RAYMOND & OSWALD

FAMILY COURT OF AUSTRALIA

RAYMOND & OSWALD

[2014] FamCA 1185

FAMILY LAW – CHILDREN – Family Violence – Best Interests – Where the mother suffers from mental health difficulties – where the father has been diagnosed with terminal cancer – where the father’s health presents no immediate impediment to his care of the child – Order that the child live with the father and spend time with the mother – Order that the parents have equal shared parental responsibility for the child – Order that the child live with the mother in the event of the father’s death.

Family Law Act 1975 (Cth)

APPLICANT:

Mr Raymond

RESPONDENT:

Ms Oswald

INDEPENDENT CHILDREN’S LAWYER:

Lyrene Wiid

FILE NUMBER:

BRC

7291

2011

DATE DELIVERED:

24 December 2014

PLACE DELIVERED:

Brisbane

PLACE HEARD:

Brisbane

JUDGMENT OF:

Forrest J

HEARING DATE:

2, 3, 4 & 18 October 2013

REPRESENTATION

FOR THE APPLICANT:

The Applicant in person

COUNSEL FOR THE RESPONDENT:

Ms Downes of Counsel

SOLICITOR FOR THE RESPONDENT:

Michael Hefford Solicitors

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER:

Ms Lyons of Counsel

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER:

Lyrene Wiid Lawyer & Migration Agent

Orders

That all previous parenting Orders save for the one made on 12 December 2014 be discharged.
That the Father and the Mother have equal shared parental responsibility for the child, J, born … 2008 (“the child”).
That the child shall live with the Father.
That the child shall spend time with the Mother each alternate weekend during the school term from after school on Friday to 5:00 pm on Sunday with the child to be collected by the Mother from her school on those Friday afternoons and delivered back to the Father at H Contact Centre on the Sunday afternoon or the Monday afternoon if the Monday is a holiday or pupil free day.
That the child shall also spend time with the Mother for half of all of her school holidays, being the first half of those holidays in even numbered years and the second half of those holidays in odd numbered years.
That for the purposes of the parents working out how to share the holidays pursuant to these Orders, the holidays shall be deemed to start at midnight at the end of the day that school breaks up and finish at midnight on the night before the child actually is expected to go back to school.
That when the child spends time with the Mother for the first half of the holidays, that time is to commence after school on the child’s last day at school with the child to be collected by the Mother from the child’s school and that time is to end at 5:00 pm on the day which marks the half-way point in the holidays calculated pursuant to paragraph (6) hereof, be the exact half-way point at midday that day or midnight later that day, with the child to be returned to the Father at H Contact Centre at the end of that time.
That when the child spends time with the Mother for the second half of the holidays, that time is to commence at 9:00 am on the day which marks the half-way point in the holidays calculated pursuant to paragraph (6) hereof, be the exact half-way point at midday that day or midnight later that day and that time is to end at 5:00 pm on the day before the child actually is expected to go back to school, with the child to be returned to the Father at H Contact Centre at the end of that time .
That the alternate weekends the child spends with the Mother during school terms shall commence on the first weekend of each school term in even numbered years and the second week of school term in odd numbered years.
That the child shall also spend time with the Mother every year on the weekend that Mother’s Day falls, whether that weekend would have been an alternate weekend on which she otherwise spent time with the Mother or not, with collection and return being exactly as on the other weekends she spends time with the Mother pursuant to these Orders and the alternate weekend schedule of spending time with the Mother is not otherwise to be interrupted.
That the child shall not spend time with the Mother on the weekend that Father’s Day falls on each year, whether that weekend would have been an alternate weekend on which she otherwise spent time with the Mother or not, and the alternate weekend schedule of spending time with the Mother is not otherwise to be interrupted or changed.
That whichever parent does not have the child in his or her care on the child’s birthday each year, on Christmas Day each year and on Easter Sunday each year is entitled to telephone the child on such days and speak with her for up to 15 minutes.
That if the child is not with a parent on that parent’s birthday that parent is entitled to telephone the child on such days and speak with her for up to 15 minutes.
That if the child is not with the Mother on any of the birthdays of her brothers and sister, the Mother is entitled to telephone the child on such days and speak with her for up to 15 minutes to facilitate her speaking with her siblings during such calls as well.
That otherwise, when the child is living with the Father, the Mother is entitled to telephone on Tuesday and Thursday nights and on the Sunday night of the weekend that she does not spend time with the Mother, between 6:00 pm and 7:00 pm and speak with the child for up to 15 minutes each time.
That otherwise, when the child is spending holiday time with the Mother, the Father is entitled to telephone on Tuesday, Thursday and Sunday nights between 6:00 pm and 7:00 pm and speak with the child for up to 15 minutes each time.
That the parent who is caring for the child at the time a telephone call is due to come through from the other parent shall ensure that the child is available to take the telephone call, is encouraged to speak with the calling parent and is given privacy for the conversation with the other parent and shall return any missed call and allow the child to speak with the other parent for up to 15 minutes.
That each parent shall notify the other parent in advance if he or she intends to take the child away from her usual place of residence for more than three days at a time and he or she shall provide the other parent with the details of where he or she will be taking the child and a contact telephone number at which he or she may be contacted during the proposed days away.
That each parent shall keep the other parent informed at all times as to his or her residential address and any mobile telephone number, landline telephone number and email address the parent has from time to time and each parent will notify the other parent in writing immediately if there is any change to any of those details.
That the Father shall ensure that the child continues to engage with a psychologist as long as the psychologist or child’s treating general medical practitioner considers it necessary.
That during the time that the child is in the care of each parent, that parent shall:
(i)Respect the privacy of the other parent and not question the child about the personal life of the other parent;
(ii)Speak of the other parent respectfully to and within hearing of the child;
(iii)Not denigrate or insult the other parent to or within hearing of the child and use his and her best endeavours to ensure that no other person denigrates or insults the other parent to or within hearing of the child.
That each parent shall advise the other parent of any significant change in his or her personal circumstances which has or might have a significant effect on the child’s well-being, and, in particular:
(i)The Father shall provide the Mother with a short-form report from his treating medical specialist/s as to his current state of health on a monthly basis; and
(ii)The Mother shall inform the Father immediately if she separates from her current partner and, if she does, she shall then inform the Father immediately if she commences another relationship.
That the Mother shall continue to engage with a general medical practitioner and mental health professionals as recommended by her general medical practitioner and any such mental health professionals that she attends upon, and shall follow all treatment plans and medical prescriptions as directed by such professionals.
That the Mother shall not leave the child alone with her maternal step-grandfather, Mr F, at any time.
That the parents shall use a communication book, to be provided by the Father, for the purposes of communicating important and relevant information relating to the child and that book shall travel with the child between the parents and only in the case of necessity should the parents contact each other otherwise by telephone, text message or email.
That each parent shall advise the other parent of any medical emergency or significant development in the child’s health experienced whilst in that parent’s care and shall provide the other parent of the name and contact details of any medical professional the child attends upon, and authorise any such medical professional to provide the other parent with any information that he or she can be lawfully required to provide a parent of a child patient, as the other parent might request.
That each of the Mother and the Father shall not use any unlawful drugs or be under the influence of any unlawful drugs whilst caring for or communicating with the child.
That each of the Mother and the Father shall not bring the child into presence of any other person known by him or her to be under the influence of any unlawful drugs.
That each of the Mother and the Father is restrained from physically disciplining the child at any time or permitting any third person from physically disciplining the child and each shall use his and her best endeavours to ensure that no third person physically disciplines the child.
That the Mother is entitled to attend at and communicate with the child’s school as and when is permitted and welcomed by the administration of that school.
That in the event of the death of the father during the child’s minority, the child shall live thereafter with the Mother.
That the Independent Children’s Lawyer shall provide a copy of this judgment to the Department of Communities, Child Safety and Disability Services and then is discharged.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Raymond & Oswald has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

FAMILY COURT OF AUSTRALIA AT BRISBANE

FILE NUMBER: BRC 7291 of 2011

Mr Raymond

Applicant

And

Ms Oswald

Respondent

REASONS FOR JUDGMENT

Mr Raymond (“the father”) and Ms Oswald (“the mother”), the parents of the child J (“the child”), who is almost seven years old, have been unable to agree on parenting arrangements for their little girl.
When I heard this trial, their parenting dispute was complicated by the fact that the father lives in Town X on the coast of south-east Queensland and the mother was living about an hour’s drive out of Town Z, a small town in the Darling Downs region, six to seven hours drive away from Town X. At that time, the Court was told that neither parent was prepared to move to live closer to the other. Accordingly, it appeared that the parenting arrangements that were to be put in place for the child had to be put in place around that circumstance.
The parenting dispute has been further complicated by the fact that the father has cancer – bowel cancer that has metastasised into other parts of his body. The father bravely accepts the advice of his treating medical specialists that his illness is terminal and will lead to his eventual death. Of course, not even the doctors can predict when that might be. The father proudly points out that in 2009, when he was first diagnosed with the illness, he was told he probably only had about two years to live. He has certainly proven that prediction wrong.
The trial in this matter took place in early October last year. The father, despite his illness, appeared without legal representation. He was well enough to do that.
At that time, pursuant to a parenting Order of a Judge of the Federal Circuit Court made 6 May 2013, the child (then five years old) was living with the father in Town X and having supervised time with the mother at a children’s contact centre in Town H (just near Town X) for only two hours each alternate weekend. At the end of the trial, I ordered, by way of interim variation to that Order, that the child start spending longer periods of unsupervised time with her mother on each alternate weekend, progressing quickly to each alternate weekend from Saturday morning until Sunday afternoon.
My judgment has been reserved since the trial. That is regrettable but is a direct result of the responsibility for hearing and determining so many other matters in this Court in the period since the trial in this matter. Due to that long period during which my judgment has been reserved I listed the matter for mention again on Tuesday, 18 November 2014, to seek an update as to the father’s current state of health and the progress of the arrangements that had been in place for the child to spend regular time with her mother since the trial.
At that mention, the Court was informed that the father’s health remains relatively unchanged since the trial and, therefore, presents no immediate impediment to him continuing to care for the child on a day to day basis. The Court was also informed that the mother, her partner and their blended family have moved from the Town Z area since the trial and now live in Town B, which is around one and a half hour’s drive from Town X where the father and child live – a significant and positive change in the circumstances from those that existed at the time of the trial.
Furthermore, since that further mention, the mother and the father were able to agree on terms of further Orders being made by consent that provided for the child to spend time with her mother during the school holidays from Saturday, 13 December 2014 to Thursday, 1 January 2015, another positive sign.
Having considered all of the evidence that I had before me at the trial, and having been informed of the developments since the trial, I have determined to make a final parenting Order that leaves the child living with her father in Town X and spending time regularly with her mother on alternate weekends during the school term and for longer periods of time in school holidays. Parental responsibility for the child will be conferred on each parent on an equal shared basis. I will also order the father to keep the mother informed as to developments in his health, by providing her with a brief report as to his current state of health from his treating doctors every month.
These are my reasons for determining to make the parenting Order that I do.

Some History

The father was born and grew up in New Zealand. He undertook his schooling and trade training as a skilled tradesman in that country before moving to Australia at the age of 27 where he worked as a skilled tradesman in the construction and mining industries.
The mother and the father met over 11 years ago, and up until their separation in 2009, they had a volatile, “on-again off-again” relationship. Their initial relationship lasted approximately 18 months before they had a separation of approximately two years. The father attributes that separation to the mother’s marijuana use.
In addition to the subject child, the father has two children from a previous relationship, a son who is now a young adult and a second son with whom the father has no contact.
The mother also has three other children, two boys now aged nine and seven years and a baby girl born of her current relationship only a month or so before the trial in 2013.
It was when the mother was pregnant with her second son that the mother and father reunited after their initial period of separation. They resumed their relationship for approximately four years at that time before their final separation in 2009.
There were allegations of domestic violence in the relationship, and while the mother asserts the father was the perpetrator of this domestic violence, I am satisfied on the evidence, that each of the mother and the father perpetrated violence against the other at times. In making the finding, I find that the mother did not just respond to violence from the father with violence, but rather that, on occasions, she initiated the violence. Violence of any sort, particularly intimate partner violence, is abhorrent and not to be condoned, minimised or excused. In this case, I consider it sufficient to observe that I do not find that the father is excluded from being given principal responsibility for caring for his daughter because of any violence he perpetrated against the mother during their relationship.
After their final separation in 2009, the father travelled to New Zealand for a holiday. It was there he was diagnosed with bowel cancer. He remained in New Zealand for 18 months at that time, obtaining treatment for his illness. During this time there was a period of approximately six months during which he had no contact with the parties’ daughter who was in Australia.
After his return to Australia, the father sought out more contact with his daughter and, in June 2011, he and the mother entered into a Parenting Plan. Pursuant to that plan, at the mother’s insistence, the child was to spend time with the father supervised at a Children’s Contact Centre on the outskirts of Brisbane. The father commenced spending that time with the child at the Contact Centre but within a matter of a couple of months that contact was unilaterally stopped by the mother.
The circumstances in which the mother stopped that contact are extremely controversial. In her evidence, she alleges that she did that because the child, then three and a half years old, disclosed to her that her father touched her “noo noo” (said to be the child’s pet name for her genitals) during one of the supervised sessions at the contact centre. The father denies doing so, exasperatingly pointing out that he was totally supervised at all times at those sessions and not even allowed to take her to the toilet during those times.
Collateral documentary evidence adduced at trial by the ICL supports findings that the father did not sexually abuse the child at his supervised contact visits, that the mother was going through significant turmoil of her own in her life at the time, that allegations of sexual abuse of the child and her siblings by other adults involved in the mother’s life emerged at around that time and that the mother simply unilaterally moved away from Brisbane to live near Town T where her grandmother lives and that the unilateral decision to stop the child seeing her father at the contact centre was ill motivated and lacked bona fides. I am satisfied that the allegation, later made, that the child disclosed that her father had touched her “noo noo” was false and made in bad faith to further the mother’s case that the child should not spend any time with the father.
Contact Centre records in evidence record the child’s first supervised visit with her father to be 30 June 2011. The record has a note under the heading “comment” that the visit was “fine”.
Records from the child care centre and pre-school that the child was attending at that time, reflect the child’s kindergarten teacher on 6 July 2011 recording observations of sexualised behaviour of the child and that “she does this every day at rest time”. On my reading of the note, I consider it carries the inference that the observed behaviour had been going on for quite some time, not just since 30 June 2011. Further, a record dated 5 July 2011 reflects an observation from the child’s kindergarten teacher that the mother “seemed like she was under the influence of Alchol [sic] or drugs. As her eye could hardly stay open, speak [sic] didn’t seem to come out properly.”

Another record of that pre-school, dated 17 August 2011, reflects the mother telling the teacher that she had split up with her partner (not the father or her current partner, but another man) and that she would have to be out of her house in four days and was going to go back home with her “mum” (actually her maternal grandmother who raised her and who she regards as her mother). The note also records the mother telling the teacher that the child had commented that her partner’s son “has touched her down there”.
Departmental records reflect a child protection notification received on Monday, 5 August 2011 notifying that the child had been sexually abused by the mother’s step-grandfather. The same notification also recorded the notifier reporting that the mother had called the notifier and advised that one of her sons and the subject child had been sexually abused by their next door neighbour in the suburb in which they lived and that the mother was looking for new accommodation.
Departmental records reflect another child protection notification received on 16 August 2011 in which the notifier informs that the mother and her three children were at a friend’s house when the mother and the friend saw the subject child playing with her genitals. The mother is reported to have said to the friend that she was aware of her two sons playing with the subject child’s genitals and licking her there and that the mother had been trying to stop this. The friend is reported to have received disclosures from the child that her step-father (presumably the mother’s then partner), the next door neighbour and her brother “lick her down there and touch her down there.” The report had the child then repeating her disclosures to her mother and saying that it had happened “yesterday, in the truck out the front”. It also had the mother then confirming to the friend that she had caught her sons licking the subject child’s genitalia before. The friend is reported to have said that she would report this to the Department if the mother did not and the mother is reported to have said “even if (her partner) has done it, I won’t be able to move in with him, but I’d still like to be with him.”
Other Departmental records reflect an interview with the mother took place on 17 August 2011. The notes reflect the mother telling the Departmental officers she was aware of the concerns the Department came to talk about before they even arrived. She told them she had had a falling out with a friend who told her she had called “welfare” about her and about some other person being a “paedophile”. The mother is reported as having concerns about her friend’s use of drugs and their different parenting styles. She is recorded to have raised the fact that one of her boys is diagnosed with ADHD and with conduct disorder and that the other has a diagnosis of Autism. She is recorded as having reported that she herself has a diagnosis of OCD and depression. She is recorded as being upset that “the other person” (presumably her partner) has been called a “paedophile” as he is a very quiet man and very supportive of her. She is recorded as reporting that he never spends any time alone with the children but comes over and helps her out a lot. She is recorded as reporting that “he drives trucks” and was not there “at the moment”. She is recorded as being happy for the children to be interviewed. She is recorded as having reported hearing her friend telling the child to say that someone (the name is redacted) licks her “moo moo” but that the child has “never said this”. She is recorded as reporting that she smokes marijuana at times and that she is moving to Town W.
There is absolutely no mention in any of the records adduced that are contemporaneous to that time that the child had disclosed sexual abuse by the father on supervised contact visits at the children’s contact centre. Indeed, there is no evidence that the mother made any report to the police or the Department about any allegations of sexual abuse against any of her children.
The children’s contact centre’s records confirm supervised visits between the subject child and the father on 14 July, 28 July and 11 August, 2011. All carry the simple comment “fine”. The records then reflect the 25 August visit was cancelled by the mother citing illness as the reason; that she was 15 minutes late to the visit on 8 September, but it was noted as “fine”; that she cancelled the visit on 22 September 2011, again citing illness as the reason; and that the mother then rang the centre on 5 October 2011, cancelling the visits altogether and asserting that the child was “going backwards developmentally” and that she had concerns for the child’s well-being due to visits with the father.
There is no record at all of the mother raising allegations of sexual abuse of her daughter by the father at the centre with centre staff. I am satisfied that she did not do so. I am satisfied that the father did not sexually abuse his daughter at the centre.
Departmental records reflect that the mother and her three children were staying at Town T with the mother’s maternal grandmother and step-grandfather by 30 August 2011. The children were interviewed that day by Departmental officers. One of the boys did disclose that the next door neighbour had done some “poor touching” on his bottom and penis, but he said he could not remember when asked more questions about it. The subject child, only three and a half at the time, was recorded as being reluctant to speak with the Departmental officer and becoming too upset.
The father commenced proceedings in the Federal Magistrates Court (as it then was) on 23 August 2011, unhappy with only being given supervised time with the child by the mother. As I have already observed, the mother then unilaterally stopped the supervised contact visits and moved to Town T shortly after the proceedings were commenced.
After that, the mother was unable to be located for a significant period of time and location and substituted service orders were made. Nearly a year later, without the father having seen or communicated with the child in the meantime, a warrant for the mother’s arrest issued. That was discharged in July 2012 upon an order for the mother’s personal attendance at court in Brisbane on 7 August 2012. Supervised contact at the A Children’s Contact Centre then began pursuant to an order made in September 2012. An Independent Children’s Lawyer was appointed in the case, and the process of getting a family report prepared was put in train.
In March 2013, interviews for the preparation of a family report were conducted in Brisbane by Ms D, a psychologist, and a report was produced in April that year. The mother’s eldest boy, who was eight years old at the time, was interviewed by Ms D as part of the process and he disclosed that he was being physically abused by his mother’s current partner by excessive physical discipline with a belt and the hand. He also disclosed that his younger brother and sister (the subject child) were also physically disciplined by their mother’s new partner. He is reported to have told Ms D that he was told not to tell anyone about the beltings he was getting.
When the subject child was interviewed by Ms D, she is also reported to have disclosed physical abuse by excessive discipline from the mother’s current partner.
Ms D expressed the opinion, based on her observations, that both the mother and her current partner “lack capacity to recognise and respond to the children’s emotional and behavioural cues”. She also expressed the opinion that the mother exhibited traits of borderline personality disorder, as well as presenting with symptoms of clinical anxiety and mood disturbance. Significantly, Ms D expressed the opinion that the mother appeared to be at chronic risk of self-harm or suicide that required on-going monitoring. Ms D said:
In summary, I hold a number of significant concerns regarding [the mother’s] general functioning, parenting capacity and her role in making and maintaining the allegations of sexual harm by [the father].
Ms D did not consider that the evidence supported a finding that the mother had the capacity to facilitate a relationship between the father and the child and she saw no evidence to support a finding that a relationship between the child and the father would not be beneficial for the child.
The matter then came before Judge Demack again in the Federal Circuit Court in Brisbane and, on 6 May 2013, her Honour, in apparent reliance on Ms D’s report, made orders that the child immediately transition to living with the father and only have supervised time with the mother for two hours each fortnight. That is what then happened up until the trial before me in October last year.
At the trial, the evidence satisfied me that the child had settled in well to living with her father and going to a new school and was progressing well. The father had attended appropriately to her medical and psychological needs and both the psychologist the child was seeing and Ms D, who did an updated report in September 2013, observed improved changes in the child’s language. The treating psychologist and the father also reported improvements in the child’s behaviour in that time.
In addition, the treatment the father was receiving for his cancer was not, I was satisfied, interfering with his capacity to parent the child on a day to day basis.
In the period since the child had gone to live with the father, both the parents had also been assessed for the purposes of the proceeding by a psychiatrist, Dr V. The doctor expressed the view that the father did not appear to suffer any major mental illness, although did appear to have some personality “vulnerabilities”. As to the mother, he observed that she had experienced lifelong difficulties with her mental health with multiple contacts with mental health services over the years in the setting of emotional crises and stressors. He also observed, and I accept, that there is a pattern of difficulties experienced by the mother in intimate relationships and being involved in quite chaotic and abusive relationships, as well as a pattern of self-harming behaviour and para suicidal gestures as well as suicide attempts.
Dr V did say that he was not of the view that the mother demonstrates any signs of significant mental illness though. He preferred a diagnosis of significant personality disorder with prominent borderline personality traits as well as some obsessive compulsive traits.
Ms D observed some improvements in the functioning of the mother in the time since she had seen her earlier in the year and both Dr V and Ms D spoke positively about the evidence that the mother had engaged well in regular counselling with mental health staff; was well supported by her General Practitioner and was seeing a Psychiatric Registrar on an ‘as needs’ basis. It is to be hoped that she has sought out and obtained appropriate medical assistance on a continuing basis since the move to Town B this year.
Although there were general denials by the mother and her partner that the boys and the subject child had actually been subject to the excessive physical discipline that the children had complained of to Ms D in March 2013, I was satisfied that it had happened and that I could not accept their denials. The evidence showed, however, that the mother and her partner had entered voluntarily into arrangements with the Department of Communities, Child Safety and Disability Services last year after those disclosures when the Department substantiated child protection concerns in respect of their parenting. The evidence showed that they were being assisted and counselled with respect to parenting issues in the home and that they had worked willingly to reduce the risk to the children in their home. Ms D spoke more positively of the interactions between the mother and her children she observed on the occasion of the interviews for the updated report. She also expressed the opinion that there were no ongoing significant concerns regarding the mother’s partner’s substantiated excessive physical discipline of the children as a result of the Departmental intervention.
Ms D ultimately opined that were it at all practicable an equal shared care regime would be considered appropriate in the subject child’s best interests, but she acknowledged that logistically it was not possible. As such, she recommended that the child continue to live with the father due to the significant improvements in her functioning noted since she had transitioned to his care. She proposed that the child no longer needed to spend her time with her mother under independent supervision and recommended that she spend alternate weekends and half of the school holidays in her mother’s care.
As I have said, that change was ordered on an interim basis immediately at the end of the trial and I was told at the recent mention that the mother had not missed any of the scheduled visits with her daughter in the year that has passed since the trial. That is also to be considered in the context of the distance that did exist between where the father and mother lived prior to her move to Town B. The mother’s commitment to have a meaningful relationship with her daughter, demonstrated by that and the move to Town B to be so much closer to her, is evident.
Ultimately, however, the evidence has satisfied me that the child’s best interests will be served by leaving her in her father’s principal care for the time-being, at least whilst his health is such that he can continue to provide the care for her that he has been for the last eighteen months. The child’s general functioning evidently improved considerably after going to live with her father and I am satisfied that should not be interfered with at this point in time, whilst he can continue to provide the same levels of care for her.
I am also satisfied that the child should continue spending time with her mother, her mother’s partner and her older brothers and younger sister each second weekend during school term and for half of each of her school holiday periods. I am satisfied that will facilitate the maintenance and development of meaningful relationships between her and her mother and her and her siblings, such that any future transition back into their household on a more permanent basis, necessitated by any deterioration in the father’s state of health, will be much easier for the child. That she might have to transition back into her mother’s principal care at some stage in the future though, is not sufficient reason to make an order for her to go back to live with her mother right at this point in time, in my view.
As the mother now lives only one and a half hours by car away from where the child lives with her father, logistically things are so much easier for the child to spend time with the mother and her family. Not having to travel as far as she was previously travelling is a very beneficial change for the child and will let her spend so much more time with her mother.

Parental Responsibility

The parties disagree as to how parental responsibility should be allocated between them. Each came to the Court arguing for sole parental responsibility for the major long-term decisions in respect to the child.
Of course, when making a parenting Order, the Court must apply a presumption that it is in the best interests of the child for her parents to have equal shared parental responsibility for her (s 61DA(1)) unless there are reasonable grounds to believe that a parent of the child has engaged in family violence or abuse of the child (s 61DA(2)).
The evidence establishes, in this case, that there has been family violence between the parents. Of that, there is no doubt as both parents agree that there has been. The statutory presumption is therefore displaced. However, that does not mean that the Court cannot still make an order for parental responsibility to be shared equally by the parents if it considers it in the child’s best interests.
The ICL’s submissions were for parental responsibility to be shared equally. I am of the view that would be the right outcome in this case for the child. Although the parents presented up to the trial without much capacity to be able to communicate effectively and in a child focused way, such that might suggest it would be impossible for them to negotiate and agree upon decisions about major long-term issues for the child, I noted some recent attitudinal change, particularly demonstrated by their ability to agree on holiday arrangements for these current school holidays, that has created, in my mind, cause for optimism that they might very well be able to put past differences aside and communicate in their little girl’s best interests in the future.
I am also satisfied that it is in the child’s best interests for the mother to continue to be involved in the future decision making in respect of major long-term issues given the uncertainty about the father’s health and capacity to care for the child in the long term.
An equal shared parental responsibility order will, by force of s 65DAC of the Family Law Act, require the parents to consult with each other about decisions being made in respect of major long-term issues concerning the child’s health, education, name, the place where she lives and the like. It will require them to make a genuine effort to come to a joint decision about such issues and it also requires the decision to actually be made jointly. If they cannot agree on the decision then it cannot be made unilaterally and they must seek mediation to assist them to make it jointly or come back to the Court. I expect the parents in this case will now understand that and will, in their daughter’s best interests, make every effort to make any such decisions jointly.
Making an equal shared parental responsibility order requires mandatory consideration of an equal time regime. Obviously though, as already observed, it is not practicably possible due to the distance the parents still live apart from each other. Similarly, “substantial and significant time” as that term is defined in the Family Law Act, is also impracticable to put in place, but alternate weekends from after school on Friday afternoon to late Sunday afternoon and half of all school holidays is, in my view, in the child’s best interests in the circumstances.

Other Matters

I consider it is still best for the child for her parents not to come into direct physical contact with each other when the child is transitioning between their care. Accordingly, the mother shall collect the child from her school or H Contact Centre at the start of the child’s time with her and return her to the father at H Contact Centre at the end of such time.
As the mother is having the first half of the current school holidays, I will order that her half of the school holidays will be the first half in even numbered years and the second half in odd numbered years so as to maintain consistency.
I will provide in the Orders a mechanism by which they calculate equal sharing of the holidays and the times when the holiday time commences and concludes.
I will provide for the alternate weekend time the child spends with the mother during school term to be co-ordinated with the time she spends with the mother during school holidays so that each parent knows exactly which weekend the alternate weekend time starts in each school term.
I will provide for the child to spend Mother’s Day weekends with her mother and Father’s Day weekends with her father and for there otherwise to be no interruption to the schedule of her weekends with her mother.
I will provide for telephone contact between parents and the child on significant days such as birthdays and festive days and also on the child’s siblings’ birthdays. I will also provide for telephone contact with the parent the child is not with on a regular basis. The parent who is caring for the child will be obliged to ensure the child takes the other parent’s calls and is given privacy to speak with the other parent.

There will be obligations on the parents to notify the other parent if he or she plans on taking the child away from her usual place of residence with that parent for more than three days, and to notify the other parent of current residential address, mobile telephone number, landline number (if any) and any email address.
I will order the father to ensure that the child continues to engage with a psychologist as is considered necessary by the health professionals, that each parent keeps the other informed about the child’s health and facilitates the other parent’s communication with medical professionals treating the child from time to time.
Each parent will be restrained from talking about the other parent negatively to the child or in the child’s presence and each will be restrained from using unlawful drugs when caring for or communicating with the child.
I will oblige the father to provide the mother with a medical report from his treating specialist/s every month as to his current state of health and I will oblige the mother to advise the father if she separates from her current partner and if she enters a new relationship. I will also restrain the mother from allowing the child to be alone in the company of her maternal step-grandfather. That is because of the evidence about the conflicting positions the mother has taken over the years as to whether she suffered sexual abuse as a child at the hands of her maternal step-grandfather. It seems satisfactorily clear on the evidence that the mother was sexually abused as a child. Her changed position from time to time as to whether it was her maternal step-grandfather who perpetrated that abuse or not is concerning and I consider that allowing the child to be in the unsupervised care of that man places her at an unacceptable risk of harm and that it should not be permitted to happen.
I will provide for the mother to continue to engage with medical practitioners in respect of her own mental health and to follow their directions as well.
I will restrain the parents from using physical discipline on the child and from permitting any other person to use physical discipline on the child. I will particularly order them to use their best endeavours to ensure no third person physically disciplines the child. This Order will particularly oblige the mother to ensure that her partner does not physically discipline the child.
I will also make it clear in the orders that the mother is permitted to attend at and communicate with the school the child attends as may be permitted and welcomed by the administration of that school.
I was asked to consider making orders that oblige the parents, particularly the father, to engage with the Department of Communities, Child Safety and Disability Services in a voluntary intervention program. I have determined not to do that. I am not satisfied that the Department would accept such an engagement that was ordered rather than being truly voluntary or, even if it did, that any such engagement not truly accepted by the parent as necessary would bring about any meaningful change.
My orders will discharge the ICL after obliging her to provide a copy of this judgment to the Department for its records.
Finally, the mother asked the Court to make a specific order that the child live with her in the event of the death of the father so as to overcome the need for a further application having regard to the provisions of s 65K of the Family Law Act. The father opposed that at the trial, saying that he would prefer the child live with his sister or another member of his family in such circumstances.
I consider it in the child’s best interests to make the order sought by the mother. If I do not, the effect of s 65K is that the mother could not then require the child to live with her upon the father’s death. She would have to apply to the Court again for such an order. At this point, the Court knows a lot about the mother and her household. It knows nothing about any alternative proposed carer for the child that the father might propose in the event of his death. As such, I take the view that the child should, in the event of the father’s death, go to live with the mother and that any other person in the father’s extended family who considers that she or he could make out a case that it would be in the child’s best interests for her to live with them rather than the mother would then be obliged to make application to the Court and make out their case. I consider that a more appropriate course. The mother has some apparent weaknesses when it comes to parenting but she has demonstrated willingness and capacity to work on them. She is also now well known to the Department of Communities, Child Safety and Disability Services. A copy of this judgment will be provided to the Department by the ICL.
If the father still wants the child to live with a member of his family in the event of his death he should consider speaking to such person and conveying his wishes to them as well as expressing any such wishes in a testamentary document. That person could then consider bringing an application for a parenting Order in this Court or the FCC in the event of the father’s death. Until determination of such an application brought by such a person after the father’s death, the child should, in my view, be principally cared for by her surviving parent.
I make the Orders set out at the outset of these reasons.

I certify that the preceding seventy-four (74) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Forrest delivered on 24 December 2014.

Associate:

Date: 24 December 2014

[2014] FamCA 1185

24 December 2014

Key Legal Topics

Areas of Law

Family Law