s father at the time of separation and alleged there was violence.
F was placed into the care of his father but eventually returned to the care of the mother and he spends overnight time with his father on a regular basis.
The parties commenced a relationship in 2008 and their relationship ended later that year, according to the mother. The child was born in December 2008. The father says the relationship ended in January 2009. The date the parties’ relationship ended is not a significant factor in these proceedings.
The father commenced proceedings in June 2009 in the Federal Magistrates Court.
The mother initially denied paternity and it was necessary to order parentage testing which established that the father was the child’s father. An order was made by a Federal Magistrate in July 2009 to that effect.
An order was made by a Federal Magistrate in September 2009 that there be equal shared parental responsibility, the child live with the mother and that the father spend time with the child. A family report was ordered.
In December 2009 a family report was provided by Dr E, the single expert, who recommended that the father’s time continue to be unsupervised with a gradual stepping up towards shared care. In January 2010 the mother’s car was set alight. The mother believes the father set the vehicle alight although there is no evidence supporting that assertion.
In January 2010 the father filed a contravention application and in March 2010 an Independent Children’s Lawyer was appointed. In March 2010 the mother sought permission to relocate and the father’s time with the child was increased.
In March 2010 the mother was permitted to relocate to Town A and the father was to spend day time with the child for seven hours three days a week. The mother was found to have contravened the orders without reasonable excuse and compensatory time was ordered.
In April 2010 the mother filed an application for a domestic violence order. In July 2010 the mother’s application for a domestic violence order was dismissed.
In July 2010 another car owned by the mother was set alight and burnt. The mother believes the father set the vehicle alight although there is no evidence supporting that further assertion.
In August 2010 a further updated family report was ordered and the mother was directed to file an affidavit deposing to the outcome of the forensic investigations concerning the fire damage of her vehicles. She did not file that affidavit.
In October 2010 the mother made allegations of sexual abuse to the Department of Child Safety and in November 2010 the father filed further contravention applications.
In November 2010 consent orders were made for the mother to have vacation time, for the father to have make up time with the child. A second family report was released in March 2011 by Dr E.
In February 2011 the father obtained employment in the local industry and informed the mother of this circumstance. At about the same time the mother made further allegations of sexual abuse which continued for some time.
The father made further applications for the mother to be dealt with by contravention, but the factual basis upon which those were based were to be dealt with at the trial and on that basis the applications were dismissed.
The mother was required, by order made 6 December 2011, to particularise the sexual abuse allegations and the proceedings were transferred to the Family Court. The matter came into my docket on 10 January 2012, an updated family report was prepared and the matter was listed for hearing on 4 September 2012.
There is no issue that there has been significant conflict between these parents and that the mother has resisted the development of the relationship between the father and the child including her denial of paternity, her moves to Town A, allegations the father was responsible for arson of a motor vehicle (unsubstantiated) and sexual abuse allegations made against the father.
In these Reasons any statement of fact is to be regarded as a finding of fact unless the contrary is clear from the context of the statement.
THE RELEVANT LEGAL PRINCIPLES TO BE APPLIED
Part VII of the Family Law Act 1975 (Cth) (‘the Act’) sets out the pathway in determining parenting arrangements for children.
Section 60B of the Act sets out the objects and underlying principles to make sure that the child’s best interests are met. Section 60CA requires the Court to regard the best interest of the child to be the paramount consideration.
In determining the best interests of the child the primary and additional considerations are set out in s 60CC of the Act. The considerations must be read in the context of the objects and principles contained in s 60B and in particular the need to ensure children have the benefit of both of their parents having meaningful involvement in their lives and at the same time to protect children from abuse, neglect or family violence.
In Heath v Hemming (No 2) [2011] FamCA 749 Kent J set out the legislative approach to parenting orders under Part VII of the Act, I have endeavoured to address this decision in accordance with that direction. In addition Kent J considered a pathway in determining parenting orders under Part VII of the Family Law Act 1975 (Cth) (‘the Act’), including an outline of the source of the Court’s powers pursuant to s 87 when he said:-
87. Upon my review of the authorities it seems to me that the following is a logical and practical approach by the Court, and one which meets the statutory imperatives in a parenting case, including such cases involving a proposed relocation:
(i)Identify the respective proposals of each of the parties and any proposals of the Court substantially different to those of either party that were identified to the parties in the course of the proceedings as being proposals the Court might consider and about which the parties were given an opportunity to be heard. (AMS v AIF (1999) 199 CLR 160 and U v U (2002) 211 CLR 238)
(ii)Informed by the objects expressed in s 60B(1) and the principles underlying those objects in s 60B(2) (and where relevant s 60B(3)) undertake consideration of and make findings about each of the “best interests” considerations set out in s 60CC having regard to the respective proposals. It may be preferable to look at the additional considerations in s 60CC(3) (incorporating subsections (4), (4A) and (6) (where relevant)) before consideration of and findings about the primary considerations in s 60CC(2). (Collu & Rinaldo (supra))
(iii)Consideration of and findings about the s 60CC considerations will result in findings one way or the other about “abuse” and “family violence” within the meaning of those terms as they are defined in s 4 of the Act (s 60CC(3)(g),(k) and s 60CC(2)(b)).
(iv)In determining best interests the obligation upon the Court is to consider, weigh and assess the evidence adduced on behalf of the parties touching upon each of the relevant matters. After consideration of all those matters the Court should indicate to which of those matters greater significance is attached and how all of those matters balance out. (Collu & Rinaldo (supra) at [355] cited with approval in Sigley & Evor (2011) 44 Fam LR 439 at [142]).
(v)Next, determine in accordance with s 61DA whether or not the presumption of equal shared parental responsibility applies having regard to any findings as to “abuse” or “family violence” (s 61DA(2)) and the findings on “best interests” considerations (s 61DA(4)).
(vi)If, as a result, the s 61DA presumption is found not to apply, or is rebutted, and it is determined that the parenting order will not provide for the parents to have equal shared parental responsibility, s 65DAA is not triggered and the Court may make parenting orders, consistent with the s 60CC findings, having regard to ss 60CA, 60CC and 60B.
(vii)If the presumption applies, or if it is determined that the parenting order should make provision for the parents to have equal shared parental responsibility, then s 65DAA is triggered and the Court must consider:
i. Whether an order for equal time is in the child’s best interests and is reasonably practicable and, if it is, consider making an order for, or containing provision for, equal time; and if not,
ii. Whether an order for substantial and significant time would be in the child’s best interests and is reasonably practicable and, if it is, consider making an order for, or containing provision for, substantial and significant time.
(viii)The questions about “best interests” posed by s 65DAA will be answered by reference to the s 60CC findings undertaken in steps (b),(c) and (d) above.
(ix)To answer the question of “reasonably practicable” regard must be had to the factors identified in (a) to (e) of s 65DAA(5) some of which will have also been considered in addressing the s 60CC considerations (as but one example, parental capacity to implement arrangements and to communicate and resolve difficulties). As the High Court highlights in paragraph 15 of its judgment in MRR v GR (supra) s 65DAA(1) is concerned with the reality of the situation of the parents and the child, not whether it is desirable that there will be equal time (and the same can be said of s 65DAA(2) and substantial and significant time) and s 65DAA(1)(b) (and s 65DAA(2)(d)) requires a practical assessment to be made of the feasibility of equal time or substantial and significant time respectively.
I have considered and adopt the pathway suggested by Kent J.
The provisions in the Act relating to children rest on the importance of a child having a meaningful relationship with his/her parents and the need to protect children from harm. These objects are contained in s 60B(1) of the Act, which provides:-
(1) The objects of this Part are to ensure that the best interests of children are met by:
(a)ensuring that children have the benefit of both of their parents having a meaningful involvement in their lives, to the maximum extent consistent with the best interests of the child; and
(b)protecting children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence; and
(c)ensuring that children receive adequate and proper parenting to help them achieve their full potential; and
(d)ensuring that parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of their children.
(2)The principles underlying these objects are that (except when it is or would be contrary to a child’s best interests):
(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).
When determining parenting orders a court must put in place orders which will endeavour to be in the child’s best interests, as the paramount but not sole consideration. In undertaking this exercise the Court must consider the primary and additional considerations set out in s 60CC of the Act.
There is a rebuttable presumption that it is in a child’s best interests for his or her parents to have equal shared parental responsibility for the child. If there are reasonable grounds to believe that a parent has engaged in the abuse of the child or family violence the presumption does not apply.
If there is an order for equal shared parental responsibility (by application of the presumption or otherwise), a court must consider whether equal time with each parent would be both in the child’s best interests and reasonably practicable. Further, if an order for no equal time is made, a court must consider whether an order should be made providing that a child spends substantial and significant time with each parent if that is in the child’s best interests and is reasonably practicable.
THE EVIDENCE
Dr E
Dr E’s three reports were tendered in evidence, namely her reports 13 December 2009 (report 1), 24 January 2011 (report 2) and 6 May 2012 (report 3).
Dr E was made available for cross-examination by the Independent Children’s Lawyer and the mother. The father’s counsel did not ask any questions of Dr E.
There was no challenge to Dr E’s qualifications and I accept those qualifications.
In her first report Dr E observed there was significant conflict between the parties and that the father was exhibiting significant psychological stress. Dr E made comments about the past drug use of both parties and the failure of the mother to acknowledge her past use of drugs.
Dr E believed, at that time, the child would benefit from a meaningful relationship with both parents and she considered, at that time, equal shared parental responsibility as being appropriate. She said that, eventually, the child should spend equal or substantial time with each parent.
She urged the parties to moderate their conflict and recommended that the parties undertake some parenting orders program. Insofar as the mother was concerned there is no evidence that she completed that program and neither party took any significant steps at that time to reduce the conflict.
A second report was provided by Dr E in January 2011.
In that second report Dr E observed, and I accept:-
4.1 Apparent from the above is the continued conflict and distrust between [the father] and [the mother]. Notwithstanding their engagement in therapeutic interventions and the passage of time, their attitudes and behaviours appear to be further entrenched. Both purport that their attitudes and behaviours come from a genuine concern for the wellbeing and safety of their son, yet they continue to engage in conflict around him. Their ongoing conflict is detrimental to their child and also to them as individuals and it is difficult to see that these two parents will be capable of an ongoing co-parenting arrangement.
Dr E went on to observe that the parties are controlling in their behaviour to each other, distrust each other and are disrespectful of each other. She urged the parties to step back from their current stance and did not recommend any contact between the child and the parents until the conflict between the parties was negotiated.
Dr E prepared a final report in May 2012. One of the people that Dr E interviewed was a boarder at the father’s home, Ms H (aged 16). The mother asserts that the father had a sexual relationship with Ms H. That is not supported by the assessment by the single expert nor enquiries made by Child Protection.
Dr E observed the concerns from the officers of the Department of Communities (Child Safety, Youth and Families) that the mother seems reluctant to lose contact with the father. Dr E observed that the Department had investigated the allegation of sexual abuse and had not assessed the child as being in need of protection. Their concerns relate predominantly to the awareness of the child to the ongoing conflict between his parents.
Such was the concern of Dr E that she discussed the possibility that the child may be taken away from both parents and placed in foster care.
Dr E concluded that there had been no significant change from the positions held by both parties and both continued to bolster their stance with added information as each continued to focus on the conflict.
As an aside I put in place orders[4] to that effect earlier this year and that eventually took place. The mother obstructed the arrangements for the less confrontational handovers. Sadly the father took a video camera with him and video records the changeovers. Dr E observes that each of the parties are still caught in their views as to what ought to happen.
[4] Dated 5 September 2012.
She raised issues of play therapy with regard to the child but said it ought not be significant ongoing therapy bearing in mind the age and maturity of the child.
In cross-examination Dr E said there was no reason why the child ought not spend significant and eventually equal time with the father (subject to me not making a finding that the child is at risk of sexual abuse) or that the father had committed arson in respect of the mother’s car.
Dr E observed nothing of the father’s character or demeanour which has a greater risk of sexual abuse to the child.
If I determine that there ought to be a change of primary parent, Dr E would support a period of three months where the child would not see the mother. This would enable the child to settle into the father’s arrangements and understand his new reality.
Dr E was concerned that the child needs stability and his life so far has been unstable. She said something ought to be done to bring about change.
She observed words to the effect ‘something has to happen, you guys haven’t found a way of managing the conflict’.
I accept her evidence, she is credible and her evidence and opinions reliable.
The father
The father relied on a series of affidavits namely those filed on 4 June 2009, 25 January 2010, 30 March 2010, 20 August 2010, 11 October 2010, 15 November 2010, 17 March 2011, 8 June 2011, 24 February 2012, 18 April 2012, 10 August 2012, 3 September 2012 and 22 February 2013.
In his evidence he said he is now living in a three bedroom apartment and that there is room for the child. He presently works, as I have indicated earlier, seven days on and seven days off but there is an eight hour drive each way.
When cross-examined he conceded that he effectively has five days in Town A. He is able to leave work at any time but has made no enquiries in relation to what work he would take if the child were placed into his care. He gave evidence about working at night in various industries and had little insight into the needs of the child, nor did he have any significant insight into the needs to be around the child, at least for that three month period.
When questioned by the Independent Children’s Lawyer he said it was good for the child to have a working parent.
He had little insight into the needs of the child in terms of the changeover and said that he would engage in play therapy but had made no enquiries in that respect. I am satisfied he has not thought through the reality of the child living with him.
I also have concerns about the father’s ability to parent the child. He shows a lack of insight into the role of parenting the child and has not thought through his proposal, particularly in relation to such a substantial change of a primary carer/residence as sought by him. Having regard to his history in relation to parenting I have concerns as to his ability to properly parent this child. He has chosen not to engage himself in the life of his son D, whose birthday he did not know.
In relation to the child care centre, this seems to be working better. There is one incident alleged by the father as to the mother placing her finger in the air, as I have noted earlier the father records these events on video.
The father denied any violence or misbehaviour in the past and understated his involvement with drugs.
His boarder Mr J goes with him on many changeovers. It is clear that the father has made complaints to the Department of Child Safety. He denied: engaging in or the encouraging of sexualised behaviour with or by the child; sexually abusing the child; and damaging or causing damage to the mother’s cars.
The father suffered an injury some years ago which was referred to in a report of Ms L of 30 March 2009.[5]
[5] Annexure C to mother’s affidavit filed 17 April 2012.
The father was not an impressive witness. He, like the mother, seemed to be engaged in the conflict. I treat his evidence with great care.
The mother
The mother gave evidence in accordance with her affidavits of 31 August 2012, 17 April 2012, 27 February 2012, 18 May 2011, 28 January 2011 and 25 October 2010.
Those affidavits were read into evidence. The orders the mother sought were set out in Exhibit ‘M1’. The mother, after cross-examination from the Independent Children’s Lawyer, conceded she did not want the father to have any supervised time with the child.
The mother asserted that she saw no benefit in the child having a meaningful relationship with the father.
In relation to the aspects of sexual abuse, the mother was cross-examined for some time. Her evidence was troubling. She waxed and waned in terms of what her beliefs were. At many times she prevaricated in terms of the evidence. She often resorted to the ‘sexualised’ behaviour of the child and it was only when I warned her about being frank that she said she believed that the father had sexually abused the child.
The mother has trouble even acknowledging that the father loves the child. I do not believe that the mother will encourage a relationship between the child and the father.
From observing the mother’s demeanour giving evidence and listening to her answers to questions by the Independent Children’s Lawyer, I am not satisfied that she seriously believed the child is at risk of sexual abuse.
I am deeply concerned about the veracity of the allegations made by her.
The mother said that she would comply with court orders, even if she did not agree with them. I am not sure that the mother will actively support court orders as seen from her approach to the arrangements for the child to be collected and delivered at day care.
Further, when an order was made by Federal Magistrate Willis the mother complained to the Child Safety Authorities.[6]
[6] Exhibit ICL 1 - Child Safety documents Tab 3.
The mother could have assisted the father in having his name put on the child’s birth certificate. She has not done that or seriously engaged in that process.
The mother has made numerous complaints about the father and I note the cross-examination by the Independent Children’s Lawyer in this regard. She has asserted memory loss and inability to know whether complaints had been made by her or her mother.
Having seen the material and read the material it is clear that the mother pursued complaints to the Department of Child Safety to improve her position in these proceedings.
In November 2011 the child had a nappy rash type infection on his bottom. The mother or her mother asserted that there was a bruise there and made a complaint to the Department of Child Safety. The Department arranged for the child to be medically examined and there was no overt issue of any sexual abuse arising from that examination.
The mother was interviewed in relation to that examination and prevaricated in terms of the evidence. From time to time she provided non-responsive answers.
The mother’s initial complaints about the father was that the child came home from visits with a ‘red raw penis’ and was masturbating. This was at a stage when the child was aged about 2 or 3. The mother did not take the child for a medical assessment in respect of this and offered excuses, which I do not accept. The Child Protection Authorities recommended that the mother should take the child to a doctor and the mother found excuses as to why she ought not do so.
The mother asserts that disclosures were made by the child. I have difficulty believing her in relation to those disclosures and it is likely if they were made they were exaggerated. The child was interviewed by police officers and made no disclosures.
The mother says that if I made orders that the child spend two, three or four nights with the father she would not agree with it but she would comply with those orders.
In her affidavit of 31 January 2012 the mother provided evidence of a drug testing however, on the face of the report it was not reliable.
The mother produced to the Independent Children’s Lawyer a report in relation to one of the arson attacks on her car on 15 July 2010.[7] This did not provide any evidence that the father was involved in the arson attack.
[7] Exhibit ICL3.
When cross-examined by the counsel for the father the mother said that G had a limited relationship with the father and had not seen him this year. As to F the mother said he uses his father’s surname ‘at the moment’.
The mother was cross-examined about the changeover arrangements pursuant to orders made by me in September 2012.
This was an example of the mother’s obfuscation. An order was made by me that the changeover takes place at a child care centre. The father approached the child care centre but needed a copy of the child’s birth certificate, immunisation card and child’s Medicare card number. The solicitor for the father wrote to the mother on five occasions requesting this information. It was not provided.
As a result the child’s enrolment in that day care centre was temporarily suspended. The mother then asserted that the father had contravened the Court orders by not enrolling the child. The mother caused the problem and then sought to blame the father for it.
It is clear from the evidence the mother has resisted the child spending time with the father. In November 2010 she directed that the child’s then medical centre ought not to provide information to the father about the child. The mother said she had tried the child with sleepovers at her parent’s house but it did not work. I do not believe her.
In giving evidence about the arrangements for the child to be collected from a child care centre the mother was petulant and difficult. She seemed focused more on her own needs than those of the child.
The mother is an unreliable witness, whose evidence needs to be treated with great care.
Ms M
The maternal grandmother gave evidence in accordance with her affidavit of 17 April 2012.
The maternal grandmother’s affidavit provided evidence of the conflict between the parties earlier in the relationship, from a subjective point of view, including anger, drunkenness and disagreement. She also provided evidence in relation to her views of the mother’s parenting capacity.
Paragraphs 2 through to paragraph 44 of her affidavit (of an affidavit containing 50 paragraphs) dealt with the question of aggression, alleged violence and issues arising out of substance abuse up to November 2010. It also set out an event where apparently the child used bad language.
The maternal grandmother reported the child’s use of bad language to the Department of Child Safety. The maternal grandmother went on to say that she sees the child almost every day and the mother is a good mother and the child gets on well with his siblings.
Strangely the maternal grandmother’s affidavit did not address the serious allegations of sexual abuse made by the mother and herself. She was cross-examined about this by the Independent Children’s Lawyer.
When asked directly whether she believed the child had been sexually abused, the maternal grandmother’s answers were opaque. At one stage she said she did not believe he [the child] was being sexually abused but then said she didn’t know. She said she had a concern but presently she does not know what to think.
The maternal grandmother said the first observation she had was in October 2010 (the child was aged about 22 months). She said that the child had a red penis and that the child said ‘daddy bites my pee pee’. The maternal grandmother says she and the mother were present when this was observed and heard and that this disclosure occurred on either the morning of the Thursday when the complaint was made or the night before. She said she did not discuss this with the mother and contacted the Department of Child Safety without referring to the mother.
The records of the Department of Child Safety created 5 October 2010 provide further details including a suggestion that the child was exploring himself and that this had been a continuing problem observed by the reporter.
The maternal grandmother prevaricated in terms of this disclosure. She asserted there was no discussion between her and the mother about the child seeing a doctor, taking the child to the police and that she had little recollection of any discussion with the mother. Her evidence in this regard is inherently unlikely.
The maternal grandmother was concerned about the Department not taking action but neither she nor the mother took the child for medical treatment. On 3 November 2011 the maternal grandmother, and the Departmental records,[8] describes the child’s bottom as ‘red’ and ‘really bruised looking’.
[8] Exhibit ICL 2 tab 14.
The maternal grandmother said the mother was not with her when she made the report and did not discuss this report prior to seeing the mother although it is clear that she had a discussion with the mother about a nightmare the child allegedly had prior to the disclosure.
In her evidence the maternal grandmother said the bruising was the like of which she had never seen before but in the report that ‘it’ [whatever it is] has been occurring for nearly two years. Again there were no steps taken by neither the mother nor the maternal grandmother to have the child examined by a doctor.
The maternal grandmother was cross-examined as to whether she is ‘feeding the dispute’.[9] She denied that she engaged in finger gestures to the father at changeover.
[9] Report Dr E page 10 paragraph ‘n’ report from Department of Communities (Child Safety, Youth & Families).
Counsel for the father submitted that the ‘[maternal] grandmother’s evidence followed the same vein as the mother’s evidence, that is, that she could not say anything positive about the father, she made numerous allegations to the Department of Child Safety that had no substance and exposed the child to the emotional distress of having those allegations investigated.”.[10]
[10] At paragraph 26 of the father’s written submissions dated the 5 March 2013.
Further, the father’s counsel submitted that when asked by counsel for the Independent Children’s Lawyer, “Do you accept that he wouldn’t do anything to harm his son?”[11] she responded “no I don’t’ know”.[12] Counsel for the father asserted that like her daughter, the maternal grandmother dismissed the suggestion that she could have or should have taken the child to see a doctor if she had concerns about the child. In addition she submitted that like the mother, the maternal grandmother was looking for a reason to suspend the father’s time with the child. Counsel for the father says the actions of the grandmother were not those of a ‘concerned, hysterical or outraged grandmother, but rather a grandmother who didn’t really believe anything had happened to her grandson”.[13]
[11] Ibid at paragraph 27.
[12] Ibid.
[13] Ibid.
Counsel for the father submitted that the maternal grandmother denied that her grandson, who she said she ‘saw every day had ever slept at her home’,[14] despite the maternal grandmother’s evidence that the child has a bedroom set up and has toys and activities there. Counsel submitted that as a consequence the Court should find that this evidence was untrue, and that it was something that the mother and the maternal grandmother had discussed between them, to support the mother’s case.
[14] Ibid at paragraph 28.
Counsel for the father asserted that the maternal grandmother’s evidence about all of her reports to the Department of Child Safety ended with the comment “… and it was the department that said sexual abuse. I just said that I cannot explain what I am seeing”.[15] Counsel for the father submitted, that this was not what the grandmother said to the Department at all, that she had made very significant allegations.
[15] Ibid.
Finally it was submitted by counsel for the father that the maternal grandmother is not likely to encourage the mother to work towards a conciliatory relationship with the father.
The child’s surname
The father seeks orders that the child’s surname be changed to include his surname. The child has been known by the surname “[Patterson]” since the date of his birth, a period of almost four years. There is nothing in the three reports of Dr E as to there being any advantage to the child in changing his surname.
Having regard to the factors set out above and the circumstances in which the child finds himself, I see no significant benefit to the child by enabling the change of the child’s surname.
The child’s birth certificate and Registration of birth
The child’s father attended at the birth of the child and has endeavoured to have his name registered on the birth certificate as the child’s father. The mother has impeded this process.
In evidence the mother made excuses which I did not believe. She did not wish to engage in that process and would not facilitate the process. As a consequence I have put in place orders to enable the father to be registered as the father on the child’s birth certificate. I have further provided that if the mother does not sign any document to any State Authority for that registration, that the father may as a function of parental responsibility.
The child’s father sought an order enabling him to register the birth of the child. His application was under s 106A of the Act. That section provides:-
106A(1) If:
(a)an order under this Act has directed a person to execute a deed or instrument; and
(b)that person has refused or neglected to comply with the direction or, for any other reason, the court considers it necessary to exercise powers of the court under this sub-section;
The Court may appoint an officer of the Court or other person to execute the deed or instrument in the name of the person to whom the direction was given and to do all things necessary to give validity and operation to the deed or instrument. Section106 of the Act relates to enforcement of orders.
Section 8 of the Births, Deaths and Marriages Registration Act 2003 (Queensland) imposes a responsibility upon parents to register the birth of the child. The section envisages an application by both parents of the child. Sub-section 2 provides the Registrar may accept an application completed by one of the parents in certain circumstances
The registration of a birth by a parent involves a declaration [emphasis added] that the information shown in the application is correct. That seems to me more of an exercise in parental responsibility than enforcement of an order.
The term ‘execute’ is defined in the CCH Macquarie as ‘to complete; carry out: make effective: to enforce (a judgment)[16]. A better definition is contained in Black’s Law Dictionary (West Group, 7th Edition 1999) which defines ‘execute’ in terms of an agreement or contract as:-
To make (a legal document) valid by signing; to bring (a legal document) into its final, legally enforceable form …
[16] The CCH Macquarie Concise Dictionary of Modern Law (CCH Australia Ltd Business Edition 1988).
This must fit into the provisions of s 106A which envisages execution of an instrument on behalf of an unwilling person.
The completion of a birth registration application is not simply the execution of an agreement; it is a declaration of the accuracy of the information contained in that application. It is akin to the completion of a passport application where a Government instrumentality will rely upon a declaration as to the accuracy of information provided. That seems to me to be outside the scope of what is intended in s 106A.
Accordingly, I will be making the orders sought by the father however it will be him exercising powers in terms of parental responsibility. I will also require that he register the name of the birth of the child in the child’s current name noting him and the mother as parents and I will also note that the mother is either unable or unwilling to provide information for the registration or is unable, unlikely or unwilling to sign the application.
Parental responsibility
The conflict between these parties, the allegations of violence and the allegations and counter allegations made by the parties is such that it is unrealistic to assume that the parties can work together in exercising parental responsibility.
To put in place an order for equal shared parental responsibility would not enable parental responsibility to be exercised at all. It would create another area of conflict and inevitably mean the parties would come back to court for breaches of orders or for orders in relation to the exercise of parental responsibility.
If the parties were each given several parental responsibility it is likely that each, having regard to their history, are likely to make decisions about the child contrary to that of the other parent which would cause the child distress and confusion.
Having regard to the comments I have made earlier and the relevant factors under s60CC I am satisfied that it is not in the best interests for the child for there to be equal shared parental responsibility and accordingly the presumption is rebutted.
The lesser of the damage caused to this child would be that the mother exercise parental responsibility. However, I will limit that exercise in terms of the mother’s ability to change the residence of the child from the Town A area (she had previously changed this with an elder child without reference to that child’s father and had changed residence to Town A in this case without reference to this child’s father).
I intend to make orders that the mother have parental responsibility for the child (subject to some significant reservations including informing the father of any decision before it is made) (where possible) and informing him after the event.
I will also provide that the father have the ability to access schools, school records and medical records in relation to the health, welfare and development of the child. I am satisfied the mother will not facilitate the release of these documents and that the father would need an order to that end.
Injunctions
Each of the parties has histories of alcohol abuse, and in relation to the father, abuse of drugs including prescription drugs. There seems to be no reason why these parties ought not to be restrained from taking illegal drugs or being affected by drugs or alcohol whilst the child is in their care. I intend to make that order.
Similarly both parties have shown little restraint in abusing or belittling each other in the presence of the child. The mother’s abusive language and controlling behaviour, the father’s abusive language and controlling behaviour, the videoing at changeovers are all indicative of poor behaviours. As a result I will be making an injunction restraining the parties from abusing or demeaning the other party or members of the other parties family in the presence or hearing of the child or permitting other people to do so.
The mother’s allegations with regard to sexual abuse or sexualised conduct are deeply troubling and I refer to comments made elsewhere in these Reasons. There will need to be an order restraining the parties, in particular the mother, from discussing adult issues, including the future living arrangements for the child, in the presence of the child.
I have not made orders for broader communication between the child and the other parent by telephone, email, Skype etcetera as, on the evidence before me, it is only likely to create more hardship and more tension for the child and likely to lead to further contravention applications.
DISCUSSION AND CONCLUSIONS
These proceedings were adjourned so that an endeavour could be made for the father to have regular overnight time with the child. The proceedings came back to the Court on 28 February 2013 and 5 March 2013.
Each of the parties filed further affidavits which were read into evidence.
In the father’s affidavit there is evidence that the arrangements are working but not without difficulties. The conflict between the parties is continuing but is not without problems.
The mother’s evidence was a continuation of her anger against the father. The mother’s view is that the father will not stop until the child is living permanently with him.
The submissions of the father were set out in his written submissions tendered in court on 5 March 2013. They fall into four areas. The first is that the mother is not likely to comply with the orders. Although compliance, since the interim orders were made has been not without problems, it has at some levels operated adequately since that time.
The father’s own evidence is that there was a period of time when there was co-operation.[17]
[17] At paragraph 29 of the father’s affidavit filed 25 February 2013.
I am not without concern as to the future with regard to the conflict between these parties.
The second submission was in relation to the need for moratorium. I agree that in the event that there was to be a change in residence, the moratorium would need to be put in place.
The underlying question is whether there ought to be a significant change in the current circumstances.
In relation to the father’s third submission, the father is concerned that the mother’s behaviour is causing emotional harm to the child. It is likely that the ongoing conflict between the parties, of which the mother is significantly involved, is likely to have a detrimental impact on the child.
However, the parents were able to operate at some reasonable level in the interim between final submissions and the September 2012 hearing.
As to the allegations of sexual abuse, I have dealt with that elsewhere in these Reasons. I am not satisfied that the child is at an unacceptable risk of abuse.
The third submission of the father was in relation to the evidence of the maternal grandmother, which I have discussed elsewhere. I generally accept that submission.
As to the mother’s evidence, counsel for the father was scathing, she said:-[18]
[18] Submission 4 of the father’s written submissions dated the5 March 2013.
31. In giving her evidence, the mother was often not able to explain some of the conduct that she engaged in that was clearly detrimental to [the child], and for her example:
· when asked why she had written to the 24 Hour medical centre stating that they were not to give the father any information about [the child], the mother’s response was “I don’t remember why”;
· the mother described the father’s attempts to implement handover at a day care centre as “controlling” without being able to give the court any explanation of what was controlling about it, other than that it was about him “gaining what he wants” - this was despite evidence before the court that handovers between the parties were almost always associated with conflict. In that context, the mother then went on to say that handover at a day care centre was “possibly just as damaging for the child” [as handover at the police station].
· Her refusal to acknowledge that her failure to provide immunisation records might have a detrimental impact on the child, or other children at the day care centre – her evidence clear that she wouldn’t provide those records because the she didn’t want the father to see them. The mother says “I don’t see what the big drama is” when commenting on her failure to facilitate the enrolment at the day care centre. Either the mother genuinely doesn’t think that she behaved badly, which in itself is concerning, or she simply doesn’t care if she behaves badly.
· Her inability to provide any reason or explanation as to why the child should not be spending overnight time with the father (other than “he’s not ready”) was of interest, particularly because the mother did not say that it in any way related to any of the allegations she had made;
· The mother’s evidence on most points was vague and lacked real substance that would support her proposal about the child not spending overnight time with the father or in fact spending substantial and significant time with the father. There was nothing put by the mother that could support her position that the child not have school holiday time until he was aged 10. Did [the child] recently tell you he wanted to start sleeping over at my client’s home? – Not exactly, no
32. Many of the mother’s responses to cross-examination were vague, and sometimes troublesome. Some examples of the mother’s answers were “somewhat”, “it doesn’t matter what I believe”, “I may have”, “it’s not my problem”, “it’s not my responsibility”, “I can’t remember”, “possibly”, “maybe”.
33. [The Independent Children’s Lawyer] says that most of the mother’s evidence was contradictory or vague, and that submission is supported.
34. Your Honour used the term ‘obfuscation’ when referring to the mother’s evidence. Reference to the free-on-line dictionary gives the meaning as follows:
obfuscate
1. to confuse, bewilder, or stupefy.
2. to make obscure or unclear: to obfuscate a problem with extraneous information.3. to darken.
35. These definitions describe succinctly the mother’s evidence (and that of the maternal grandmother).
36. It is respectfully submitted that Your Honour must find that the mother’s obfuscation was deliberate, and not caused by some difficulty of understanding. It is also respectfully submitted that this conduct will continue to feature in her dealings with the father, making it impossible for a working relationship to exist between these parties.
I accept and adopt these submissions.
Section 60CC(2)(a) the benefit to the child of having a meaningful relationship with both of the child's parents;
The evidence of Dr E is that there is a benefit in the child having a meaningful relationship with both parents. I accept that evidence, and like Dr E I am concerned that the pervasive conflict and animosity between the parties is such as may, if continued, undermine the respective relationship between each of the parents and the child.
Section 60CC(2)(b) the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.
The Independent Children’s Lawyer submitted that there is no cogent or satisfactory basis on which it could be concluded that either the father committed arson upon the mother’s car or sexually abused the child. He submits there is no basis for a finding of unacceptable risk. I agree with him.
There is no evidence that the father committed arson upon the mother’s car at all. All that exists is the mother’s suspicion. The second arson attempt was three days before the mother’s application for a domestic violence order which was heard and that application was dismissed.
The second arson attempt to the mother’s car was referred to in Queensland Police Services Forensic Services Report.[19] In that Report the police observed that:-
All [the mother’s] suspicions about [the father] being involved are just speculations. There is no evidence to hand at this time that implicates him in this offence. Three days after the loss of this car the mother’s application for a domestic violence order was dismissed.
[19] Exhibit ICL3.
As to the allegations of sexual abuse, they appear to have arisen on 5 October 2010 when a report was made by the maternal grandmother to the Department of Child Safety. At that time the Department assessed that the concerns did not meet the legislative threshold of harm or significant risk.
The Department observed that there has been parenting issues between the parties with both the mother and father reporting concerns against the other in respect of the care of the child.
What is of concern in terms of that disclosure is that the mother did not raise those concerns in her affidavit filed 25 October 2010. Nor did she raise it in her second affidavit filed that day.
The mother filed a further affidavit in the Federal Magistrates Court on 28 January 2011 and did not raise that issue; similarly she did not raise it in her affidavit filed 8 April 2011. The mother first raised issues of abuse in her affidavit of 18 May 2011 but in that affidavit did not raise the events of October 2010.
There are a series of disclosures made by the mother and the maternal grandmother not raised until November 2011. What followed after November 2011 was that the child was, at the request of the Department of Child Safety, examined by a doctor and the assertion of bruising allegedly seen by the mother and maternal grandmother was not observed.
The doctor who examined the child said that the rash was similar to nappy rash and no bruising was found. It was her view that if there had been bruising or tearing on the previous day the tearing could not have possibly healed in that time but if there was a healing bruise (for example a very old bruise that was faint) it could have gone by then.
On that evidence it is unlikely that there was bruising as asserted by the mother and the maternal grandmother in November 2011. The mother was interviewed on 4, 7 and 11 November 2011. The mother was questioned as to why she did not seek medical treatment for the child if she believed he was abused by his father.
The mother indicated to Departmental officers that she was not ‘saying it was abuse’ but reported that she believed it was from orange juice and informed the protection officers that she had not sought medical treatment. The mother indicated to Department of Child Safety had she known that her complaint would lead to her being assessed she would not have said anything to them.
The assertions by the mother and the maternal grandmother that the child had been sexually abused are inherently implausible. Even the mother and maternal grandmother had grave doubts about the assertions and they ought to be seen in the light of other evidence.
The father asserts that there was no abuse. It was the father who arranged for the child to be medically examined when approached by departmental officers.
Dr E concluded that there was no issue of abuse having regard to the father. Neither the mother nor the maternal grandmother arranged for the child to be examined by medical practitioners despite their assertions that there were ‘matters for concern’ for a period of over one year.
The mother continues, on the surface, to assert that the child should have unsupervised time with the father which would eventually lead to overnight unsupervised time.
Police and Departmental investigations did not give rise to concerns that the child was abused. Counsel for the Independent Children’s Lawyer submitted that there was no basis to conclude that the child was sexually abused but that when considering the evidence it was possible to assess the mother’s approach to the child’s relationship with the father as being one of lack of insight.
I find on the evidence before me that the child is not at unacceptable risk of sexual abuse in the care of the father.
Section 60CC(3)(a) any views expressed by the child and any factors (such as the child’s maturity or level of understanding) that the court thinks are relevant to the weight it should give to the child’s views;
The child is aged four and will turn five at the end of the year. Given his young age he was not interviewed by the single expert. Given his age any views expressed by him would be of little weight
Section 60CC(3)(b) the nature of the relationship of the child with:
(i) each of the child’s parents; and
(ii)other persons (including any grandparent or other relative of the child);
The child has a close relationship with his mother, who is his primary carer. The child likewise has a close relationship with his maternal grandmother.
In her first report Dr E, the single expert, provides her observations of the child with the parents and says:-
7.2. The child was playing happily and was comfortable in his father’s arms.
The child was asleep when the writer attended at [the mother’s] residence. He appeared content and was not restless when sleeping.
7.4 Overall it is apparent that [the child] is comfortable and feels safe with both parents. There was no observable significant difference in his presentation at either residence. He was not observed with either parent for the 2 and 3rd reports of the single expert.
In his case outline filed the 30 August 2012 the father says that he has a positive relationship with the child but cannot further that relationship because of the mother’s refusal to allow overnight time to commence, and the mother’s persistent and regular allegations against him. Since September 2012 the relationship has flourished and there is a good relationship between the child and his father.
Section 60CC(3)(c) the willingness and ability of each of the child’s parents to facilitate, and encourage, a close and continuing relationship between the child and the other parent including the father’s views as to the mother’s involvement with the child
The mother has demonstrated an unwillingness and/or inability to facilitate, and encourage, a close and continuing relationship between the child and the father. That view of the mother is unlikely to change.
Having regard to the father’s ambivalent approach to the mother and his distrust of her I am satisfied he is unlikely to encourage the relationship between the child and the mother if the child was in his care.
In his case outline filed the 30 August 2012 the father says that the mother has not only failed, but has refused, to facilitate and encourage a close and continuing relationship between him and the child. He says that the mother continues to act in a way that would prevent him from having a meaningful relationship with the child. He goes on to say that if the child continues to live with the mother she will continue to take steps to alienate the child from him and the impact of this will be significant emotional harm to the child. I accept that the conduct of both parents is likely to cause harm to this child.
Section 60CC(3)(d) the likely effect of any changes in the child’s circumstances, including the likely effect on the child of any separation from:
(i)either of his or her parents; or
(ii)any other child, or other person (including any grandparent or other relative of the child), with whom he or she has been living;
The orders that I intend to make will not result in any change to the child’s circumstances. The child will continue to live with the mother and spend time with and communicate with the father.
Section 60CC(3)(e) the practical difficulty and expense of a child spending time with and communicating with a parent and whether that difficulty or expense will substantially affect the child’s right to maintain personal relations and direct contact with both parents on a regular basis;
The orders I intend to make will not give rise to any practical difficulty or expense in respect of the child spending time with or communicating with the father as geographically the parties live close to one another in Town A. The child has already been spending time, including overnight time, with the father in Town A in accordance with orders made in September 2012, and the orders I intend to put in place will allow the child to spend significant and substantial time with the father having regard to the father’s working arrangements.
Section 60CC(3)((f) the capacity of:
(i)each of the child’s parents; and
(ii)any other person (including any grandparent or other relative of the child);
to provide for the needs of the child, including emotional and intellectual needs;
I have concerns about both parents ability to provide for the needs of the child, including the child’s emotional and intellectual needs. Both parents have engaged in controlling behaviour and I accept the evidence of the single expert in that respect.
The conflict observed by the single expert in her first report has not abated, despite the single expert urging the parents to address this. At the time of her first report the single expert reported that the child ‘is unaware at this time of the significant conflict between his parents’[20] and went on to say that ‘if his parent are able to adequately negotiate and resolve their conflict in the short term, then the negative impact on [the child] will be moderated’.[21] However, the conflict between the parents has not moderated and in her final report the single expert reported the concerns of the Department of Child Safety which predominately related to the child’s awareness of the conflict between the parents. The single expert reported that if the parents do not find a way of moderating their conflict then they run the risk of the Department intervening which could potentially result in the child being placed in care.
[20] At page 13, paragraph 9.4.
[21] Ibid.
I also have concerns about the mother’s lack of insight into the need for this child to have a relationship with his father. The mother attempted to delay the proceedings by asserting issues of paternity when there was no real basis for her to make such assertions. She knew the child was the child of the father’s but still persisted with this claim. When orders were made to facilitate changeovers at the day care centre instead of the police station the mother obstructed that process and then blamed the father.
The father in his case outline filed the 30 August 2013 says that the mother does not appear to have the capacity to provide for the child’s emotional needs, and that the child is being constantly involved by the mother in conflict and in adult matters. He asserts the child is exposed to emotional harm in the care of the mother because of the ongoing “games’ that the mother plays and the involvement of the child in her conduct.
The father says he has the capacity of provide for the emotional and intellectual needs of the child. In support of this assertion the father says that he currently has his older children living with him on a shared time basis and there have been no adverse reports about his parenting capacity in any of the family reports.
As I have said elsewhere I also have significant concerns in relation to the father’s ability to parent the child. He shows a significant lack of insight into the role of parenting the child and has not thought through his proposal, particularly in relation to such a substantial change of a primary carer/residence as sought by him. Having regard to his history in relation to parenting I have significant concerns as to his ability to properly parent this child. He has chosen not to engage himself in the life of his other son D, whose birthday he did not know.
Section 60CC(3)(g) the maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the child and of either of the child’s parents, and any other characteristics of the child that the court thinks are relevant;
No submissions were made in this regard.
Section 60CC(3)(h)if the child is an Aboriginal child or a Torres Strait Islander child:
(i)the child’s right to enjoy his or her Aboriginal or Torres Strait Islander culture (including the right to enjoy that culture with other people who share that culture); and
(ii) the likely impact any proposed parenting order under this Part will have on that right;
This is not a relevant consideration in these proceedings as it was not an issue raised by either party.
Section 60CC(3)(i) the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child’s parents;
I repeat the comments made by me elsewhere in these Reasons.
The father says in his case outline filed on the 30 August 2012 that he has had limited opportunities to demonstrate his attitude to the responsibilities of parenthood. The father asserts that the mother’s conduct shows a very poor attitude to her responsibilities for the child.
I accept that submission, however, both parents bear a degree of responsibility.
Section 60CC(3)(j) any family violence involving the child or a member of the child’s family;
The mother made allegations that the father was responsible for two arson attacks on her motor vehicles. The Independent Children’s Lawyer submitted that there is no cogent or satisfactory basis on which it could be concluded that either the father committed arson upon the mother’s cars or sexually abused the child. He also submitted that there is no basis for a finding of unacceptable risk to the child.
As discussed elsewhere in these Reasons there is no evidence that the father committed arson to the mother’s vehicle at all. The second arson incident occurred three days prior to the mother’s application for a domestic violence order being heard. That application was dismissed.
The father asserts that the ongoing conflict at handovers is a relevant consideration under this factor. I agree, and note that the father at some levels adds to that conflict, such as bringing a video camera to changeovers.
Section 60CC(3)(k) any family violence order that applies to the child or a member of the child’s family, if:
(i) the order is a final order; or
(ii) the making of the order was contested by a person;
The mother applied for a protection order in 2010 and her application was dismissed as discussed earlier in these Reasons.
Section 60CC(3)(l) whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to the child;
I am concerned that no intervention by a court will reduce the conflict this child endures. Such was the level of conflict that Dr E at some stage suggested foster care.
In his case outline filed 30 August 2012 the father says that by changing the primary carer of the child to him, there is less likelihood that the mother will be in a position to breach the orders. I do not accept that submission as it is my view that the conflict will continue.
Section 60CC(3)(m) any other fact or circumstance that the court thinks is relevant
The father earns at least $75,000 each year (net) and his evidence in relation to his income was troubling as he was reluctant to make concessions as to what his income really was and prevaricated in respect of that income. The father only paid child support of $360 per year for one of his children from a previous relationship and only small amounts of child support for the subject child. That is not indicative of someone who has the best interests of the child as his paramount consideration.
In relation to this factor the father says in his case outline filed the 30 August 2012 that there is no evidence before the Court about the mother’s relationship with the father of her older children, or whether that relationship was subject to court intervention. The father says this matter has been before the Court for over 3 years and he is still not having overnight time with the child, despite positive reports in respect of his parenting capacity. He asserts there has been no willingness on the mother’s part to move forward. He goes on to say that the mother’s conduct if she is the primary carer, is likely to progress to conduct akin to child alienation syndrome. Further that as a consequence of the mother’s allegations the child will become the victim of significant emotional abuse by the mother.
The submission is well made but fails to take into account the father’s part in the conflict.
Section 60CC(4) Without limiting paragraphs (3)(c) and (i), the court must consider the extent to which each of the child's parents has fulfilled, or failed to fulfil, his or her responsibilities as a parent and, in particular, the extent to which each of the child's parents:
(a) has taken, or failed to take, the opportunity:
(i)to participate in making decisions about major long‑term issues in relation to the child; and
(ii) to spend time with the child; and
(iii) to communicate with the child; and
(b) has facilitated, or failed to facilitate, the other parent:
(i)participating in making decisions about major long‑term issues in relation to the child; and
(ii) spending time with the child; and
(iii) communicating with the child; and
(c)has fulfilled, or failed to fulfil, the parent's obligation to maintain the child.
I have considered these factors against the findings and considerations set out elsewhere in these reasons.
I struggle as to whether I should place the child in the primary care of the father and provide orders that the child spend time with the mother.
The impact of this would lessen the chances of the allegations of abuse by the mother (which I regard as either fabricated or exaggerated) and would to some degree diminish the conflict between the parents.
However, the father is a participant in the conflict and does not have the parenting ability or the insight as does the mother. I reflect on all of the comments I have made in this regard.
I have determined that in all of the circumstances the child should live primarily with the mother.
This being the case it is appropriate that the child have a relationship with the father and that orders I put in place will provide regular and overnight time. The child is not at unacceptable risk of sexual abuse in the unsupervised care of the father. The child is at risk of being alienated from the father (in the practical sense that is) and the father clearly has an interest in and loves the child.
The father lacks insight into parenting having regard to his approach in seeking final orders that the child live with him but without taking, analysing or thinking about that change in a deep and serious way.
I certify that the preceding two hundred and twelve (212) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Benjamin delivered on .
Associate:
Date: 3 May 2013
Key Legal Topics
Areas of Law
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Family Law
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Statutory Interpretation
Legal Concepts
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Breach
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Remedies
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Statutory Construction
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