Rayner and Carlton

[2016] FCCA 2212

FEDERAL CIRCUIT COURT OF AUSTRALIA

RAYNER & CARLTON [2016] FCCA 2212

Catchwords:
FAMILY LAW – Children – history of mother not supporting child’s relationship with father – parental capacity – child only able to benefit from relationship with both parents if living with father.

Legislation:

Family Law Act 1975 ss.60CA, 60CC

Applicant: MR RAYNER

Respondent: MS CARLTON

File Number: SYC 2458 of 2011

Judgment of: Judge Boyle

Hearing dates: 26 and 27 July 2016

Date of Last Submission: 27 July 2016

Delivered at: Sydney

Delivered on: 26 August 2016

REPRESENTATION

Counsel for the Applicant: In person

Solicitors for the Applicant:

Counsel for the Respondent: Ms Carr

Solicitors for the Respondent:	David H Cohen & Co
Counsel for the Independent Children’s Lawyer:	Ms Ward

Solicitors for the Independent Children’s Lawyer: Jennifer Weate & Associates

ORDERS

1. The father shall have sole parental responsibility for the child X born (omitted) 2006 ("the child") in relation to all major long term issues including education and health; on conditions that:

Education

(a)The father will contact the mother in writing and provide his views on any such issue relating to proposed change of school in advance of applying for new enrolment.

(b)The mother will consult with the father in writing with regard to any such issue.

(c)The father and mother will make a genuine effort to come to a joint decision about any such issue; and

(d)If no agreement is reached between the parties, within 14 days the father shall make the final decision and advise the mother in writing of the decision about any such issue.

Health

(e)That prior to any planned non-emergency surgery the father will provide the mother 28 days written notice of the proposed treatment and contact details for the treating doctor.

(f)In the event that the child requires urgent medical treatment whilst in the care of one parent (other than visits to general practitioner) that parent shall notify the other parent by email or SMS as soon practicable.

1. That each parent provide a mobile number and email address for the purpose of communicating about X and provide up to date contact details within 48 hours of any change.

2. The father shall request that the school provide a copy of X’s school report and that the mother be entitled to attend any parent teacher interviews. In the event that school is unable to provide a duplicate report then the father shall post a copy to the mother.

3. The child shall live with the father.

4. The child shall spend time with the mother as agreed between the parties and failing agreement:

   (a)During school term from the conclusion of school Friday on the first weekend of term until 6:30pm Sunday and each alternate week thereafter.

   (b)During school holidays in even numbered years for the first half for term 1, 2 and 3 school holiday periods commencing 6:30pm on the last day of school term until 6:30pm seven days thereafter.

   (c)During school holidays in odd numbered years for the second half for term 1, 2 and 3 school holiday periods commencing 6:30pm on the seventh day and concluding at 6:30pm on the day before school resumes.

   (d)From 6:30pm 23 December 2016 to 10am Christmas Day in 2016 and each alternate year thereafter and from 10am Christmas Day to 6.30pm on Boxing Day in 2017 and each alternate year thereafter.

   (e)From 6:30pm 27 December to 6:30pm 13 January in odd numbered years and from 6:30pm 13 January to 6:30pm, the day before school resumes in even numbered years.

5. That in the event that changeover does not take place at school, then it shall take place at McDonalds, (omitted).

6. The father shall ensure that his partner, Ms M, does not attend changeover.

7. The parties shall have and facilitate reasonable telephone communication with the child when she is not in their care as agreed, or failing agreement the child communicate with a non-carer parent each Thursday, Saturday and Tuesday no earlier that 6pm and no later than 8pm.

8. The Father and Ms M shall attend a parenting course or family therapist as recommended by Dr J and notified by the Independent Children’s Lawyer.

IT IS NOTED that publication of this judgment under the pseudonym Rayner & Carlton is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYC 2458 of 2011

MR RAYNER

Applicant

And

MS CARLTON

Respondent

REASONS FOR JUDGMENT

1. These are parenting proceedings with respect to the parties’ daughter X, born (omitted) 2006, who is now aged 10 years. The parties separated in 2008 when X was 2 years old. She lived with her mother until interim orders were made on 2 February 2016, when she commenced living with her father.

Applications

1. The father represented himself throughout these proceedings. He filed an initiating application on 18 September 2015. He provided a document by way of an outline, seeking that the interim orders continue. He had sought that the mother’s time be supervised. In cross-examination it was clear that he did that as he was afraid the mother may take X away again. He no longer seeks that order. The father relies on all affidavits filed since September 2015. Those affidavits are dated 18 September 2015, 30 December 2015, 27 January 2016 and 6 June 2016. He also relies on an affidavit of his partner, Ms M, filed 6 June 2016.

2. The mother provided a case outline document, in which she relied on a response filed 30 November 2015, and affidavit filed 20 July 2016. The outline set out the orders sought, in essence: that X live with her; she have sole parental responsibility; time with the father Friday to Sunday each alternate weekend; half school holidays; telephone communication; that X attend (omitted) Public school; and a restraint on either parent relocating X’s residence from the Sydney metropolitan area.

3. The Independent Children’s Lawyer (“ICL”) provided a case outline, and relies on Family Reports of Dr J dated 29 May 2013 and 14 January 2016. At the conclusion of the hearing the ICL provided a minute of orders, seeking that X live with the father and spend time with the mother on alternate weekends from Friday to Sunday and half holidays. These orders are broadly in line with the current interim orders, except sole parental responsibility is sought for the father.

4. All witnesses were cross-examined during the course of the proceedings.

The Exhibits

1. The following exhibits were tendered.

   a)ICL1, X’s school report for semester 1, 2016.

   b)ICL2, X’s school attendance certificate.

   c)ICL3, X’s student record and emails from the school principal in relation to X’s absences.

   d)ICL4, Notes from Dr F dated 19 January 2016.

   e)ICL5, Bundle of correspondence between the mother and (omitted) Public School.

   f)F1, A drawing from the child’s friends.

   g)F2, Printout of SMS exchange between the parties.

   h)F3, Facebook message.

   i)M1, Letter from Catholic Care to the mother dated 26 February 2016.

   j)M2, Medical certificate from Dr M dated 13 March 2016.

Background

1. The parties met and married in early 1995 in the (country omitted). On the evidence of both parties the marriage was an unhappy one. 

2. There has been litigation in this court since 2011 and at times in the Local Court with respect to Apprehended Violence Orders (“AVOs”).

3. The mother moved to Queensland for the first time with X in June 2009, returning August 2010. The mother has family in the (omitted) area in Queensland.

4. Proceedings were initiated by the father, and consent orders were made in the Federal Circuit Court on 24 October 2011 for X to spend time with her father. That time was initially supervised and gradually increased to overnight time.

5. The mother says X was distressed initially and there was an occasion when she collected X early from the father. On 18 July 2013 final orders were made by consent for X to live with her mother, the parties to have equal shared parental responsibility and weekly time with the father on alternate weekends and an afternoon in the other week. Changeovers were from school where possible and otherwise (omitted) Police Station, or (omitted) McDonalds once the mother obtained a motor vehicle.

6. The father has had difficulties seeing X essentially since separation. He was cross-examined by counsel for the mother that he stopped seeing X in August 2009. He said that was not what occurred: the mother changed the weekends and made it hard to make arrangements to see X. He referred to her doing this “like it was a game”. This is an apt description and is consistent with the mother’s conduct generally with respect to time arrangements.

7. Following the mother’s move to (omitted) in 2009, he did not see X while she lived in Queensland. He was not consulted about the move to Queensland.

8. After the mother returned to Sydney in late 2010, the father said he commenced proceedings in Burwood Local Court. Issue was taken by the mother that she commenced those proceedings. Nothing turns on this. Orders were made for X to spend supervised time with her father in August 2011. Supervised time occurred.

9. In October 2011 the mother relocated X to Brisbane, again without the father’s knowledge or consent. The father became aware X was in Brisbane when she was not present to have time. The father commenced proceedings which were transferred to Brisbane and orders were made for supervised time in Brisbane. That time did not eventuate as the father did not go to Brisbane and the mother returned to Sydney in February 2012. In late 2012 orders were made for gradually increasing time between the father and X.

10. The father was, by this time, living in (omitted). He initially travelled to Sydney for supervised time with X in (omitted). The orders moved to weekend time occurring from school on Fridays. From July 2013 to September 2015 the father spent time with X on two to three weekends because the mother did not make X available. She removed X from school on Fridays so that he could not collect her. The father says that time over the school holidays never occurred.

11. The mother moved with X to (omitted) in September 2015, again without the father’s knowledge or consent. X’s school had not been advised of the move either. After 2 days unexplained absence the principal telephoned the father, to find out where X was. That telephone call was the first the father knew of X’s absence. The father asked (omitted) police to do a welfare check, however the mother had already left Sydney.

12. The mother’s evidence is she left Sydney because she had concerns about the safety of herself and X from the father and his partner, Ms M. She said that she had difficulties with the high cost of living in Sydney and wanted support from her sister and brother-in-law in (omitted).

13. None of these matters explain or justify the mother’s removing X from Sydney. There is no evidence that supports either the mother or X being at any risk from the father or his partner.

14. There was some telephone and SMS contact between X and the father after the move. The father initiated these proceedings and on 14 January 2016 interim orders were made for X to spend time with the father and Dr J to prepare a report.

15. On 2 February 2016 interim orders were made for X to live with the father and spend time with the mother. Since that time, X has been enrolled in the (omitted) Public School. Despite initial problems, including sending a text to her mother with a photograph of her first day at school and a message, “Feel so much hate. Why they force me,” it appears X has settled fairly well into the arrangements.

16. X refused to go to school on Friday of the first week of school. Thereafter she has attended and in term 2 received an award for 100% attendance at school[1]. X has been participating in sports, (omitted) and (omitted) and has made friends at school. The father has arranged a counsellor to assist her.

    [1] Exhibit ICL2.

The Law

1. The child’s best interests are the paramount consideration in making a parenting order[2] and the children’s best interests are determined by reference to the matters set out at section 60CC.

Primary considerations

[2] Section 60CA Family Law Act 1975.

Section 60CC(2) The primary considerations are:

(a) the benefit to the child of having a meaningful relationship with both of the child's parents; and

(b) the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.

1. It is clear on the evidence that if X resides with her mother she will not have a meaningful relationship with her father. The mother has not supported their relationship since approximately 2009. X benefits from a meaningful relationship with her father and it would be adverse to her interests to be deprived of that.

2. Since residing with her father X has not missed a single scheduled visit with her mother and has had weekly telephone contact. The mother complains about X’s privacy for that communication but not that it happens. X is able to have a meaningful relationship with her mother whilst living with her father which is beneficial to her.

3. The mother’s removal of X to Queensland on three occasions is indicative of her disregard for the relationship between X and her father. She refers in her affidavit to the last occasion that occurred:

   I realize now that I made an error of judgment and that I should have made an application to the court seeking the court’s permission to relocate to live in (omitted). [3]

   [3] Mother’s affidavit para 39.

4. This reveals the mother’s lack of understanding and support for the role of her father in X’s life. The mother has never sought the father’s agreement to move X’s home and school, notwithstanding that there have been orders for equal shared parental responsibility.

5. The mother was asked by the ICL whether she thought X ever had fun with her dad. She answered, bizarrely, that X says she has no choice but to have fun because she will get into trouble if she looks like she is not having fun. The mother says she believes the father to be physically and emotionally abusive of X. She is prepared to say that without any proper foundation.

6. There is evidence that X has been exposed to neglect in her mother’s care by being denied the opportunity to attend regularly at school. This was sufficiently serious that the principal suggested the home school liaison officer may need to become involved.

Section 60CC(3)(a) any views expressed by the child and any factors (such as the child's maturity or level of understanding) that the court thinks are relevant to the weight it should give to the child's views.

1. X was interviewed by Dr J on 29 January 2016. Although not specifically referred to, it is inherent in her presentation that she wanted to continue to live with her mother as she was at that time. She was able to “identify a range of activities she enjoyed doing with her mother.”[4]

   [4] Family Report dated 1 February 2016 para 52

2. X provided a litany of complaints about her father from a list she had already made on her mobile telephone. These were largely trivial matters, such as not having pyjamas at her father’s home. Notwithstanding that she “denied she ever did anything she enjoyed with her father”[5] she said she would like to see him one weekend a month.

   [5] Ibid para 51.

3. When seen with her father and Ms M, X initially tried to ignore them, then “appeared very keen for Mr Rayner to play with her and to focus on her… X appeared quite affectionate towards both Mr Rayner and Ms M when it came time for her to leave.”[6]

   [6] Ibid, para 53.

4. Dr J was concerned X has an enmeshed relationship with her mother. This was also the view of Dr F, who provided counselling to X in early 2015 and on 19 January 2016.[7] This is likely to have an impact on X’s ability to express a view that is independent from her mother. X is 10 years old and although her views must be considered, the context of those views is important and little weight is given to those views.

Section 60CC(3)(b) the nature of the relationship of the child with:

(i) each of the child's parents; and

[7] Ibid, para 31.

(ii) other persons (including any grandparent or other relative of the child);

1. X has a close relationship with her mother. She lived with her mother until 2 February 2016.

2. Dr J gave evidence that the mother is not able to recognise X’s needs or feelings as being separate from her own, which may be a feature of their enmeshed relationship. For example, the mother when giving evidence was incapable of distinguishing between her own feelings and experience of the father and what X may feel or experience of her father. Dr J observed that, throughout X’s life, she and the mother have worked together as a team with few boundaries between them.

3. The mother demonstrated no understanding of the impact on X of her shuttling between Queensland and the (omitted) area. She has attended three different schools in Queensland and left and returned to (omitted) Primary School on six occasions.  The mother when cross-examined on this issue denied there were problems saying X had not complained and that she was always happy, healthy and had a roof over head. This ignores the significance for children of stability – in their living arrangements, school, friendships and significantly their relationship with the other parent.

4. X is developing a close relationship with the father. He and his partner, Ms M, have provided X with a loving home since X came to live with them in February 2016. They both impressed as people able to understand the child’s distress at separation from her mother and able to assist her to deal with that. I accept their evidence that X has settled more into their care in recent times.

5. The father has imposed a discipline regime on the child and has set boundaries for her. There is nothing in this that suggests other than appropriate parenting. The father and Ms M have sorted out a points system with rewards for X completing the chores required of her, such as unstacking the dishwasher, clearing the table, making her bed and the like. The father referred to X taking the initiative by doing tasks unasked and saying, “How many points do I get for that?” It would appear that the system they have devised is working for X.

Section 60CC(3)(c) the extent to which each of the child’s parents has taken, or failed to take, the opportunity:

(i) To participate in making decisions about long-term issues in relation to the child;

(ii) to spend time with the child; and

(iii) to communicate with the child.

1. The mother has taken all opportunities to make decisions about X. Unfortunately she has prevented the father from being able to do so. She has done this by removing the child from Sydney on three occasions and enrolling her in schools all without his knowledge or consent. Her actions in removing X from school on Fridays were a deliberate strategy to keep X from him.

2. The father did not initiate proceedings as early as he could have on previous occasions to reinstate X’s relationship with him. He has done all that is possible since at least September 2015 to spend time with X.

3. The father has supported X’s relationship with her mother. With X in the father’s care both parents will have the opportunity to participate in X’s life which is to her benefit.

Section 60CC(3)(ca) the extent to which each of the parents has fulfilled, or failed to fulfil the parent’s obligation to maintain the child

1. This is a not a significant consideration in this matter.

Section 60CC(3)(d) the likely effect of any changes in the child's circumstances, including the likely effect on the child of any separation from:

(i) either of his or her parents; or

(ii) any other child, or other person (including any grandparent or other relative of the child), with whom he or she has been living;

1. The orders of 2 February 2016 caused a significant change for X. The impact of that change has been that she is able to have a relationship with both her parents.

2. Were there to be a change so that X returns to live with her mother, there could be no confidence that X would be able to have a relationship with her father. There is no history of that having occurred. The suggestion that the mother has learned a lesson from the orders of 2 February 2016, and that she will comply with orders in the future is merely wishful thinking on the evidence available.

3. The father and his partner readily acknowledged X’s distress at moving from her mother’s care. They have managed her upset and describe her as settling into their care which I accept.

Section 60CC(3)(e) the practical difficulty and expense of a child spending time with and communicating with a parent and whether that difficulty or expense will substantially affect the child's right to maintain personal relations and direct contact with both parents on a regular basis.

1. The mother lives in the (omitted) area and there is no evidence she intends to live elsewhere. The father lives with X in (omitted). She spends time with the mother from Friday after school to Sunday afternoon. The difficulties of transport and geography are such that delivery to school or mid-week time are impracticable.  Both parents accept that.

Section 60CC(3)(f) the capacity of:

(i) each of the child’s parents; and

(ii) any other person (including any grandparent or other relative of the child)

to provide for the needs of the child, including emotional and intellectual needs

Section 60CC(3)(i) the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child's parents

1. The father has the capacity to provide for X’s needs. He is committed to fostering a relationship between X and her mother, and understands why that is important for X. The father and his partner were clear in their evidence that they did not set out to remove X from her mother, they simply wanted to see her each alternate weekend. The father had no option but to pursue an application for X to live with him for them to have a relationship.

2. The father has ensured that X has stability at school and she now attends regularly. She is participating in extracurricular activities, particularly (omitted) which she is enjoying.

3. The father gave evidence that suggested his insight into X when he referred to “the 10-year-old drag” of her taking a long time to do things. She needs to be hurried her along whether to get ready to go to her mother or school. The father was able to deal with this in a sensible and rational way, rather than assuming that it means she does not to see her mother, or go to school.

4. The father and Ms M have ensured that X has a photograph of her mother by her bed and that she speaks to her mother as required by orders. The father’s evidence is she can telephone at other times if she wishes but usually waits for the scheduled times. As was suggested by counsel for the ICL, more could be done by them, such as actively encouraging X to call her mother when she has news, like the certificate she received at school. It is clear, though, that both Mr Rayner and Ms M are committed to doing what is best for X.

5. Ms M gave compelling evidence about the decision for telephone communication with the mother to take place in the lounge room. Ms M said that X had the telephone on speaker in the bedroom and that despite the closed door she was able to hear because it was very loud. Ms M heard the mother argue with X, and swear at her and X cried. It is for this reason that the communication takes place in a public space.

6. It is a sensible way of balancing the need for X to speak with her mother and for that to be a less intense experience than was described by Ms M. There is no doubt that X is missing her mother and is at times upset. This is entirely to be expected given that she has previously lived all her life with her mother.

7. There is no suggestion by Dr J, who has seen X in 2013 and 2016, that there has been at any time any fear in X of her father or of her father’s partner. Instead, Dr J observed that X was looking for attention from her father and enjoying the time she spent with him[8].

   [8] Second Family Report, paras 54 and 55.

8. Dr J raised a concern that X has been subtly drawn into the conflict between her parents. This is a real risk for X and something that needs to be managed by both her parents. Her father has managed this by assessing things said by X, and dealing with them rationally. 

9. Unfortunately, the mother takes a different approach from the father. She takes minor complaints made by X as serious and does not filter things said by X about time in her father’s home. The mother’s evidence about X being pushed on the back by the father is an example of this. The father’s evidence is that he has not pushed or manhandled X in any inappropriate way. He agrees that he has raised his voice in order to get her to comply with directions. This is in the context of ordinary parenting and not abuse. It is wrong for the mother to characterise it as abusive conduct and is potentially harmful for X for it to be characterised that way.

10. The mother’s orders are for the father to spend unsupervised time with X. She would not seek those orders if she genuinely believed X was at risk.

11. It is clear from material tendered from X’s school[9] that difficulties with attendance at school began soon after the orders were made on 18 July 2013. The principal of the school, Ms P, wrote to the mother on 3 September 2013:

    I refer to the incident on 3 September 2013 when you verbally abused and made slanderous remarks about me in my office…

    I have tried contacting you 6 times over the past month by email and additionally left messages on your telephone, to clarify the pick up arrangements for X, particularly your threat to call the police if her father’s partner enters the school grounds. You have not responded to any of my requests to speak with you.

    [9] Exhibit ICL 5.

12. The mother responded by email asking that the principal refrain from contacting her via mail, telephone, email or in person until further investigations had been dealt with by the Department of Education.

13. On 20 September 2013 the principal noted in an email that the forthcoming weekend was the father’s time and that the mother had sent X to school saying she would be picked up by another parent. It goes on to say:

    I have called legal branch to clarify our position on this. They have advised that we should release X into the care of her father this afternoon.

14. There is an email of 31 October 2013 referring to the mother’s advice to the school office that X would be collected early by another person on Friday 1 November 2013 for a doctor’s appointment. The mother then emailed the school the same day, in part as follows:

    Regarding tomorrow, X is not to be released to her dad. I do not want another repeat of the day he picked her up and he wasn’t supposed to and we had the police investigate and X was stressed out that day that the father showed up early and the school was not supposed to release her before home time. The department of education is aware of this situation and have sent me an email to apologise … The current orders have no specific dates, so therefore the school is not aware of his changes and double ups on weekends and current wellbeing of the child whilst in the father’s care. X has begged and cried not to go tomorrow and I will have Ms A pick up my daughter from at lunch time. X has told me some very disturbing things that are happening in (omitted).

15. On 16 December 2013 Ms P wrote to the mother with respect to X’s school attendances. She noted that X had eight full day absences and 10 partial day absences over terms three and four of 2013. Specifically the principal refers to events on 13 December 2013:

    You approached the school office requesting to sign X out of school early as you were going on holidays. The office directed you to speak with me. You told me X had a doctor’s appointment. When I asked you to provide the school with proof of the appointment you agreed to do so. You then took X home without signing her officially out of the school.

16. The principal raised with the mother that if the pattern of absences did not improve, the home school liaison officer would become involved in 2014. It is clear on the evidence that the mother deliberately removed X from school on Fridays so that her father could not collect her in compliance with the orders.

17. On or about 31 May 2016 and 1 June 2016 the mother attended at (omitted) Primary school without notice to the father, or the school. On both occasions she was there at approximately 3pm when the school day was finishing. The father found out about the first occasion from X, who he thought was “a bit shocked” by her mother’s unexpected appearance.

18. On the second occasion Ms M’s evidence was that the mother had almost reversed into her car whilst she was in it, laughed and driven away. The mother then drove past again when she was seen by the father who was collecting X. The father and his partner immediately reported the mother’s driving to the Police. X was with them. The father readily accepted that it was not helpful for X to be taken to the police station.

19. The mother did not accept that it was unhelpful for X for her to be around the school. Instead she said X would be happy to see her. It was another example of the mother’s inability to consider X’s feelings and how they may differ from her own.

20. The mother took X to see a counsellor, Dr F, shortly after her return from (omitted) in January 2016. The appointment was after the first visit that X had with her father which was for a weekend.

21. The mother is reported as saying to the counsellor, “it seems to have gone okay”. X then spent time with the counsellor alone. The notes record:

    X: Hoping to move back to Sydney –says she found (omitted) a bit lonely. Said she had an “ok” time with fa; mentioned a range of complaints – eg he didn’t take her swimming, didn’t buy her new clothes etc. Feels he doesn’t pay as much attention to her as wants.[10]

    [10] Exhibit ICL 4.

22. The visit was the first time that X had spent time with her father in over 12 months.

23. There is nothing in the notes of Dr F that suggests there was any concern for X’s welfare. It does not appear that the mother had any concerns about X’s welfare prior to or following the meeting.

24. X is described in her school report as being “a kind and helpful class member who has settled in well at (omitted) Public School”.[11] The mother deserves credit for having raised a child who can be described in such a manner, particularly in circumstances that have been tumultuous for X this year.  

    [11] Exhibit ICL 1.

25. Ms M became extremely upset when giving evidence after she discovered that the mother had contact with Ms M’s former partner via Facebook. Ms M described herself as having been in an abusive relationship for 18 years with a person who beat her. She said he broke into her home after separation and assaulted her. She last saw him 10 years ago in court when he was gaoled for 18 months as a consequence of his conduct towards her. He has stalked her at her workplace.

26. The mother agreed that she had been in communication with Ms M’s former partner via Facebook. She knows nothing of this man and yet was prepared to give him her telephone number so that she could receive information from him about Ms M. It was very troubling evidence of the extent the mother was prepared to go in order to further her case. One would have thought that the mother might be concerned about what he wanted from contacting her, given she says that she did not initiate the contact. The mother’s evidence is that she did not provide the father’s address. The mother must act protectively of X, who is living in that household, so that no further information is given to Ms M’s ex-partner.

Section 60CC(3)(g) the maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the child and of either of the child's parents, and any other characteristics of the child that the court thinks are relevant

1. X is a 10 year old girl with an (nationality omitted) heritage from her father and (nationality omitted) heritage from her mother. The orders will permit both parents to support X being exposed to their diverse culture and traditions.

Section 60CC(3)(h) if the child is an Aboriginal child or a Torres Strait Islander child

1. This is not applicable to X.

Section 60CC(3)(j) Any family violence involving the child, or a member of the child’s family

1. Whilst the details of family violence in the relationship between the mother and father are not entirely clear, it was conceded by the father that there was family violence. It is clear on the evidence that since separation in October 2008 there have been no incident of violence between the parties.

2. Both parties agree there was an incident on or about 10 February 1998 when the father pushed the mother out of bed, causing her to fall and hit the right side of her arm and head on the nightstand. The police were called, and they applied for an Apprehended Violence Order (“AVO”) against the father. 

3. On 10 October 2008 the mother was holding X when the parties engaged in a verbal argument. The mother says that the father hit her on the back of her head whilst she had X in her arms. She telephoned the police and the father was charged with breaching the previous AVO. The father agrees that there was an argument and he pushed the mother in the back of the head whilst she was holding X. He said the argument was over the marriage breakdown and the mother had been yelling in his face.

4. There was a third incident where there was an argument between the parties. The mother says the father punched the wall. The father says that he punched the door in a room not near the mother while she was on the telephone to the police.

5. The father described the relationship as “turbulent”, which seems an accurate description. It was suggested to him that there were three AVO’s taken out against him for the protection of the mother. The father says he can recall that there were two arising from two separate incidents, one sometime after 1995 and one in 1998.

6. The mother says that the father has behaved towards X in an aggressive way, “the yelling, the pushing, the shoving”. When giving evidence she referred to the father’s behaviour towards her as the same as his behaviour towards X. The evidence does not support that is the case.

7. The mother referred to safety concerns that caused her to leave Sydney for (omitted) with X. In cross-examination she said those concerns were from seeing Ms M shaking and being unwell and that she still holds those concerns. She was concerned that Ms M had a medical history that she knows nothing of.

8. Since orders were made on 2 February 2016, X has telephoned the mother upset and crying and complained on 5 February 2016 that the father pulled the blankets off her in bed and took her phone and has not let her speak to the mother with privacy.

9. There is a complaint that X was pinched by her father which is conceded by the father. He says that there was an occasion where X was pinching him continuously and he pinched her once in order to demonstrate that it is not a good thing to do. He concedes that that was an inappropriate way of dealing with the situation and has not done so again.

10. On 27 May 2016 the mother alleges that X told her the father “yelled at her close to her face with an open hand because she was sick”. Rather than assess whether that was likely to occur, she said she believes the father would yell at X for being sick. There is nothing in the father’s presentation, or conduct that supports that he would do so.

11. X told her that the father had asked her to take his mobile telephone number when she went to see her mother and when she questioned this he “pushed her with an open hand on her back and she was slightly startled”. X said she “was forced to sit in the lounge room for the last couple of weeks with her father and his partner”. She said she was “unable to speak freely, or even laugh or joke”.

12. The father and his partner describe some difficulties in X settling into their home following the making of the orders on 2 February 2016. As Dr J agreed during her evidence, it was a turbulent time for X after removal from her mother and her behaviour was consistent with that.

13. Unfortunately the mother took X to the (omitted) and (omitted) Police Station to discuss these matters. The mother did not refer to this in her affidavit and did not advise the father or ICL that she intended to do so or that it had happened. There is no evidence that any event had occurred for X which warranted the mother doing this. She was unable to acknowledge that it was adverse to X’s interests to be taken to speak to the Police about her father.

14. A Facebook message from “Ms Carlton” was tendered[12].  The information in the message makes it clear that it was written shortly after the orders of 2 February 2016.  The mother denied writing the message.  The details of the message were matters known only to the mother, such as that X was starting at (omitted) Primary school, that the mother had recently relocated again, that she had an interview with (employer omitted) for a job and that she was sorting out a legal aid lawyer.  I accept that the mother wrote the message. 

    [12] Exhibit F3.

15. Most disturbingly the message refers to X:

    She already couldn’t stand her dad before.  I did prepare her for this though.  She will make both their lives hell and make a runner one day.

    It appears the mother has actively sought to undermine X’s relationship with her father and encouraged her to run away notwithstanding running away would place X in considerable risk. 

Section 60CC(3)(k) if a family violence order applies, or has applied, to the child or a member of the child's family

1. The mother had AVOs for her protection in 1998 and 2008. There has been no current AVO for many years.

Section 60CC(3)(l) whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to the child.

1. There has been litigation with respect to X since her parents separated when she was 2 years old. This has been necessitated by the mother’s interference in X being able to have a relationship with her father.

2. The orders placing X in her father’s care are the least likely to lead to further proceedings. It is in X’s interests for litigation to cease.

Parental Responsibility   

1. Section 61DA of the Family Law Act 1975 requires that when making a parenting order the Court must apply a presumption that it is in a child’s best interests for the parents to have equal shared parental responsibility. The presumption is rebutted by evidence that satisfies the Court it would not be in the child’s best interest for her parents to have equal shared parental responsibility.

2. The mother has not communicated with the father about matters relevant to X, including what state she lives in, and what school she attends. Significantly since the orders for X to live with the father, the mother has taken her twice to the Police Station to complain about her father without advising him, the ICL or the Court.

3. The mother has not demonstrated any ability to share parental responsibility with the father.  Unfortunately the parents are not able to communicate.

4. X will be living with her father and it is in her interests for him to be able to make decisions for her. The orders require that he communicate those matters to the mother, so she is kept informed.

I certify that the preceding ninety-six (96) paragraphs are a true copy of the reasons for judgment of Judge Boyle

Date: 26 August 2016