Samson and Watkins
[2016] FamCA 855
•30 September 2016
FAMILY COURT OF AUSTRALIA
| SAMSON & WATKINS | [2016] FamCA 855 |
| FAMILY LAW – CHILDREN – Best Interests – Where final orders were previously made – Where the parties sought revised final orders – Where the child enjoys a meaningful relationship with both parents – Where both parties alleged their willingness to facilitate the child’s relationship with the other – Where there were allegations of child sexual abuse – Where the mother did not seek a positive finding that sexual abuse had occurred – Where the father accepts the mother acted responsibly by reporting the sexual assault allegations – Where the mother accepts the alleged sexual assault was improbable – Where both parties are highly distrustful of each other – Where both parties accept they each satisfactorily provide for the child’s needs – Whether there was any material change that would warrant amendment of the existing orders – Where the evidence disclosed only a modest change in circumstances – Where it is submitted the avoidance of further litigation is perhaps the most salient consideration – Where the parents lack of co-operation over the time the child should spend with the father would make future litigation probable unless new orders are made to eradicate future uncertainty – Ordered child spend specified time with the father unless otherwise agreed |
| Family Law Act 1975 (Cth), ss 4, 60B, 60CA, 60CC, 61B, 61DA, 64B, 65AA, 65D, 65DAA, 65 DAC, 65DAE Evidence Act 1995 (Cth), s 135 |
| Dasreef Pty Ltd v Hawchar (2011) 243 CLR 588 Langmeil & Grange [2013] FamCAFC 31 Marsden v Winch (2009) 42 Fam LR 1 Miller v Harrington (2008) FLC 93-383 Poisat v Poisat (2014) FLC 93-597 Rice v Asplund (1979) FLC 90-725 SPS v PLS (2008) FLC 93-363 Watkins & Samson [2014] FCCA 2514 |
| APPLICANT: | Ms Samson |
| RESPONDENT: | Mr Watkins |
| INDEPENDENT CHILDREN’S LAWYER: | Coast Law |
| FILE NUMBER: | NCC | 1334 | of | 2013 |
| DATE DELIVERED: | 30 September 2016 |
| PLACE DELIVERED: | Newcastle |
| PLACE HEARD: | Newcastle |
| JUDGMENT OF: | Austin J |
| HEARING DATE: | 19, 20 & 21 September 2016 |
REPRESENTATION
| COUNSEL FOR THE APPLICANT: | Mr Cook |
| SOLICITOR FOR THE APPLICANT: | Peter Jurd Lawyer |
| COUNSEL FOR THE RESPONDENT: | Mr Johnston |
| SOLICITOR FOR THE RESPONDENT: | Conditsis Lawyers |
| COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: | Mr Murray |
| SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: | Coast Law |
Orders
Orders 6C, 6D, 7, 8, 10, 11 and 20 made on 3 November 2014 in relation to the child B, born … 2012, (“the child”) are discharged.
All interim orders relating to the child made since 3 November 2014 are discharged.
The parties shall take all reasonable steps to ensure that the child spends time with the father as follows, or as otherwise agreed:
(a)During NSW public school terms:
(i)Each alternate week from 3.00 pm Thursday (or the conclusion of school or pre-school that day, whichever is the later) until 9.00 am Monday (or the commencement of school or pre-school that day, whichever is the earlier), commencing on the first Thursday of each term; and
(ii)Each alternate week from 3.00 pm Thursday (or the conclusion of school or pre-school that day, whichever is the later) until 9.00 am Friday (or the commencement of school or pre-school that day, whichever is the earlier), commencing on the second Thursday of each term.
(b)For the first half of the NSW Autumn, Winter, and Spring public school holidays.
(c)During the NSW Summer public school holidays, on an alternating week-about basis, commencing in the first week of the holidays in the years when the holidays commence in an even numbered year, and commencing in the second week of the holidays in the years when the holidays commence in an odd numbered year.
For the purposes of implementation of Order 3 hereof:
(a)The NSW public school holidays are deemed to commence at 3.00 pm (or the conclusion of school or pre-school, whichever is the later) on the last day of school term;
(b)The holidays are deemed to end at 9.00 am (or the commencement of school or pre-school, whichever is the earlier) on the first day of the new school term;
(c)The mid-point is noon on the day halfway between those first and last days; and
(d)Alternating weeks are measured in increments of seven consecutive days, commencing at 3.00 pm (or the conclusion of school or pre-school, whichever is the later) on the last day of school term.
Order 5 made on 3 November 2014 and Order 3 hereof are suspended during the following periods:
(a)From 3.00 pm on Christmas Eve until 3.00 pm on Boxing Day each year, during which period the child will spend time with the mother from 3.00 pm on Christmas Eve until 3.00 pm on Christmas Day, and with the father from 3.00 pm on Christmas Day until 3.00 pm on Boxing Day in even numbered years, with the same arrangements in reverse in odd numbered years; and
(b)Between 9.00 am and 5.00 pm on each Mother’s Day and Father’s Day, during which periods the child shall spend time with the mother on Mother’s Day and with the father on Father’s Day.
Unless otherwise agreed, for the purposes of implementing Order 5 made on 3 November 2014 and Orders 3 and 5 hereof, the parties shall respectively ensure the child’s:
(a)Collection from school or pre-school, whenever the child’s residence or expenditure of time with a party is to commence at the conclusion of school or pre-school during school term;
(b)Return to school or pre-school, whenever the child’s residence or expenditure of time with a party is to conclude at the commencement of school or pre-school during school term; and otherwise
(c)Collection from and return to the McDonald’s Restaurant at C Town, NSW.
Pursuant to s 65DA(2) and s 62B of the Family Law Act, particulars of the obligations that these orders create, particulars of the consequences that may follow contravention of these orders, and details of assistance to comply with these orders are set out in the attached Fact Sheet, which forms part of these orders.
The Independent Children’s Lawyer is discharged upon the expiration of any applicable appeal period.
Any and all outstanding applications are dismissed.
Notation
(A)These orders operate in supplementation of the orders made by the Federal Circuit Court of Australia in respect of the child on 3 November 2014.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Samson & Watkins 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 NEWCASTLE |
FILE NUMBER: NCC 1334 of 2013
| Ms Samson |
Applicant
And
| Mr Watkins |
Respondent
And
| Independent Children’s Lawyer |
REASONS FOR JUDGMENT
Introduction
These proceedings concern a dispute between the applicant mother and respondent father over their four year old daughter, pursuant to Part VII of the Family Law Act 1975 (Cth) (“the Act”).
Past proceedings between the parties over the child were concluded by orders made in November 2014 by the Federal Circuit Court, but these proceedings were commenced by the mother only a few months later in May 2015 after she formed a belief the child was sexually abused by another child within the father’s household. Although the proceedings were commenced in the Federal Circuit Court, they were transferred to this Court for determination.
The mother conducted the proceedings on the basis that the child was actually sexually abused and, since the father unreasonably refused to accept the fact, the child was at unacceptable risk of harm in his care unless conditions were imposed upon their interaction. The conditions she proposed were that he be restrained from allowing the child to associate with the child who allegedly perpetrated the molestation, or even be present at the father’s home.
The father doubted the child had been abused, but was nonetheless vigilant to prevent it. He consistently maintained the mother was incapable of promoting the child’s relationship with him and so he contended the orders formerly made in November 2014 should be discharged and replaced with orders providing for the child to live with him instead.
Just prior to the final trial in September 2016, the mother amended her application by abandonment of her former proposal for the imposition of the conditions upon the child’s interaction with the father. Outwardly at least, she was content for the child to unconditionally spend substantial periods of time with the father. Rather than simply accepting the mother had recanted and then reverting to operation of the orders made in November 2014, the father believed the mother’s changed proposal was an artifice and maintained that unless the child’s residence was reversed his relationship with her would eventually be lost. The trial therefore proceeded.
Background
The parties met in January 2011 and the child was born in 2012, at or about which time they began cohabitation.
They ceased cohabitation in March 2013, though there was some dispute about whether they maintained a sexually intimate relationship thereafter, which issue need not be determined.
The parties litigated over the child in the Federal Circuit Court and, on 3 November 2014, that Court made final parenting orders which essentially provided for the parties to have equal shared parental responsibility for the child, for the child to live with the mother, and for the child to spend substantial amounts of time with the father, which incrementally expanded over time.
In February 2015, as a consequence of something said by the child, the mother formed a belief the child had been sexually abused by an older child living in the father’s household. She consequently withheld the child from the father, but did not commence these proceedings seeking revised orders until May 2015.
In September 2015, after transfer of the proceedings to this Court, interim orders were made restraining the father from allowing the child to be in the presence of the older child who allegedly abused her, unless personally supervised by him. Otherwise, the orders made in November 2014 applied and those arrangements then successfully operated until the final trial.
Presently, just as before, both parties continue to live on the Central Coast of NSW. The child and her older half-brother (“D”) live with the mother. The father lives with his new partner (“E”), her two children (“F” and “Isabelle”) and the child’s younger half-brother (“G”). It was F who allegedly perpetrated the child’s sexual abuse.
Proposals
The mother pressed for the revised orders set out in her Amended Application filed on 1 September 2016. In essence, she sought the parties’ retention of equal shared parental responsibility for the child, her retention of the child’s residence, and for the child to spend even more time with the father than the November 2014 orders allowed. However, she said in cross-examination she really only adopted the single expert’s recommendation about the amount of time the child should spend with the father.
The father pressed for the orders set out in his Further Amended Response filed on 2 June 2016, but during final submissions he tendered a minute of alternate orders he proposed as fall-back positions in the event his primary application found no favour.[1] He primarily sought discharge of the November 2014 orders, his allocation of sole parental responsibility for the child, reversal of the child’s residence, and provision for the child to spend time with the mother after an embargo of eight weeks duration. His secondary position was closely aligned with the mother’s proposal. His position of last resort was closely aligned with the Independent Children’s Lawyer’s proposal.
[1] Exhibit F9
In final submissions the Independent Children’s Lawyer tendered a minute of the orders she proposed.[2] In effect, her position was that neither party had demonstrated any changed circumstances and so the orders made between them in November 2014 should prevail.
[2] Exhibit ICL4
Evidence
The mother relied upon:
(a)Her affidavit filed on 1 September 2016 (a tranche of which was consensually struck out under s 135 of the Evidence Act 1995 (Cth));
(b)The affidavit of the maternal grandmother filed on 13 September 2016; and
(c)The affidavit of the maternal grandfather filed on 13 September 2016; and
(d)The affidavit of her treating medical specialist, Dr H, filed on 7 September 2016.
The father relied upon:
(a)His two affidavits filed on 22 July 2016 and 19 September 2016 (the latter being filed in Court and a small portion of it consensually struck out);
(b)The affidavit of his partner, Ms I, filed on 22 July 2016; and
(c)The affidavit of the paternal grandmother filed on 22 July 2016.
The parties and the Independent Children’s Lawyer relied upon the report (dated 28 April 2016) of the single expert psychiatrist, Dr J, who was cross-examined by the parties but not the Independent Children’s Lawyer.
Legal principles
Orders in respect of children are made under Part VII of the Act, where the meaning of a “parenting order” is defined (s 64B).
When invited to make a parenting order, the Court is enjoined to bear in mind both the objects of the legislation and the principles which underpin those objects (s 60B) in determining the nature of the parenting orders which ought be made (s 65D).
When making parenting orders the Court is mandated to regard the child’s best interests as the paramount consideration (ss 60CA, 65AA). The Act specifies the criteria which must be considered in arriving at a conclusion as to what is in the child’s best interests (s 60CC).
The Act imports a rebuttable presumption that a child’s best interests are served by an order allocating equal shared parental responsibility for the child to the parents (s 61DA). Parental responsibility is defined to encompass all duties, powers, responsibilities and authority conferred by law upon parents (s 61B). The legislation dictates the manner in which shared parental responsibility is to be exercised in respect of decisions relating to “major long-term issues” concerning the child (s 65DAC), being matters such as education, religion, culture, health, name, and changed living arrangements (s 4), and also in respect of decisions which do not relate to such significant issues (s 65DAE).
The presumption of equal shared parental responsibility does not apply in certain circumstances, including in instances of child abuse and family violence (s 61DA(2)), and the presumption may be rebutted if the Court is satisfied it would not be in the child’s best interests for the parents to have equal shared parental responsibility (s 61DA(4)). The presumption says nothing about the amount of time the child should live or spend with each parent, but the manner in which parental responsibility for the child is allocated by the Court may bear on that issue.
In the event an order is made allocating equal shared parental responsibility to the child’s parents, the Court is then obliged to consider both the advisability and practicability of the child living for equal time with both parents, or alternatively, living primarily with one and spending substantial and significant time with the other (s 65DAA). If parental responsibility for the child is allocated in some other way, then the exercise of the Court’s discretion about the child’s care arrangements is at large, though the discretion must still be exercised in the context of the child’s best interests being the paramount consideration.
Child’s best interests – primary considerations
Section 60CC(2)(a)
It was common ground the child enjoys meaningful relationships with both parties from which she derives benefit.
The father contended the quality of his relationship with the child was liable to deteriorate if she continued to live primarily with the mother because the mother, either deliberately or unintentionally, impressed the child with the belief he was an unworthy parent, but he failed to make good on that contention.
The child has lived primarily with the mother since the parties ceased cohabiting in March 2013, at which time the child was only nine months old. Since then the mother has had more than three years to contaminate the child’s views of the father but, contrary to the father’s contention, the child’s relationship with him has only strengthened over that time.
In March 2016, the single expert found the child to be just as “warm and affectionate” with all of the adults and children in her life.[3] She formed the view the child had formed a “primary attachment” with the father, the attachment was “secure”, and she was “delighted” in his presence.[4] It was not suggested the single expert’s observations or opinions in that respect were wrong.
[3] Single expert report, page 22
[4] Single expert report, pages 49, 50
The single expert found the child identified only the mother, D, and the maternal grandfather as members of her residential nucleus, from which she apparently inferred the child was enmeshed with the mother and at an early stage of alienation from the father.[5] She was not challenged about the tenuous link between that conclusion and the child’s drawings but, notwithstanding the absence of challenge, her conclusion is not easily reconciled with her accepted opinion that the child has a secure and primary attachment to the father. It is difficult to conceive how the child is in any way alienated from the father when she is securely attached to him, delighted to see him, and seeks out his company. Significantly, despite any concern about the child’s enmeshment with the mother or alienation from the father, the single expert recommended the child should remain living primarily with the mother.[6]
[5] Single expert report, pages 21, 46, 48, 51
[6] Single expert report, page 57
During cross-examination, the mother said the child loves the father and “always wants to go with him”, which was consistent with her earlier confession to the single expert that the child “comes back happy” from her visits with the father.[7] The father knows the child likes to be with him.[8] The mother said she recognised that both parties needed to be part of the child’s life and she earlier told the single expert she was willing to facilitate the child’s relationship with the father,[9] about which she was not challenged. Although the father blithely and indiscriminately asserted the mother was an unreliable witness, it was unclear whether he expected those portions of her evidence to be rejected as deceitful, but doubtful he did. The mother’s evidence to that effect was convincing and is accepted as being both truthful and accurate.
[7] Single expert report, page 6
[8] Father’s first affidavit, para 108
[9] Single expert report, page 49
On any of the parenting proposals mooted, the child would not spend any less than “substantial and significant time” with the father (s 65DAA(3)), which would include substantial portions of school terms, half of school holiday periods, and other special occasions. The mother proposed that the child spend even more time with the father than the pre-existing orders provided.
Such uncontroverted facts tend to demolish the father’s assertion that the mother will eventually cause the ruination of the child’s relationship with him and exposed it as merely an apprehension. That is not to gainsay the parties’ foolish willingness to allow the child to be exposed to aspects of their conflict and mutual distrust, for which they should both be reproached, but that is more properly a consideration under s 60CC(3) rather than s 60CC(2)(a) of the Act. For the purposes of s 60CC(2)(a), the child does and will benefit from maintenance of her meaningful relationships with both parties and the evidence did not demonstrate that situation was likely to change in respect of either party, regardless of the form of orders imposed.
Section 60CC(2)(b)
Until the cusp of the trial, the litigation was conducted by the mother on the basis the child was at unacceptable risk of harm when in the father’s care due to the prospect of her sexual abuse by F. Indeed, that was the only reason she commenced these proceedings, for otherwise she had no reason to change the orders made between the parties in November 2014.
At the commencement of the trial, when asked, the mother’s counsel announced she did not seek a positive finding that the child had been sexually abused by F (or anyone else), and further, she did not seek a finding that the child was at risk of harm through sexual abuse in the father’s care. Indeed, those concessions were the only ones rationally available in the face of the orders freshly proposed by the mother in the Amended Application she filed on 1 September 2016. Evidently, the mother was logically drawn to the same conclusion already reached separately by the father, Independent Children’s Lawyer, and single expert: the evidence did not support any finding that the child was at unacceptable risk of any harm through her subjection to sexual abuse while in the care of the father or members of his extended family.
As a consequence, it is unnecessary to dissect the evidence pertaining to the allegation of the child’s sexual abuse by F, though it is desirable to emphasise comments made by the parties in cross-examination about it.
The father made admissions to the effect that the mother “did the right thing” to report the child’s revelation about her sexual interference by F to the authorities for proper investigation, that he knows the mother did not fabricate the child’s reports of such sexual interference, and that the mother has been a “pretty good” parent overall. The mother believes she acted sensibly and protectively by reporting the child’s complaint[10] so she should be comforted by the father’s re-assurance of her bona fides and competence as a parent.
[10] Mother’s affidavit, para 220
As for the mother, she denied she either fabricated or embellished the child’s representations about her sexual interference, which evidence I accept as truthful and correct. The child undoubtedly made similar representations to the authorities when interviewed independently and so, in the face of the father’s admissions about the reasonableness of the mother’s conduct, the submission by his counsel about her fabrication or exaggeration was misconceived at best. The mother accepted the father was, and would continue to be, vigilant to ensure the child’s safety from predatory behaviour by anyone, which evidence should similarly re-assure the father about the mother’s confidence in him.
Perhaps understandably, the father remained worried that the same problem could arise in the future, but that alone was not sufficient reason to upset the child’s primary residence with the mother. Most importantly, the mother seemed genuinely chastened by her experience in this litigation. She realistically maintained it was still “possible” F had sexually abused the child, but she accepted it was improbable. She accepted it would be just as emotionally damaging for the child to falsely believe she was sexually abused as if she actually was abused, just as the single expert said,[11] so the issue should not be repeatedly discussed with the child. Although she told the single expert in March 2016 she would “do it all over again if [she] thought that something had happened”,[12] she instead said in cross-examination “fear was bestowed” in her by the exacting trial process and she would have to “seriously consider” what she would do if similar circumstances arose in the future. Even if the father doubts her, his doubts could not be cured by reversal of the child’s residence. If similar circumstances did arise in the future and the mother was inclined to react in the same way, she could do so just as easily regardless of whether the child was living with her or merely spending time with her. If the child lived with him and the mother withheld her, he could not expect a court would automatically grant him a recovery order if there was a live dispute about the child’s alleged sexual abuse while in his care.
[11] Single expert report, page 44
[12] Single expert report, page 9
Although there were various other references to conduct that might amount to family violence or psychological abuse amongst the abundant evidence,[13] no submission was made by either party or the Independent Children’s Lawyer about the need to protect the child from any harm due to her exposure or subjection to abuse or family violence. Accordingly, the evidence does not trigger s 60CC(2)(b) as a primary consideration.
[13] Single expert report, pages 16, 46, 47, 48, 51, 55
Child’s best interests – additional considerations
The evidence similarly touched, either directly or tangentially, on other factors prescribed by s 60CC(3) of the Act, but few were ultimately identified as relevant and influential.
Some issues were ignored altogether. For example, there was no cross-examination or submission made about the child’s relationships with other children in the parties’ households,[14] the wider family support available to both parties,[15] the parties’ past drug use,[16] or the mother’s psychological state.[17]
[14] Single expert report, pages 6, 20, 21, 22, 23, 49, 50
[15] Single expert report, pages 14, 31, 33, 47, 51, 55
[16] Single expert report, pages 13, 14, 39
[17] Single expert report, pages 6, 7, 10, 39, 40, 41, 42, 51, 55
Other issues were the subject of cross-examination, but were then abandoned as immaterial. The mother conceded the amenities of the father’s home were unimportant.[18] The father initially considered the mother’s sufferance from multiple sclerosis hindered her parenting capacity,[19] which led him to cross-examine her treating medical specialist and tender numerous exhibits,[20] but in final submissions he conceded there was insufficient evidence to support such conjecture. Her condition is presently reasonably well controlled and is likely to remain that way for the foreseeable future. The mother cross-examined the father about his failure to pay any child support at all,[21] which does not reflect well on him, but she did not contend such failure should affect the orders because she proposed the child should spend even more time in his care than before.
[18] Single expert report, pages 11, 29
[19] Single expert report, pages 7, 10, 12, 33, 40, 41, 42, 47, 53
[20] Exhibits F4, F5, F6, F7
[21] Single expert report, pages 5, 15, 18, 52
Despite the parties’ reserved commendation of one another over their reaction to the child’s revelation of sexual interference by F in February 2015 and their joint expectation the child will be kept safe from any such risk of harm, their mutual distrust was otherwise on plain display during the trial.
The mother asserted the child was at risk of “mental abuse” in the care of the father, whom she regarded as a competent parent, but “not a very good human”. For his part, the father asserted the child was not merely at risk in the mother’s care, but was actually being “mentally abused” by the mother and suffered “mental damage” as a consequence. Of course, the expression of such sentiments is impossible to reconcile with the parties’ respective proposals for the child to spend substantial amounts of time in the other’s care. Either they both irrationally intended to place the child at risk of harm in the other’s care or their respective criticisms were hollow hyperbole for perceived tactical advantage; the latter being more likely. Co-operative parents who trust one another tend not make such sensational, empty allegations of that sort.
Both parties adduced evidence of their acceptance of the literal truth of statements made to them by the child, apparently in expectation the evidence would vindicate their impulsive reactions to the child’s statements. They were wrong. Such evidence only tended to demonstrate the shortcomings of their insight. The child is barely four years of age and probably well aware of the high conflict between her parents. Children of her age do not always speak truthfully or accurately, particularly when they are aware of the conflict and cognisant of the need to demonstrate equal allegiance to both parents. Both parties need to evaluate the child’s statements more carefully and be prepared to consult one another over matters about which they remain alarmed, just as the single expert recommended in cross-examination and just as they would do if their relationship was still intact. Until they change their approach, the cycle of unconditional reliance upon the veracity of the child’s statements, allegations, counter-allegations, official reports, investigations, and litigation is apt to continue, in which case there will eventually be no feasible option but to eliminate one party from the child’s life in order to give her some reprieve.
As the parties’ respective proposals plainly implied, despite their criticisms of one another, they obviously accept they can each satisfactorily provide for the child’s physical, emotional, and intellectual needs. No aspect of the evidence suggested the parties’ parenting capacity precluded the child from either living with or spending substantial time in their care.
Conclusions and orders
Given the dissipation of virtually every authentic contentious issue, the question which emerged was whether there was any material change of circumstances that would warrant any amendment of the orders made between the parties in November 2014.
As is obvious, endless litigation over children should be avoided and, to guard against it, principles have evolved to permit the dismissal of such litigation if there have been no material changes in circumstances and no revelation of some previously unknown material fact since litigation over the children was last finalised between the parties (see Rice v Asplund (1979) FLC 90-725 at 78,905; SPS v PLS (2008) FLC 93-363 at [1]; Marsden v Winch (2009) 42 Fam LR 1 at [48]; Langmeil & Grange [2013] FamCAFC 31 at [43]-[48]; Poisat v Poisat (2014) FLC 93-597 at [8]-[21], [37]-[38]).
The determination of whether there has been a change of sufficient magnitude to warrant review of existing orders may be made either by preliminary inquiry or by more comprehensive hearing (see Marsden v Winch at [46]-[47]; Miller v Harrington (2008) FLC 93-383 at [80]-[83]; Poisat v Poisat at [39]-[45]), but whichever stage the determination is made, application of the Rice v Asplund principle is merely a manifestation of the principle that the subject child’s best interests are the paramount consideration (see Marsden v Winch at [55]; Miller v Harrington at [101]; Poisat v Poisat at [40], [42]).
When pressed in final submissions to identify the changed circumstances which would justify modification of the orders made in November 2014, the mother submitted there was no change. The Independent Children’s Lawyer’s proposal for simple confirmation of the orders made in November 2014[22] was implicit acknowledgement there was no material change in circumstances.
[22] Exhibit ICL4
The father, however, contended there had been a material change in circumstances, though he was unable to clearly articulate the nature of the change. It appeared to devolve to the mother’s alleged over-reaction to the child’s revelation about F in February 2015 and an assertion that, because the mother has an unshakeable belief in the father’s iniquity, history is likely to repeat unless the child either lives with him or spends more time in his care. It was asserted the Federal Circuit Court was ignorant of those facts when the previous orders were made, but the submission was dubious for numerous reasons and is rejected.
First, the criticism of the mother for over-reacting to the child’s revelation was spurious because the father admitted she acted responsibly.
Secondly, the mother credibly said she was now satisfied the father would protect the child from any sexual abuse.
Thirdly, although the mother gratuitously criticised the father for other reasons, he likewise criticised her. Their criticisms of one another most likely had a forensic purpose and were not genuinely reflective of the future they each proposed for the child, which involved each of them to a significant degree.
Fourthly, the evidence easily enabled an inference that, because of their experience of this litigation, both parties will be more careful in future about making impulsive allegations implicating the other.
Lastly, it is clear from the reasons given by Judge Coakes for the orders he made in November 2014 that the parties made various allegations of misconduct against each other in the former litigation (see Watkins & Samson [2014] FCCA 2514 at [81]-[99], [110]-[114], [133]-[137]) despite agreeing on a fundamental plan for them to have equal shared parental responsibility for the child, for the child to live with the mother, and for the child to spend substantial time with the father (Watkins & Samson at [1], [2], [102]), so pointless reciprocal allegations were also a hallmark of the previous litigation.
That is not to say the father’s submission about changed circumstances was entirely without merit. He acknowledged the change could validly be regarded as relatively slight and only sufficient to justify review of the orders prescribing the amount of time the child should spend in his care. In his two fall-back positions, he acknowledged the child should continue to live primarily with the mother, at least until she commences school in 2018, and that the parties should retain equal shared parental responsibility for her[23] – just as the orders made in November 2014 already provide.
[23] Exhibit F9
The evidence does justify a finding of a modest change in circumstances. Judge Coakes previously found the parties were not malicious and they demonstrated a high degree of co-operation with one another (Watkins & Samson at [101], [138]). I am satisfied that is not the case now. In this litigation, both parties maliciously alleged the other was emotionally abusing the child, or was at least capable of it. They were highly distrustful of each other, their past parental co-operation had significantly eroded, and they each admitted the current level of communication between them was quite poor.
In November 2014, Judge Coakes found the evidence insufficiently persuasive to enable prescriptive orders to be made about the time the child should spend with the father beyond her commencement of school in 2018 and concluded the progression of the arrangement to “equal time” at about that stage should depend on the care arrangements being “uneventful” in the meantime (Watkins & Samson at [141]-[142], [150]-[152], [158]). For that reason, orders were made which foreshadowed future enlargement of the time spent by the child with the father, but did not prescriptively provide for it.[24]
[24] Orders 6D, 20 made on 3 November 2014
Self-evidently, arrangements concerning the child since November 2014 have been far from “uneventful”. The deterioration in the parties’ parental co-operation since November 2014 will make it difficult for them to exercise the equal shared parental responsibility vested in them by Judge Coakes. Nonetheless, the mother wanted to retain equal shared parental responsibility with the father and, although he wanted exclusive parental responsibility for the child if her residence was reversed, he made it clear he wanted to retain equal shared parental responsibility with the mother if the child remained living with her. In view of their common position about retention of equal shared parental responsibility, which was endorsed by the Independent Children’s Lawyer and the single expert,[25] I am satisfied they should retain it. However, their current relative lack of co-operation renders it unlikely they will be able to reach any agreement over the significant issue of the time the child should spend with the father from about the time she begins school in 2018, making further litigation over the issue possible, if not probable.
[25] Single expert report, page 57
The father urged in final submissions that the avoidance of further litigation was perhaps the most salient consideration for the Court (s 60CC(3)(l)), which submission had merit. For that reason, the modest change of circumstances is sufficient to warrant the imposition of prescriptive and enforceable orders regulating the time spent by the child with the father from this point forward. To achieve that outcome, Orders 6C, 6D, 7, 8, and 10 made by the Federal Circuit Court in November 2014 are discharged and replaced with those set out at the commencement of these reasons. Orders 6C, 7, 8, and 10 provide for the child to presently spend time with the father for five nights per fortnight during school terms, substantial periods of school holiday periods, and on other special occasions. The new orders adopt and perpetuate a regime to that effect. Orders 6D and 20, which are merely aspirational, only amount to a direction for the parties to try and agree upon changed arrangements for the child that could commence once she starts school.
The orders made in November 2014 currently call for the child to spend five nights per fortnight with the father. Although the mother reluctantly envisaged expansion of the time spent by the child with the father from five nights per fortnight to six nights per fortnight (as recommended by the single expert) and the father sought expansion of the regime to “equal time”, the evidence does not justify such expansion. The evidence failed to demonstrate that the child’s interests would be better served by expansion of her visits with the father from five to six nights per fortnight.
The single expert’s recommendation for six nights per fortnight suffered from the lack of any satisfactory explanation, adding weight to the conclusion there was insufficient reason to change existing orders. Expert opinion evidence is only as good as the deductive reasoning exposed by the expert for holding the opinion (see DasG Pty Ltd v Hawchar (2011) 243 CLR 588 at [91]-[101], [120]-[124], [128]-[130]). The recommendation for six nights per fortnight might just have been a salve for the father.
The single expert only explained why an “equal time” arrangement was inapposite. The single expert’s unchallenged or confirmed opinions were that:
(a)It is “important to reinforce the attachment” between the child and the mother, who is her primary carer;[26]
(b)An “equal time arrangement requires excellent communication” and the parties’ communication is “extremely poor at the moment”, which they do not seem to have the potential to materially improve in the near future because they are “[in]flexible about the contact arrangements and both are likely to withhold information from the other”;[27]
(c)A “weekabout arrangement would probably leave [the child] sad and missing her mother for seven nights with the father”, at least until she commences school;[28] and
(d)The child should live with the mother and her “contact with the father” should be “three days per week”.[29]
[26] Single expert report, page 50
[27] Single expert report, page 54
[28] Single expert report, pages 54-55
[29] Single expert report, page 57
In cross-examination, the single expert’s concession that “equal time” would be an ideal arrangement for the child when she starts school was entirely conditional upon whether the parties could improve their communication in the meantime.
The evidence does not satisfactorily permit any reliable forecast about the level of the parties’ co-operation more than a year ahead in early 2018, when the child is due to start school. There is consequently no proper basis upon which to presently impose a future progression to an “equal time” residential regime. The new orders therefore enshrine existing arrangements and introduce as much certainty as possible to eradicate conflict between the parties. The orders provide for the child to spend time with the father from Thursday afternoon every week, though she will return to the mother at different times. In one week she will stay with the father over the weekend and return to the mother the following Monday morning. In the intervening week she will return to the mother’s care the next morning.
Order 11 made in November 2014 is also discharged and replaced with an order making more comprehensive provision for the manner in which the child will be exchanged between the parties. The child will be collected from and returned to school or pre-school whenever possible, but otherwise the changeover venue will be the same as ordered in November 2014, about which neither party made a complaint.
I certify that the preceding sixty six (66) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Austin delivered on 30 September 2016.
Associate:
Date: 30 September 2016
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