Rabkin & Edsall (No 3)
[2018] FamCA 515
•13 July 2018
FAMILY COURT OF AUSTRALIA
| RABKIN & EDSALL (NO. 3) | [2018] FamCA 515 |
| FAMILY LAW – CHILDREN – INTERNATIONAL RELOCATION – where the mother seeks to relocate with the child to the United Kingdom – where the father seeks that the child live primarily with him in Australia until the mother completes various treatments – where the parents have been involved in entrenched conflict – where the mother is permitted to relocate the child to live in the United Kingdom. |
| Family Law Act 1975 (Cth) |
| AMS v AIF (1999) 199 CLR 160 Cox & Pedrana (2013) FLC 93-537 |
| APPLICANT: | Mr Rabkin |
| RESPONDENT: | Ms Edsall |
| INDEPENDENT CHILDREN’S LAWYER: | Barbara Fox Solicitor |
| FILE NUMBER: | BRC | 5702 | of | 2013 |
| DATE DELIVERED: | 13 July 2018 |
| PLACE DELIVERED: | Brisbane |
| PLACE HEARD: | Brisbane |
| JUDGMENT OF: | Hogan J |
| HEARING DATE: | 6, 7, 8, 9 & 10 March 2017 19 & 20 April 2018 |
REPRESENTATION
| COUNSEL FOR THE APPLICANT: | Mr Anderson of Counsel (6–10 March 2017) |
| SOLICITORS FOR THE APPLICANT: | Simonidis Steel Lawyers (6–10 March 2017) |
THE APPLICANT: | In person (19 & 20 April 2018; 8, 9 & 31 May 2018; 1 June 2018) |
| COUNSEL FOR THE RESPONDENT: | Ms Oakley of Counsel |
| SOLICITORS FOR THE RESPONDENT: | CNG Law |
| COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: | Mr the child of Counsel |
| SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: | Barbara Fox Solicitor |
Orders
IT IS ORDERED THAT
All previous Orders are discharged.
AND IT IS ORDERED BY WAY OF FINAL ORDER THAT
The child K, born in 2010 (the child), live with the mother.
The mother have sole parental responsibility in respect of all major long term issues (as that expression is defined in the Family Law Act 1975 (Cth)), other than the child’s name.
Other than in emergency circumstances, the mother shall, prior to making a decision about any major long term issue:
(a)inform the father in writing of the issue about which a decision needs to be made, the decision she would like to make in respect of such issue and the reasons for that proposed decision; and
(b)allow the father fourteen (14) days after the provision by her of the information referred to above to respond to the same in writing; and
(c)consider the father’s response, if any, when coming to her decision about any such issue; and
(d)inform the father of the final decision she has made with respect to that issue as soon as practicable thereafter.
The parties shall have equal shared parental responsibility in relation to the issue of the child’s name.
Each parent has responsibility for daily decisions about the day to day care, welfare and development of the child whenever he is in that parent’s care.
The mother is at liberty to relocate the child to live with her in the United Kingdom at any time after 13 August 2018.
Prior to his relocation to the United Kingdom, the child shall spend time with the father at all times as may be agreed between the parents in writing, but, failing agreement, as follows:
(a)each alternate weekend from after school Friday until before school Monday, with the father or his nominee (provided it is a person known to the child) to collect the child from school at the commencement of the time and with the father or his nominee (provided it is a person known to the child) return him to school at the conclusion of such time; and
(b)the child’s time with the father shall be in the presence of the paternal grandmother; and
(c)the father is restrained from using any physical discipline toward the child.
Following his relocation to the United Kingdom, the child shall spend time and communicate with the father at all times as may be agreed between the parties in writing but, failing agreement, as follows:
(a)commencing in 2019: for a period of 20 nights in Australia during the extended European summer school holiday period (occurring in July/August) on the following terms:
(i)in two blocks of 10 consecutive nights with the father, from 9.00 am on the first day until 5.00 pm on the eleventh day, with such time to be interrupted by no more than three consecutive nights in the care of the mother; and
(ii)when the child spends overnight time with the father this time shall take place in the company of the paternal grandmother.
(iii)the mother shall accompany the child to Australia until such time as the mother advises the father in writing that the child has reached an age, level of maturity and ability when he can travel as an unaccompanied minor or the child reaching the age of 15 years, after which he may travel as an unaccompanied minor if the mother so chooses; and
(iv) the child’s flight shall be at the mother’s expense; and
(v)the mother shall email the father with at least 90 days’ notice of the dates on which she proposes the child travel to Australia; and
(vi)the father will reply to this notice by email within seven (7) days to confirm that he is available to spend time with the child; and
(vii)once the father has confirmed his availability to spend time with the child, the mother shall be at liberty to book the child’s return air travel; and
(viii)the mother shall notify the father of the child’s school term and holiday dates for the following year by not later than 31 December in each year.
(b)for a period of not more than ten consecutive nights on any occasion that the father is in the United Kingdom: provided that he has first given the mother no less than thirty (30) days’ notice in writing of his intention to travel to the United Kingdom and to spend time with the child there, with changeover to occur at a place agreed between the parties in writing or, failing agreement, at a place which is proximate to where the child is living and as nominated by the mother; and
(c) by telephone or Facetime:
(i)at such times as the child reasonably requests and the mother shall facilitate the contact; and
(ii)between 7.30 am and 8.00 am United Kingdom time each Tuesday and Sunday, with the father to facilitate the contact to the child and the mother to make the child available for the contact; and
(iii)on the child’s birthday and the father’s birthday and on Australian Father’s Day, with the mother to facilitate the child contacting the father.
(d) by email and mail at such times as the child reasonably requests.
During any time the child is in the father’s care, the father is restrained from using physical discipline toward the child.
The father is at liberty to communicate with the child by email and mail at all reasonable times.
In order to facilitate the child’s transition between his parents’ care for the purpose of the time he is to spend with his father in Australia pursuant to this order, changeover shall occur in the following manner unless otherwise specified:
(a)at McDonald’s L Town: each parent may collect the child personally or by their nominee, provided that the nominee is an adult who is known to the child and the other parent; and
(b)each parent shall be punctual in attending the changeover and, if there is to be a delay, shall text or phone the other parent; and
(c)unless otherwise agreed between the parents in writing: neither parent shall approach the other and each shall remain near their cars.
The mother and father shall:
(a)keep the other informed at all times of their residential address, contact telephone numbers (landline and mobile) and email address and advise the other of any change to the same within 48 hours of such change; and
(b)keep each other informed of the names, addresses and contact details of any specialist medical professional whom treats the child; and
(c)inform the other as soon as is reasonably practicable of any accident, emergency, hospitalisation, serious medical condition or significant health issue suffered by the child whilst in that parent’s care and also provide details of the treatment the child has received in relation to the same; and
(d)keep the other informed of the details of any school, educational facility or extra-curricular activity provider attended by the child.
Within 28 days of receiving the same, the mother shall provide the father with a copy of any school report received about the child’s progress at school.
On no less than one occasion each year, the mother shall provide the father with a copy of any official school photograph in which the child appears.
The mother shall do all things necessary to ensure that she continues to receive psychological and/or psychiatric treatment for as long as is considered necessary by her treating practitioner to assist her to address the major depressive disorder (which involved a pattern of chronic anxiety and depressive symptoms) with which she has been diagnosed by Dr P and, in furtherance of this, she is at liberty to provide any treating practitioner with a copy of Dr P’s report, the Family Reports prepared in this matter and the Reasons for Judgment delivered.
By this Order, the mother and father authorise any day care, school, educational facility or extra-curricular activity provider attended by the child to provide to each parent, at that parent’s request and cost, all information about his educational progress and school related activities.
Subject to the conditions imposed by the child’s school or extra-curricular provider, these Orders authorise both parents to attend school functions and extra-curricular activities to which parents are ordinarily invited including but not limited to carnivals, sports days, fetes, concerts, plays and parent/teacher interviews.
By this Order, the mother and father authorise any specialist medical professional from whom the child receives treatment to provide to each parent, at that parent’s request and cost, all such information lawfully able to be provided about the child’s attendance and treatment.
Neither parent denigrate the other, their partner or their family to, or in front of, or within the hearing of, the child and each shall direct third parties to refrain from denigrating either party, their partner or their family to, or in front of, or within the hearing of, the child and, failing their compliance with such a direction, shall remove the child from that environment immediately.
Save as may occur in any counselling or therapy consultation in which the child engages, neither party shall discuss these proceedings with the child and each parent shall ensure that the child is not shown any document filed in the Court in the proceedings and shall use their best endeavours to ensure no other person engages in such behaviour and, failing compliance with a direction to cease the behaviour, shall remove the child from the environment immediately.
The child is permitted to travel outside the Commonwealth of Australia.
Within 14 days of receiving a written request to do so from the other parent, both parents shall sign all deeds, documents and instruments necessary to obtain an Australian passport for the child.
In the event that any document necessary to obtain an Australian passport for the child is not signed by the father or is returned to the mother in a state that is incomplete or such that it does not comply with the requirements for a passport to issue, the mother is at liberty to complete replacement travel documents and, if necessary, a Registrar of the Family Court of Australia is appointed, pursuant to s 106A of the Family Law Act1975 (Cth), to sign any such document in lieu of the father.
Upon receiving a copy of this Order, the Australian Federal Police shall remove the name of the child, K, a male, born … 2010, from the Airport Watchlist at all points of international arrival and departure in Australia.
All outstanding applications are dismissed.
The Independent Children’s Lawyer is discharged.
AND IT IS FURTHER ORDERED THAT
Pursuant to s 65DA(2) and s 62B of the Family Law Act 1975 (Cth), 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 to adjust to and comply with an Order are set out in the Fact Sheet attached and these particulars are included in these Orders.
Note: The form of the order is subject to the entry of the order in the Court’s records.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Rabkin & Edsall (No. 3) has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).
| FAMILY COURT OF AUSTRALIA AT BRISBANE |
FILE NUMBER: BRC 5702 of 2013
| Mr Rabkin |
Applicant
And
| Ms Edsall |
Respondent
And
| Independent Children’s Lawyer |
REASONS FOR JUDGMENT
Mr Rabkin, a tradesman, and Ms Edsall, a health professional commenced cohabitation in about March[1]/July[2] 2008. They have one child together: K, who was born in 2010. They separated in June 2013, at which time the father and the child moved to live with the paternal grandmother. The parties previously resided together at a residence at Suburb E, where the mother currently lives.
[1] On the father’s account.
[2] On the mother’s account.
Final parenting orders made on 18 December 2015 (amended 21 December 2015) by Judge Howard provided that the child live primarily with his mother and spend time with his father from after school Thursday until the commencement of school each Tuesday each alternate weekend (that is, for five nights per fortnight), for half of each school holiday period and for specified time on specified ‘special’ occasions such as Father’s Day, Christmas Day and his birthday.
Both parents appealed this order. On 2 August 2016, the Full Court allowed both the appeal and the cross-appeal and remitted the matter for re-hearing. The Full Court also made interim parenting orders in the same terms as the December 2015 order. On 1 September 2016, Judge Baumann (as his Honour then was) transferred the proceedings[3] to this Court. As I understand it, he did so after the mother told him she intended to seek orders which would permit her to relocate the child to live with her in the United Kingdom.
The competing proposals
[3] Which encompass both an application for parenting orders and an application for property adjustment orders pursuant to s 90SM of the Family Law Act1975 (Cth).
The father
As at June 2018, the father seeks[4] that:
a)the child live with him for 12 nights each fortnight and spend time with his mother for two nights each fortnight (if the Court is satisfied there has been “parental alienation” by the mother); and
b)the child live with each parent each alternate week after the mother completes treatment, consistent with Dr P’s recommendations, to the Court’s satisfaction; and
c)he have sole parental responsibility for medical decisions relating to the child if there is an equal time parenting regime; and
d)one medical practitioner be responsible for addressing the child’s medical needs; and
e)the child attend upon Ms U, a psychologist recommended by the Independent Children’s Lawyer; and
f)the child’s holiday time parenting regime coincide with those parenting orders his partner (Ms V) has in respect of her two children (X and Y) such that the child and those children spend holiday time together.
[4] As outlined in Submissions on behalf of the Applicant father filed 19 June 2018.
The father’s previous proposition[5] was that he and the mother have equal shared parental responsibility for the child’s long term care, welfare and development (save for in relation to decisions concerning the child’s health and education, in respect of which he should have sole parental responsibility); that the child live with him and spend time with the mother each alternate weekend (from after school Friday until 4.00 pm Sunday), for one half of the school holidays and on ‘special’ days and be at liberty to communicate by telephone with her at any time. He previously sought that the mother be restrained from removing the child from Australia during the child’s minority and that his name be placed on the Family Law Watchlist in support of such an order.
[5] In March 2017, as outlined in his Case Information document filed by leave on 6 March 2017.
The father did not specify this in the “orders sought” within his April 2018 affidavit nor did he specifically seek such orders in his recent written submissions, dated 19 June 2018.
The mother
The mother seeks that she have sole parental responsibility for decisions about the child’s major long term issues. Her primary position[6] is that she be able to relocate the child’s residence to the United Kingdom. Should this proposal find favour, the mother advances that, from 2019, the child spend time with his father for a period of 20 nights during the extended European summer school holiday period (which occurs in July/August) on the following terms:
a)for periods of 10 consecutive nights with his father; and
b)such overnight time with the father shall take place at the home of the paternal grandmother; and
c)she shall accompany the child to Australia until such time as he can travel as an unaccompanied minor; and
d)she shall pay for the flights.
[6] As outlined in Submissions on behalf of the Respondent mother filed 13 June 2018.
The mother also proposes that the child be at liberty to communicate with the father by telephone or Facetime at such times he requests and, in addition, she shall facilitate communication between them between each Tuesday and Sunday 7.30 am and 8.00 am United Kingdom time, on the child’s birthday and on (Australian) Father’s Day.
In the event that her primary proposal is unsuccessful, the mother advances that the child’s best interests will be served by parenting orders which will see him live primarily with her and spend time with the father every second weekend (from after school Friday until before school Monday), for one half of the gazetted school holidays and on special days. Consistent with her proposal for conditions attendant on the child’s holiday time with the father if the child is living in the United Kingdom, the mother proposes that any overnight time the child spends with his father occur at the home of the paternal grandmother. The mother also proposes that the child be permitted to communicate with his parents by telephone at such times he reasonably requests and that the parent with whom the child is not then spending time be permitted to telephone him each Monday and Friday between 7.00 pm and 7.30 pm.
The Independent Children’s Lawyer
At the commencement of the trial in March 2017, the Independent Children’s Lawyer proposed[7] that the child live with his father and that the parties have shared parental responsibility for the child’s long term welfare, care and development, save for issues concerning the child’s education and medical decisions. It was proposed that the father have sole parental responsibility for such issues.
[7] As outlined in the Outline of Case filed 27 February 2017.
The Independent Children’s Lawyer also proposed that the child spend time with his mother each alternate weekend (from 4.00 pm Friday to 4.00 pm Sunday), for one half of each school holiday period and on ‘special’ days. The Independent Children’s Lawyer proposed that the child have reasonable telephone contact with the parent with whom he was not living.
As at May 2018, the Independent Children’s Lawyer continued to be opposed to the mother’s proposal that she be permitted to relocate the child to live with her in the United Kingdom. Counsel for the Independent Children’s Lawyer then submitted that, if the child remained living in Australia, in the primary care of the mother, he should spend substantial and significant time with the father. Counsel submitted that, if a “7/7” arrangement was not considered best for the child, the Court could consider him spending something more than alternate weekends and half holidays in the care of his father: that is, the Independent Children’s Lawyer urged the Court to order that the child spend more than each alternate weekend and half of the school holidays with the father.
It was also submitted on behalf of the Independent Children’s Lawyer that the Court might consider that there ought be an order for equal shared parental responsibility, together with a requirement for the parties to attend appropriate parenting programs to assist them to learn to reach agreement about major long term issues or at least be able to discuss what needs to be done. Further, it was submitted that the child attend only one specialist therapeutically.
General conclusions about credit
I have concluded that the father is not a truthful witness; his evidence cannot be accepted without significant scrutiny. He has demonstrated a willingness to say whatever he thinks will assist his case; on occasions, he has simply deliberately lied to the Court. More recently, he deliberately refrained from telling both the mother and the Court about matters that were obviously relevant to any assessment of the child’s mental health functioning. Any apology proffered when caught out in a lie was perfunctory and insincere.
These conclusions have been arrived at having regard to the following examples of the father’s dishonesty:
a)despite police attending his home on 21 January 2018 after Ms V called them to report she was being assaulted and despite the child telling him on 23 February 2018 that X had tried to “kiss him naked” when both boys were naked, he told Ms R (the Family Consultant who conducted the Child Inclusive Conference on 20 March 2018) that “there have been no issues with the child’s [the child’s] visits with him until the mother started raising these concerns in February 2018”;[8] and
b)despite swearing an affidavit on 7 April 2015 in which he said, in relation to a telephone conversation with the mother on 26 June 2013 (two days after separation), that he did not recall saying during that conversation that “You are not spending any time with the child unless you sign a piece of paper stating that I am the child’s primary care giver” (or words to that effect)[9], the father accepted during his cross-examination on 7 March 2017 that he had said this to the mother and also said that he had a clear recollection of saying those precise words – in addition, when challenged further about the contents of this paragraph of his 2015 affidavit (which he relied on at the trial before Judge Howard), the father said he had “made an error”; he accepted that what he said at the relevant paragraph of his 2015 affidavit was a lie, but then sought to assert that it was “not necessarily” a lie which he knew to be a lie when he swore the affidavit; the father then said (when challenged further) that he did not truly recall the conversation and had only accepted it because Counsel for the mother had put it to him (an explanation I do not accept); and
c)despite swearing an affidavit on 7 April 2015 in which he said, in response to the mother’s allegation that, on 28 December 2012, he grabbed her by the throat, put her against the wall and attempted to strangle her, that “the incident [Ms Edsall] describes that allegedly occurred on 28 December 2012 did not happen. I have never strangled [Ms Edsall] or harmed her physically in any way”[10], the father said, during his cross-examination on 7 March 2017 that “I believe when I pushed past [Ms Edsall] my elbow touched her neck, as I was trying to get to my son in the bath. That’s what I believe happened…” and also: “there was a big struggle” – this evidence was given after the father had the opportunity to read the evidence given by Ms W (the mother’s sister) who said that she saw red marks on the mother’s neck that evening on her return to the house, a contention that the father did not challenge; and
d)despite swearing an affidavit on 16 February 2018 in which, in response to the contents of correspondence from the mother dated 14 February 2018[11] in which she asserted that “he [the child] came back from the recent Xmas holidays with the father and told me he had been hit in the head by him”, he (the father) said that “I do not know what the mother is talking about in paragraph 2”[12], he accepted during his cross-examination on 19 April 2018 that, on 16 February 2018, he did know the episode to which she was referring in her letter at paragraph 2 and that he did know what she was talking about (albeit that he had a different version of the incident) and that he did know the precise episode to which she was referring; and
e)despite swearing an affidavit on 16 February 2018 in which he said “…I say to the court that she is terrorising the child and alienating him in order to accomplish her goal and is simply turning the child into a nervous and anxious child because it suits her long-term property agenda”, the father denied during his cross-examination on 19 April 2018 that it was his firm opinion that the mother had deliberately set out to harm the child and his mental health for the purpose of advancing her case regarding the division of property and was “uncertain” about why he had given the evidence in his February 2018 affidavit that he had; and
f)despite first saying that he wrote a certain text message to Mr Z in which he pretended to be Ms V, the father later said that she wrote it and that, as he was lying right next to her when she did, he may well have “dictated it”; and
g)despite sending Mr Z a text[13] in which he said (in referring to Mr Z’s parenting of his sons, X and Y, when they were in his care) “You like to sleep with them don’t you so are you attacking the child because. you are trying to hide something like you sleep with your boys so the can play with you at night”, the father initially denied during his cross-examination that what he intended to convey in that message was that Mr Z has a sexual interest in his children; he also denied that the only way in which the message could have been read was as him accusing Mr Z of having a sexual interest in his sons and said that what he thought he was doing was “letting off steam” – however, when asked to explain what he had intended to convey in his text (if it was not as had been suggested to him by Counsel), the father said “I will go with your one” (that is, he accepted the intention Counsel had suggested he had when he sent the text); he then accepted that what had been suggested as his intended message to Mr Z was what had, in fact, been his intended message; he also denied that he was untruthful in initially rejecting that which he ultimately accepted; and
h)despite failing to include any reference at all in any of his affidavits to the events of 21 January 2018 and 23 February 2018, the father said during cross-examination that he had not sought to hide anything from the Court; and
i)despite swearing an affidavit on 6 April 2018 in which he said “I asked the child if he had hurt himself when he broke the window his mother had sent me a text about”[14], the father said during his cross-examination that he “probably asked my mum and she asked the child, she was having the conversation with the child”.
[8] Child Inclusive Conference Memorandum by Ms R dated 21 March 2018 at p. 4.
[9] Affidavit of the father filed 7 April 2015 at [113].
[10] Affidavit of the father filed 7 April 2015 at [335(b)].
[11] Affidavit of the father filed 16 February 2018, Annexure “1”.
[12] Affidavit of the father filed 16 February 2018 at [2].
[13] Exhibit 10, p. 3.
[14] Affidavit of the father filed 6 April 2018 at [24].
A further aspect of the father’s evidence is particularly troubling and erosive of any remaining confidence in his veracity.
When cross-examined about the “boat incident” (discussed later in these Reasons) on 19 April 2018 the father said that a mistake in judgement led him to fail to include his version of what happened that day in an affidavit as soon as possible. In defending his decision not to include any reference to the police attending his home on 21 January 2018 in response to Ms V’s call and report that she was being assaulted, he said (on 19 April) that he had not included any reference to this event in his affidavit material because he deemed it irrelevant to the Court’s consideration of those parenting orders which are in the child’s best interests. He said that he and Ms V had independently decided not to include any reference to this event in their respective affidavits and that they had not had any discussion about the fact that neither would mention it.
When the father was cross-examined on 19 April 2018 about the absence of any reference in his affidavit material to the occasion on 23 February 2018, when the child told him and Ms V that X had tried to kiss him when they were both naked, he said he had omitted giving evidence about this occurrence because “X is just a little boy”; he denied refraining from telling the Court about the event because he wanted to conceal it from the Court and he said that “nothing happened that involved the child so there was no reason to tell” the mother.
However, during the course of cross-examination by Ms Oakley (Counsel for the mother) on 20 April 2018 about his telephone call to the mother on 24 February 2018 (to arrange for them to meet at McDonald’s), she suggested he had called the mother because he was in “damage control” and wanted to make sure that she did not find out what had been going on in his home, both with Ms V and the child (which was clearly a reference to the police attendance on 21 January and the child’s report on 23 February – the day before his call): he denied that contention and asserted that he did not really care if the mother knew about that.
It was when Ms Oakley suggested that, if that had really been the case, then he would have included an account of these events in his affidavit, would have told the mother about them and would have told the hospital about them when the child was being sedated, that the father said that ‘it’ was kept from the affidavits to protect X. This can only be a reference to the occurrence of the child’s complaint to the father and Ms V on 23 February 2018 that X had tried to kiss him when they were both naked. The father then agreed with Ms Oakley’s suggestion that it was his evidence that he “took a deliberate decision to withhold that information” from the affidavits he had filed in the proceedings. He also agreed that he took that decision in consultation with Ms V.
Given this evidence, Ms Oakley then suggested to the father that he had lied to the Court when, during his cross-examination on 19 April 2018, he denied that he and Ms V had reached an agreement to exclude “this part” of his evidence from his affidavit material; the discussion which followed resulted in the father agreeing that he had lied the day before and, after initially prevaricating about whether it was a ‘deliberate’ lie, conceding that it must be ruled as one.
However, having carefully considered this aspect of the evidence, I am not persuaded that I can safely accept the father’s 20 April 2018 concession that he lied to the Court on 19 April 2018. Review of the transcript has persuaded me that Ms Oakley’s cross-examination on 19 April 2018 resulted only in having the father give evidence that he and Ms V had not discussed omitting any reference to the police attending at their home on 21 January 2018 from their respective affidavits: it did not encompass the occasion of the child’s report about X on 23 February 2018.
That is not the end of the matter, though, because the father’s evidence that he decided to omit any reference to the child’s report on 23 February 2018 (an event which both Ms V and the father said happened) in consultation with Ms V is directly contradicted by Ms V’s evidence that she and the father had not had any discussions in relation to withholding any truthful evidence from the Court and her evidence that she and the father had not had any discussion about withholding certain evidence from the Court and her evidence that they had not reached an agreement to withhold the evidence about this incident from the Court.
Despite my conclusion about the father’s general absence of veracity, the inherent unlikelihood that both he and Ms V would fail to make any mention in their affidavits, or to anyone involved in the child’s admission to hospital in an extremely distressed state on 27 February 2018, in the absence of discussion and agreement about how to approach the issue of his complaint to them about X’s behaviour toward him, persuades me to accept the father’s evidence that he determined to refrain from mentioning this event in his affidavit and that he made that decision in consultation with Ms V. Given this acceptance, I am persuaded that Ms V lied when she asserted that there had been no discussion between her and the father in relation to withholding truthful evidence from the Court and also lied when she denied that they had had any discussion about withholding certain evidence from the Court. It follows that I have concluded that Ms V is also a witness whose evidence requires very careful scrutiny before any decision to accept it could be made.
Having undertaken that careful scrutiny of her evidence about whether she was the person who sent Mr Z a text message on 28 November 2017, I have concluded that I accept her evidence that she did not use the father’s phone to send a text to Mr Z in terms which conveyed that she was the author of the same, was sending it using the father’s phone and in which the topic included the suggestion that, in taking Billabong shorts home with him, X was engaging in theft.
Given that the father’s evidence about this issue was to the effect that Ms V sent the text (which, during cross-examination, became that she did so with him lying beside her, dictating its contents), my acceptance of Ms V’s account of this event provides a further example of the father’s absence of veracity.
In addition to being deliberately dishonest on occasions and in addition to exhibiting the attitude to which reference is made later, the father was, on occasion, deliberately evasive during his cross-examination: for example, when asked whether he had moved out of the home he shared with Ms V temporarily and into his mother’s home, taking some of his furniture with him, the father initially said “no”; however, when asked whether any part of the proposition was accurate, he said “the furniture”, before going on to say that it was accurate to assert he moved a double bed to his mother’s home.[15]
[15] Transcript of 19 April 2018, p. 42 ln 10 – 25.
I am not remotely persuaded that the father’s dishonesty and evasiveness occurred because he is “only a [tradesman]” – a refrain he made on multiple occasions.
Given the conclusion I have reached about Ms V’s evidence (as outlined in paragraph 24), it is probably unnecessary to remark further about my assessment of her veracity. However, in case it is thought that my conclusions about the difficulty accepting her evidence without careful scrutiny are limited to those previously mentioned events, I consider it important to note that I have also relied on my assessment of her evidence about the police attendance on 21 January 2018 (as discussed later in these Reasons) and the following further instance in arriving at the conclusion about her evidence that I have:
a)when it was suggested to her during her cross-examination that she had asked the deputy principal of the child’s school on 16 February 2018 to contact the mother, she initially said that she did not ask her to do that and that the deputy did that “on her own volition”; however, when she was then taken to the contents of a note produced by the school (which included that “[Ms V] was hoping the school could ring mum to determine why the child was not attending school and advise dad”), she said that she believed she must have said that.
I have concluded that it is also necessary to approach the mother’s evidence with a certain degree of circumspection and, on occasion, scepticism. Such conclusion has been reached on the basis of the following aspects of the mother’s evidence:
a)despite her evidence being that, at an appointment with a Dr AA at BB Medical Centre at L Town on 13 October 2013, the doctor had advised her that “… the child was suffering from anal tearing and tissue damage around the anus. She advised me that she could not rule out the possibility that the child had been sexually assaulted, and recommended I take the child to the hospital for further examination”[16], Counsel’s cross-examination proceeded on the basis that the notes for that consultation included that the child attended with his mother, had a sore anus which the mother said was red; ‘mum is suspicious of abuse’; and – under the heading ‘examination’ – “No bruise on body. Nil behaviour. Anus nil. No redness. No fissure.”: however, given that the notes are not in evidence before me, I cannot reach any conclusion about the mother or any asserted lack of veracity by her on this occasion; and
b)despite accepting that she had thrown a flask at the father on one occasion and that this hit him in the face, the mother told Mr O during her first interview by him that “she could never behave abusively toward Mr Rabkin because if she had done so, he would have lost the plot”[17] – when cross-examined about this (albeit it in the context of the inaccurate suggestion that she had told Mr O that she had never been “physically violent”), she said that, at the time she made that comment, she did not know that throwing a flask would be deemed to be ‘domestic violence’; and
c)despite Mr O recording[18] that she told him on 24 October 2011 that, when she had attended the father’s residence to collect the child for the most recent visit, she saw that the child was “locked in the shed”, the mother said during her cross-examination that, whilst she could not recall whether she had said that to Mr O, she had heard the child scream in the shed and had “presumed” he was locked in there; and
d)despite saying during her cross-examination that, when she took the child to the CC Hospital Emergency Department on 13 October 2013 at 6.40 pm she was not asserting that the father had caused the child injury, the notes of that attendance included: “3 year old child brought in by mum with concerns over child abuse by ex-partner” and “Mum has noticed tearing to anus. Saw GP and not sure if ? possible abuse or fissure. Mum has 50% custody of child with father – Mum concerned that father of father’s friend have ? sexual abused him...”;[19] and
e)she accepted that, in taking the child to see Ms BC (a therapist) from December 2016 (for three sessions), she acted in contravention of the order made by Judge Baumann on 1 September 2016 whereby the parents were restrained from taking him for any further assessments or treatments with any medical practitioner or allied health professional unless it was a medical emergency, agreed between the parents in writing, directed by the Independent Children’s Lawyer or ordered by the Court;[20] and
f)despite telling Judge Howard at the trial in May 2015 that she would make sure that the dogs were removed from her premises, she accepted that they were never in fact removed from her property; and
g)despite saying that the child was at school on 13 February 2018, the records of the school showed that the child was absent all day and “parents notified” – she said there was a mistake because the child was at school that day and that there must be an error; and
h)whilst it was suggested during cross-examination by the Independent Children’s Lawyer that the notes of police/ambulance attendance at the father’s home on 23 February 2018 including that “Mother states patient has Facetimed her stating father has been hitting him and is now suicidal”, and that “There had been a call from the patient’s mother who cannot go onto scene due to protective order against patient’s father. Unsure if anything has changed with patient condition. Mother also states that father abuses child and shouldn’t be with father”, the mother said that, whilst she remembered telling the police that the child was suicidal, she did not remember saying that the father was hitting him; whilst she denied saying that “the father abuses the child and shouldn’t be with the father”, she explained that she had said that the child had made allegations of having been hit by his father: given that the notes are not in evidence before me, I cannot reach any conclusion about the mother or any asserted lack of veracity by her on this occasion.
[16] Affidavit of the mother filed 8 April 2015 at [239].
[17] Affidavit of Mr O filed 13 December 2013, Annexure “PJ-2” at [5.15].
[18] Affidavit of Mr O filed 13 December 2013, Annexure “PJ-2” at [5.14].
[19] Exhibit 7.
[20] Whilst the mother said she sought the father’s consent to take the child to Ms BC, she did not have his written consent before she took the child to see her.
Whilst such matters have caused me to assess the mother’s evidence with particular focus, I am still persuaded that, where the evidence of the father, the paternal grandmother and Ms V contradict that given by the mother, I generally prefer the evidence given by the mother unless otherwise stated. I have arrived at this conclusion in relation to the paternal grandmother because I consider it more likely than not that her recounting of events is so heavily influenced by her overwhelming disregard for the mother as a parent and a person that it is often unreliable.
To the extent that it is necessary to outline any particular conclusions about the evidence given by other witnesses in the proceedings, I will do so during my consideration of the same.
Some brief initial conclusions
It is uncontroversial that earlier this year the mother took the child to hospital because he was hysterical and threatening to harm himself; both parents attended; he required sedation. On the mother’s case – at least inferentially – his presentation followed, or is the consequence of, his ongoing exposure to violence (both directly and indirectly) whilst in his father’s care; on the father’s case it is the consequence of exposure to the mother’s hyper-vigilant parenting, consequent upon the depression and anxiety about which Dr P gave evidence last year.
Reference to some of the contents of the Progress Notes[21] for the child’s admission on 27 February 2018 provides an understanding of the extreme nature of his presentation that day: for example, he was described as an “acutely distressed child refusing to see his father and emotionally very unstable”; “oral chemical sedation had minimal effect” but “allied health input” significantly de-escalated his behaviour and agitation. He was seen to be crying and extremely distressed; he was unable to sit still on the bed whilst the mother attempted to console him by hugging and rubbing his back; he was difficult to understand due to his level of distress; he was screaming and did not engage with the social worker, though he continued to engage with his mother, who was noted to be visibly upset at his level of distress.
[21] Exhibit 13.
The Progress Notes[22] also record that the child continued to say to the mother: “promise I don’t ever have to go back, I can’t ever go back to Dad’s.” He said he would kill himself if he had to return to “Dad’s”; he told his mother: “I am going to have to see him and kill myself”; he continued to scream: “I can’t go back to Dad’s ever”; he asked: “why does Dad want to destroy me”.
[22] Exhibit 13.
According to the Notes, the mother attempted to console the child: she told him that his father loved him but he continued to yell: “no he doesn’t”. The hospital social worker, who was present with the mother and the child, reported that there were no concerns about their interaction. After a while, the social worker also notified others that the child’s behaviour had escalated and he was later taken to a de-escalation room; his behaviour was such that the mother was escorted by security guards, nurses, doctors, a psychologist and a social worker when she carried him to this room.[23]
[23] Affidavit of the mother filed 9 April 2018 at [96].
In the mother’s case, it was submitted[24] that what was most remarkable about the events which preceded the child’s attendance at the hospital was the father’s failure to tell her or the hospital at the time (and, later, the Court) about what had been happening in his home in January and February 2018 (about which more will be said later).
[24] Written Submissions provided 13 June 2018 at [28].
From the father’s perspective – at least as recounted to hospital staff – the mother was a ‘high risk’; he expressed his concern that she was “programming” the child.[25] Reference to the Notes establishes that, for example, the father said he had not heard the child voice suicidal ideation before, until he went into his mother’s care; he said he did not want the child to be discharged into the mother’s care. It was noted that he was “focusing” on the idea that the mother had been brainwashing the child; it was recorded that he had emailed “multiple psychiatric and court documentation” to a member of hospital staff for review; he also asked the hospital not to allow the mother in to see the child.[26]
[25] Exhibit 13, p. 1.
[26] Exhibit 13, p.4.
The hospital notes also record that, despite the situation being explained to the father in detail, he continued to insist that “the child is just a child” – he said he “knows how to deal with him”. Further, according to the contents of the hospital notes, the father used “threatening statements and legal proceedings to health professionals for not allowing him to take the child home”.[27]
[27] Exhibit 13, p.4.
Whilst the February 2018 hospitalisation is, of itself, very significant in my view, it is likely a further manifestation of the impact on the child’s functioning of the pressures associated with transitioning between the care of his parents. In order to understand properly the accumulation of pressures under which the child has lived as a consequence of being the child of these parents, it is instructive to have regard to the history of acrimonious interactions between them: after all, these have formed the backdrop to his life to date. Such acrimony is not limited to events which occurred after the parental separation; it had its genesis in interactions which predated the same.
Events preceding separation
Late January 2012: the mother allegedly pushes the father
Ms S (the father’s sister) said she witnessed an incident of violence that occurred in front of the child (then about sixteen months of age) in late January 2012.[28] She said that, when she went to the parties’ house to collect the paternal grandmother and the mother’s assistant (Ms DD), she saw the mother screaming at the father and saying things such as: “fat pig”; “I hate you”; “you’re useless”; “it’s all my money”; “you’ll get nothing”.
[28] Affidavit of Ms S filed 26 August 2013 at [18].
Ms S described the child as very upset and was shaking; she said he went “pale”, so she took him away from the house. She said that, whilst she played with him to distract him, she also kept watching the parties: she said the mother stood very close to the father and screamed at him (right up in his face); she said her brother stood there, with his arms down by his sides and did not move. Ms S said the mother then started to push the child’s father: she put both her hands on his chest and screamed at him; she described that her brother kept stepping backward, but the mother continued to follow him and stepped forward, closer to him.
Ms S said that, when she was walking with the child back towards the house, the child broke away from her and ran to his father. She said that, as she approached the parents, she saw the mother pointing into the father’s face, wave her arms about at him and push him: she put both her hands on the top part of his arms. Ms S said that her brother continued to stand there doing nothing. She said the mother screamed that the parties would get a divorce, the father would get nothing, she knew how it worked, she controlled all the money and would get the best solicitor and he would lose everything.
Ms S said that after the father picked the child up and followed her into the kitchen, the mother ran up behind him and pushed him hard in the back – he still had the child in his arms. She said her brother stumbled forward but managed to right himself; she said that when her brother told the mother to stop pushing because she could hurt the child, the mother said: “I’ll take the child off you too” and started to try to pull the child away from his father. She described that her brother told the mother she could not look after the child; the mother replied: “no but I’ll pay someone to do it… you won’t see him again”. Ms S said that 16 month old the child started to scream “no”. When the paternal grandmother came out of the lounge area and into the kitchen area and told the parties to stop, the mother stopped trying to take the child from his father but continued to yell: “you see what I have to put up with. It’s over I’m divorcing you”.
Ms S said she spoke to her mother (the paternal grandmother) about calling the police but she said that the father would not appreciate them doing that so she did not call them. She also said that when the parents attended at the paternal grandmother’s home the next day to visit, it was as if nothing had ever happened.
The mother said the only incident that she could recall when the paternal grandmother and Ms DD were at the house cleaning and she and the father argued occurred in July 2011 (when the child was approximately 10 months old) and not late January 2012.[29] She said that the father had entered the home business where she was with clients and had sworn at her in front of them; she told him to leave and that she would talk to him outside. She said that when they were outside she told him that his behaviour in front of her clients was rude; she raised her voice to him; she recalled feeling upset and said she could have been crying. She said she told the father that his behaviour in front of her clients could affect them attending her business; he said he did not care and did not care if they never returned; she told him it was important that he was “professional” around clients but he walked off and repeatedly said he did not care.
[29] Affidavit of the mother filed 6 May 2018 at [5] – [7].
The mother said she walked into the kitchen and asked the paternal grandmother to talk to the father about not swearing at her in front of clients. She said the paternal grandmother’s response was: “what’s the point if you can’t talk to [Mr Rabkin], I can’t either”. The mother said she was very upset at this response. The mother also said the child was not near the father when she spoke to him: she did not recall seeing her son during the conversation, but did recall seeing Ms S and her daughters arrive during it.
The mother was adamant that she had not called the father names; she said she did not swear at him; did not say it was all her money and that he would get nothing; did not tell him to do as she said “or else” and did not stand close to him to scream in to his face. She accepted she raised her voice, but said this was because the father kept walking away from her and ignoring her about the concerns she raised about his behaviour. The mother said she did not push the father; did not point into his face or wave her arms about and did not talk to him about divorcing, leaving him, separating or getting a solicitor.
18 May 2012: the bookcase incident
The mother said the father told her to unpack a bookcase so it could be moved. She said he said he had told her to do this previously.[30] She said that when she told him she might unpack the bookcase that night or might leave it until the following morning, he told her it had to be done and to “just do it and fuck off”.[31] She said she then changed the television channel to get his attention; he said: “I’m going to bash your head in”, “fuck off you bitch” and showed her his middle finger. She said he continued to tell her to unpack the bookcase but she left the room with the child and switched the television off on her way past.
[30] Affidavit of the mother filed 8 April 2015 at [371].
[31] Affidavit of the mother filed 8 April 2015 at [372].
The father accepted that the parties argued that evening. However, he denied screaming at the mother or telling her that he was going to “bash” her head in. He also denied that he told her to “fuck off you bitch” and he denied showing her his middle finger.[32]
[32] Affidavit of the father filed 8 February 2017 at [403(cdvi)], p. 40.
The mother said that the father followed her down the hallway; when he reached her, he pushed her hard against the wall. She said the child was watching. She also said that the father then ran to the bedroom, where she saw him pick up the television. She said he looked ready to throw it so she pushed him away from it; he fell, then got up and picked up a heater and threw it against another heater, breaking it.[33]
[33] Affidavit of the mother filed 8 April 2015 at [375].
The mother, who still had the child in her arms, said that the father then started to swear at her; he approached her and punched her in the face with his closed fist.[34] However, this account differs somewhat from that contained in the Solicitors Office Report Details, which is that the father “backhanded” her to the face while she was holding the child.[35]
[34] Affidavit of the mother filed 8 April 2015 at [377].
[35] Exhibit 1 (Tender Bundle, page 48).
The Report also notes that the mother did not have any physical marks or injuries to her face. It is said that no property other than a heater (which sustained minor damage to the plastic base) was damaged.
The mother said she then told the father to leave or she would call the police. However, he unplugged the lead to the home telephone from the wall and took her mobile phone from her hands. She said she then left the house and ran to the car with the child in her arms. She said a struggle ensued: as she was trying to get into the car, the father got the car key from her, squeezed her hard and put his elbow on her shoulder such that she fell to the ground and let go of the child. She said that, as she reached out to grab the father’s shirt to stop him from taking the child, she ripped his shirt.[36]
[36] Affidavit of the mother filed 8 April 2015 at [380].
The mother said the father then ran to the house with the child. He locked the door. She said she banged on the glass door with an umbrella handle and a piece of wood. She ultimately entered the house through a side door which the father had opened. She called the police.
By this time, the father had left the house with the child. She saw him get in his car with the child; he had him on his lap and started to drive off; she jumped into the back seat of the car and asked the father to stop the car. She said he continued to accelerate and told her she had caused too much trouble by calling the police.
When the police arrived they took statements from both parents. The Solicitors Office Report Details records that the father had a ripped shirt and some scratch marks on his back. The father said the mother did this to him when he was attempting to leave with the child. It also contains the assertion that the mother admitted doing this to the father.[37] During her cross-examination, the mother admitted that she scratched the father’s back on the evening of the bookcase incident – when he pulled the child away from her; she also admitted that she had ripped his shirt.[38]
[37] Exhibit 1 (Tender Bundle, page 48).
[38] Transcript (8 March 2017) p. 180 ln 40-43.
The paternal grandmother said that, when she went to the house after this event, the mother told her that the father had pushed her and threw a heater at her; she said the mother agreed with her (the paternal grandmother’s) statement that “he (the father) pushed you, not punched you”[39] and said that he pushed her and threw a heater at her. She said she saw that the back glass sliding door (between the “kitchen family room” and outside) had been broken.
[39] Affidavit of Ms Rabkin Snr filed 7 April 2015 at [6].
The father said that, when he returned home the next morning, the mother told him that she wanted a new door anyway and that the next time she called the police: “I’ll make sure there are marks”.[40]
[40] Affidavit of the father filed 8 February 2017 at [403cdxiv], p.40.
28 December 2012: the father allegedly strangles the mother
On 28 December 2012, the parents disagreed about whom was to bathe the child. The mother said that, when she told the father that she could not do this because of pain in her back and asked him to bathe the child, the father said: “no you lazy bitch”, approached her and put his hands around her throat. She said he strangled her, whilst pushing her against the wall for almost one minute. She said the child was still in her arms at this time and started screaming.[41]
[41] Affidavit of the mother filed 8 April 2015 at [389].
The mother said that when the father let her throat go she coughed and spluttered for air; her throat was sore and felt bruised. The mother said that, after the father let her go, she pretended to call the police; she did this because she did not know what else to do and despite him having previously told her that she would be “in big trouble” if she ever called the police again.[42] She also said that the father later told her that: “it would have been all over if you had called them (the police)”.[43]
[42] Affidavit of the mother filed 8 April 2015 at [390].
[43] Affidavit of the mother filed 8 April 2015 at [391].
Ms W (the mother’s sister) was visiting from the United Kingdom at the time of this event although she was not present at the house. She was not required for cross-examination about this issue. She said that, when she returned to the house that evening (on the mother’s evidence, about 40 minutes after the father attacked her), the mother told her that the father had strangled her and she thought he was going to kill her.[44] She remembered her sister saying words to the effect of: “I thought [Mr Rabkin] was going to kill me and maybe even the child”. She said that the mother was visibly shaken up; she noticed that her voice was lower than normal and she saw that the mother’s neck looked red and sore.[45]
[44] Affidavit of Ms W filed 14 February 2017 at [64].
[45] Affidavit of Ms W filed 14 February 2017 at [64]-[65].
I note that, during his cross-examination, the father accepted that Ms W reported what she had seen. He did not suggest that she was lying (at least about her report of what she had seen that evening). I accept Ms W’ evidence about this incident without hesitation.
During his cross-examination, the father said that, when he attempted to get the child from the bath, the mother blocked his passage; he said there was “a big struggle” during which his arm contacted the mother across her neck. He said that he believed that, when he pushed past the mother, his elbow “touched her neck” as he was trying to get to the child in the bath. He conceded there was an argument about who was to bathe the child; he said that, when he tried to get the child (who was screaming) from the bath, the mother tried to prevent this – she blocked his passage, his elbow came up, he pushed past, she turned around and claimed “you strangled me” and ran out of the bathroom. He accepted that there was a “big struggle”.
This evidence is in direct contrast to evidence given by him in an affidavit filed in April 2015[46] where he said that “the incident [Ms Edsall] describes that allegedly occurred on 28 December 2012 did not happen”. In that affidavit, he also said (about this incident) that he had “never strangled [Ms Edsall] or harmed her, physically, in any way”.[47]
[46] Affidavit of the father filed 7 April 2015 at [335(b)].
[47] Affidavit of the father filed 7 April 2015 at [335(b)].
When challenged during his cross-examination about the differences in his accounts, the father gave a third account (albeit one that he immediately corrected): he said “there was a struggle to get my son from the bath and my elbow came up and may have – no. It did. It contacted her across the neck, as I was pushing past her, as she was attempting to block my passage”. He maintained that the mother was, at that time, physically assaulting him.
Ms S said that the mother telephoned her on 31 December 2012 and told her that the father put his arm across her throat. Ms S said that, when she asked the mother what the father was doing when that happened, the mother said that he was reaching across to get the child out of the bath but that she felt that he should have moved so he did not have to reach across her.[48]
[48] Affidavit of Ms S filed 26 August 2013 at [34(b)].
Counsel for the mother, Ms Oakley, submitted that the mother’s version of events of this incident should be accepted. Whilst the father’s evidence as contained in his affidavit was that “it didn’t happen” (that is, nothing like what the mother alleged had ever happened), his evidence during cross-examination sought to explain away the red marks on the mother’s neck. It was submitted, in essence, that the father gave the version about pushing past the mother for the very first time during his cross-examination in March 2017 despite having addressed the mother’s allegation in an earlier affidavit. It was submitted he did so because he was aware of the evidence given by Ms W that she had seen red marks on her sister’s neck and sought to explain the same away by providing “a less repugnant version” of what happened that night.
I accept the evidence given by the mother about this incident. I am not persuaded that she engaged in self-harm (as was inferentially suggested by the father during his cross-examination) or that this explains her presentation to her sister that night. I consider that the mother’s recounting – as reported by Ms S to the effect that the father put his arm across her throat- is not so inconsistent with the mother’s account of the event as to persuade that the mother is lying about it; I do not accept for a moment that any interaction between the father’s hand and the mother’s neck was accidental or as a result of him attempting to push past the mother in the bathroom.
31 December 2012: the mother allegedly punches the father
Ms S (the father’s sister) said that, on New Year’s Eve 2012, she saw the mother punch the father very hard at a family gathering at the paternal grandmother’s house.[49] She said the mother was in the kitchen by the stove making dessert whilst she was washing up; the mother’s nephew (BB) kept asking her for a Wii remote and she thought the father (who was outside at the barbeque) had told him to keep asking her for it.
[49] Affidavit of Ms S filed 26 August 2013 at [19].
Ms S said that the mother went outside and started to yell at the father: she told him she was busy; she called him a “lazy pig” and called him other names and then drew her arm all the way back and punched him in the arm with a closed fist, using the full force of her body. Ms S said that when her brother (who she thought embarrassed) asked “what was that for?” the mother told him it was because of BB; he then said he had not sent BB in to ask her about the Wii remote but had told him to wait until after dinner. Ms S said the mother then returned to the kitchen and carried on with her preparations as if nothing had happened.
The mother agrees that Ms S (and others including the paternal grandmother, Ms W, Mr JJ and their children) were at the parties’ house New Year’s Eve 2012.[50] However, she disagrees with the assertion that she and the father disagreed or argued that night: she said she did not behave aggressively toward him; did not call him names; did not yell at him and did not push him or punch him in the arm. I accept the mother’s evidence and that given by her sister and brother-in-law in this respect.
Events after separation
[50] Affidavit of the mother filed 6 May 2018 at [18].
June – July 2013: the child sees his mother irregularly following separation
The mother said that, after the parental separation on 25 June 2013, the father told her she could not spend overnight time with the child; she said he would only allow her to spend time with the child at a park that afternoon.[51] She attended the park for approximately 45 minutes; the father was present and would not allow her to take the child home or to spend any longer with him.
[51] Affidavit of the mother filed 8 April 2015 at [185].
The mother also said that, when she called the father the next day (26 June 2013) to arrange to see the child, he told her she would not spend any time with the child “unless you sign a piece of paper stating that I am the child’s primary care giver”.[52]
[52] Affidavit of the mother filed 8 April 2015 at [187].
She said that, when she told him that she would not sign anything without first obtaining legal advice about it, the father told her she would never see the child again. Despite this, when the mother contacted him later that day (at around 2.30 pm), he told her she could spend time with the child if she went to the paternal grandmother’s house and spent time with him there. The mother said she went to the paternal grandmother’s house and spent approximately two hours with the child in the presence of the father, the paternal grandmother and her partner (Mr KK) and the father’s sister. I accept the mother felt very uncomfortable during this contact.
The mother said that, on 27 June 2013, the father told her that he would allow her to see the child at her niece’s birthday party; however, he later told her she was no longer welcome. She also said that, on 29 June 2013, he told her that, if she did not allow him to attend at the house to collect his tools, she could not see the child. She said that, later that day he told her she could see the child but again changed his mind to tell her that she could not see him that night.
28 June 2013: the mother applies for a Domestic Violence Protection Order Application
The mother applied to the L Town Magistrates Court for a domestic violence order on 28 June 2013: a temporary order was made that day. Its terms included that the father was prohibited: from coming within 400 metres of where she lived or worked; from attempting to locate her and from contacting or attempting to contact her except for the purposes of having contact with the child. It also required that he be of good behaviour toward her and not commit domestic violence against her.[53]
[53] Affidavit of the mother filed 8 April 2015 at [397].
30 June 2013: the mother spends time with the child at the paternal grandmother’s home
I accept the mother went to the paternal grandmother’s house with her friend Ms FF on 30 June 2013 to spend time with the child. I accept she was able to spend about an hour with him; I also accept that this was the only way in which the mother could spend time with the child at that time because the father would not allow her to spend time with the child at any place other than his mother’s home.
The mother said that she continued to spend time with the child on an irregular basis until mid-July 2013, when she filed an Undertaking in the Court by which she promised to return the child to the father at the conclusion of her time with him. The Undertaking further provided that the mother would spend time with the child each Wednesday (from 8.00 am until 3.00 pm) and each Sunday (from 8.00 am until 5.00 pm).
I accept, as he conceded at trial, that the father’s insistence that the child’s time with his mother be supervised during the period from after separation until orders were first made was so that he could be certain the child would be returned to his care and not because he was concerned about the child’s safety when with his mother.
Father’s July 2013 Domestic Violence Protection Order Application
The father applied for a Protection Order against the mother in July 2013. His application asserted that the following alleged events provided the basis for the making of the order he sought:
a)in September 2012: the mother threw a metal drink bottle at him; and
b)around Christmas 2012: the mother threw a cup filled with water at him and also kicked him; and
c)on New Year’s Eve 2012: the mother punched him in the right arm; and
d)in April 2013: the mother whipped him with a tea towel and threatened to slap him.
It seems the mother was advised by her solicitor on 25 July 2013 that the father had applied for the order. However, he did not obtain a temporary order against her.[54]
[54] Affidavit of the mother filed 8 April 2015 at [399].
August 2013: the father lodges a complaint against the mother with the Council
The mother said that, in August 2013, she learned that the father had lodged a complaint with the EE City Council and that he alleged she was operating a business from her home (the previously shared home) in contravention of the relevant regulations.[55] She said that, after this happened, she was unable to see the same number of clients as had historically occurred because she was then limited to using 25 square metres or less of the property for work related purposes and could only have a maximum of 10 vehicles per day attend at the property. In addition, she had to pay $4,160.00 for a Material Change of Use Impact Assessment (which was granted, subject to conditions) and spent $900.00 to make the necessary public notifications associated with the Application for Material Change of Use.
[55] Affidavit of the mother filed 8 April 2015 at [37].
The father denied that he contacted the Council to tell them that the mother was operating her business from the premises. He said that, before the relevant renovations to the premises were undertaken, he told the mother that a Building Certifier had said it was not possible to have the studio certified to comply with the building standards for a commercial building.[56]
[56] Affidavit of the father filed 8 February 2017 at [299], page 59.
The first parenting order is made: 26 August 2013
On 26 August 2013, Judge Howard ordered that the parents have equal shared parental responsibility for the child and that the child spend time with the mother from 8.00 am Wednesday until 5.00 pm Thursday each week and from 8.00 am until 5.00 pm on Sundays each week.
The mother said that, after this order was made, changeovers occurred at the father’s residence (where he lived with the paternal grandmother); she also said that, whilst she was originally able to drive into the driveway and park off the street, issues soon arose.[57]
[57] Affidavit of the mother filed 8 April 2015 at [296].
4 September 2013: the father enters a moving car with the child
The mother said that, when she drove into the father’s driveway to collect the child, the father yelled and told her that he would not give the child to her until she was parked at the gate.[58] She said that, as she started to reverse her car out of the driveway, the father opened a rear door and jumped in: the child was in his arms. She said she immediately stopped the car and got out and the father yelled at her to get off the property and to park at the gate; she told him it was inappropriate to jump into a moving car with the child: she refused to restart her car, and took the child into her arms to settle him as he was quite upset.
[58] Affidavit of the mother filed 8 April 2015 at [297].
22 September 2013: the father approaches the mother on a ride-on mower
The mother said that she drove into the driveway, exited her car and stood beside it to wait for the father to bring the child to her; the father, who was on the ride-on-mower with the child on his lap, rode up to her and did not stop until she opened the passenger side door to shield herself.[59]
29 September 2013: the father, the paternal grandmother and her partner approach the mother at changeover
[59] Affidavit of the mother filed 8 April 2015 at [301].
The mother said that, after she parked her car in the driveway of the father’s residence and got out of the car, the father (who was mowing the lawn using the ride-on-mower and who had the child on his lap), started to yell at her and told her to leave and to get back in her car.[60] She said she did not respond but the father told her that the child did not want to go with her and that she should leave. The mother said the paternal grandmother then came out of the house and shouted at her to leave because spending time with her was traumatising the child. The mother said the child then started to cry and the father told her he would call the police if she did not leave the property. She told him that the police could help to calm the situation down.
[60] Affidavit of the mother filed 8 April 2015 at [302].
The mother said that the father then allowed her to take the child from him and put him in the car.[61] The mother said the paternal grandmother and her partner then both approached her car whilst she was putting the child in his car-seat; she said the father came up behind her and stood over her from behind, pressing up against her. She said that, when she asked the father not to do this and to step away, he ignored her and remained standing behind her, blocking her in the car door.[62]
[61] Affidavit of the mother filed 8 April 2015 at [306].
[62] Affidavit of the mother filed 8 April 2015 at [307].
2 October 2013: the father complains to AHPRA
On 2 October 2013, the father sent a written complaint about the mother’s business to a regulation agency. The mother said he alleged she fraudulently claimed payments from the government for her services to clients.[63] She then had to provide evidence refuting the allegations made by the father: this required that she collate the documents needed to address regulatory requirements, which took a significant amount of time and impacted on her ability to work and, thereby, reduced her weekly earnings.
[63] Affidavit of the mother filed 8 April 2015 at [44].
At trial, the father said that he made the complaint in order to help him to establish that he had done some work in the mother’s business. Ms Oakley (Counsel for the mother) put to him that in making the complaint, he fully considered what he needed to prove and what he was prepared to do in putting the mother’s professional standing at risk.
The father said he received correspondence from the regulatory authority (dated 1 August 2016) which updated him about what had happened since he was last notified about the investigation of his complaint about the mother. The letter informed him that, on 20 July 2016, the authority decided that the mother’s professional conduct was unsatisfactory and took relevant action under the regulations.[64] It also conveyed that, from its perspective, the matter was closed.
[64] Affidavit of the father filed 29 August 2016, Annexure 7.
4 October 2013: the father blocks the driveway
The mother said that, when she attended at the father’s home to collect the child to spend time with her, the father blocked the driveway so she was unable to park off the street. She also said that, after changeover occurred, the father shouted at her to get “off the property”. She said this distressed the child and he started to cry.[65]
[65] Affidavit of the mother filed 8 April 2015 at [310].
13 October 2013: the mother takes the child to the hospital
The mother did not return the child to the father on 13 October 2013. She withheld him until 17 October 2013, pending a police investigation. The father said when he telephoned the police on 13 October 2013 to tell them that the mother had not returned the child to his care in accordance with the operative parenting orders, he was later told that, having investigated, police knew that the child was in his mother’s care and “looked healthy”.[66]
[66] Affidavit of the father filed 8 February 2017 at [114], p. 14.
The mother said that, on 13 October 2013, she saw that the child’s anus was “torn, bruised and red”.[67] She took him to see Dr AA at L Town. The child was examined. She said she was told that he was suffering from anal tearing and tissue damage around the anus and that the possibility he had been sexually assaulted could not be ruled out. She said the doctor recommended she take the child to the hospital for further examination.[68]
[67] Affidavit of the mother filed 8 April 2015 at [236].
[68] Affidavit of the mother filed 8 April 2015 at [239].
After seeing Dr AA, the mother initially took the child home but later decided to take him to the hospital as recommended by the doctor. She took him to the CC Hospital. Her friend (Ms FF) called the father and told him the child had an injury, that it was not life threatening, and that they were taking him to the hospital. The mother then spoke to the father and told him she would be in touch once the child had been examined. She did not tell the father anything further because the doctor had advised her not to.[69] The mother said that, on the way to the hospital, Ms FF contacted the L Town Police Station: she was advised that the mother should have the child’s injuries seen to and that they would pass her details on.[70]
[69] Affidavit of the mother filed 8 April 2015 at [244].
[70] Affidavit of the mother filed 8 April 2015 at [245].
The child was examined by Dr GG at the hospital. The clinical notes provide: “tiny 1-3mm fissure noted at 6 o’clock, no surrounding erythema noted”.[71]
[71] Exhibit 7, p. 2.
The mother said Dr GG advised her that the child’s injuries were not significant enough to conclude that extreme sexual assault was occurring; further, she was advised that the two possible causes of the child’s injuries were sexual assault or constipation.[72] The hospital records from the CC Hospital indicate that the mother expressed concerns about child abuse and said that the father or the father’s friend may have abused the child.[73] At the trial, the mother did not recall identifying any person she suspected may have been responsible for any abuse.
[72] Affidavit of the mother filed 8 April 2015 at [246].
[73] Exhibit 7, p. 5.
The mother said Dr GG told her that she had spoken to police at the Suburb HH Police Station and would inform the Department of Child Safety (the Department) of the child’s attendance at the hospital. She said the doctor encouraged her to take the child to the police station to make a statement about his injuries. The mother said Dr GG did not forensically examine the child because his injury was inconclusive as to abuse and a further examination would likely provide no further evidence about how the injury was caused.[74]
[74] Affidavit of the mother filed 8 April 2015 at [247].
October 2013: the mother attends the police station with the child
The mother went to the Suburb HH Police Station after Dr GG’s examination on 13 October 2013 but did not provide a statement. On 14 October 2013, she took the child with her when she went to the L Town Police Station: she provided a statement and police attempted to interview the child but he refused to be separated from her.[75] The Queensland Police Solicitor Office Report Details record that the mother told police that, when putting the child’s nappy on, she noticed that his “anus was bright red all round, with some white coloured puss (sic) coming out of it”.[76]
[75] Affidavit of the mother filed 8 April 2015 at [251].
[76] Exhibit 1 (Tender Bundle, page 48).
However, the mother did not describe the child’s anus as having white coloured pus in any of her other evidence or when she presented at the hospital.
15 October 2013: the mother takes the child to see Dr II
The mother said she then took the child to see Dr II at the L Town Pharmacy Medical Centre to ask whether he should be receiving some sort of antibiotic to assist his recovery.[77] She said Dr II indicated that he did not think medication was necessary; however, he advised her to contact the SCAN unit at the EE Hospital to determine the cause of the child’s injuries.
[77] Affidavit of the mother filed 8 April 2015 at [253].
The mother spoke with someone from the SCAN unit of the EE Hospital later that day. She said she was advised that, if the doctors at the hospital felt a forensic examination was unlikely to determine the cause of the injury suffered by the child, the EE Hospital was also unlikely to undertake an examination.[78]
[78] Affidavit of the mother filed 8 April 2015 at [255].
The mother said she was also told by police that day that, as the medical examinations were inconclusive, they were unlikely to proceed further with their investigation.[79]
[79] Affidavit of the mother filed 8 April 2015 at [256].
I accept that correspondence sent by the mother’s solicitor to the father’s then solicitor conveyed clearly that the mother was not alleging that the father had sexually abused the child.
I also note that the paternal grandmother supported a significant reduction in the child’s time with his mother during school term (to two nights per fortnight from the current nine nights per fortnight) on the basis of her view that that would be a good idea for him.
Lest it be thought that there is any respite for the child from exposure to the paternal family’s critical view of his mother and her care of him, I note that Ms S (the father’s sister) said that she believed the mother was an unfit mother; that her choices about issues relating to the child are not healthy; she thought the mother’s psychiatric condition might play a part in her decision making process.
The mother: the extent to which she has been involved in the child’s life and fulfilled her obligation to maintain him; her capacity to meet the child’s needs; her attitude to the child and the responsibilities of parenthood; her attitude to the child’s relationship with his father and other members of his extended paternal family; her proposal that the child relocate with her to live in the United Kingdom[409]
[409] ss 60(3)(c), (ca),(f),(i) and (m) of the Act.
I accept that the mother has played an active role in the child’s life; I also accept that she has discharged her parental responsibility to maintain him when he is in her care. I accept that she loves the child and that the child loves her. I am not remotely persuaded that she is not “fit” to parent the child.
I note that the mother said she wanted to relocate with the child to live in the United Kingdom because she feels isolated in Australia and has never settled in this country. She said that despite making the best of living here that she could, she does not have any family or childhood friends here.[410] I note she expressed this sentiment to Dr P in December 2016. She also said that the father’s behaviours toward her generally (including those occasions when he threatened to withhold the child from her care and implemented his threat) have impacted negatively upon her health and emotional functioning; she also said that she has struggled to cope with the circumstances of her post-separation interactions with the father and members of the extended paternal family without family support in this country. I accept her evidence in this respect.
[410] Affidavit of the mother filed 17 February 2017 at [326] – [327].
I note that, when she spoke with Mr O in February 2017, the mother told him she was very homesick: he said she became distressed and cried. She told him about the stressors to which she was exposed as a result of the parenting dispute with the father, the deterioration in her health, the reduction in her income and in her quality of life. She also expressed concern that, if she was required to leave her home in Australia (but not be able to relocate) she would likely lose her business –as she operates it from there. She said that another reason which underpinned her desire to relocate the child to live in the United Kingdom was her desire to reduce his exposure to the conflict over parenting issues.[411] I accept that the mother was honest and genuine in expressing this desire to Mr O.
[411] Affidavit of Mr O filed 27 February 2017, Annexure “A” at [4.62].
I accept that, if the mother is permitted to relocate the child to live with her in the United Kingdom, she and the child would be able to live in a property owned by the maternal grandmother on an indefinite basis.[412] I also accept that she would ensure that the child receive appropriate education and that his other extra-curricular needs are met.
[412] Affidavit of Ms FH filed 14 February 2017 at [13].
I accept that the mother will likely feel more supported in her parenting of the child if she is able to live with him in the United Kingdom. I also accept that, if the Court concludes that it is not in the child’s best interests to relocate to live in the United Kingdom, she will remain living in Australia so that she can parent him here.
I also accept that the mother is genuine in expressing her view that, if she is able to move the child to live with her in the United Kingdom, she will feel more supported in her parenting of him and will be shielded from the parental conflict which has accompanied the child’s parenting and which has deleteriously impacted upon her functioning; the child will be exposed to less parental conflict (and, I infer, will be better shielded from the consequences of exposure to such conflict) and he will be protected from the risk of exposure to the father’s anger and the paternal family’s extremely negative view of her as a person and parent.
I accept the evidence given by Dr P (during cross-examination by Ms Oakley) to the effect that, for a person (such as the mother) who has been diagnosed as suffering from a major depressive disorder with features of chronic anxiety, a continuance of exposure to significant conflict and acrimony constitutes a very serious risk for the exacerbation and maintenance of the condition; I accept his evidence to the effect that continued exposure to such significant conflict and acrimony would mitigate against the resolution of the mother’s condition. I also accept his evidence to the effect that, depending on the level of the stressors caused by the acrimony, continued exposure to significant conflict and acrimony would also result in a risk of a severe deterioration in the mother’s functioning. The latter cannot be thought in any way to be beneficial for the child.
I accept, without reservation, Dr P’s evidence that, given the conditions from which he had diagnosed the mother to suffer, she would function better without exposure to the degree of conflict which appeared apparent in this matter. I also accept, given that the child has displayed significant anxiety himself on occasion, Dr Q’s diagnosis of him and his functioning and that it appeared that the child may well be personally predisposed toward anxiety, this likely consequence is even more significant for the child’s care and well-being.
Whilst the mother said that her physical health may well improve if she return to live in the United Kingdom, there is no expert evidence before the Court to persuade that such a move is imperative for this reason.
Whilst the father has advanced that the mother’s main motivation in seeking to relocate the child to live with her in the United Kingdom is connected with what he said is her greed and her desire to “get everything” in a financial sense, I am not persuaded that this is the case. Similarly, I do not accept that the mother’s motivation in seeking that the child live primarily with her (whether in Australia or in the United Kingdom) is because she wants to obtain a more favourable result in the yet to be resolved property settlement proceedings. That the father was intent on conveying his view that this is the case speaks more about his attitude toward the mother than about the mother’s attitude toward the child.
I think it much more likely than not that any change in the father’s expressed attitude toward being supportive of the mother in her parenting of the child – for example, by saying that he would try to understand her position and concerns about the child’s health – was significantly (if not completely, given his consistently expressed views about her) linked to the mother’s proposal that the child relocate to live in the United Kingdom and the realisation that his case in opposing such a course was better advanced by saying he would support the mother; I am not persuaded that he has actually changed his stance about the mother or that he has actually changed any of his views about her parenting or that he has actually changed any of his critical and dismissive opinions of her.
I reach the same conclusion about the attitudes, views and opinions of the paternal grandmother and Ms V toward the mother.
I accept that the mother has been seen by Mr O to act entirely appropriately toward the child and that the child has responded positively to her interactions with him. Whilst the mother has been criticised for the number of attendances the child had on various medical practitioners whilst in her care (as summarised at least in part earlier), nothing in the evidence before me actually establishes that all of these attendances were unnecessary.
Whilst the notes of some attendances on occasion record that there did not seem to be much adverse in the child’s presentation at the time of the consultation, I am not persuaded that the mother (assessed by Dr P as manifesting anxiety) acted other than out of genuine concern for the child’s health and in order to ensure that it was maintained.
I also note that it is accepted that the orders made by Judge Baumann on 1 September 2016 had the desired effect of reducing the child’s attendances on different medical practitioners and that, save for on an occasion (outlined above), the mother complied with the same. I also note and accept the mother’s evidence to the effect that the child’s health was unremarkable for the balance of 2017 and into this year in that he had experienced much less ill-health and had not needed to attend his GP as often.
Whilst the mother was criticised by the father for her actions in bringing the child with her to the Registry of the Court when she attended to collect papers (at which time, coincidentally, the father was in attendance there too), I accept that she just dropped in to the Registry and told the child she was just collecting papers. Whilst it may well be – as the father noted – that the child could have read the sign at the entrance to the building, I am not persuaded that the mother’s actions were necessarily harmful to the child in circumstances where, as Mr O pointed out, he is clearly aware that his parents are in dispute about his appropriate parenting regime.
Attitude to the father and paternal family generally
I accept the mother’s evidence to the effect that, during her relationship with the father, he was frequently verbally derogatory of and toward her; I accept that, on occasions, he called her a “fucking bitch” or “dickhead”; that he told her to “drop dead” or said “you’re a fucking idiot.” The tenor of the communication between the father and Mr Z about the issue of the child’s touching of Y and X clearly establishes that the father is certainly capable of using such terms in his discourse with others.
I accept as more likely than not that, during the relationship, there were occasions on which the father pushed past the mother during arguments between them; I also accept that it is quite likely that, if the father was angry enough during such arguments, he raised his fist toward the mother on occasions.
I accept that it is likely that, on an occasion, the mother told police that she wanted the father arrested for breaching the Domestic Violence Order so that she would have a better chance of having the Order made permanent. I am not persuaded that, in acting as she did, the mother was doing more than exercising her rights at law.
I accept that the mother was truthful in her evidence at trial when she said that, from her perspective, the father and the paternal grandmother are volatile and unpredictable and truly hate her and that she believes that, on occasion, the father’s hatred of her “blinds” him in his approach to thinking about the child and matters that may be beneficial for him. I am not persuaded that she has arrived at these views on unreasonable grounds.
I also accept that the mother did not believe the father and the paternal grandmother (and Ms V) when they said, during their evidence that, whilst there had been problems between them in the past, they had moved on and that the paternal grandmother, in particular, was there to assist her. As I have already remarked, I do not accept their assertions in this respect either.
Whilst it may, at first blush, appear inconsistent with her evidence as outlined above, I accept the mother was being truthful when she said in March 2017 that she trusted that the father would care for the child when the child was with him. By this I took her to mean that the father would not deliberately harm the child, although I understood her evidence following the events of 2018 to be that she remained concerned that, when angry, the father might hit the child or physically discipline him or act in a way that might cause him to be exposed to harm though exposure to domestic violence.
I accept that the mother’s actions in arranging for the car the father had been using since separation (which was owned in her name and in respect of which she had been receiving information from the bank about repossession) to be repossessed at a time he was using it for work at a place distant from his home meant that he was left without a way to travel home; I accept that she acted as she did without thinking about the implications for the father and his employment that day; I also accept that this is a further manifestation of the absence of concern that either parent has for the well-being of the other. I also consider it highly likely that the mother’s actions in this respect simply provided further fuel for the fire of the father’s significant dislike of her.
I accept that there were occasions in about 2014 when the mother administered medication (such as antibiotics and an asthma inhalers) to the child at changeover. I accept that, from her perspective, this was in response to her concern that the father ignored her attempts to tell him about matters such as when she had last administered the medication; I also accept that, from the father’s perspective, her actions in administering the medications was her “rubbing his face” in the fact that she continued to give the child medication. The fact of each parent’s account of these events and the manner in which each interpreted the actions of the other and reacted to the same provides yet another example of the futility of an expectation that they will be able, in the future, to act co-operatively to meet the child’s needs.
Whilst Counsel for the Independent Children’s Lawyer submitted in March 2017 that the Court would be concerned about the manner in which the mother had failed to respond to Dr P’s recommendations, it is clear that she had only received his report very shortly before her affidavit material was required. I note that the mother’s evidence during the 2018 tranche of the trial was that she had previously attended on Dr GI (a psychiatrist) on a handful of occasions over the preceding twelve months, with her last consultation occurring over six months earlier and that, whilst that medical practitioner had not provided her with a diagnosis, she had recommend medication, which she also recommended be managed by the mother’s general practitioner. The mother said she currently takes fluoxetine (which she described as an “antidepressant type medication”). She explained that she had previously taken Duromine (which had a mood stimulant effect) but had ceased it on medical advice.
I accept that, after the March 2017 trial concluded, the mother attended on her psychiatrist with a copy of Dr P’s report and discussed his conclusions. I accept her evidence that her psychiatrist discussed with her the potential medications she could take (give the other medications she takes). I accept the mother’s evidence that, when she saw her psychiatrist, she was already attending on Dr HJ (a psychologist), whom she had first seen in about October 2016. I accept that the mother took a copy of Dr P’s report to Dr HJ and that she continued to see her (until about the end of 2017) on occasions when Dr HJ was available; I accept it is likely that the mother saw Dr HJ on about half a dozen occasions during 2017. I accept that the mother stopped seeing Dr HJ toward the end of 2017 and started to see Dr IK (also a psychologist) from about January 2018. I accept that she provided Dr IK with a copy of Dr P’s report and has discussed it with her and that she has seen the doctor about once every one to two months since then.
Given this evidence, I consider that the mother has (at least largely) taken up Dr P’s recommendations to engage in therapeutic support. It follows that, at its highest, any risk that the mental health condition he assessed will adversely impact on her ability to appropriately parent the child is “low” – provided that she continues to engage with such therapeutic support.
The likely effect of any changes in the child’s circumstances[413]
[413] ss 60CC (3)(b) of the Act.
I accept that a move to live in the United Kingdom will likely increase the child’s opportunity to develop a relationship with members of his extend maternal family including his maternal grandmother, aunt and cousins. I also accept, obviously, that such a move would significantly reduce his opportunity to continue his frequent physical interactions with his father, Ms V, X and Y, his paternal grandmother and members of his extended paternal family.
I note that, in telling Mr O in February 2017 of his opposition to the child relocating to live in the United Kingdom, the father said that, given that the child, Y and X had known each other since the child was about two and a half years old, it would be very hard on all three boys if they were separated.[414] Whilst this may well be the case, I also note the difficulties in the interactions between the child, Y and X more recently and the difficulties that the child’s behaviour toward her children has caused to Ms V and to her co-parenting relationship with Mr Z.
[414] Affidavit of Mr O filed 27 February 2017, Annexure “A” at [5.17].
Whilst a move to live in the United Kingdom would affect the nature of the relationship the child has with Y and X and Ms V, it is clear that he has an established relationship with these people – and, obviously, with his father and paternal grandmother. Given this, part of the required consideration is the likelihood of him being able to maintain such relationships if he was to live in the United Kingdom with his mother and only return to Australia to spend time with them annually. Whilst not ideal and certainly not optimal, I consider it more likely than not that he will be able to maintain a relationship of sorts with his father and paternal grandmother (and other members of the extended paternal family) if he lives in the United Kingdom; albeit that this relationship will inevitably be very different to that which currently exists.
Whist is was suggested by Ms V that, for the child, a move to live in the United Kingdom with his mother might make him more anxious, there is no expert evidence to support such contention. In saying this, I note that the mother accepted in March 2017 that, from one perspective, a move to the United Kingdom would be a negative change for the child, could potentially have a significant impact on him and could potentially increase the observed anxieties that Dr Q commented upon in his report.
However, any move would, obviously, occur with the support of his mother, the parent with whom the child has been living for the majority of the time more recently. Given the mother’s acceptance of the recommendations made by Dr P about her engagement with appropriate therapeutic supports, I am not persuaded that the child is at risk in her care, whether this care is provided in Australia or the United Kingdom.
I accept that, given the history of this matter, there is a risk that, if the child moves to live in the United Kingdom with his mother, there may be significant problems in him maintaining his ongoing relationship with his father and paternal grandmother. Whilst the history of conflict certainly suggests that there may be difficulties in the parent’s efforts to negotiate the time the child would spend with his father in Australia, a continuation of any permutation of the previous parenting arrangements (by which the child has transitioned between his parents’ households on a regular basis) is highly likely – in fact, inevitably in my view – to be attended by his ongoing exposure to the significant and long-standing parental conflict.
Consequently, I consider that one of the positive features of the child moving to live in the United Kingdom with his mother is that this would significantly minimise his ongoing exposure to the toxic parental conflict which shows absolutely no signs of abating.
Whilst, as Mr O opined in his February 2017 report, the history of parental withholding in this matter does not inspire confidence that a relocation will be accompanied by a co-operative parenting arrangement (particularly given the resultant distance between the parents and assuming that one parent had the most say in decisions about the child)[415] the reality is that living in the same city has not inspired a co-operative parenting arrangement: it is difficult to see that changing into the future, irrespective of where the child is to live. It is also difficult to see how the co-parenting relationship between these two parents could get any worse.
[415] Affidavit of Mr O filed 27 February 2017, Annexure “A” at [10.12].
Given this, the only thing that can be done, in my view, is to make those orders which are most likely to shield the child from exposure to the same and, by doing so, to attempt to prevent him from suffering the adverse consequences spoken of by Dr Q.
Family violence and family violence orders[416]
[416] ss 60CC(3)(j) and (k) of the Act.
When the parties first saw Mr O in October 2013, it was apparent that each alleged domestic violence had been perpetrated by the other during the course of their relationship.[417] He records that police attended on one occasion: 18 May 2012. Mr O also records that each party denied being the perpetrator of domestic violence and asserted that the other committed significant domestic violence.
[417] Affidavit of Mr O filed 13 December 2013, Annexure “PJ-2” at [2.5].
The mother originally successfully applied for a temporary protection order; it was due to be heard on 31 October 2013. The father unsuccessfully applied for a protection order. Mr O understood from information provided to him by the father in October 2013 that the father anticipated being charged with breaching a protection order as a consequence of text messages sent by him to the mother.[418]
[418] Affidavit of Mr O filed 13 December 2013, Annexure “PJ-2” at [2.8].
In her interview for the second Family Report, the mother gave Mr O a Magistrates Court document dated 16 January 2014: this was a “Verdict and Judgment Record” which noted that the father entered a plea of guilty to a contravention of a Domestic Violence Order between 2 July 2013 and 14 August 2013; a conviction was not recorded.[419] The mother also told Mr O that she and the father both consented to mutual Domestic Violence Orders in March 2014.
[419] Affidavit of Mr O filed 5 May 2015, Annexure “PJ-1” at [3.36].
The mother said that, as at January 2017, the father had made no further applications for a protection order (in the capacity of an aggrieved) since the application made on 28 April 2016.
Parental relationship
In the November 2013 Family Report, Mr O noted that the parents were able to remain in the same area and focus on the child without any overt antagonism.[420] Despite this, he recorded that, as between them, “at the moment, communication is miserable.” He considered the situation a long way from an effective shared parenting arrangement.[421]
[420] Affidavit of Mr O filed 13 December 2013, Annexure “PJ-2” at [6.10].
[421] Affidavit of Mr O filed 13 December 2013, Annexure “PJ-2” at [8.7] – [8.8].
During his March 2015 interview (for the second Family Report), the father told Mr O he proposed an order for sole parental responsibility “simply because we cannot function”: by this, he meant that he and the mother had no relationship or communication.[422] During her March 2015 interview, the mother told Mr O that she had 15 cameras around her home, which allowed her to feel more protected; she said she had been “petrified” since the father “broke into her house” on 26 June 2013.[423]
[422] Affidavit of Mr O filed 5 May 2015, Annexure “PJ-1” at [4.4].
[423] Affidavit of Mr O filed 5 May 2015, Annexure “PJ-1” at [3.39].
Given the information provided to him by both parents, it is unsurprising that Mr O opined in April 2015 that the level of trust between the parties was absolutely minimal – despite each party engaging in a post-separation parenting program. He also said (presciently) that it was most unlikely that the situation was going to change markedly in the future with respect to co-parenting capacity. He noted that the father then held an extremely dim view of the mother (and was convinced that she would continually try to set him up,) whilst the mother maintained that she continued to be fearful of engaging with the father (and clearly did not trust him).[424]
[424] Affidavit of Mr O filed 5 May 2015, Annexure “PJ-1” at [8.7] – [8.8].
In December 2016, the mother told Dr P that, in her view, there had been no time after separation where she had been able to organise cordial, working post-separation parenting plans for the child with the father.
As at February/March 2017, Mr O accepted that consideration of equal shared care would require the Court to view the future of such an arrangement with optimism as with the history of conflict and litigation in this matter, it might be overly sanguine to expect that things will change, even with the apparent willingness of the father, as he expressed at the interview.
Parental Responsibility
When making a parenting order, I am bound to apply a presumption that it is in the child’s best interests that his parents have equal shared parental responsibility for major long term issues relating to him.[425] The presumption is rendered inapplicable if the Court is satisfied that there are reasonable grounds to believe that either of the child’s parents have engaged in abuse of him or another child or family violence,[426] or may be rebutted by evidence that satisfies the Court that it would not be in his best interests for his parents to have equal shared parental responsibility for him.[427]
[425] s 61DA of the Act.
[426] s 61DA(2) of the Act.
[427] s 61DA(4) of the Act.
I consider that the presumption contained in s 61DA of the Act does not apply in this case. Consequently, the power to make parenting orders pursuant to s 65D of the Act is ‘at large’, albeit subject always to the child’s best interests being the paramount consideration.[428]
[428] Cox & Pedrana (2013) FLC 93-537, [19]; s 60CA; s 65AA of the Act.
In determining whether it is in the child’s best interests that an order requiring his parents to share parental responsibility is made, it must be remembered that, if the Court makes an order that the parties share parental responsibility for him and the exercise of that parental responsibility involves making a decision about major long term issues in relation to him, such order requires the decision to be made jointly by the parties.[429] Additionally, such order also requires that each party consult the other in relation to the decision to be made about that issue and make a genuine effort to come to a joint decision about it.[430]
[429] s 65DAC(2) of the Act.
[430] 65DAC(3) of the Act.
Having regard to the contents of these Reasons, it would be completely perverse to conclude that it is in the child’s best interests for his parents to have equal shared parental responsibility for him. The submission made by Counsel for the Independent Children’s Lawyer in support of such an order (accompanied by the requirement that the parents attend a parenting programme to assist them to reach joint decisions) is inexplicable.
Concluding discussions about those parenting orders which are in the child’s best interests
Whilst I note the opinions expressed by Mr O in his February 2017 Family Report about the consequences for the child’s time with his mother if certain evidence given by Dr P is accepted, I have already expressed my conclusion that, given the mother’s actions after receiving Dr P’s report, any assessment of any risk she might have been regarded to pose to the child is “low”.
I accept that the mother has taken proactive steps to address the anxiety and depression from which Dr P has assessed her to suffer. Given Mr O’s evidence to the effect that the child could suffer significant emotional harm (which may result in behavioural, emotional, social, attentional and academic problems that can then be manifest in a variety of psychological/psychiatric difficulties or vulnerabilities[431]) if he lived with a parent who is excessively anxious, it is appropriate that the mother continue to engage with appropriate therapeutic supports and continue to receive appropriate medical interventions in aid of assisting her to manage her anxiety. It is in the child’s best interests that orders ensure that she continue to engage into the future, as I accept she has to date.
[431] Affidavit of Mr O filed 27 February 2017, Annexure “A” at [10.3]
I am not persuaded that it is in the child’s best interests for there to be an equal time equal shared care arrangement; I am not persuaded that such a regime will in fact result in an amelioration of the conflict between the parents because, in my view, their conflict is about matters which include, but are not limited to, the time the child spends with each of them.
Given the father’s attitude to the issue of the child’s anxiety, I am not persuaded that it is likely that frequent integration with his father will assist him to deal with his anxiety and the manifestations of the same.
Having regard to all of the matters outlined above and already the subject of significant discussion, I consider that the child’s best interests will be met by him being primarily parented by his mother. I consider that she has the greater capacity to address and meet his emotional and physical needs and that she is more attuned to these than the father. I accept that she recognises the importance to the child of maintaining an ongoing relationship with his father.
I consider that any arrangement whereby the child lives primarily with his father would likely increase his exposure to his father’s occasional outbursts of anger, attitudes about domestic violence and to his vitriolic and significantly derogatory attitude about his mother. It would see the child primarily cared for by the parent whom, in my view, placed his own needs for secrecy ahead of the child’s need for the medical staff at the hospital earlier this year to be told about all events which might have, in any, way contributed to the level of distress the child displayed on that occasion. I am not persuaded that such a parenting regime is something that will be in the child’s best interests.
As touched upon earlier, the child has experienced a range of different care arrangements; his time with each parent has been different at different times of his life; despite this, the one constant has been the significant parental conflict and his exposure to the same, either directly or indirectly. I consider it highly likely that his hospitalisation this year was the result – at least in some way – of the impact on him of his longstanding exposure to his parents’ conflictual relationship.
I consider that the child’s best interests require that he be protected from future exposure to this parental conflict which, as noted, shows absolutely no signs of diminishing. I have concluded therefore that, even taking into account the negative impacts on the child of a significant change to his current parenting regime and the likely negative impact on his relationships with his father, paternal grandmother and other members of the paternal family which will inevitably accompany a relocation to the United Kingdom, the benefits of such a move – being guaranteed respite from exposure to parental conflict and the opportunity to be parented by his mother whose functioning will not be detrimentally affected by her exposure to and engagement in the ongoing parental conflict- are such as to outweigh the detriments.
I also consider that the circumstances of this case are certainly such as to persuade that it is preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to the child: I consider such order to be one which permits the child to be relocated to live with the mother in the United Kingdom and to spend time with his father in Australia in the manner outlined in the Orders set out at the commencement of these Reasons. I consider that, whilst a move to the United Kingdom will significantly impact on the child’s existing relationships with members of his paternal family, his long term best interests require that this is the price that must be paid in order to ensure he is protected from the likely consequences of continuing exposure to the unrelenting parental conflict.
I certify that the preceding six hundred and sixteen (616) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Hogan delivered on 13 July 2018.
Associate:
Date: 13 July 2018
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