Quantock and Ali
[2009] FamCA 858
•8 September 2009
FAMILY COURT OF AUSTRALIA
| QUANTOCK & ALI | [2009] FamCA 858 |
| FAMILY LAW – CHILDREN - With whom a child lives - Best interests - Both parties are seeking orders for the child to live with them - Child lived with the mother after separation in 2003 until July 2007, and from then she has lived with the father - Orders made for the child to live with the mother and spend time with the father one weekend each month, ten days during end of Term school holidays and three weeks during the Christmas school holidays - Parties to have equal shared parental responsibility for the child |
| Family Law Act 1975 (Cth) ss 4, 60B, 60CA , 60CC, 61DA , 64B, 65AA, 65D, 65DAA, 65DAC, 65DAE |
| Goode & Goode (2006) FLC 93-286 |
| APPLICANT: | Ms Quantock |
| RESPONDENT: | Mr Ali |
| INDEPENDENT CHILDREN’S LAWYER: | Denise Clark, Solicitor & Advocate |
| FILE NUMBER: | NCC | 3462 | of | 2007 |
| DATE DELIVERED: | 8 September 2009 |
| PLACE DELIVERED: | Newcastle |
| PLACE HEARD: | Newcastle |
| JUDGMENT OF: | The Hon. Justice Austin |
| HEARING DATE: | 24, 25 & 26 August 2009 |
REPRESENTATION
| COUNSEL FOR THE APPLICANT: | Mr M Graham |
| SOLICITOR FOR THE APPLICANT: | David Nelmes & Associates, Solicitors |
| COUNSEL FOR THE RESPONDENT: | Mr C Boyd |
| SOLICITOR FOR THE RESPONDENT: | Slater & Gordon, Lawyers |
| COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: | Ms G Barker |
| SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: | Denise Clark, Solicitor & Advocate |
Orders
All former parenting orders are discharged.
The parties are restrained from using any name other than “[H Quantock-Ali]” for the child of the parties born on … January 2003 (“the child”).
The parties must ensure that the child uses only that name.
The mother shall within 14 days of these orders execute all such documents, take all such steps, and pay all such fees as may be necessary so as to:
4.1Cause the amendment of the birth certificate issued for the child so that it discloses the paternity details of the father, and continues to disclose the child’s surname as “Quantock-Ali”, and
4.2Furnish a copy of the duly amended birth certificate to the father.
The mother and father shall have equal shared parental responsibility for the child.
The child shall live with the mother.
Each of the parties shall take all reasonable steps to ensure that the child spends time and communicates with the father as follows, or as otherwise agreed:
7.1By telephone each Wednesday night between 6.30 pm and 7.00 pm, and for that purpose the father shall telephone the child on the telephone number provided by the mother to the father, and the mother shall ensure that the child is able to receive the father’s calls at that number.
7.2During New South Wales public school terms, each fourth and seventh weekend, from 6.30 pm Friday until 4.00 pm Sunday.
7.3During New South Wales gazetted school holidays, except the Christmas school holidays, for the first 10 days of such holidays commencing at 12.00 noon on the first day following the last day of the school term.
7.4During the New South Wales gazetted Christmas school holidays, for 3 weeks commencing at 12.00 noon on 3 January 2010 and each alternate year thereafter, and for 3 weeks commencing at 12.00 noon on 24 December 2010 and each alternate year thereafter.
Each of the parties shall take all reasonable steps to ensure that the child communicates with the mother by telephone each Wednesday when the child is spending time with the father, between 6.30pm and 7.00pm, and for that purpose the mother shall telephone the child on the telephone number provided to her by the father, and the father shall ensure that the child is able to receive the mother’s calls at that number.
For the purposes of implementing the time spent by the child with the father, the mother shall cause the delivery and the father shall cause the collection of the child at the commencement of the time to be spent with the father at the N Post Office, and the father shall cause the delivery and the mother shall cause the collection of the child at the conclusion of the time spent with the father at the same place.
Each party is restrained from denigrating the other in the presence or hearing of the child, and from permitting the child to remain in the presence or hearing of another person denigrating the other party.
Each party shall notify the other of any medical emergency, illness or injury suffered by the child whilst in their respective care warranting treatment by a third party, and shall authorise any treating health professionals to communicate with the other parent about the condition and treatment of the child.
Each party shall ensure the child’s attendance at all educational, sporting, cultural, and extra-curricular events in which the child is enrolled or in which the child is due to participate.
Each party shall forthwith inform the other, and keep each other informed, in writing of their respective current residential address, landline telephone number, and mobile telephone number.
Both parties shall forthwith enrol themselves to commence, participate in, and complete a post-separation parenting program, subject to the approval of that program by the family consultant.
The mother shall forthwith enrol herself to commence, participate in, and complete a household financial management course, subject to approval of that program by the family consultant.
Each party is restrained from permitting the child to have any contact with:
16.1The paternal grandmother
16.2Mr J
16.3The maternal grandfather
Each party is restrained from permitting the child to refer to any person other than the parents by use of the terms “Mum” and “Dad” respectively.
Pursuant to s 65DA(2) and s 62B of the Family Law Act, the particulars of the obligations that 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.
The Independent Children’s Lawyer is discharged upon the expiration of any applicable appeal period.
All documents produced pursuant to subpoena shall be returned by the Registrar to the owners and providers upon expiration of any applicable appeal period.
Any and all outstanding applications are dismissed.
IT IS NOTED that publication of this judgment under the pseudonym Quantock & Ali is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth)
| FAMILY COURT OF AUSTRALIA AT NEWCASTLE |
FILE NUMBER: NCC3462 of 2007
| MS QUANTOCK |
Applicant
And
| MR ALI |
Respondent
REASONS FOR JUDGMENT
Introduction
Before the Court for determination is a contest over parenting orders that should be made for a young child named H, born in January 2003 (“the child”).
The child is currently aged 6 years. She was born to the relationship of Ms Quantock (“the mother”) and Mr Ali (“the father”).
The parties’ relationship was short-lived. They began cohabitation in March 2002 and were separated by June 2003 at latest. There is some dispute as to the date of final separation, but the discrepancy of some months is immaterial to the outcome of these proceedings.
The mother filed an Application for Final Orders on 5 October 2007 seeking parenting orders in respect of the child. In essence, the mother proposes that the child live with her and spend time with the father every fourth weekend and during school holidays.
The father filed a Response on 12 October 2007 seeking quite different orders from the mother. The father proposes that the child live with him and spend time with the mother each alternate weekend and during school holidays. The father tendered a Minute of Order during submissions, replacing the orders sought by him in the Response. It was essentially the reverse of the orders sought by the mother.
The parties are agreed that they should have allocated to them equal shared parental responsibility in respect of the child, but that joint position is inconsistent with the recommendations of the family consultant.
The Independent Children’s Lawyer did not adopt any position prior to the conclusion of the evidence. At that point the Independent Children’s Lawyer endorsed the recommendations of the family consultant in all respects.
Documents read in evidence
In support of her case, the applicant mother read the following documents:
(a)Affidavit of the mother filed 6 November 2007.
(b)Affidavit of the mother filed 7 October 2008.
(c)Affidavit of the mother filed 18 June 2009.
(d)Affidavit of the mother’s sister D filed 11 October 2007.
(e)Affidavit of the mother’s sister D filed 7 October 2008.
In support of his case, the respondent father read the following documents:
(a) Affidavit of the father filed 12 October 2007.
(b) Affidavit of the father filed 28 August 2008.
(c) Affidavit of the father filed 23 June 2009.
(d) Affidavit of the father filed 14 August 2009.
(e) Affidavit of Ms S filed 21 August 2009.
The last two abovementioned affidavits were filed by the father in contravention of Order 3 made by Stevenson J on 25 June 2009. Notwithstanding, the mother did not object to the father’s reliance upon those two documents, and accordingly they were read in evidence by the father.
The mother did however, raise objection to a portion of paragraph 26 of the Affidavit of the father filed 14 August 2009. The father conceded the objection and so all but the first sentence of paragraph 26 of that affidavit was struck out.
The Independent Children’s Lawyer adduced evidence from the family consultant, Ms T, in the form of her three reports released on 10 September 2008, 20 March 2009 and 3 August 2009.
Background history
The mother was born in 1985. At the time of hearing the mother was aged 24 years.
The father was born in 1984. At the time of hearing the father was aged 25 years.
Both parties identify as Indigenous Australian.
The mother described herself as a Torres Strait Islander in her Application, but in cross-examination she said that she had a mixed Aboriginal and caucasian heritage. The father referred to himself as Aboriginal in his Response.
The parties began cohabitation in March 2002 in E, New South Wales.
The father alleges that their cohabitation continued until final separation in April 2003, but the mother contends that the relationship endured until June 2003.
In any event, upon separation, the mother moved from E to G with the child, who had been born during the relationship only months before in January 2003.
When the mother moved to G with the child, they resided with the maternal grandparents in their home. Since then the mother has had various residences in G.
Following separation, the father also moved to G for a short while, where he continued to maintain contact with the mother. It is unclear on the evidence as to the nature of the relationship that the parties had at G in the months following their separation. The father lived for a time in the same household with the mother, the child and the maternal grandparents. He says that arrangement lasted some months, but the mother only admits about two weeks. In any event, their relationship was sufficiently amicable for that to occur. The father returned to live in E in about early 2004.
Although the mother has lived in G since her separation from the father, she has had a number of sojourns of short duration to other places. The mother spent a short time back in E, a short time at the maternal grandmother’s house in M, and a further short period at W.
There is a paucity of evidence about the amount of time spent between the child and the father between the time of separation in or about mid 2003 and mid 2007. The father alleged in his affidavit evidence that the mother and the child moved about New South Wales frequently, making it very difficult for him to maintain a relationship with the child. That is disputed by the mother. The mother alleges that her predominant residence was in G over that period of years. In cross examination the father conceded that he was able to see the child virtually whenever he wanted.
At some point during that period the mother formed another relationship with a man named Mr I, who has since deceased. He was the father of the mother’s second child, L, who was born in January 2006. The mother therefore had two children living with her during 2006 and 2007.
It is uncontentious that the child went to live with the father in July 2007. However, the circumstances in which that came to occur are contentious.
The father alleges that from about March 2007 the mother continually telephoned him and the paternal grandmother, requesting that the child live with the father because the child was uncontrollable and too difficult to handle. The mother flatly rejects that version of events. She says that she made arrangements for the child to travel to E and spend two weeks with the father, after which time the father and the paternal grandmother refused to return the child.
Following the child’s move to the residence of the father, he enrolled her at pre-school in E at the local Pre School where she began attending five days per week. It is clear that the father intended that the child live with him thereafter.
It is equally clear that the mother was discontent with that arrangement. The mother’s attempts to contact the father and the paternal grandmother about the return of the child to her were futile. She subsequently consulted the police and solicitors. A grant of legal aid was secured on her behalf, backdated to 21 August 2007, for the purposes of commencing proceedings to secure parenting orders in respect of the child. As a consequence of the mother arranging legal representation and a grant of legal aid, her Application was filed with the Local Court at G on 5 October 2007. The mother filed at that time both an Application for Final Orders and an Application in a Case.
The mother’s interim Application sought a variety of orders, including orders to the effect that the child live with her and be recovered from the father, should he fail to deliver the child to the mother voluntarily, and that the child spend time with the father periodically. That Application came before the Local Court for hearing on 15 October 2007. On that date the court adjourned the matter for several weeks to 6 November 2007 and made interim orders, including the following:
1.Mother to have unrestricted telephone contact with child.
2.Mother to have contact with the child 9.00am to 5.00pm each Saturday.
When the matter came back before the Local Court on 6 November 2007, further interim orders were made to the following effect:
1.Child to reside with father.
2.Mother to have contact with child each weekend from 5.00pm Friday to 5.00pm Sunday.
3.Parties to share travel with father to deliver and pick-up the child this weekend 9 November 2007 and each second weekend thereafter.
The court also that day transferred the proceedings to the Federal Magistrates Court at Newcastle.
The matter came before the Federal Magistrates Court at Newcastle on 1 February 2008. A variety of procedural orders were made, but the interim parenting orders made at the Local Court in November 2007 remained in place.
For reasons which are the subject of dispute in the evidence, the mother and the child spent very little time with one another between about March and August 2008. During that period the child was still living with the father in E, and the mother was at G.
The matter came back before the Federal Magistrates Court at Newcastle on 10 September 2008, at which time it was allocated an urgent interim hearing date on 8 October 2008. Further procedural orders were made.
When the matter came on for interim hearing before the Federal Magistrates Court on 8 October 2008, the parties reached an interim settlement and the matter was transferred to the Family Court of Australia. Relevantly, the following interim parenting orders were made on that date:
2.Orders 2 and 3 of the Orders made at […] Local Court on 6 November 2007 be discharged.
3.That the child [H] born […] January 2003 spend time with the mother as follows:
3.1Each alternate weekend from 5.00pm Fridays until 5.00pm Sundays, such times to begin on Friday, 17 October 2008.
4.That each child (sic) communicate with the mother each Tuesday and Thursday between 7.00pm and 7.30pm, the mother to call mobile telephone number […] and the father to ensure that the child is present to receive the calls and to be given privacy during the said calls. The mother shall be restrained from attempting to speak to the father during the said calls and from utilising the said telephone number at any time.
5.The effect to Order 3 above (sic), the father shall deliver the child to the mother at the appointed times, at the General Store, [R], and each party shall ensure that they are unaccompanied by any other person, apart from the child, in the vicinity of the [R] Store.
6.Without admissions, the father shall ensure that the child does not remain overnight at the home of [the paternal grandmother], and the mother shall ensure that the child has no contact with [Mr C Quantock].
7.That each party shall be restrained from encouraging the child to refer to the other party in terms other than “mum” or “dad” and shall be restrained from encouraging or permitting the child to use such terms in reference to any other person.
8.That the mother execute all documents to amend the birth certificate of the child to note the father’s details and have such details recorded and to provide the father’s solicitors a copy of the corrected birth certificate within 42 days.
Order 6 arose out of mutual concerns entertained by the parties about the safety of the child in the presence of the paternal grandmother. The father’s relationship with the paternal grandmother had broken down, and he agreed with the mother that it would be inappropriate to permit the child to spend any time with the paternal grandmother.
Order 7 arose from concern that the father and his new partner, Ms S, had caused or permitted the child to refer to Ms S as “Mum” and to refer to the mother by her first name.
Order 8 arose out of the father’s concern that a new birth certificate had been issued for the child in or about October 2007. The new birth certificate disclosed the child’s surname as “Quantock Ali” in lieu of the surname “Ali”, which was the surname appearing on the child’s original birth certificate. The paternity details of the father were also omitted from the new birth certificate. The mother was cross-examined about those details, from which it is clear that she desires that the child be known by the surname “Quantock Ali”, but that the omission of the father’s paternity details from the new birth certificate was probably inadvertent.
Once transferred into the Family Court of Australia, the proceedings came before Johnston JR on 26 November 2008. On that occasion, the parties reached agreement over a new set of interim parenting orders. Those orders included the following:
1.That the child [H] born […] January 2003 spend time with the mother as follows:
1.1During New South Wales school terms, each alternate weekend from 5:00pm Friday until 5:00pm Sunday, commencing Friday 5 December 2008 and otherwise commencing the first weekend of each term.
1.2During Term 1, Term 2 and Term 3 New South Wales school holiday periods, for one half of each such holiday periods being the first half in each year ending in an odd number from 5.00pm on the last day of school term to 5.00pm the second Sunday thereafter and the second half in each year ending in an even number from 5:00pm the second Sunday of the holiday period until 5.00pm the following Sunday.
1.3During Term 4 school holidays:
1.3.1for one half of the Christmas school holidays periods, being the first half in years that end in an even number from 10.00am the first Saturday after the last day of school attendance in Term 4 until 5.00pm on the day midway through such holiday period and the second half in years that end in an odd number from 5.00pm on the day midway through such holiday period until 5.00pm the day before school term recommences.
1.4Telephone contact in weeks that the child is not in the care of the mother, on Tuesdays and Thursdays between 7.00pm and 7.30pm, the mother to call mobile telephone number […] and the father to ensure that the child is present to receive such calls and to be given privacy during the said calls. The mother shall be restrained from attempting to speak to the father during the said calls and from utilising the said telephone number at any other time.
2.At all other times when stipulated in Order 1 hereinabove the child live with the father.
3.Changeover of the child between the parents shall be effected by the father delivering the child to the mother at the times stipulated in Order 1 at the […] Café, [R] and the mother returning the child to the same place at the conclusion of her time with the child and each party shall ensure that they are unaccompanied by any other person, apart from the child, in the vicinity of the [R] Café.
4.Without admissions, the father shall ensure that the child does not remain overnight at the home of [the paternal grandmother] and the mother shall ensure that the child has no contact with [Mr C Quantock].
5.That each party shall be restrained from encouraging the child to refer to the other party in terms other than “Mum” or “Dad” and shall be restrained from encouraging or permitting the child to use such terms in reference to any other person.
6.That the mother execute all documents to amend the birth certificate of the child to note that father’s details and have such details recorded and to provide the father’s solicitors a copy of the corrected birth certificate within 42 days.
The matter came to be listed for final hearing before Stevenson J on 25 June 2009, at which time the hearing was adjourned to 24 August 2009.
At the time of the adjournment, the interim parenting orders were amended as follows:
“By consent and pending further order, that the Order 5 of 8 October 2008 is varied to provide that the point for delivery and collection of [the child] shall take place at [N] Police Station.”
The matter was unable to proceed to hearing before Stevenson J because the mother had not attended her most recent appointment with the family consultant. The procedural orders made by Stevenson J required the preparation of an updated Family Report by the family consultant.
The matter came on for final hearing before the Court, commencing on 24 August 2009.
Summary of parenting law
Orders in respect of children are regulated under Part VII of the Family Law Act (“the Act”). The Act defines the meaning of a “parenting order” (s 64B).
When called upon to make a parenting order, the Court is enjoined to bear in mind both the objects of the legislation and the principles which underpin those objects (s 60B) in determining the nature of the parenting orders which ought properly be made (s 65D).
When making parenting orders the Court is mandated to regard the child’s best interests as the paramount consideration (ss 60CA, 65AA). The Act specifies with precision the criteria which the Court must contemplate in arriving at a conclusion as to what is in the best interests of the child (s 60CC).
The Court is required to apply a rebuttable presumption that it is in the best interests of a child for the child’s parents to be allocated equal shared parental responsibility for the child (s 61DA). That parental responsibility pertains to the major long-term issues concerning the child (ss 65DAC, 65DAE), being matters such as education, religion, culture, health, name, and living arrangements (s 4).
However, the presumption does not apply if there are reasonable grounds to believe that a parent has engaged in abuse of the child or family violence (s 61DA(2)), and the presumption may be rebutted if the Court is satisfied that it would not be in the best interests of the child for the parents to have equal shared parental responsibility for the child (s 61DA(4)). The legislation makes it clear that the presumption applies to the allocation of parental responsibility and is not a presumption about the amount of time the child should spend with each parent.
In the event that an order is made allocating equal shared parental responsibility, either presumptively or otherwise, the Court is then obliged to consider the advisability and practicability of the child spending equal, or alternatively, substantial and significant time with each of the parents (s 65DAA).
If the presumption of equal shared parental responsibility does not apply, or is successfully rebutted, and a different form of parental responsibility order is made, then the Court’s discretion is at large in the determination of the parenting orders warranted, although that discretion must still be exercised within the parameters of the prevailing legislative provisions.
The principles outlined above have been authoritatively examined in Goode & Goode (2006) FLC 93-286.
best interests of the child – primary considerations
Section 60CC(2)(a)
The child has a meaningful relationship with the father, with whom she has lived since July 2007. That is uncontroversial.
The family consultant has interviewed the father and child on numerous occasions across a period of approximately 12 months and nothing untoward about their relationship has surfaced.
Equally, it may be said that the child has a meaningful relationship with the mother. Despite the evidence of alignment of the child with the father, which will be the subject of further elaboration, the family consultant has observed the child interacting with the mother in a warm and positive way[1], and to speak positively about the time she spends with the mother.[2]
[1] Family Report dated 3 August 2009, paras 38-39
[2] Family Report dated 20 March 2009, paras 45, 47; Family Report dated 3 August 2009, paras 35 and 40
It behoves the Court to make orders that will ensure that the child continues to enjoy the benefits of maintaining a meaningful relationship with both of her parents. Those relationships are important and valuable to her.
Section 60CC(2)(b)
The family consultant observed in her first report, released on 10 September 2008, that there has been at least one occasion of family violence between the mother and the father, as evidenced by the father’s conviction for assault.[3] That observation appears to be factually erroneous. The father has no criminal convictions for assault, let alone for an assault perpetrated upon the mother.
[3] Family Report dated 10 September 2008, para. 69
It is unclear to me what information led the family consultant to make that observation. The family consultant did not have available to her, at the time of the preparation of her first report, the material produced on subpoena.[4]
[4] Family Report dated 10 September 2008, p. 2
In her subsequent report, the family consultant recognises that the father has no convictions for any offence of violence, and that there is no evidence of any family violence perpetrated by him in his current relationship with his partner Ms S.[5]
[5] Family Report dated 20 March 2009, paras 33 & 35
But for one incident of danger, with which I will deal shortly, no party makes any complaint of the other inflicting physical violence upon them, either during their relationship or since separation. There have however been a multitude of threats of violence that have passed between the parties and members of their respective families of origin over a protracted period of time. Thankfully, there is no evidence to suggest that the child has heard, read, or witnessed any of those threats.
The one particular incident to which I have referred is a reference to an apprehended violence complaint made against the mother by the father’s current partner, Ms S. The terms of that complaint are in evidence.[6]
[6] Father’s Affidavit filed 14 August 2009, Annexure E
The apprehended violence complaint was filed by Ms S in the Local Court on 23 January 2009. The complaint is generalised against the mother and members of her family of origin. It complains generally about threats of violence, predominantly made via telephone, text and email messages. The single instance of physical danger alleged within the complaint is an incident said to have occurred about two weeks before the 2008/2009 Christmas holidays, when Ms S was on route to or from a change-over for the child. Ms S alleges that a car driven by an unidentified person, but containing the mother as a passenger, reacted provocatively towards the car in which Ms S was travelling as a passenger.
The complaint does not directly say so, but I infer that the child was a passenger in either one of those cars, as the incident is said to have occurred either just before or just following a change-over of the child between the father and the mother.
It should be observed at this point that the incident is not mentioned by the father in the body of any of the affidavits he has filed in these proceedings. Nor is it mentioned at all in the affidavit sworn by Ms S. I find those omissions more than a little curious.
The apprehended violence complaint was returnable before the Local Court on 25 February 2009. The uncontested evidence is that the complaint has never been formally served upon the mother. The only knowledge the mother has of the complaint is as a result of her reading the complaint, which is attached to the father’s affidavit as an annexure. As a consequence of the mother never having been served, the complaint has become stale. No interim or final apprehended violence order has been made by the Local Court against the mother. Ms S has not pressed the police to pursue service of that complaint.
I am far from convinced about the veracity of the complaint, at least in relation to the road incident alleged to have occurred just prior to the 2008/2009 Christmas holidays. The mother was certainly not the driver of the other car involved, so it was beyond her control, and the circumstances of the incident are susceptible to subjective interpretation.
Insofar as the complaint relates to threats of violence conveyed by telephone, text and email messages, there is no doubt about the occurrence of those incidents. The evidence impels a conclusion that both of the parties, and members of their respective families, have in the past sent abusive and threatening messages to one another. As I have already observed though, the evidence suggests that the child has not been exposed to those messages.
Of course, there is always a risk that the child will become exposed to family violence in the form of such virulent threats if that behaviour on the part of the adults does not abate. Thankfully, the parties agree that the hostility which has existed in their past communications has abated, but the Court and the parties need to be vigilant against recurrence. Should it recur, the child is at risk of psychological harm from her exposure to family violence between the adults in her life. That risk is just as prominent in whichever household she is to live.
I find that the child is not at risk of physical abuse or neglect at the hands of either the father or the mother.
However, the evidence suggests that there is an unacceptable risk of the child’s abuse by various other adults who circulate in the lives of the father and mother. In order to ameliorate that risk, injunctive orders are warranted so as to preclude the child’s exposure to those adults. Happily, the parties are agreed about the adults with whom the child ought not be brought into contact.
BEST INTERESTS OF THE CHILD – ADDITIONAL CONSIDERATIONS
Section 60CC(3)(a)
The child is now aged six years and seven months. When she first came into contact with the family consultant she was aged five years and seven months. The child presented to the family consultant as having developed intellectually and emotionally within normal parameters.[7]
[7] Family Report dated 10 September 2008, para. 63
The child is and was very young. While paying heed to her expressed views, I repose little weight in what she says.
Over the time that the family consultant has interacted with the child, her views have subtly transformed. On first presentation, the child was able to state clear views that she remain living with the father. The family consultant attributed little weight to that view.[8]
[8] Family Report dated 10 September 2008, para. 68
Some months later the child was able to state a clear view that she wished to remain living with the father, but spend time with the mother on weekends and holidays. Again, the family consultant attributed little weight to that expressed view.[9]
[9] Family Report dated 20 March 2009, para. 48
To that point in time, the family consultant had identified a process of alignment between the father and the child to the exclusion of the mother. In addition, the mother had failed to attend for her consultation with the family consultant preparatory to the second Family Report released on 20 March 2009, and the family consultant thought that the child may have experienced some feeling of rejection by reason of the mother’s absence.
By the time the third report was authored by the family consultant on 3 August 2009, in answer to a direct question, the child told the family consultant that she wished to live “in [L’s] house”.[10]
[10] Family Report dated 3 August 2009, para. 40
The reference to “L” was a reference to the child’s half-sister L. The evidence of the family consultant was that the child did not wish to express a direct view, which would be perceived as favourable to either the father or the mother. It was safer for her to express a wish to live with her sister and that that was an indirect way of indicating a wish to live in the household of her mother, which household included her half-sister L.
The family consultant regarded the progression in the views expressed by the child across that 12 month period to reflect an authentic desire on the part of the child to live with the mother. The family consultant was not challenged about that conclusion and I accept her evidence.
Section 60CC(3)(b)
It is uncontroversial that the child has positive relationships with each parent and others associated with each parents’ household. No disqualifying feature affects either party under this section.
Section 60CC(3)(c)
The evidence supports a finding that the mother has demonstrated both a willingness and ability to facilitate and encourage a close and continuing relationship between the child and the father. For the period of four years between separation in 2003 and the removal of the child to the household of the father in July 2007, the child lived with the mother and the father enjoyed largely unfettered contact with the child when he desired it.
That is only partially admitted by the father in his evidence in chief. He admits that that situation prevailed until the end of 2004[11], but that thereafter he experienced difficulty maintaining a relationship with the child.[12] He made a more fulsome admission in cross examination, when he conceded that he was able to see the child virtually whenever he wanted.
[11] Father’s Affidavit filed 12 October 2007, para 11
[12] Father’s Affidavit filed 12 October 2007, para 14
The father alleges that the reason for any difficulty in him maintaining his relationship with the child was the mother’s moves with the child to many different locations in New South Wales. I do not accept that evidence. I am satisfied that, predominantly, the mother lived at one address or another within south G from the time of the parties’ separation in 2003 until the present time.
There is no evidence that would permit any finding to the effect that the mother has, at any time in the past, actively denigrated the father or discouraged the development of a positive relationship between the child and the father.
Conversely, the same may not be said of the father. The evidence demonstrates that he has deliberately behaved in such a way as to sabotage the relationship between the child and the mother. The father’s partner, Ms S, has been actively complicit in that behaviour. The father has cohabited with Ms S since about January 2007, which precedes the time from which the child has lived in his household.
A chronology of selected events since the child went to live with the father in July 2007 is revealing.
In October 2007, the mother was attempting to secure the return of the child to her from the father. Her interim application for parenting orders had been before the Local Court on 15 October 2007, at which time it was ordered that the mother and child have contact with one another on Saturdays and by telephone.
The following day, being 16 October 2007, the mother telephoned to speak with the child. She spoke with the father and they argued. During that telephone conversation the father said to the mother:[13]
“We won in Court”
“Yeah, I’m hanging up. That’s it. The call’s ended”
[13] Mother’s Affidavit filed 7 October 2008, para 40
The father terminated the telephone call. The mother rang back, but on that occasion the call was terminated by the paternal grandmother.
The mother was not challenged about the veracity of that evidence. I accept it as accurate. The father was gloating and treating the child as a pawn.
Some weeks later, on 27 October 2007, the mother travelled to E to see the child. The child spent time with the mother that day in E and an arrangement had apparently been made for the changeover to occur at the McDonald’s Restaurant. Later in the day the mother returned the child to the McDonald’s Restaurant. The child was playing with other children in the play area whilst the mother ordered food. She was alerted to the fact by other children that the child had been taken. Understandably, the mother was most alarmed, fearing abduction of the child. She immediately went to the front of the McDonald’s Restaurant to find that the father had retrieved the child from the play area and that they were in a car being driven away from the restaurant. The mother alleges that the father was laughing at her as they drove away.
In evidence, the father denied that he had been laughing at the time of that episode and alleged that he had attempted to pass a message, through a young child, to the mother that he was taking the child. Even if that was so, it was hopelessly pathetic for the father to think it proper that he should drive away from the restaurant with the child in his care without ensuring that the mother had been reassured that the child was not being abducted. I do not accept the evidence of the father. I think it more likely that he acted as described by the mother in her affidavit.
Some weeks later, in November 2007, the mother again spent some time with the child. The mother alleges that at the conclusion of that time the father demanded that the changeover be effected at the police station, because that was the changeover dictated by the interim parenting orders.[14]
[14] Mother’ Affidavit filed 7 October 2008, para 51
The only parenting orders made up until that point in time had been made on 15 October and 6 November 2007 at the Local Court. None of those orders prescribed that changeovers must be at a police station, and so the father was either mistaken or deceitful.
Irrespective, the father involved the police, apparently because his demands for changeover at the police station were not being met by the mother, and the police attended. The incident led to the child becoming distressed. The father had attended upon the mother in the company of the child’s paternal grandmother. The mother alleges that the paternal grandmother said to her, “You wait til I get ahold of you, you’re gonna get it”, and that the father said, “We got her now”, referring to the child. The mother alleges that the father was again laughing.[15]
[15] Mother’s Affidavit filed 7 October 2008, para 51
The father was cross examined about the incident. He said that “No-one said nothin’”, and he denied laughing. He alleged that the child was not distressed, but that she was scared. Even if the parties had privately agreed for the changeover to occur at the police station, the manner in which the father reacted by involving the police was wholly disproportionate to the circumstances. I prefer the evidence of the mother to that of the father in relation to that incident.
On 8 November 2007, the mother telephoned the father to speak with the child. The father’s partner, Ms S, terminated the telephone call. The paternal grandmother then telephoned the mother and provided her with a different telephone number to use, with which direction the mother complied. When the mother telephoned on the new number provided she was permitted to speak with the child, who then began to refer to the mother continuously as a “bitch”. The mother could hear the father and Ms S whispering to the child on the other end of the telephone, and the child then said to the mother, “Bitch, bitch, bitch but dead dog you dog, dead cunt”.[16] The mother alleges that she could hear the father and Ms S laughing in the background. The father does not concede that he was laughing, but otherwise he does not challenge the accuracy of the mother’s version of that event. I accept the mother’s evidence.
[16]Mother’s Affidavit filed 7 October 2008, para 49
On 1 January 2008, the mother attempted further communication with the child by telephone. On that occasion she recorded the telephone conversation, which involved herself, the child, the father and Ms S. The audio recording of the telephone conversation was provided by the mother to her solicitor and arrangements were made for the recorded conversation to be transcribed. The transcript of that conversation is in evidence.[17] It is important to note that the father concedes the accuracy of that transcript.[18]
[17] Mother’s Affidavit filed 7 October 2008, Annexure C
[18] Family Report dated 20 Match 2009, para 30
The disgrace that the father and Ms S bring upon themselves by reason of the manner in which they spoke and behaved during that telephone conversation can scarcely be overstated. A selection of the contents of the transcript is sufficient to exemplify the point. For example:
a)The child was permitted to say to the mother “I’m playing with my mum [S]”, and “I got a new mummy [S]”, which are references to Ms S as the child’s supposed new mother.
b)The child was permitted or encouraged to call her mother a “fat cunt” repeatedly.
c)The father was heard to be laughing throughout parts of the conversation where the child was so hurtfully abusive to the mother.
d)The child said to the mother “I hate [X] and she is not having puppies. I will kill those puppies”.
e)Ms S was encouraging the child to say to the mother “I hate [L]”, in reference to her half-sister, which the child duly did.
f)The child said to the mother “I’m going to bash you when I get big”, and the father then said to the mother “She is going to bash you she said”.
g)The father said to the mother “See, she’s a [S] like her mummy [Ms S]”, which indicates an effort to supplant Ms S in the mother’s role in the life of the child.
h)The father said to the mother “At least she got a new family”.
i)The father said to the mother “Go and brush your teeth chubby”.
j)The father said to the mother “Why don’t you go and brush your teeth you’ve got all cum stuck up in your gums”.
When cross-examined the father conceded that he is embarrassed by the contents of that transcript. He could hardly be otherwise.
The father attempted to explain his appalling behaviour by referring to a telephone call received by him in the early hours of the evening before, which call he believed had been made by the mother’s brother. I accept the father’s evidence that he did receive an abusive telephone call from a person he genuinely believed to be the mother’s brother. I accept that some unsavoury threats had been made to him concerning himself, Ms S, his mother and sister. However, there is no evidence at all that the mother was complicit in that telephone call, or that she even knew anything about it. The father contends that he was incensed by that telephone call and so when he spoke with the mother by telephone the next day he wished to “get back at her”, and he conceded that he was “using the child as a weapon”.
Whilst I can understand that the father may have been angered or frightened as a consequence of the telephone call he described receiving, I cannot countenance it as either a justification or rational explanation for the way in which he behaved many hours later during the telephone conversation with the mother on 1 January 2008.
The family consultant remarked in her evidence upon the emotionally damaging repercussions for the child in having been a participant in that telephone conversation. Her comments are unsurprising.
The family consultant raised the contents of the transcript of that telephone call with the father in her consultation with him. The family consultant believed then, and she repeated it when cross-examined, that the father was apparently unable to grasp the extent of the psychological abuse caused to the child as a result of her participation in such an incident.[19] His lack of insight is alarming.
[19] Family Report dated 20 March 2009, paras 30, 50
Allied with the overt abuse of the mother, and the father’s engagement of the child as an accomplice in that process, is the active encouragement of the child to refer to Ms S as “Mum” and to refer to the mother by her Christian name. There is no dispute that that occurred and that it was encouraged by the father and Ms S. It is admitted by Ms S[20], the father[21], the child[22], and is also evident from the transcript of the telephone conversation that occurred on 1 January 2008.
[20] Affidavit of Ms S filed 21 August 2009, para 6
[21]Family Report dated 10 September 2008, para 36
[22] Family Report dated 10 September 2008, paras 56, 66 & 67
Although it now seems as though that situation has been rectified, the fact that it occurred at all is indicative of a further lack of capacity on the part of the father and his partner to promote the relationship between the child and the mother. Steps need to be taken to reinforce the role of the parents in the mind of the child.
In August 2008, the family consultant interviewed the parties, the child and others. It came to the attention of the family consultant that, prior to the child spending time with the mother in the presence of the family consultant, the child had been instructed by either the father or members of his extended family not to let the mother or any member of her family touch her. She was furthermore told that the smoke alarms in the ceiling in the childcare rooms were actually cameras that would permit the father’s family members to observe her interaction with the mother and members of the mother’s family,[23] instilling in the child a fear that she would be watched to ensure adherence to those instructions.
[23] Family Report dated 10 September 2008, paras 56, 67
What followed upon the issue of such a bizarre instruction to the child is disturbing. For fear of contravening the instructions issued to her, the child dramatically retreated from any attempt by the mother, half-sister, or anyone else to physically touch her. She declined to make eye contact and was visibly distressed.[24] The family consultant elaborated upon that event in her cross-examination, describing how the child was “incredibly distressed” and was observed to run around the room to avoid physical contact with the mother. When her half-sister tried to hold her hand the child pushed her away. The circumstances were such that the family consultant had to bring the session to a premature end because of the level of the child’s distress.
[24] Family Report dated 10 September 2008, para 57
When he was asked about the incident in cross-examination, the father asserted that the instructions issued to the child on that day had been issued by the child’s paternal grandmother rather than by him. He alleges that he disagreed with the instructions issued by the paternal grandmother, but it is implicit from his evidence that he was aware of those instructions and did nothing to countermand them.
Even on the basis that the father’s evidence is accepted that it was the child’s paternal grandmother and not he who instructed the child to act in that way, it was abominably cruel. Although he professed his disagreement with those instructions, the father seemed largely ignorant of the damaging effect that such an incident could have upon the child.
That catalogue of intermittent incidents between late 2007 and August 2008 demonstrates a lamentable inability on the part of the father, and those adults associated with him, to facilitate and encourage a close and continuing relationship between the child and the mother.
True it is that incidents of that nature appear to have all but abated in the last 12 months, but the evidence only goes so far. The abatement of such negative behaviour, at its highest, simply indicates that the relationship between the child and the mother is no longer actively sabotaged by the father. That situation is a long way short of the demonstration of behaviour on his part that actively promotes the relationship between the child and the parent. There is nothing in the evidence that leads me to a conclusion that the acquisition of any limited insight on the part of the father has enlightened him to the need to actively promote the relationship between the mother and the child.
The parents continue to have almost a complete absence of communication. They rarely, if ever, have any communication now by telephone, text messages, or email. They even avoid talking with one another at changeovers. The evidence permits a finding that there is no longer any explicit abuse swapped between the parties, but the family consultant described the state of their current relationship as a “cold war”.
That is not to say that the future is devoid of hope. For her part, the mother alleges a willingness to engage with the father in the future on a more positive level. She said during her evidence “It’s not even about winning. It’s about [H’s] life” in such a way that I believed her commitment to improved communications with the father to be genuine. Whether she is able to convert the intention to action is another matter.
For his part, the father seems to grudgingly acknowledge that he needs to improve his level of communication with the mother for the benefit of the child. He said in evidence that they would have to get on “like mature adults”. As with the mother, although his expressed intention is laudable, I harbour reservations that he will be able to act on that intention. He is likely to be hampered in his efforts by the continuing relationship he enjoys with Ms S.
Most surprisingly, Ms S conceded in cross-examination that she had never once met the mother personally. She has only ever spoken to the mother directly on one occasion, and that was on the telephone before the proceedings were started in late 2007. She therefore has almost no personal knowledge of the mother. Her impressions of the mother must of necessity be formed entirely upon reports she has received from others, and the content of written communications that have passed between the families. Ms S seemed genuinely surprised when confronted with the proposition that in those circumstances it was illogical for her to harbour her dislike for the mother. Notwithstanding, Ms S could not offer a single idea as to how she could improve her relationship with the mother. Her enmity seems most entrenched.
Ultimately, the family consultant was impelled to the view that the child had already been significantly psychologically abused within the father’s household. I accept that evidence.
Section 60CC(3)(d)
The state of the relationship enjoyed by the child with each of her parents is unlikely to be disturbed by any change of residential household. The evidence of the family consultant is that the child is of sufficient age that she has acquired memories of enjoyable experience with both parents, which memories would not be the subject of impingement irrespective of her place of residence.
An important component in the comparison of the households, in the view of the family consultant, was the fact that in the household of the mother the child would be reunited with her half-sisters. The child is particularly close to her half-sister L, and although her bond with her younger half-sister K is less established they still interact warmly. The family consultant considered that daily involvement with her half-sisters was an advantage that would be enjoyed by the child if she were to reside with the mother.
To his credit, the father conceded that it would be a benefit to the child if she could spend more time with her half-sisters. He acknowledged that he was aware of the rapport between them, reported in the Family Reports.[25]
[25] Family Report dated 20 March 2009, para 45; Family Report dated 3 August 2009 paras 21, 41
It is undoubtedly true that the mother would be extraordinarily busy with the child, L, K, and a newborn baby in her sole care. But I am not prepared to find on the evidence that the task of caring for four young children is beyond her. She presents as a caring mother, and she has the back-up of two sisters and her grandparents in G, all of whom live close by. The mother’s sister D is a particularly close confidant. They assist one another daily with their respective children. The family consultant considered that the mother would need that family support to alleviate her stress.
Of course, if the child was to move to live with the mother, it would entail another change of school for her. Ordinarily, that would be an important consideration, but it carries with it less weight in these proceedings. That is because the child has already been enrolled at numerous schools, even though she is only in year one.
When the child went to the live with the father in July 2007 he enrolled her at a preschool. There were apparently no concerns about her attendance there in 2007.[26] She commenced kindergarten at E Public School in 2008. The attendance role[27] discloses that the child was absent from school for 20 days in the first term of the 2008 academic year. There is no adequate explanation in the evidence for that.
[26] Exhibit F2
[27] Exhibit ICL1
The father changed the enrolment of the child so that she began the second term of the 2008 academic year at the A School. The father says that he made that change because of a rumour that scabies was infecting the student population at the E Public School. Curiously, upon investigation by the family consultant, other explanations have come to light.[28] The paternal grandmother, which is a reference to the child’s paternal grandmother, reported to the family consultant that the reason for the child’s move was that she was being bullied. Staff at the school indicated that there was a belief that the enrolment had been changed because too many questions were being asked of the father about the child’s absenteeism.
[28] Family Report dated 10 September 2008, para 38
In any event, records disclose further absenteeism at the A School in terms two and three of 2008.[29] The absenteeism in those terms is less alarming than that in term one, but it is still demonstrative of a lack of commitment to the child’s education.
[29] Exhibit ICL2
The attendance records for term four in 2008 and for the first half of 2009 where not produced in response to subpoena. However, the records that were produced showed that the child was absent from school for two days in the last portion of the second term of 2009 after her enrolment had been transferred from the A Public School at E to the V Public School at O.[30]
[30]Exhibit ICL3
Having attended three different schools in a little over 18 months is hardly indicative of a settled educational experience, particularly in light of that level of absenteeism. In those circumstances another change of school, which would be necessitated by a move to the household of the mother, carries with it much lesser significance than might otherwise be the case.
The mother intends to enrol the child at the same school in G that her sister’s children attend. The child would therefore attend school with her cousins, with whom she is familiar.
Section 60CC(3)(e)
The father intends continuing to live in O with Ms S.
The mother intends to continue living in G.
The uncontested evidence is that it is approximately four hours driving time between those towns. The parties concede that that represents a practical difficulty in the implementation of time to be spent by the child with the two parents. It is agreed that changeovers should continue at N.
The expense of implementing the time spent by the child with the parents is another complicating feature. The mother is a welfare recipient. Both parties live in housing provided by the Department of Housing. The financial circumstances of the mother are parlous. The father’s financial circumstances may be a little better, but not much.
The parties and the Independent Children’s Lawyer uniformly submit that, wherever the child lives, the time she spends with the other parent should be limited to approximately one weekend per month and block time during school holiday periods.
Section 60CC(3)(f)
No direct evidence was adduced by either party as to their financial circumstances. It was implicit from the evidence that the mother experiences difficulty in meeting all of her expenses. For example, she had been in almost constant arrears of rent payments to the Department of Housing, although she has managed to stave off eviction. The father experiences financial limitations, even though his position may not be quite as poor as that of the mother. I conclude on the evidence that the parties each have the financial capacity and physical ability to provide for the physical needs of the child on a day-to-day basis, albeit at a very modest level.
The child has intellectual needs. It is common ground that she is experiencing difficulty with her literacy. Her most recent school report[31] demonstrates that she is lagging behind her peers by reference to most academic criteria. She participates in a remedial reading programme. Both of the parties are literate and numerate, although the mother appears to have a higher academic capacity than the father. Each of the parties can presently cater to the intellectual needs of the child, but as she grows older the mother is a better suited parent to those intellectual needs than the father.
[31] Father’s Affidavit filed 14 August 2009, Exhibit B
For reasons that I have already expressed, I find that the father is much less able than the mother to provide for the child’s emotional needs. Her emotional needs have been seriously trammelled by the father on occasions in the past. The mother is a superior parent to the father in that respect.
Section 60CC(3)(g)
The father is in a relatively settled relationship with Ms S. The evidence shows that they have been in a relationship since about January 2007. Each of them asserts that they intend maintaining their relationship and having children together at some point in the future. Each of them are in the course of attaining qualifications to assist in their search for employment. I accept the submission of the father’s counsel that they are proper role models in that regard.
By comparison, there is no evidence that the mother has ever held paid employment. She is now 24 years of age. She has had five pregnancies in the last seven years. One of the pregnancies was terminated and she is yet to bear her fourth child. Needless to say, the mother has been a full-time single parent since the time of her separation from the father, and will continue to be so for the foreseeable future. She has no domestic partner and professes a wish not to have one. Those aspects of her life are representative of an unsatisfactory role model according to the submissions of the father’s counsel. It may be that the mother does not present an ideal picture of domestic bliss but I do not accept, expressly or inferentially, that her parenting capacity is diminished by reason of the fact that she does not hold paid employment and is not in a domestic relationship.
Section 60CC(3)(h)
Curiously, the issue of Aboriginality has not been a feature of these proceedings, even peripherally. Neither party adduces any evidence about events or themes of cultural or spiritual meaning to which the child should be exposed.
The question of Aboriginality and heritage was the subject of comment by both parties in their vociferous telephone conversation on 1 January 2008. It is clear that the mother abhors racism and does not identify singularly with either the Aboriginal or caucasian communities.
In submissions, it was conceded by the father’s counsel that this issue was in fact not an issue. Since the parties were not concerned with cultural ties, it is not for the court to develop it as an issue of significance.
Section 60CC(3)(i)
The father contended that the multiplicity of pregnancies experienced by the mother over the last few years was demonstrative of a lack of responsibility towards parenthood on her part. I do not accept that submission. The mother herself concedes the need for future use of reliable contraception, but falling pregnant at a young age with reasonable frequency does not of itself demonstrate irresponsibility.
The father submits that episodes in the past illustrate a lack of commitment on the part of the mother to the child, and hence a lack of responsibility concerning her duties of parenthood. It is common ground that for a period of months in mid 2008 and early 2009 there was very little time spent between the child and the mother.
The mother concedes that between March and August 2008 she had very little contact with the child.[32] She blames that eventuality on the father’s reluctance to facilitate time and communication between her and the child, her lack of transport, and her apprehension at threats that had been made to her by the child’s paternal grandmother. On balance, I am inclined to accept those reasons as efficacious.
[32] Mother’s Affidavit filed 7 October 2008, paras 58-60
The father adduces evidence which is at least suggestive of the fact that he too experienced difficulties in ensuring the implementation of time spent between the child and the mother.[33]
[33] Father’s Affidavit filed 28 August 2008, paras 18-19
Again, in the first few months of 2009, there was a hiatus in the time spent and communication between the child and the mother.[34]
[34] Mother’s Affidavit filed 18 June 2009, paras 23-29
I agree that, in the absence of a reasonable explanation, the paucity of time and communication between the mother and child would demonstrate a lack of commitment to parenthood. However, I am satisfied that the mother advances reasonable explanations in the circumstances.
Section 60CC(3)(j)
There is no evidence of violence perpetrated as between the parties, or by either of them towards the child.
The mother’s third child, K, was fathered by Mr J. That man is also apparently the father of the fourth child yet to be born to the mother in the next few months. The father contends that Mr J has a propensity for violence, which constitutes an unacceptable risk for the child. His criminal record tends to bear out that apprehension.[35] The mother does not disagree with that proposition.
[35] Exhibit F3
The father proposes an injunctive order that would preclude contact between the child and Mr J. The mother does not oppose the making of such an order. The mother asserts that, notwithstanding his paternity of two of her children, she will ensure that the child will not have contact with Mr J. She asserted that she would not like her children to be around violent men because it could be “mentally and physically” damaging for them. I accept her evidence as a genuine expression of her sentiment. I also accept the submission of the father that she will encounter real difficulty in compliance, given the likely need for her to interact with Mr J in the future concerning time that may be spent by two of her other children with him. Nonetheless, I am persuaded that any unacceptable risk posed to the child by Mr J will be sufficiently abated by the injunctive order I am asked to make. The mother said that she would observe any such order. I believe that she is well-intentioned and has the protection of her children at the forefront of her mind.
The mother and father both contend that the child’s paternal grandmother constitutes a real danger to the child. Her criminal record demonstrates her to be a person with a tendency to violence and dishonesty.[36] The paternal grandmother has been described as the child’s “paternal grandmother”, but in reality she is not. In his evidence, the father disclosed that she is really his aunt, even though she was his putative mother from a very early age.
[36] Exhibit ICL 4
A schism has occurred within the Ali family. It involves the paternal grandmother, the father, Ms S and Ms S’s family. The acrimony that has developed within that family has been sufficient for the father to conclude that he ought never again have any interaction with the paternal grandmother. He asserts moving from E to O specifically to avoid any further contact with her.
The father submits that the child should have no future contact with the paternal grandmother. The mother agrees. Likewise, I entertain some doubt as to whether the father’s estrangement from the paternal grandmother will be long-lasting, but I accept that his expression of sentiment is genuine. I am likewise satisfied that the imposition of an injunctive order precluding contact between the child and the paternal grandmother will abate the risk posed to the child by the paternal grandmother from an unacceptable level to an acceptable level.
The maternal grandfather is a man who has apparently been previously sentenced to imprisonment for rape. The circumstances of his offences and sentences were not the subject of further elaboration in the evidence, but the mother said that she would never allow her father to stay at her house and that she did not think it appropriate for the child to have any contact with her father, being the maternal grandfather. Her own concerns about that are sufficient for the Court to take them seriously. It was common ground between the parties and the Independent Children’s Lawyer that the child should have nothing to do with the maternal grandfather. I will accede to that request and make an order accordingly.
Section 60CC(3)(k)
No interim or final family violence order has ever existed against either party for the protection of either of them or the child.
As I have already mentioned, Ms S instituted apprehended violence proceedings against the mother in the Local Court in January 2009, but those proceedings are defunct as a consequence of the mother not being served with Ms S’s complaint. Having regard to the passage of some six months since the initial return date of that Application before the Local Court, I conclude that the complaint is not seriously pressed by Ms S.
Ms S is separately pursuing an apprehended violence complaint against the paternal grandmother.[37]
[37] Affidavit of Ms filed 21 August 2009, para 9
Section 60CC(3)(l)
The parties and the Independent Children’s Lawyer now uniformly propose a living arrangement for the child which would see her living with one parent and spending time with the non-residential parent approximately one weekend per month and also for block time during school holiday periods. That regime is proposed to apply irrespective of whether the residential parent is the mother or the father.
I draw the inference from the evidence and the submissions I have heard that, so long as the parenting outcome is generally consistent with those uniform submissions, the institution of further proceedings in relation to the child is no more or less likely irrespective of the household in which the child is to live.
Section 60CC(3)(m)
There are various issues that merit consideration apart from those already addressed above.
It is clear that both the mother and father have lacked candour in their disclosure of historical circumstances.
The mother failed to disclose to the family consultant that she had cohabited with Mr J for several months during 2008, that she had become pregnant again during 2009, and that that pregnancy had been conceived with Mr J. The family consultant was surprised by those revelations when they were put to her in cross-examination, but they were not such as to cause any material change in the family consultant’s recommendations.
I was also left with a sense of concern about the manner in which the mother had handled her application for a fresh birth certificate in respect of the child. It is common ground that the child was originally registered with the surname “Ali” shortly following her birth. In October 2007, the mother applied for a fresh birth certificate through the Local Court. The fresh birth certificate was issued disclosing the child’s surname as “Quantock Ali”, and without the father’s paternity details endorsed upon the birth certificate.[38]
[38] Exhibit F1
The application for that birth certificate occurred contemporaneously with the institution of proceedings in the Local Court by the mother seeking parenting orders in respect of the child. I remain uncertain as to whether her application for the birth certificate was ancillary to her commencement of these proceedings. I am prepared to accept that the absence of the father’s paternity details was through inadvertence rather than intention on the part of the mother. She said in evidence that she expected that the father’s details would be endorsed on the fresh certificate, given that he had had his paternity details endorsed upon the original birth certificate.
Nevertheless, the mother deliberately arranged for the issue of the new birth certificate with a different surname. When that issue was earlier raised before this Court, during the historical course of the proceedings, the Court made an order requiring the mother’s rectification of the fresh birth certificate.[39] It is common ground that the mother has never complied with that order. The mother simply says that she has not been able to “get around to” complying with the order. That is a wholly unsatisfactory explanation.
[39] Order 8 made 8 October 2008
The evidence discloses that whilst the father has honestly continued to use the surname “Ali” for the child, the mother has used the surname “Quantock Ali” for the child when the child has been with her. The family consultant observes that that will disturb the child’s sense of self and identity, if it has not already done so. Nobody disagrees with that proposition. It is important that the child be known by the same name irrespective of with whom she lives.
The question then arises as to whether the child’s surname ought be “Ali” or “Quantock Ali”. The father submits that it should be “Ali”, simply for reasons of consistency. There is merit to that submission. However, there is also merit to the submission that by use of the hyphenated surname “Quantock Ali” from this point on the child will develop with a clear sense that she is the product of two individuals. Having regard to the historical events in 2007 and 2008, which had the effect of aligning the child with the father to the detriment of the relationship between the mother and the child, I am persuaded that the best interests of the child are served by her being henceforth known by the surname “Quantock Ali”. The Independent Children’s Lawyer and the mother both submitted that should be so, and ultimately I agree with them. I note that the father himself refers to the child by the name “Quantock Ali” (without the hyphen) in his Response filed on 12 October 2007.
The conduct of the father has also lacked candour in some respects, particularly in respect of the circumstances in which the child went to live with him in July 2007, and his subsequent move of residence from E to O in 2009.
In respect of the child’s move to the household of the father in July 2007, the father alleges that for some months the mother had been contacting him complaining that the child was “uncontrollable and too difficult to handle”.[40] As a consequence, he arranged for the paternal grandmother to collect the child from the mother at G to return her to live with the father at E.[41]
[40] Father’s Affidavit filed 12 October 2007, para 16
[41] Father’s Affidavit filed 12 October 2007, para 17
The mother provides a materially different version of events, which I prefer. She alleges that she permitted the paternal grandmother to collect the child in July 2007 to spend time with the father in E over a couple of weeks, and that thereafter the father and the paternal grandmother refused to return the child to her. That is why she took steps to secure a grant of legal aid, retain legal representation, and commence proceedings in October 2007 to recover the child from the father.
The father gave oral evidence about those circumstances during the hearing. In examination in chief, he elaborated by saying “I decided to keep her (the child) there (at E)”, and that he made that decision after he had been telephoned by the mother. In cross examination he also said “Me and [the maternal grandmother] decided to get [H] back from [the mother]”. He conceded that the mother could have been told by the paternal grandmother that the child would only spend a week or two in E, which was the deceptive explanation provided to the mother.
The inference urged upon me by the mother’s counsel, which I accept, is that the father made a unilateral decision to retain the child once she arrived at his household in E from G. I accept the evidence of the mother that she was ignorant of the father’s decision, and that she genuinely believed that the child was only visiting the father for a period of weeks.
When he was asked about the circumstances of the child’s move of residence in July 2007 by the family consultant, the father advanced the reason for that change as being his concern about the mother’s relationship with a man named Mr I.[42] Self-evidently, the reason given for the change by the father to the family consultant is significantly different from the reason given by him in evidence, namely that the mother had complained to him that the child was uncontrollable and that she requested that he take the child from her. In cross-examination, the father was compelled to admit the reasons given by him at various times were quite distinct.
[42] Family Report dated 10 September 2008, para 55
I find that the father acted deceitfully by permitting the mother to think that the child was only visiting him for a period of weeks in July 2007, when in fact he and the paternal grandmother had decided that they would retain the child and refuse to return her to the home of the mother once she arrived in E.
With respect to the father’s move from E to O, there is also room for suspicion. That move of residence occurred on 5 June 2009.[43]
[43] Father’s Affidavit filed 23 June 2009, para 3
The father asserts that the move occurred for a number of reasons.[44] The principal reason given by the father was that the Department of Housing had offered he and Ms S an immediate rental property of their own. That was attractive to them because they had only previously lived with relatives in E. In fact, the true position is that they do not have their own rental property in O. They are living in a property rented from the Department of Housing by Ms S’s mother. True it is that the Department of Housing is aware of the residence of the father and Ms S within that household, but it is misleading to assert that it is a rental property over which the father and Ms S exercise dominion.
[44] Father’s Affidavit filed 23 June 2009, paras 4-6
Each of the parties’ households is susceptible to insecurity. The mother has faced eviction from the Department of Housing by reason of her rental arrears.[45] The evidence discloses that she has discussed that predicament with the Department and the risk of eviction has been averted. She is in the process of reducing the arrears, which now stand at an amount in the vicinity of $300.00. She is now making regular rental payments which cover both the fortnightly rent and incrementally reduce the arrears.
[45] Exhibit M1
Similarly, the security of the father’s residence is susceptible to the whim of Ms S’s mother. The father conceded in cross-examination that if Ms S’s mother directed him to vacate the property for any reason in the future he would necessarily need to comply.
The poor financial circumstances of the mother became a feature of the case. The family consultant gave evidence to the effect that the mother’s financial management could be improved by her participation in a course conducted by either Centrelink or Family Support Services dealing specifically with household budgeting. The Independent Children’s Lawyer submitted that the mother ought participate in such a course. I accept that submission, particularly when the mother’s counsel endorsed the submissions made by the Independent Children’s Lawyer.
As mentioned earlier, the issue of changeovers was ultimately agreed between the parties and the Independent Children’s Lawyer. Irrespective of the parenting orders made by the Court, the parties wish changeovers to occur outside the N Post Office. That is the current venue for changeovers, by reason of the interim orders made on 25 June 2009. I will so order.
parental responsibility
In applying the provisions of Part VII of the Family Law Act in the circumstances of this case, where the child and the parents are Indigenous Australian, the Court is obliged to have regard to kinship obligations and child-rearing practices of their Aboriginal culture (s 61F).
However, no evidence has been adduced by either party about the kinship obligations or child-rearing practices of their communities or culture.
As I remarked in the introduction, both parties contend that they should have allocated to them equal shared parental responsibility in respect of the child. Neither of them argues that the presumption of equal shared parental responsibility either does not apply (s 61DA(2)), or is rebutted (s 61DA(4)).
That is not the recommendation of the family consultant, who considers that sole parental responsibility should be allocated to the mother, with the exception of responsibility for decisions concerning serious medical issues affecting the child.[46]
[46] Family Report dated 3 August 2009, para 47 and Family Report dated 20 March 2009, para 56
Interestingly, that was not the family consultant’s original recommendation. Initially Ms T considered that the parties ought have equal shared parental responsibility for all decisions regarding the child.[47] It is apparent that the family consultant later dispensed with that initial recommendation because of her later contemplation of the parties’ past conflict.
[47] Family Report dated 10 September 2008, para 79
The Independent Children’s Lawyer adopts the recommendation of the family consultant, arguing that the presumption of equal shared parental responsibility is rebutted by reason of the best interests of the child dictating otherwise.
I have considered the issue carefully. Although slightly improved, the level of communication between the parties is still lamentably poor. Nevertheless, each parent professes an earnest effort to improve the situation. As I have already indicated, I am circumspect about their ability to transform that intention into action, but I consider that it would be in the best interests of the child if her parents can participate jointly in the making of decisions which affect major long term issues in her life.
Such issues are unlikely to recur with regularity, and to the extent that there remains disagreement about any such issue in the future, either may resort to the Court for resolution. Hopefully, though, that will not be necessary.
However, at the end of the evidence, and after all of the submissions, the mother and father still mutually request an outcome of equal shared parental responsibility. I am persuaded that they ought be afforded the opportunity to make good on their respective promises to improve their level of communication with one another. Accordingly, I will allocate equal shared parental responsibility for the child to them.
living arrangements
Since equal shared parental responsibility is to be allocated to the parties, the Court is obliged to consider the advisability and practicability of the child spending equal, or alternatively, substantial and significant time with each of the parents (s 65DAA).
In the circumstances of this case, it is neither in the best interests of the child, nor reasonably practicable, for the child to spend either equal or substantial and significant time with each party. That is common ground.
As I have already mentioned, the parties and the Independent Children’s Lawyer propose a living arrangement for the child which is largely a mirror image, depending upon with whom the child is to live. The uniform proposal is that the child live predominantly with one party and spend much less time with the other. The mother and Independent Children’s Lawyer both propose that the child live with the mother, and the father proposes that the child continue to live with him.
I accept the submission of the father’s counsel that the decision is not clear cut. Various considerations stipulated by s 60CC of the Act point in different directions. However, on balance, I am persuaded that the best interests of the child are served by her living with the mother.
As uniformly requested, I will make orders that provide for the child to spend time with the father on a basis which approximates one weekend per month and a proportion of the school holidays.
In my view, those parenting orders are proper (s 65D(1)).
The family consultant gave evidence that the child should divide her time with the parents approximately equally across school holidays, and that the temptation to have her spend some extra time with the non-residential parent in the school holidays ought be avoided. The reason given was that, as she ages, the child will wish to spend more time during holidays with her peer group in the area of her primary residence. The Independent Children’s Lawyer endorsed that opinion.
The alternative plan of the father was that the child spend almost all of the school holidays with him, in the event that she is to live with the mother. I will attempt to find mid ground between those two positions. The distance between households precludes more regular time being spent between the child and the father during school terms, so at least some of that time can be made up during school holidays without exhausting all of the holiday periods.
The family consultant recommended against telephone communication between the child and the parents because of the past history of verbal abuse between the families.[48] That recommendation was endorsed by the Independent Children’s Lawyer. I do not accept either the recommendation or the submission. There has been no overt abuse between the parties for quite some time.
[48] Family Report dated 3 August 2009 para 49
In her Application, the mother seeks an order that the child have telephone communication with the father twice per week. Once per week should suffice in the circumstances. In a weekly telephone call the father is much more likely to focus on his relationship with the child than on criticism of the mother. The mother is plainly prepared to accept the father’s calls.
The child has a valuable relationship with her father. It ought be permitted to flourish. I am convinced that the mother will not likely act so as to subvert telephone communication between the child and the father. I consider that the mother acknowledges the need for the child to communicate with the father with that level of frequency without interruption from her. For that reason I will make an order permitting the child to communicate with the father on one evening each week.
I make orders accordingly.
I certify that the preceding one hundred and ninety nine (199) paragraphs are a true copy of the reasons for judgment of the Hon. Justice Austin
Associate:
Date: 8 September 2009
Key Legal Topics
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Family Law
Legal Concepts
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Remedies
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Jurisdiction
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Procedural Fairness
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