Radford and Ridley
[2018] FamCA 256
•26 April 2018
FAMILY COURT OF AUSTRALIA
| RADFORD & RIDLEY | [2018] FamCA 256 |
| FAMILY LAW – CHILDREN – With whom a child lives and spends time – Family Violence – Cultural issues – Best interests of the child – Whether to rebut presumption of equal shared parental responsibility – Where the mother has relocated with the child – Where the father denies domestic violence – Meaningful relationship – The effect of a change in the child’s circumstances – Inference to be drawn against a party who does not present a witness – Child’s views – Child’s wishes – Ability of the parents to communicate – Importance of the child maintaining a connection to culture and heritage |
| Evidence Act 1995 (Cth) s 135 Family Law Act 1975 (Cth) ss 60B, 60B(1), 60B(2), 60CA, 60CC, 60CC(2), 60CC(2A), 60CC(3), 61DA, 61DA(2), 65DAA, 69ZT, 69ZN, 69ZW Family Law Rules 2004 (Cth) r 15.13 |
| Amador & Amador [2009] FamCAFC 196 The Hon Justice Steven Strickland & Kristen Murray, ‘A Judicial Perspective on the Australian Family Violence Reforms 12 Months On’ (Paper presented at the Association of Family and Conciliation Courts 50th annual conference, Los Angeles, 1 June 2013) |
| APPLICANT: | Ms Radford |
| RESPONDENT: | Mr Ridley |
| INDEPENDENT CHILDREN’S LAWYER: | Carter Farquar Mediation & Family Law |
| FILE NUMBER: | BRC | 7433 | of | 2011 |
| DATE DELIVERED: | 26 April 2018 |
| PLACE DELIVERED: | Adelaide |
| PLACE HEARD: | Brisbane |
| JUDGMENT OF: | Berman J |
| HEARING DATE: | 10, 11 and 12 April 2018 |
REPRESENTATION
| COUNSEL FOR THE APPLICANT: | Dr C McConaghy |
| SOLICITOR FOR THE APPLICANT: | ATSILS |
| COUNSEL FOR THE RESPONDENT: | Litigant in Person |
| SOLICITOR FOR THE RESPONDENT: |
| COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: | Mr M Taylor |
| SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: | Carter Farquar Mediation & Family Law |
Orders
That the final orders made on 17 March 2014 as amended 1 April 2014 be discharged.
That the mother have sole parental responsibility in relation to X born … 2010 (“the child”) PROVIDED that there be a requirement that she will advise the father in writing (electronically or otherwise) and provide her view about any major issue affecting the child’s health (including dental) or the child’s education and shall consult with the father about such issues, but if no agreement is reached between the parties THEN the mother shall make the final decision and advise the father in writing of that decision.
That the child live with the mother.
That the child shall spend time with the father as follows:-
(a)For seven (7) days to be taken in the first week of the Queensland gazetted school holidays at the end of Terms 2 and 3 as may be agreed, but in default of agreement the father’s time is to commence at 10am on the first Monday of the holidays and to conclude at 10am on the following Monday;
(b)For ten (10) days in the Queensland gazetted Christmas school holidays as may be agreed between the parties but in default of agreement to commence from 10am on 2 January 2019 and each alternate year thereafter and from 10am on the first Monday of the Christmas school holidays in 2020 and each alternate year thereafter;
(c)That the parties share equally the cost of the child’s return airfare;
(d)That the father’s time with the child on each separate occasion is conditional upon him giving twenty eight (28) days’ notice of his intention to spend time with the child and within forty eight (48) hours of the mother providing either an invoice or an advice as to the cost of the child’s return airfare he shall transfer one half of the said travel cost to an account as nominated by the mother;
(e)That the child spend such other time with the father as may be agreed between the parties.
That to give effect to the periods of time to be spent by the father, handover of the child shall be to and from an agreed meeting point at the commencement and conclusion of time PROVIDED that in default of agreement the mother shall nominate a public place to be the point of handover.
That the father shall be at liberty to forward written communication to the child at an address nominated by the mother.
That the father communicate with the child by telephone as follows:-
(a) Each Wednesday between 5pm and 6pm;
(b)On Christmas Day, Easter Sunday, Father’s Day and the child and father’s birthdays at times as may be agreed but in default of agreement between 4pm and 6pm;
PROVIDED that the said calls shall be facilitated and initiated by the mother.
That the father is restrained from asking the child details or information about the mother’s personal circumstances during any telephone communication or time spent with the child.
That the mother shall furnish to the father a list of names, addresses and telephone numbers of the child’s treating health professionals and shall keep the father informed of any changes to such details.
That the mother shall inform the father immediately of any hospitalization or medical emergency suffered by the child including and not limited to any illness of significance or injury requiring treatment or prescribed medication.
The parties shall refrain from denigrating the other in the presence of the child.
The mother shall keep the father informed of any educational facility at which the child attends and shall obtain and provide copies of all school reports and any other correspondence received from the school in relation to the education of the child.
That the order for the appointment of the Independent Children’s Lawyer is discharged.
Note: The form of the order is subject to the entry of the order in the Court’s records.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Radford & Ridley has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).
| FAMILY COURT OF AUSTRALIA AT ADELAIDE |
FILE NUMBER: BRC 7433 of 2011
| Ms Radford |
Applicant
And
| Mr Ridley |
Respondent
REASONS FOR JUDGMENT
INTRODUCTION
By Amended Initiating Application filed 30 May 2017, Ms Radford (“the mother”) seeks parenting orders in respect of X born in 2010 (“the child”).
By his Response filed 2 December 2016 Mr Ridley (“the father”) opposes the orders sought by the mother.
The parties have been engaged in ongoing litigation since 2011. Final orders were made 17 March 2014 (as amended 1 April 2014) on the following terms:-
By the consent of the parties:-
(1)That the parties have equal shared parental responsibility for the child and that they consult with each other in relation to major long term decisions.
By the Court:-
(2)That the child live with the parties as they may agree, but failing agreement with the father every Wednesday from after school until the start of school on Thursday and in each alternate week from after school Friday to the commencement of school Monday.
(3)During school holidays as agreed but failing agreement with the father for one half of the school holidays.
(4)That the parties facilitate the child speaking to the other party by telephone on a regular basis.
(5)That the child spend time with the parties on special days including their separate birthdays, Father’s Day and Mother’s Day, the Christmas period and the child’s birthday.
(6)Specific issues orders that require the parties to communicate with each other by email or text messaging and by telephone in case of an emergency, an exchange of information in respect of the child’s health and education, that the parties each show respect for the others cultural and religious background to the child and an order restraining the parties from denigrating the other in the presence of the child or from discussing the proceedings or allowing anyone else to discuss the proceedings in the presence of the child.
Acting on information received from the Department of Child Safety (“DOCS”) that the father and his wife Ms Ridley were living together in an environment of family violence and that the child may be at risk of physical and emotional abuse when living with the father pursuant to the orders, the mother considered that she needed to take steps to protect the child.
The mother did not allow the child to live with the father pursuant to the final orders and took active steps to thwart his attempts to pick up the child from school by keeping the child at home on the days designated by the final orders.
The father was upset by the mother’s non-compliance and forwarded correspondence to her threatening legal proceedings and providing his opinion that the mother’s behaviour, if continued, may well result in her imprisonment.
On 21 September 2016 the mother relocated the child to B Town. She has extended family in North Queensland and is forthright in her view that the removal of the child from Brisbane to B Town was justified by the father’s conduct towards his wife and the information received from DOCS that the father was not prepared to cooperate in the ongoing investigation.
The father does not accept that the mother had any reason to remove the child to B Town in circumstances where the distance between the parties and their financial circumstances were such that the final orders could not be given effect and any meaningful time between the father and the child is now impracticable.
The gravamen of the dispute is highlighted by the diametrically opposed orders that each of them seeks.
For her part, the mother seeks that she have sole parental responsibility, that the child live with her and have no physical contact with the father other than by correspondence and a weekly telephone call.
For his part, the father considers that the mother has effectively abducted the child in changing his place of residence to B Town and he seeks that the future parenting arrangements are to be determined by reference to the final orders save that the father have sole parental responsibility and that the child attend a nominated State school both as to primary and secondary education in the Suburb D area where he lives.
DOCUMENTS RELIED UPON
The mother relies upon the following documents:-
(1)Amended Initiating Application filed 30 May 2017.
(2)Mother’s Trial Affidavit filed 5 March 2018.
The father relies upon the following documents:-
(1)Response filed 2 December 2016.
(2)Father’s Trial Affidavit filed 22 March 2018.
The Independent Children’ Lawyer (“ICL”) relied upon the Affidavits of Ms C (“the family consultant”) filed 26 June 2017 which annexed the family report of 23 April 2017 (“the first report”) and her Affidavit filed 3 April 2018 which annexed the family report filed 10 February 2018 (“the second report”).
At the commencement of the proceedings I caused the following documents to be provided to the father:-
(1)The decision of the Full Court in Re F: Litigants in Person Guidelines [2001] FamCA 348.
(2)Copies of the relevant extracts from the Family Law Act 1975 (Cth) (“the Act”) relevant to parenting considerations, but in particular Part VII with particular emphasis on s 60CC and Division 12A.
The mother was represented by counsel as was the ICL. The father has been a self-represented litigant throughout the proceedings and when asked, confirmed that he was not seeking to adjourn the proceedings or to explore legal representation.
The Court file reflects that the father has appeared in person on every occasion since 25 November 2011.
As will be discussed, the issue of family violence, whether the father has been a perpetrator of family violence to the mother and more contemporaneously, his wife and the impact of any findings that the father has perpetrated family violence on the appropriate parenting arrangements for the child is central to the proceedings. In the circumstances of this case I was neither asked nor did I consider it appropriate that I should dispense with the provisions of s 69ZT in preference for greater evidentiary rigor pursuant to the Evidence Act 1995 (Cth) (“the Evidence Act”).
I explained to the parties the principles applicable to parenting cases as set out in s 69ZN of the Act and determined that the interests of the child would be better served by the Court taking a less technical approach. It would also provide some assistance to the father given he was unrepresented and faced with opposing counsel.
The mother’s counsel made application to strike out certain nominated paragraphs or parts thereof on the basis that there were references that could be considered offensive, scandalous and wholly irrelevant.
Pursuant to s 135 of the Evidence Act and by reference to the application of r 15.13 of the Family Law Rules 2004 (Cth), I heard and determined objections to the father’s affidavit trial affidavit. While the successful objections substantially diminished the content of the father’s trial affidavit, I did not consider that it detracted the thrust of the father’s case namely, that he denied there was any domestic violence in his relationship with his wife and as such there is no good reason to amend or discharge the final orders, with the consequence that the child should be forthwith returned to Brisbane.
PROCEDURAL MATTERS
The proceedings were first listed for trial on 2 October 2013. On 3 October 2013 the proceedings were adjourned part-heard to 17 March 2014. Extensive interim orders were made. On 17 March 2014 the proceedings resolved and final orders were made by consent. The orders were the subject of amendment on 1 April 2014.
The father filed an Initiating Application on 2 July 2015 which was then dismissed on 17 February 2016.
The mother filed an Initiating Application on 13 October 2016 and on 23 November 2016 orders were made appointing an ICL, an order made that DOCS prepare a Child Protection Summary pursuant to s 69ZW and the proceedings were adjourned to 16 December 2016 for interim hearing. Judgment was reserved with reasons being delivered on 20 December 2016 and the following orders made:-
(1)That the orders dated 17 March 2014 (Amended 1 April 2014) be suspended.
(2)That the child X born in 2010 (“the child”) live with the mother.
(3)That the mother have sole parental responsibility for the child.
(4)That the father spend no time or communicate with the child; and
(5)Following the dismissal of the interim proceedings all outstanding applications were transferred to the Family Court of Australia.
On 27 October 2017 Forrest J listed the matter for trial and following the preparation of a trial plan, trial management orders were made that provided for each of the parties, including the ICL, to file and serve one affidavit each upon which they intend to rely as their affidavit in chief at the trial and made an order that the parties not file further affidavits or rely upon a past affidavit without leave of the Court.
Leave was given to the ICL to issue a subpoena to Ms Ridley to give oral evidence in the proceedings. The following interim orders have relevance to the proceedings:-
(1)On 8 February 2018 Registrar Spink ordered as follows:-
1.That the issue of father’s telephone contact with the child be adjourned for further interim hearing before Senior Registrar on 16 February 2018 at 9.00am with leave for the parties and their legal representatives on record to appear by telephone.
2.That BY CONSENT other than the issue of the Father having telephone contact with the child the Father’s Application in a Case filed 4 October 2017 be dismissed.
NOTATIONS:
A.That the Mother’s solicitor indicated to the court that he would seek instructions from his client regarding the Father having telephone contact with the child.
B.The Independent Children’s Lawyer indicated to the Court that the parties recently participated in family report interviews but the report remains outstanding.
C.The Independent Children’s Lawyer will obtain instructions from the family report writer regarding the father’s telephone contact with the child.
D.That the Father seeks that he communicate with the child by telephone each week on Wednesday between 4.00pm and 5.00pm; such calls to be facilitated and initiated by the Mother.
(2) On 16 February 2018 Registrar Spink ordered as follows:-
1.That the Father communicate with the child X born … 2010 by telephone each Wednesday from 4.00pm to 5.00pm.
2.That the Mother is to initiate the telephone call at 4.00pm by telephoning the Father’s mobile telephone number and then hand the telephone to the child.
3.That the Father is restrained from questioning the child about the Mother, the Mother’s family or the Mother’s private life including the Mother’s address.
(3)On 16 March 2018 Registrar Brooks ordered as follows:-
1.The matter remains listed as a reserve trial in the week commencing 09 April 2018.
2.The Father file and serve his affidavit of evidence in chief by 22 March 2018.
3.The Family Report is to be filed by 22 March 2018.
4.The last date for service of the subpoena on [Ms Ridley] is enlarged until 09 April 2018 and leave is granted to the Independent Children’s Lawyer to amend the service copies to reflect this date.
Notation
1.The Father has been advised that if he does not produce his Wife, [Ms Ridley] as a witness or provide sufficient details to the Independent Children’s Lawyer to serve her with a subpoena to give evidence the Court may draw an adverse inference against him.
2.The Father has been advised to obtain independent legal advice as to the circumstances under which an adverse inference can be drawn and the impact of an adverse inference on his case.
The father’s trial affidavit referred to 23 documents that he relied upon as evidence in the proceedings. In particular, he sought to rely upon all affidavits filed in the proceedings from 17 November 2011 to the present.
I reminded the father of the terms of the trial direction orders made by Forrest J and the matter proceeded with the father’s evidence confined to his trial affidavit filed 22 March 2018.
BACKGROUND
The father was born in 1973 and is 44 years of age. The mother was born in 1976 and is 42 years of age.
The father lists his occupation as a technician, but presently he is not in employment. The mother holds a professional qualification and has a long work history in indigenous affairs. The father currently resides in the suburb of Suburb D in Brisbane, with the mother and the child residing in B Town, North Queensland.
The mother identifies as an Indigenous woman and traces her heritage via her mother’s family.
The parties met and commenced their relationship in 2008. They separated in July 2011 and as discussed, the parties have engaged in ongoing litigation from August 2011.
The proceedings were finalised by final orders on 17 March 2014, with the present litigation commencing on the mother’s Initiating Application filed 13 October 2016.
It is central to the proceedings that the mother alleges she was the victim of family violence perpetrated by the father and that her actions in removing the child’s place of residence from Brisbane to B Town was justified by the advice of DOCS that the family violence in the father’s home placed the child at risk.
Following separation the father married Ms Ridley and they have a child E born in 2016 (“E”). The father and his wife separated in September 2016. The father’s evidence is that they remain separated but he considers that there is some prospect of a reconciliation.
On 25 August 2016 the mother was contacted by Ms F, a DOCS worker, who asked that she attend an interview. The mother attended the interview with the child on 30 August 2016. The day after Ms F contacted the mother to advise she had attended with the police at the father’s residence and later informed him by phone that there was a notification of physical harm and abuse having been substantiated.
It is reasonably likely that the notification of abuse was made by the father’s wife.
The mother did not thereafter comply with the final orders and she relies upon correspondence from DOCS dated 13 September 2016 as the foundation for her concern. The following extract provides a convenient summary of the information purportedly received by the mother:-
On 9 May 2016, the reporter stated that they were worried that there was domestic violence in the home, including [the father] pushing [Ms Ridley]; [the father] attempting to strangle [Ms Ridley]; and [the father] yelling at [Ms Ridley] in her face while she is holding baby and in front of [the child].
This letter is to advise you that an assessment of these worries has been completed for [the child] and the outcome is Substantiated – Child Not in Need of Protection. This assessment is based on the information collected, with [the father] being assessed and listed as the ‘person responsible’, and yourself as the parent ‘willing and able’ to provide protection.
This means that I believe that [the child] has suffered significant emotional harm due to [the child’s] disclosures that;
·[the child] states he has witnessed his father hit his stepmother;
·[the child] states he has witnessed his father hit his stepmother with implements;
·[the child] states he has witnessed his father place his hands around his step-mother’s throat;
·[the child] states that he has been hit with the same implement (‘a big spoon’) that his father hit his stepmother;
·[the child] states that his father hit him with the ‘big spoon’ on his back, on his chest and on his bottom;
·[the child] states that he is scared of his father and has been so scared that he has hidden from him (under furnishings);
·[the child] stated that he and his step mother both understand when they need to hide from his father.
The mother contends that prior to receiving the contact from DOCS she was “completely unaware of the abuse and the severity of the physical (sic) inflicted upon the child by [the father]”.
It is not controversial that the father did not accept that there had been any domestic violence perpetrated in his home with either his wife, the child or E being the victim. He does not know why his wife would have made the allegations when in interview with DOCS, but he considers that the DOCS worker has a set against him and has coerced his wife into making the allegations of family violence.
The father was indignant and distressed at the mother’s non-compliance. There then followed correspondence by email and text messages which alleged that the mother was in breach of orders, that the father intended to attend at the child’s school to pick up the child in accordance with the orders and if the mother persisted in her ongoing non-compliance then she was at risk of imprisonment.
The following extracts from email communication on 31 August and 1 September 2016 provide an adequate summary of the tenor of the communication:-
Wed, Aug 31, 2016 at 7:34 PM
Dear Miss [Radford],
We advise that you are in breach of final Federal Orders, that do not provide yourself or anyone else to change and contravene orders at leisure.
You did not send [the child] to school today 31st August 2016, The Father could not pick him up from school for that reason, you gave no indication as to why and have no reason he was made aware of.
We strongly suggest you rectify the situation, by explaining to the Father all of these reasons and excuses immediately, you will return [the child] as per orders and cease and desist from your criminal breaches.
Regards
[the father] & Legal Counsel
And then:-
Thu, Sep 1, 2016 at 8:56 PM
Miss [Radford],
Further to our previous email, we will need a reply with reasons and explanations immediately.
You are still in breach of Federal orders, we very strongly suggest that you curb your criminal acts and behavior (sic) immediately, you will cease and desist from making any further false accusations, fabricated allegations and claims of the Father, you will return [the child] as per orders state, shared parenting, you are not at liberty to change or contravene orders, if you continue with your illegal crimes further action will be taken.
Regards
[the father]
The mother applied for a Domestic Violence Protection Order which was heard on 14 September 2016.
It is apparent that the mother realised that the father would persist in seeking to spend time with the child pursuant to the orders. She made the unilateral decision to relocate permanently to B Town on 21 September 2016.
There is no evidence that the child’s relocation was a requirement of DOCS. It was at all times the mother’s decision.
The mother currently resides with the maternal grandmother and step-grandfather on their rural property. The mother has involved the child in various indigenous activities at his school together with extra-curricular activities.
The mother candidly acknowledges that the child wants to see his father and whilst the mother is prepared to facilitate one occasion per year in Brisbane, she requires that the time be supervised.
The father’s current circumstances are uncertain. He currently resides in an apartment in Brisbane. For reasons best known to the father, he was reluctant at first to provide his address and then to confirm the address when questioned as to where the child would live if orders were made providing for the child to spend time with him.
The father and his wife have separated. The father considers there is some prospect of a reconciliation. He was resistant to any questions about his wife, what discussions they may have had concerning a reconciliation, the arrangements, if any, for the father to spend time with E and in particular any information as to her whereabouts.
PROPOSAL OF THE PARTIES
The mother proposes that the child will continue to live in B Town and is prepared to facilitate the father spending time with the child either in B Town or in Brisbane providing that his time is supervised.
The father resists the orders sought by the mother and seeks that the final orders be reinstated.
The father was rigid in his position. He considered that the mother had “abducted” the child and given that it was not the first time, there should be no circumstance where the child should be permitted to remain in B Town.
Moreover, the father considered that the child’s best interests would be served by returning to Brisbane.
The Court attempted to explore with the father whether there were any alternative propositions in circumstances where the Court might decide that the child should remain in B Town.
The father viewed his presentation in opposing the mother’s orders as a matter of principle. He was unequivocal in his view that the final orders had been made, that there was no good reason to justify the mother’s removal of the child from Brisbane and that she was in ongoing serious breach of the final orders up until they were suspended.
In discussion with the Court and in final submissions the father would not accept anything less than the terms and conditions pursuant to the final order even if that meant that he would not see the child.
The father was advised that it was not open to the court to make orders that were not consistent with the evidence and not within the broad parameters of the parties separate proposals. The father was informed that it was not up to the Court to force the father to spend time with the child in circumstances where it was not his preference or ability to do so.
The consequence of the father’s entrenched position is that if he is not wholly successful then he is prepared to be wholly unsuccessful.
EVIDENCE
The mother
The mother’s evidence was relatively brief. She refers to the history of her relationship with the father prior to their separation in July 2011.
She alleges that whilst together the father perpetrated family violence and that his conduct was threatening and intimidating. The parties have a history of police intervention with the first protection order having been made in 2011. The mother considers that there were a number of breaches of the order. The father denies the mother’s assertion.
It is not controversial that on 27 March 2012 the protection order was extended until 26 March 2014.
Notwithstanding the mother’s allegations of the father being the perpetrator of family violence, she concedes that she entered into the final orders in 2014 on the basis that she recognised that they were in the best interests of the child.
The mother conceded that her decision to breach the orders arose from information she received from DOCS, rather than any threatening or aggressive behaviour by the father following the final orders being made.
The father challenged the mother as to alleged disclosures by the child of his observation of domestic violence between the father and his wife and denied that he had hurt the child or that the child was at risk.
The mother was also challenged as to her perception of the email communication from the father. It was put to her that the correspondence was not threatening and whilst the emails had a pseudo-legal construct they did no more than strongly assert that the father considered the mother was in breach of the orders and there was the potential for serious penalty to be imposed if her conduct continued.
The mother was not able to provide any first hand evidence to support or corroborate the allegations made by DOCS that an environment of family violence existed in the father’s home and as a result the child was at risk.
The mother’s evidence for changing the child’s place of residence to B Town was generally unconvincing. There is little doubt that the history of domestic violence experienced by the mother leading up to separation may have provided an extra catalyst for the mother’s decision to leave Brisbane, but it could not be said that the father’s behaviour was such that the relocation was either inevitable or necessary.
I am satisfied from the mother’s evidence that she is fearful of the father and deeply mistrustful of him. She considers his conduct to be controlling and when it became clear to her that the father was not going to engage with DOCS in their investigation and would persist in pursuing compliance with the terms of the final orders, the mother determined that she should take unilateral action.
The father
The father’s evidence is contained in his trial affidavit. The language is emotive and the father considers that the mother has abducted the child in contravention of the orders.
The father is of the view that the mother and the DOCS worker have conspired to terminate his relationship with the child.
He summarises the mother’s motives at [9]–[10]:-
9.[the mother] actually said to me in 2011 that “If she can’t win in court she will use some other means” and “its all about payback”, meaning CS or the likes.
10.After this CS Worker, ‘[Ms F]’ has been warned off, as she or her Manager has not emailed me with any concerns, evidence or basis with any real reasons or concerns but has told [the mother] that I cannot see my son, [the mother] has made up the idea of a “No Contact Order” when it doesn’t even exist, there is no such thing.. They encouraged [the mother] to breach orders, also claiming they had [the child] in their office and interrogated him on or about the last week in August on the Monday 29th August 2016. Which everything done in the way they did is totally illegal and against their own protocol.
The father considers that he and the child have been victims of the mother’s domestic violence by her relying on demonstrably false allegations as presented to her by DOCS.
In particular, the father contends that he has never caused harm to either the child, his wife or E. He strongly asserts that his home (when it was occupied by his wife and E) was a safe place and the child did not and could not have witnessed the father assault his wife. In relation to the specific allegation that the child witnessed the father attempt to strangle his wife, the accusation is denied and the father proffers a possible alternative explanation where the child may have seen the father kiss his wife and put his arm around her neck. The implication is that the child may have misinterpreted his father’s actions as aggressive rather than affectionate.
The DOCS worker informed the mother that the child had alleged the father had hit him with a spoon on his back, chest and bottom. The father specifically denied the allegation and asserted that he had never used any implement in disciplining the children.
In summary, the father did not consider that the child was at risk in his home and the allegations, whether made by the mother or the DOCS worker, were without foundation. On his case, DOCS and the mother opposed the father having a relationship with the child and are prepared to fabricate evidence to fulfil their malevolent purpose.
Failure to call evidence
Whatever may have been the mother’s long-held desire to live in B Town and to integrate into her family and indigenous culture, the mother’s explanation for the child’s precipitous relocation from Brisbane arises from the information she received from the DOCS worker Ms F.
There is no explanation why Ms F was not called to give evidence. The nature of the allegations made against the father were clear, but it must be conceded that they were challenged by the father.
The father and his wife were advised by DOCS of the concerns held for the children in the environment of their home at Suburb H. The correspondence passing between DOCS and the father forms Exhibit 1 and 2 in the proceedings. The detail contained in the correspondence summarises the areas of concern and the following extract of a letter from DOCS to the father and his wife dated 14 September 2016 is informative:-
The [G] Child Safety Service Centre recently received information relating to your child/ren [the child] and [E]. The worries expressed were that;
On 9 May 2016, the reporter stated that they were worried that there was domestic violence in the home, including [the father] pushing [Ms Ridley]; [the father] attempting to strangle [Ms Ridley]; and [the father] yelling at [Ms Ridley] in her face while she is holding baby and in front of [the child].
This letter is to advise you that an assessment of these worries has been completed for [the child] and the outcome is Substantiated – Child Not in Need of Protection. This assessment is based on the information collected, with [the father] being assessed and listed as the ‘person responsible’ for harm, and [Ms Ridley] as the parent ‘willing and able’ to provide protection.
This means that I believe that [the child] has suffered significant emotional harm due to [the child’s] disclosures that have been corroborated by the information obtained in accordance with this assessment and investigation process, that;
·[the child] stated that [the father’s] home is not a safe place;
·[the child] states he has witnessed his father hit his stepmother;
·[the child] states he has witnessed his father hit his stepmother with implements;
·[the child] states he has witnessed his father place his hands around his step-mothers throat;
·[the child] states that he has been hit with the same implement (‘a big spoon’) that his father hit his stepmother;
·[the child] states that his father hit him with the ‘big spoon’ on his back, on his chest and on his bottom;
·[the child] states that he is scared of his father and has been so scared that he has hidden from him (under furnishings); and
·[the child] stated that he and his step mother both understand when they need to hide from his father.
This letter is to advise you that an assessment of these worries has also been completed for your daughter E and the outcome is Unsubstantiated – Child Not in Need of Protection. This assessment is based on the information collected, in accordance with the assessment and investigation process, and have assessed yourself [Ms Ridley] as the parent ‘willing and able’ to provide protection to [E].
I do believe that you, [Ms Ridley] are a parent that is willing and able to care for [E] and keep her safe. As a result of this, the department will have no further involvement with your family at this time.
My assessment of you being a parent who is currently willing and able to ensure the safety, belonging and wellbeing of [E] is due to the following:
[Ms Ridley] has been open and engaging with the Department;
[Ms Ridley] has stated she is willing to engage with Services to help keep E safe;
[Ms Ridley] is stated she has family support to help her if she needs it;
A Domestic Violence Order is in place; and
[Ms Ridley] has been referred to the ‘Vulnerable persons’ unit.
The father was quick to respond to the purported investigation and considered the workers involved (in particular Ms F) had been “allowed to fabricate untrue, false accusations, then act on them with no proof or evidence”. The father was assured that the reports were not fabricated by staff but as a result of a properly conducted investigation.
The father declined to engage with DOCS in terms of their investigation.
The nature of the investigation undertaken by DOCS has at its’ core a purported interview between Ms F and Ms Ridley on 3 August 2016. By reference to documents provided in answer to the s 69ZW order, the following extract is a summary of the interview with the father’s wife:-
When asked about her relationship with [the father], [Ms Ridley] stated that it is “fine sometimes” and “sometimes really bad”. Stating that he can become controlling and verbally abusive at times, particularly on evenings when he is drinking following a day that they have had a disagreement.
When asked about their disagreements [Ms Ridley] stated that their recent argument was due to concerns with [the father’s] ex partner, who is also the mother of [the child]. These concerns were in the context of [Ms Ridley] purchasing herself a mothers day card, whom [the father] used to send to his ex-partner as well as purchasing her a “flashy pink USB drive”, further stating to the effect that she couldn’t understand why [the father] was purchasing a “nice flash USB that was pink rather than a normal one”. [Ms Ridley] stated “I was angry, but he thinks I am being stupid”.
[Ms Ridley] also discussed the context in which these disagreements occur and disclosed that this often happens in front of [the child]. She stated “The child Snr talk to me ‘I’ll spank you with the wooden spoon” and [Ms Ridley] stated that [the child] is mimicking his father and has started to treat [Ms Ridley] with the same level of disrespect. Further stating that “[the father] shouldn’t be teaching these things to someone who is six years old, you know?”
[Ms Ridley] further stated to Child Safety that [the father] will often yell “so many bad stuff”, such as “fuck”, “you are a bitch” etc. Further stating that she is so busy with the little one that this and the stress of the Domestic Violence have affected her capacity to produce milk; stating “the stress is affecting my milk”, “I don’t feel good on the inside, it’s heartbreaking”, “I’m his wife, but the way he speaks to me is like rubbish, you know?”
[Ms Ridley] stated that on one occasion approximately two months ago [the father] jumped on [Ms Ridley’s] stomach while she was pregnant with [E], whilst also grabbing her neck. [Ms Ridley] also disclosed that there was an incident of rape “a long time ago”.
When asked how does [Ms Ridley] stay safe, she responded with “I try to shut my mouth” and she has stated that there have been no further incidents of physical abuse. She also stated that she has a sister and brother-in-law who live in Australia, that she can contact in the case of an emergency. A Safety Plan was completed including this information. [Ms Ridley] also stated that [the father’s] parents are aware and his mother is supportive of her; with both parents recommending counselling for the couple.
Ms Ridley also complained that she is entirely reliant on the father for financial support and that during their relationship the father was controlling with money. She is not an Australian citizen, was reliant on Mr Ridley in terms of her Visa and at the time of the interview was not yet able to access Centrelink Benefits.
It would not appear to be in dispute that there was a high level of volatility between the father and his wife. A Protection Order was in place from February 2015 to February 2017.
The extent of police involvement with the family is highlighted by a warning flag placed on the police system in September 2013 in the following terms:-
OFFICER SAFETY – [the father] rang Policelink angry over his treatment by female officers from Suburb K Police Station. He threated to break their necks if he has any further dealings with them. …. He was very angry and aggressive over the phone. Has a hatred for female police officers. Suggest that two up female crews are not sent to any jobs involving [the father].
The father denied that there had ever been any threat to police or that he had a “hatred for female police officers”.
Given the provisions of s 69ZT of the Act and the obligation to admit into evidence any s 69ZW documents upon which the Court is to rely, the question of admissibility is not the issue but rather the reliability of the purported evidence and the weight that should be afforded to it.
I have no doubt that the physical documents are accurate, but there is significant concern as to the weight that can be afforded to their contents.
It is surprising that little or no apparent effort was made for Ms F or an appropriate police office from the Suburb K Police Station to give firsthand evidence of the matters that appear in the s 69ZW documents given the father’s clear denial of the matters raised by DOCS and relied upon by the mother.
Ms Ridley
It is reasonable to conclude that in terms of the principal allegations made by DOCS that the child was at risk in the father’s home by reason of ongoing and entrenched domestic violence, that the Court would be assisted by hearing direct evidence from the father’s wife. She is the purported victim.
The father and his wife are now separated.
The father has been steadfast in his refusal to assist the mother or the ICL to ascertain the whereabouts of Ms Ridley.
The importance of the father’s wife was raised on a number of occasions, but the notation and the orders made on 16 March 2018 underscore the assistance that the wife’s evidence would provide to the Court.
The notation to the order is premised on an assumption that the father knows the whereabouts of his wife and would be able to provide “sufficient details to the Independent Children’s Lawyer to serve her with a subpoena to give evidence to the Court”. Failure to produce knowledge of his wife’s whereabouts may lead the Court to draw adverse inference against him.
I am satisfied that without the assistance of the father it is unlikely that the mother or the ICL would have the resources to ascertain her whereabouts.
The father was challenged in his evidence about contact details for his wife and where she lived. At first, the father denied that he had any information that would assist in locating his wife’s whereabouts. He refused to answer questions on his knowledge of a telephone number or her address. There was some confirmation by him that he may have her email address, but it was certainly not with him in Court and maybe at her home. The father was asked whether he spent time with E. His first response was that he did and that he had seen his daughter six weeks earlier. The father realised that his admission would likely lead to the next question namely, how did he communicate with his wife to make the necessary arrangements. The father’s evidence then changed and he revised when he last saw E to some two or three months prior. He was uncertain as to the circumstances in which it occurred and he sought to create an impression that in some way he saw E either by accident at a supermarket or that there was some loose or vague arrangement which did not require him to know or have his wife’s contact details.
When further challenged, he agreed that he was in contact with his wife principally because he held a hope that they may reconcile their differences.
The father well understood the importance of evidence that his wife may give. It would serve either to corroborate the matters raised in the record of interview with her which were then part of the warning and advice to the mother, or it would potentially support the father’s contention that the record of interview and the allegations that he was the perpetrator of family violence were truly fabricated.
The father’s evidence was entirely unconvincing. He presented with an aggressive demeanour and purported to not understand why there was a focus on finding his wife. The father was an unimpressive witness and he refused to assist the Court in either calling his wife in order to support his case that there was no basis for concern by DOCS and therefore as a possible explanation for the mother’s relocation of the child, or to provide information that would enable the ICL or the mother to independently corroborate that which had been alleged.
I am left in no doubt that the father knows the whereabouts of his wife and is able to provide her contact details and address.
There is no suggestion that the wife would or would not be cooperative with the process. What was intended and clearly considered in the notation to the order was that a subpoena would be directed to her requiring her attendance.
The mother and the ICL argue that an adverse inference can be drawn from the failure by the father to call and adduce evidence from his wife or to intentionally obstruct efforts to ascertain her whereabouts.
In Kuhl v Zurich Financial Services Australia Ltd & Anor (2011) 243 CLR 361 Heydon, Crennan and Bell JJ said at [63]:-
The rule in Jones v Dunkel is that the unexplained failure by a party to call a witness may in appropriate circumstances support an inference that the uncalled evidence would not have assisted the party’s case. That is particularly so where it is the party which is the uncalled witness. The failure to call a witness may also permit the court to draw, with greater confidence, any inference unfavourable to the party that failed to call the witness, if that uncalled witness appears to be in a position to cast light on whether the inference should be drawn. …
(Footnotes omitted)
Accordingly, if I find that the father has elected not to call his wife who would be reasonably expected to give evidence of the extent to which family violence was a feature in their home, an adverse inference can be drawn where the failure to call the witness is without explanation. The inference is that if the wife was called her evidence would not have assisted the father’s case.
The father has made a positive assertion that there was no family violence involving his wife in his home that could in any way be a justification for the allegations made by DOCS and acted upon by the mother.
It is not a matter of the father having a differing version of the events in his household, but asserting that his home environment was and is safe for the child and E at all material times.
The proceedings involve parenting considerations that are to be determined according to the best interests of the child. It is not a criminal case but rather a civil case where each of the parties has an obligation to present evidence in support of their separate proposals. It is for the Court to decide which proposal or a reasonable variation would represent the best interests of the child.
It is argued that the father did not simply fail to call his wife but rather, took active steps to prevent the mother or the ICL from knowing her whereabouts thereby thwarting the clear intention of the ICL to cause a subpoena to issue requiring the father’s wife to attend Court and give evidence.
It is reasonable to find that if the father’s wife had been called, her evidence would not have assisted his case and in particular would not have supported his contention that his home was free of family violence.
Exhibit 5 in the proceedings is a copy of an application made 21 October 2016 by the father’s wife to vary a Domestic Violence Order made on 25 February 2015. The father does not deny the existence of the original order, nor the application to vary.
The request for variation was based on the following reasons:-
I need for my home to be a safe space for [E] and myself. I am happy to have contact with [the father] in regards to [E], however I would like this to be via email or text as during previous contact [the father] has been angry and I am fearful of this happening again. Mediation is being organised.
The wife further alleged that the father had made threats directed to her sister and brother-in-law and of recent date has resorted to directing abusive language to the wife.
She also sought that there be a temporary protection order for the following reasons:-
[the father] has been aggressive and abusive towards me during our relationship. The police were called when we were together resulting in a Police application DVO. I have moved to live with supportive family during this time. [the father] continues to call me and my family and messages with threats. [the father] has been drunk and angry and this has occurred in front of our baby. I am fearful of how [the father] will react when he receives a copy of this vary and therefore I need a temporary order to protect me until the vary has been finalised.
The wife expanded upon the father’s behaviour by referring to his excessive use of alcohol resulting in aggressive and abusive conduct towards the wife and daughter. She says that “he verbally, physically and mentally harasses me and also forces me for sex”. It is also alleged that the father threatened to take steps to cancel the wife’s Visa and take E from her.
During his cross examination the father denied the basis for any variation to the restraining order and accepted that after he had received the application for variation he filed his own application for a protection order (Exhibit 8).
By reference to his Affidavit sworn 27 October 2016 in support of the application, the father seeks that his wife’s application be struck out. He asserts that the claims of family violence by her are false, frivolous and vexatious. He considers that the purpose of the application is not to protect his wife but to put in place a barrier to him spending time with his daughter.
He contends that he has been the victim of family violence perpetrated by his wife and the police were called in 2014. He alleges that she:-
… was so ridiculously irrational and ‘going crazy’, abusing me for no reason, before police arrived she decided to self-harm with a nail file gouging her wrists and smashing her arm on the door architrave then she lied to uphold the fabricated evidence when I tried to contest it in court.
The father attests to his observation of his wife being mentally unstable, unable to control herself and he considers that she has some form of depression which perhaps is associated with the birth of their daughter.
He considers that his wife presented a risk to the child. So aggressive was her conduct and so persuasive was she with the police that the father considered that she may have used the police as a “tool to try and control me at all times that if I don’t do what she wants I constantly have the threat of police knocking on my door”.
His wife’s behaviour was such that the father sent an email to the Department of Immigration and Border Protection to suggest that his wife should be denied a Partner Visa.
What can be found is that even on the father’s version of events, his home environment was dysfunctional. His wife was mentally unstable and prone to outbursts of regular aggression. The fact that the conduct was such that it supported both an original protection order and a later variation of the order were not matters disclosed by the father during the period that followed the final orders. A more accurate picture of the state of the father’s home is as set out in his supporting affidavit at paragraphs 61 to 66:-
61. We met in May 2014.
62. We got married in …2014.
63. We had a marital argument in November 2014.
64.We did not request any protection orders or any need for court dates, which demonstrably turned into something not needed against me.
65.I have told [Ms Ridley] to leave 3 or 4 other times where she did because of her behaviour.
66.I have asked her countless other times for the same reason, where she didn’t go and wanted to keep the marriage as I do but there always seems that no alternative but to ask her to leave when she gets in the ‘fighting mode’.
It is reasonable to find that if the father’s wife had been called, at the very least she may have corroborated the father’s allegations about her conduct, or persuaded the Court that the father’s denial of his aggressive conduct cannot be accepted.
There was much that was occurring in the father’s home which should have been the subject of frank admission to the mother.
The father’s demeanour was aggressive and he was not prepared to make concessions even when it was in his interests to do so. When faced with his own affidavit setting out the level of dysfunction in his home during the relevant period, the father now endorsed his remarks but rather he considered them to be of little or no significance.
Family Consultant
Ms C (“the family consultant”) was instructed by the ICL to prepare family reports dated 23 April 2017 (“the first report”) and 10 February 2018 (“the second report”).
The first report was directed to the interim orders to be made pending trial.
The family consultant had the opportunity to consider the Court file, subpoenaed material in particular from DOCS and a consideration of the father’s relationship with his wife.
The mother represented to the family consultant that she did not oppose the child having a relationship with the father providing it was safe to do so. It is significant that she acknowledges the child loves his father and has been missing him.
The mother’s supportive attitude was reflected in the gradual increase of time that the child spent with the father leading to the 2014 orders which gave the father five nights a fortnight.
Consistent with her evidence, the mother became concerned as to the child’s safety in the father’s home following DOCS involvement from 2016.
It appears that DOCS were concerned with E’s safety (and that of the mother) shortly after her birth in 2016.
The allegation was that the father had kicked, yelled and hit his wife.
The family consultant recorded that he and his wife separated in September 2016 in circumstances where the father was experiencing significant stress. He told his wife to leave the premises and denied that there was any accuracy to the basis of a domestic violence order taken out by his wife. He said:-
A cop with no brains slapped one on me.
The family consultant considered that the father had downplayed the incident and had attempted to minimise the effect and impact of his conduct.
The mother denied that there was any collusion with DOCS as alleged by the father, but rather appeared genuine in struggling to reconcile her recognition that the child would benefit from seeing the father but that he presents as a risk to the child, particularly where the father appears incapable of accepting his aggressive conduct and the potential for deleterious effect on the child.
As anticipated, the observations of the child and the father were positive.
Her recommendation did not support the child being returned to Brisbane, but if the Court did not have concerns about domestic violence then the family consultant had “no hesitation in recommending that [the father and the child] spend time together”. Every second weekend was the preferred option.
The second report considered that there had been little change in either household. The mother continued to oppose any form of face to face contact although she was agreeable and had implemented telephone arrangements. The mother accepted the DOCS findings and the father’s behaviour towards her appears undiminished in terms of its vitriol. It is recorded that the father called the mother a criminal, a liar, a psychopath and a narcissist. He threatened that when the fabrication becomes clear she will go to jail.
Whilst the parties did attend mediation the father refused to consider any outcome other than a resumption of his time pursuant to the final orders.
The father continued to refuse to allow his wife to be interviewed and acknowledged to the family consultant his “apparent understanding that she is the only one who can shed further light on what did or didn’t happen”.
It is important to record that the father has been steadfast in his denial of domestic violence either, with the mother and most certainly with his wife. He considered that it was not reasonable for the mother to believe the allegations of family violence in the father’s home involving his wife had occurred.
The child was eight at the time of interview. The family consultant records that the child was warm, engaging and confident. He was responsive to social cues and properly orientated and well-mannered.
He frankly admitted that he had been missing his father and was keen to ring him from time to time.
The extent to which the child may have been adversely impacted by the domestic violence in the father’s home is informed by reference to [37] of the report:-
He thinks that he has not been able to see Dad because he ‘has been a good and bad father.’ The good part is that he keeps him all nice and healthy and he does everything for him. The bad part is that he is nasty sometimes and slaps him. He gets the wooden spoon out when [Ms Ridley] does something and he chucks it at her, and he pushes her onto the wall and says something to her. I asked whether he had actually seen Dad do this and he confirmed that he did. He said that [Ms Ridley]was not crying; she was just being normal. He doesn’t know whether [Ms Ridley] used to get scared of Dad. He said that he didn’t get scared of Dad. He went on, ‘I liked watching the fights, pretty much.’ He giggled as he said this.
The difficulty that is created by the benefit that may flow to the child of having a relationship with his father and the need that he be protected from family violence is highlighted by the observations of the family consultant at [39]:-
When I brought [the father] into the room, he scooped [the child] up into his arms and started crying silently with overwhelming emotion. I was unable to interpret [the child’s] response, but I suspect that it was more surprise than anything. I anticipate that he is not used to being picked up anymore. He didn’t actually reciprocate the hug, but he didn’t seem uncomfortable either.
The family consultant observed the father and child to chat easily and happy together. There was mutual pleasure expressed by each of them.
The family consultant considered that there was a warm and loving relationship between the father and the child and whilst he misses his father he does not pine for him, but he does want him to be a part of his life.
The difficulty arises from the uncompromising position that the father adopts in that he refuses to accept any outcome other than a return to the provisions of the 2014 final orders.
PRINCIPLES APPLICABLE TO RELOCATION CASES
The mother’s counsel and counsel for the ICL referred to the applicable legal principles that I had set out in the decision of Benson & Drury [2017] FamCA 578. I do not propose to make further comment other than to repeat the consideration of the Full Court in Zahawi & Rayne [2016] FamCAFC 90 as follows:-
[47]All applications for parenting orders before the court involve a situation that, axiomatically, is not in the children’s best interests. What is best for children is that their parents co-parent by agreement and without conflict and as selflessly as circumstances reasonably allow. When parents are unable to agree, the parents’ proposals embraced in competing applications involve, again axiomatically, advantages and disadvantages for the children, each and all of which have ramifications for the children’s best interests. Concomitantly, Gummow and Callinan JJ said in U v U:
…The reality is that maternity and paternity always have an impact upon the wishes and mobility of parents: obligations both legal and moral, the latter sometimes lasting a lifetime, restrictive of personal choice and movement have been incurred.[1]
[48]“Relocation cases” are no different from other applications for parenting orders in that respect. Like all applications for parenting orders, an application to have the children live with a parent significant geographically remote from the other parent is to be determined by the children’s best interests. However, the issues in a “relocation case” are, by reason of the proposed geographical separation of parents from their children, often significantly more acute and all the more so in cases of proposed international relocation.[2] And, of course, that same factor will usually render more acute the burden or burdens to be borne by one parent or the other including restrictions on their freedoms.
[1]U v U (2002) 211 CLR 238 at [92].
[2]See, for example, the comments of Kirby J in AMS v AIF (1999) 199 CLR 160 at [77]-[78].
PRINCIPLES RELEVANT TO PARENTING ORDERS
The parties are not in agreement as to parental responsibility. The mother considers that she should have sole parental responsibility given that the geographical distance between the parties would potentially present significant difficulty given the father’s stated unwillingness to involve himself with the child whilst he remains in B Town.
There is also a significant history of family violence between the parties, although it must be acknowledged that the final orders in 2014 provided for the parties to have equal shared parental responsibility.
It is self-evident that what little relationship existed between the parties has now been extinguished. The father is deeply mistrustful of the mother and she considers the father to present a risk to the child and capable of precipitous and aggressive conduct. She accepts the allegations of the father’s wife that the father is aggressive and controlling in his interaction both with the mother and with his wife.
Section 60CA of the Act requires that I have the best interests of the child as the paramount consideration. The best interests of the child are to be considered by the application of the objects of s 60B(1).
I am cognisant of the primary considerations and additional considerations in respect of the matters set out in s 60CC(2) and (3).
I am mindful of the directions contained in s 60CC(2A) and whilst I have regard to the allegations of the mother that during the relationship the father was a perpetrator of family violence towards his wife and the child, I do not approach the issue of family violence as a consideration of whether the father presents as an unacceptable risk. The mother relies upon her concerns with respect to family violence as a basis for her contention that the relationship between the parties is so fractured and infected by mutual mistrust that shared parental responsibility is likely to be problematic and adverse to the child’s interests.
I propose to adopt the following approach:-
(1)Give consideration to the proposals put forward by each of the parties as they are identified and presented to the Court.
(2)Have regard to the objects expressed in s 60B(1) and underlying principles in s 60B(2).
(3)Have regard to the provisions of s 60CC in order to determine in each case what is in the child’s best interests.
(4)Have regard to the primary considerations under s 60CC namely, the benefit of the child having a meaningful relationship with both of the child’s parents and the need to protect the child from physical or psychological harm.
(5)Have regard to additional considerations under s 60CC(3).
(6)The evidence adduced by each of the parties in respect of the particular considerations pursuant to s 60CC(2) and (3) is to be considered and if more weight is to be given to one or more of the matters raised then this must be the subject of delineation and comment.
Section 61DA requires the Court to consider whether to apply the presumption of equal shared parental responsibility by having regard to the matters as set out in s 61DA (if relevant) would rebut the presumption.
In that respect the provisions of s 61DA(2) are relevant:-
The presumption does not apply if there are reasonable grounds to believe that a parent of a child (or a person who lives with a parent of a child) has engaged in:
(a)abuse of the child or another child who, at the time, was a member of the parents’ family (or that other person’s family); or
(b)family violence.
The presumption may also be rebutted if there is evidence that will satisfy the Court that it is not in the best interests of a child for the parties to have equal shared parental responsibility.
Even if the provisions of s 65DAA do not apply because the presumption of equal shared parental responsibility is rebutted, nonetheless the separate proposals of the parties and the orders that each of them seek would in any event require a consideration as to whether they are reasonably practicable.
PARENTING CONSIDERATIONS
Meaningful relationship
The mother recognises that the child is keen to have a relationship with his father. The observations of the family consultant was corroborative of warm interaction. Notwithstanding that there has been substantial disruption to the relationship caused by the mother changing the child’s place of residence to B Town, on each of the two occasions that the child and father came into contact for the purpose of the family assessment, the child and father still appeared to be strongly bonded.
The child’s presentation had altered subtly from the first to the second report consistent with the child having settled into the new environment in B Town. He missed his father and was keen to spend time with him and see him again, but not to the degree that the family consultant considered was consistent with a desire or wish expressed to return to Brisbane.
It appeared from the observations of the family consultant that the child was now well settled and had developed significant involvement and engagement in the local community, including the mother’s extensive indigenous connections and culture.
There is little doubt that orders should provide for the opportunity for the child to spend time with the father. It is important to maintain a meaningful relationship.
In Sigley & Evor [2011] FamCAFC 22 the Full Court undertook a review of the authorities with a view to defining “meaningful relationship” and in doing so considered at [136] the observations of the Full Court in Champness & Hanson (2009) FLC 93-407 at 83,502:-
[103]The submissions of counsel for the father also appeared at times to be based on an assumption that it was obligatory for the trial Judge to make the orders most likely to ensure the children had a “meaningful relationship” with both parents. This is an incorrect assumption. The Court’s obligation is to make the orders most likely to promote the child’s best interests. In seeking to achieve that objective, s 60CC(2)(a) directs the Court to consider “the benefit to the child” of having a meaningful relationship with both parents. Even if such a benefit is established it must still be weighed along with all other relevant submissions…
As discussed, a complicating factor is the father’s strong resistance to any order that does not involve the child returning to Brisbane and a resumption of the 2014 final orders.
Do either party pose a risk to the child?
The father would argue that the mother did not act protectively of the child in deciding to unilaterally change his residence from Brisbane to B Town, but rather, did so with the clear knowledge that it would fundamentally disrupt the father’s relationship with the child. In that sense the mother poses a risk to the child by manufacturing a circumstance where the close relationship that the child had with the father could not flourish. There is something in the father’s contention.
I have found that considerable uncertainty remains over the circumstances in the father’s home at the time of the DOCS intervention and investigation. The failure of the father to call his wife and the finding that he has been deliberately obstructive in terms of any reasonable efforts to ascertain her whereabouts strongly suggests that if she was called her evidence would be unlikely to support the father’s case. His case involves not only an assertion to DOCS and this Court that there was no family violence in his home perpetrated by him, but also the purported basis to his own application for a protection order against his wife alleging that she was the perpetrator of ongoing family violence.
It must be remembered that it is not a matter for the Court to make a positive finding that the father was the perpetrator of family violence in relation to any particular incident or multiplicity of incidents. The question of risk arises from a reasonable consideration of the evidence, but stopping short of the need to make a finding that something occurred on a particular date or occasion.
I am satisfied that there was serious and entrenched family violence in the father’s home from the commencement of the father’s relationship with his wife in 2014 until their separation in 2016. The father did not disclose that his home had become unsafe for the child whether by his own conduct or that alleged by him in respect of his wife.
I find that whilst the mother was entitled to be concerned about the information provided to her by DOCS following their investigation, it did not justify the mother’s action in relocating to B Town. Her conduct was precipitous although she was entitled to feel unsettled by the father’s refusal to engage with DOCS and the confrontational tone of his communication with the mother.
Child’s views
The views of the child have not been clearly ascertained other than the family consultant was satisfied that the child both loves and misses his father. The mother acknowledges the level of connection and it is an important observation that the family consultant records the mother’s positive conduct with the child in order to prepare him to see his father after a significant absence.
The mother encouraged the child to write a note to the father that he had been missing him and the sentiment was appropriately received by the father.
Parties’ ability to communicate with each other
The parties have little or no ability to communicate with each other at a civil level. The father’s correspondence has been threatening. The mother does not wish to engage with the father. However, it appears that she continues to encourage the child’s relationship with the father even though she considers him to have an aggressive demeanour.
The parties however are able to engage in electronic communication. There would appear to be no difficulty as to the mother being prepared to provide information to the father in a civil and appropriate fashion, whereas the father is fixed in his view that the mother has abducted the child and accordingly he is not prepared to make any concession whilst the child remains living in B Town.
Effect of any change on the child’s circumstances
The family consultant recognised that a fundamental difficulty in attempting to maintain a relationship between the father and the child is the child’s continued residence in B Town.
The mother has now lived in B Town with the child for a period approaching two years. She is well settled. She has employment and has engaged in a course of study. The child is attending school and is developing appropriately.
Whilst the child misses his father he does not pine for him or that he returns to Brisbane and the father’s home.
The father pays child support at a minimal level and it could not be assumed that he is either able to or would willingly financially assist the mother in a relocation back to Brisbane.
The mother also has the advantage of close family and cultural connection.
The 2014 final orders are not capable of implementation with the parties remaining geographically distant. It should not however be assumed (as the father does) that the only outcome is a lifting of the suspension of the final orders.
The Court has determined that there has been a material change in circumstances and it is necessary to consider the current proposals of the parties and whether they are in the best interests of the child.
The mother has chosen to live in B Town with the child for reasons that are able to be understood. As was observed in the first report by the family consultant at [110]:-
[The mother] conveys that she found it almost impossible to communicate with [the father] because of his ongoing threats and degrading comments. She says that [the child’s] behaviour was difficult at the point of transition between the two households. She says that [the child] referred at times to his father’s anger directed both at him and [Ms Ridley]. She felt that the issues pertaining to [the child] were most likely of a minor disciplinary nature. There was nothing she could do about concerns on [Ms Ridley]’s behalf.
And at [115]:
It was predictable that [the father] would object strenuously to his contact being suspended. While knowing that there was a Family Court Order in place allowing for [the child] to see his Dad for five nights per fortnight, DOCS did not take any legal action to assist [the mother]. In other words, they left her to her own devices. Along with ensuring her child’s safety, she was left in the invidious position of needing to navigate compliance with their instruction and non-compliance with a Court Order.
The mother proposes that she return to Brisbane with the child on one occasion each year to enable time to be spent. The father rejects that proposal. The father will not contemplate any proposal or outcome other than that as provided in the final orders of 2014.
The father may argue that it is not practicable for there to be a meaningful relationship with the child given the distance between the parties. There may be some strength to that argument if it was apparent that the mother was prepared to thwart any reasonable proposal for the child to spend time with the father. That is not the mother’s position. She is prepared to promote some time and was amenable to any reasonable proposal short of her having to relocate back to Brisbane which she now says is fraught with difficulty.
To do so would unnecessarily disrupt the child’s settled circumstances.
The issue of practicability cannot be visited on the mother if the father’s refusal to contemplate any other outcome than his own is maintained.
FAMILY VIOLENCE
I do not overlook the very real issue of family violence. The issue of family violence was considered by the Full Court in Sawant & Karanth [2014] FamCAFC 235 where the Full Court said at [37]:-
In Amador itself this Court referred to the fact that the trial Federal Magistrate had held that she was “… unable to make a finding that the father perpetrated the specific acts of violence alleged by the mother upon her …”. Their Honours considered at some length what was said by the High Court in M v M (1988) 166 CLR 69 (a case involving serious allegations of a different type – child sexual abuse) and, having done so, said:
87.The above passage from the High Court is sometimes quoted to support an argument that it is unnecessary for a trial judge to make positive findings in relation to allegations, inter partes, of assault and other serious matters of domestic violence. Consequently the Court is urged not to allow any exploration of any such allegation. A close reading of the decision makes it apparent that is not what fell from the High Court.
88.It is clear from the decision of the Fill Court in A v A (1998) FLC 92-800 that, in appropriate cases, it may be important to make findings of this nature if they are available and necessary to determine what is in the best interests of the child. It is important to note that A v A was note a case where allegations of abuse of children was made. The allegation was that the father had attempted to murder the mother. …
As the Full Court said in Amador & Amador [2009] FamCAFC 196 at [79]:-
… Where domestic violence occurs in a family it frequently occurs in circumstances where there are no witnesses other than the parties to the marriage, and possibly their children. We cannot accept that a court could never make a positive finding that such violence occurred without there being corroborative evidence from a third party or a document or an admission…
In 2013 the Honourable Justice Strickland delivered a paper at the Association of Family and Conciliation Courts 50th Annual Conference entitled “A Judicial Perspective on the Australian Family Violence Reforms 12 Months On”. The paper discussed whether and to what extent the substantive reforms made to the Family Law Act in relation to family violence were achieving their objectives. His Honour considered that family violence reforms should properly be reflective of community standards, have assisted in raising awareness about the nature and effect of family violence, and are arguable contributing to an increase in protective measures such as injunctions and supervision of time spent orders with a parent. The following appears at pages 78 - 79 of the paper:-
It continues to be the case that family violence is an important factor, and needs to be accorded appropriate weight, but it is only one of a myriad of issues that often arise in parenting proceedings. Thus, even in a post-reform environment, family violence is not always determinative of the outcome, whether that be the application of the presumption of equal shared parental responsibility, the allocation of time a child spends with each parent, or the conditions that are or might be imposed on a child spending time with a parent.
However, despite this, these decisions strongly indicate that where allegations of family violence are raised, the seriousness of the allegations, even where they are unable to be tested at an interim stage, will significantly influence the outcome. These include orders about the allocation of parental responsibility (including whether or not to make an order at all), whether an order for equal time or substantial and significant time is appropriate, and whether and by whom any time spent with a parent should be supervised. The case law is also suggestive of judicial officers giving consideration to whether and what type of action parents took to protect their children in response to the allegations of abuse, violence or exposure to violence as a material factor in what orders they should make…
The mother has been significantly affected by the father’s conduct. The father’s refusal to cooperate with the DOCS investigation while maintaining that there was no substance to the allegations made by his wife that the father had perpetrated family violence does him no credit.
I have discussed the extent to which an adverse inference can be drawn from the father’s trenchant refusal to assist the ICL in making contact with his wife in order to provide either corroboration for his case or support for the intervention by DOCS and their advice to the mother that prompted her decision to move with the child to B Town.
The father must acknowledge that whatever version of events is correct, the environment in his home was redolent with aggression.
I find that the father perpetrated significant family violence towards his wife and whilst uncertain the extent to which the child had been subjected to aggressive conduct by the father, I am satisfied on the balance of probabilities that the child observed distressing and traumatic conduct by his father.
His report to the family consultant that he thought the fights between the father and the wife to be fun represents objective evidence of the damage that can be occasioned to a child by being exposed to ongoing family violence. It is difficult to imagine a circumstance where a child could find humour in heated, aggressive and highly conflicted interaction between his father and then step-mother.
The refusal of the father to admit his aggression and take steps to gain some better insight as to how his conduct impacts upon those around him does not assist his case in promoting the benefits of the child having a sustained and ongoing relationship with him.
Whilst there is little doubt that the child loves his father and wants to spend time with him, that must be tempered by the inability of the father to understand the damage that was self-evident in the child’s presentation from having observed the displays of violence by his father.
PARENTAL RESPONSIBILITY
As discussed, the presumption does not apply if there are reasonable grounds to believe that a person has engaged in family violence. The father clearly has. It has a serious and deleterious effect on the child, the mother and the wife.
The father’s presentation is further complicated by the uncertainty as to whether he will reconcile with his wife, whether he maintains that she presents with an aggressive disposition and in any event the extent to which the father spends time with E and may be able to foster a relationship with the child.
In the circumstances of this case it is not reasonable to require the parties to confer as to major issues affecting the child. By reference to the primary and additional factors in s 60CC of the Act I do not consider it would be in the best interests of the child for there to be an order of equal shared parental responsibility.
I consider that the mother should have sole parental responsibility but there should be a requirement that as soon as is reasonable the father should be informed of decisions made for the child.
CONCLUSION
In all the circumstances, I consider that the child should be permitted to remain with the mother in B Town and not be required to return to Brisbane.
There is a level of unreality in the way in which the father considers his circumstances. He is strongly promoting the return to what he considers to be the status quo. He wants the child to return to Brisbane and resume his time pursuant to the final orders. He ignores that his circumstances have changed. He is separated from his wife. I have little doubt that she was an integral part of the child’s care when in the father’s home.
The mother continues to allege that the father’s conduct is overtly aggressive. The father refuses to make full and frank disclosure of his personal circumstances and he seeks to shroud himself in mystery as to his current and future plans.
The father was given ample opportunity to call his wife with the Court thereby being assisted as to whether the father’s assertion that DOCS (and the mother) had concocted the allegations.
The father’s proposal is not practicable. The mother has no financial ability to return to Brisbane, nor is there any assistance forthcoming from the father.
The child is settled and I also find that the child’s connection with the mother’s family and his indigenous heritage and culture is to his significant benefit.
The mother has offered to return to Brisbane on one occasion in each year for the father to spend time with the child, but that proposal has been rejected by the father.
Notwithstanding the father’s opposition, I consider it reasonable that the mother be required to travel with the child back to Brisbane for three extended periods per year to coincide with school holidays providing that the father gives 28 days’ notice of his intention to spend time with the child and contributes to one half of the child’s airfare.
Given the observations of the family consultant, it does not seem that there is any basis for the father’s time to be the subject of supervision.
I make orders as appear at the commencement of these reasons.
I certify that the preceding two hundred and ten (210) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Berman delivered on 26 April 2018.
Associate:
Date: 26 April 2018
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