SANDER & SANDER

[2010] FamCA 1146

FAMILY COURT OF AUSTRALIA

SANDER & SANDER [2010] FamCA 1146

FAMILY LAW – APPEAL – From Court of summary jurisdiction

FAMILY LAW – CHILDREN – In an interim hearing findings of fact may only be made based on uncontentious evidence or reasonable inferences – parental responsibility – where father alleges the child is exposed to neglect, family violence and sexual abuse while in the care of the mother – inadequate uncontentious evidence and inferences to corroborate the allegations – presumption of equal shared parenting responsibility applies

FAMILY LAW – CHILDREN – Equal or substantial and significant time – distance between the parents’ households makes equal or substantial and significant time impracticable

Family Law Act 1975 (Cth) ss 4, 60B, 60CA, 60CC, 60CG(1)(b), 61B, 61DA, 64B, 65AA, 65D, 65DAA, 65DAC, 65DAE, 96(4)
Family Law Rules 2004, r 5.10(1)

Goode & Goode (2006) FLC 93-286
MRR v GR (2010) 240 CLR 461

APPELLANT: Mr Sander

RESPONDENT: Ms Sander

INDEPENDENT CHILDREN’S LAWYER: Mr Rugendyke, Catherine Henry Partners

FILE NUMBER: NCC 554 of 2010

DATE DELIVERED: 17 December 2010

PLACE DELIVERED: Newcastle

PLACE HEARD: Newcastle

JUDGMENT OF: Justice Austin

HEARING DATE: 10 December 2010

REPRESENTATION

COUNSEL FOR THE APPELLANT: Not Applicable

SOLICITOR FOR THE APPELLANT: Ms O'Rourke, Legal Aid NSW

COUNSEL FOR THE RESPONDENT: Not Applicable

SOLICITOR FOR THE RESPONDENT: Ms McNeilly, McNeilly Lawyers

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: Not Applicable

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Mr Rugendyke, Catherine Henry Partners

Orders,

pending further order

1. All previous parenting orders relating to the child T, born … March 2000, (“the child”) are discharged.

2. The mother and father shall have equal shared parental responsibility for the child.

3. The child shall live with the mother.

4. Each of 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 New South Wales public school terms, every third and seventh weekends from 6.00 pm Friday until 6.00 pm Sunday.

   (b)During New South Wales public school holidays, except the Christmas school holidays, for the first half of such holidays in every even numbered year, and for the second half of such holidays in every odd numbered year.

   (c)During the New South Wales Christmas public school holidays, from 3.00 pm on 26 December until 3.00 pm on 12 January each year.

5. For the purposes of implementation of Order 4(b), the New South Wales public school holidays are deemed to commence on the first day following the last day of school term, the holidays are deemed to end on the last day preceding the day upon which the child is due to return to school, and the mid point is the day halfway between those first and last days.

6. For the purpose of implementation of Order 4, unless otherwise agreed, the mother or her nominee shall deliver the child to the father or his nominee at the Port Macquarie Airport, NSW, at the commencement of the time to be spent by the child with the father and the father or his nominee shall return the child to the mother or her nominee at the same place at the conclusion of the time to be spent by the child with the father.

7. Unless otherwise agreed, the parties shall take all reasonable steps to ensure that the child communicates privately by telephone with:

   (a)The father each Wednesday when the child is living with the mother, between 6.00pm and 6.30pm, and for that purpose the father shall telephone the child on the telephone number provided to him by the mother, and the mother shall ensure the child is able to receive the father’s calls on that number at that time.

   (b)The mother each Wednesday when the child is spending time with the father, between 6.00pm and 6.30pm, and for that purpose the mother shall telephone the child on the telephone number provided to her by the father, and the father shall ensure the child is able to receive the mother’s calls on that number at that time.

   (c)The parent with whom the child is not then staying, on the child’s birthday, between 6.00pm and 6.30pm, and for that purpose the parent with whom the child is not staying shall telephone the child on the telephone number provided by the other parent for that purpose, and the parent with whom the child is staying shall ensure the child is able to receive the other parent’s calls on that number at that time.

8. Each party is restrained from denigrating the other in the presence or hearing of the child, and from permitting the child to remain in the presence or hearing of another person denigrating the other.

9. Each party shall notify the other of any medical emergency, illness or injury suffered by the child whilst in their respective care warranting treatment by a third party, and shall authorise any treating health professionals to communicate with the other parent about the condition and treatment of the child.

10. The mother shall authorise and request the principal of any school attended by the child to provide to the father, at the father’s expense, copies of all school reports and school photograph order forms relating to the child.

11. Each party shall forthwith inform the other, and keep the other informed, in writing of their respective current residential address, landline telephone number, mobile telephone number, and email address.

12. Pursuant to s 65DA(2) and s 62B of the Family Law Act, the particulars of the obligations that these orders create and the particulars of the consequences that may follow if a person contravenes these orders and details of who can assist parties adjust to and comply with an order are set out in the Fact Sheet attached hereto and these particulars are included in these orders.

13. Costs are reserved for 28 days.

14. Any and all outstanding interim applications are dismissed.

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

FAMILY COURT OF AUSTRALIA AT NEWCASTLE

FILE NUMBER: NCC 554 of 2010

MR SANDER

Appellant

And

MS SANDER

Respondent

And

INDEPENDENT CHILDREN’S LAWYER

REASONS FOR JUDGMENT

Introduction

1. Before the Court for determination is an appeal brought by the father against orders made by a State magistrate sitting at the Local Court of NSW. The subject orders were made on 31 August 2010.

2. The magistrate ordered that the child of the parties live with the mother and spend restricted time with the father.

3. The father wishes to reverse that parenting regime, so that the child lives with him and spends restricted time with the mother.

Proposal and primary evidence of the father

1. The father relies upon his Notice of Appeal filed in this Court on 16 September 2010, in which he seeks discharge of the orders made on 31 August 2010 and replacement with the interim parenting orders proposed by him in his Response dated 17 August 2010, filed with the Local Court. Those were the orders the father unsuccessfully asked the magistrate to make.

2. In support of his application the father read the following evidence:

   a)The Notice of Child Abuse or Family Violence, dated 30 August 2010, filed with the Local Court.

   b)The affidavit of Mrs Sander Senior, the maternal grandmother, sworn on 30 August 2010 and filed with the Local Court.

   c)The affidavit of the father filed in this Court on 25 November 2010.

   d)The affidavit of Ms H, the father’s partner, filed in this Court on 8 December 2010.

   e)The affidavit of Mr Sander Senior, the paternal grandfather, filed in this Court on 8 December 2010.

3. The father tendered four exhibits.[1]

   [1] Exhibits F1 to F4

Proposal and primary evidence of the mother

1. The mother informed the Court that she pressed for the interim orders set out within her Initiating Application filed on 5 August 2010 with the Local Court, but I presume that to be an error, since the mother filed an Amended Initiating Application dated 26 August 2010 with the Local Court in advance of the hearing conducted by the magistrate on 31 August 2010. The orders made by the magistrate were similar, but not identical, to the interim orders proposed by the mother in her Amended Initiating Application.

2. In any event, even if I am in error assuming that the mother presses for the orders within her Amended Initiating Application, it is of little moment. The Court is now at large about the appropriate parenting orders to be made. Pursuant to s 96(4) of the Family Law Act (“the Act”), the appeal brought by the father against the decision of the State magistrate is conducted as a hearing de novo.

3. In support of her position the mother read the following evidence:

   a)Affidavit of the mother sworn on 29 July 2010 and filed with the Local Court.

   b)Affidavit of the mother sworn on 26 August 2010 and filed with the Local Court.

   c)Affidavit of Mr R, the mother’s partner, sworn on 26 August 2010 and filed with the Local Court.

   d)Affidavit of Mrs B, the maternal grandmother, filed in this Court on 9 December 2010.

4. The mother tendered two exhibits.[2]

   [2] Exhibits M1, M2

Proposal of the Independent Children’s Lawyer

1. The Independent Children’s Lawyer tendered five exhibits,[3] but did not otherwise adduce any evidence.

   [3] Exhibits ICL1 to ICL5

2. There was no evidence before the Court from any single expert witness or Family Consultant in relation to the child, her emotional attachments, or the other statutory criteria relevant to findings about her best interests.

Procedure

1. The procedure for conducting an interim hearing has been authoritatively established by Goode & Goode (2006) FLC 93-286. At paragraph 68 of that judgment, the Full Court said:

   …the procedure for making interim parenting orders will continue to be an abridged process where the scope of the enquiry is “significantly curtailed”.  Where the Court cannot make findings of fact it should not be drawn into issues of fact or matters relating to the merits of the substantive case where findings are not possible.  The Court also looks to the less contentious matters, such as the agreed facts and issues not in dispute and would have regard to the care arrangements prior to separation, the current circumstances of the parties and their children, and the parties’ respective proposals for the future.

2. At paragraph 74 of that judgment, the Full Court also said:

   …because of the circumscribed nature of the proceedings, the reasons given at an interim hearing may be brief.  So too, the filing of lengthy affidavits is unlikely to be helpful where the Court is unable to make findings about disputed facts.

3. Relevant findings of fact may only be made by the Court based on uncontentious evidence, of which there was little, or inferences that fairly arise from the available evidence, of which there were few. 

4. Regrettably, the parties did not conduct the case in accordance with those principles or the Family Law Rules. They each adduced an abundance of contentious evidence in multiple affidavits, which evidence extended back over many years to the commencement of their relationship. They and the Independent Children’s Lawyer also insisted on tendering numerous documentary exhibits about highly contentious issues in circumstances where the exhibits did not definitively resolve or clarify the dispute. Little appreciation was demonstrated about the inability of the Court to make findings of fact in the absence of cross examination and comprehensive evaluation of the evidence in a full trial. The case was conducted at such length that it was impossible to adhere to the usual time limit of two hours allocated to such hearings (see Rule 5.10(1)), and the amount of evidence was such that it was impractical to deliver a sensibly reasoned ex tempore judgment, necessitating reservation of these reasons.

Background facts

1. The following facts may be distilled from the evidence.

2. The parties began their relationship in 1998 or 1999.[4]

   [4] Father’s affidavit, par 3; Mother’s first affidavit, par 4

3. One child was born to the relationship between the parties, being T (“the child”), who was born in March 2000.[5] The child is now 10 years of age.

   [5] Mother’s first affidavit, par 5

4. The parties separated in early 2008.[6] They were then living in Sydney.[7]

   [6] Father’s affidavit, par 35; Mother’s first affidavit, par 4

   [7] Mother’s first affidavit, par 6

5. Since separation, the child has only lived with the mother.

6. The mother and child relocated from Sydney to the central coast in July 2009,[8] and then to the mid north coast in December 2009,[9] where they remain. The father consented to the mother moving to the mid north coast of NSW with the child.[10]

   [8] Father’s affidavit, pars 55-56; Mother’s first affidavit, par 9

   [9] Father’s affidavit, pars 58-59; Mother’s first affidavit, par 11

   [10] Father’s affidavit, par 53

7. The father has remained living in or around Sydney since separation.

8. The parties did not need parenting orders to regulate the parenting arrangements for the child until these proceedings were commenced in August 2010.

9. For the first year following separation the child spent time with the father about fortnightly.[11] Since the child’s relocation to the mid north coast of NSW she has spent time with the father during school holiday periods.[12] The mother agreed to all of the father’s requests about spending time with the child.[13]

   [11] Father’s affidavit, par 37; Mother’s first affidavit, par 7

   [12] Father’s affidavit, par 37(d); Mother’s first affidavit, par 14

   [13] Mother’s second affidavit, par 15

10. The child spent time with the father during the school holidays in July 2010. During that stay the father decided not to return the child to the mother and detained her.[14] That caused the mother to commence proceedings before the Local Court on 5 August 2010.

    [14] Father’s affidavit, par 8; Mother’s second affidavit, pars 17-19

11. On 11 August 2010 the Local Court made a recovery order in the mother’s favour, pursuant to which the child was returned to her care. The mother was also allocated sole parental responsibility for the child.[15]

    [15] Father’s affidavit, pars 8-9; Mother’s second affidavit, par 26

12. The father filed his Response on 17 August 2010, by which he indicated his desire to have orders made providing for the child to live with him and for sole parental responsibility to be allocated to him.

13. The matter was re-listed before the Local Court on 19 August 2010, at which time the court made interim orders, by consent, allocating to the parties equal shared parental responsibility and providing for the child to live with the mother and spend defined time with the father. The matter was fixed for interim hearing on 31 August 2010.[16]

    [16] Father’s affidavit, Annexure B; Mother’s second affidavit 27-28

14. The contested interim hearing between the parties proceeded on 31 August 2010. The magistrate announced at the conclusion of the hearing that the court would make orders to the effect that the parties would have equal shared parental responsibility for the child, and that the child would live with the mother and spend time with the father. In accordance with the court’s request, the parties then agreed upon consent orders that reflected the court’s decision.[17]

    [17] Father’s affidavit, pars 10-12

15. Those are the orders that are now the subject of the father’s appeal.

Summary of parenting law

1. Orders in respect of children are regulated under Part VII of the Act, in which the meaning of a “parenting order” is defined (s 64B).

2. When called upon 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 properly be made (s 65D).

3. 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 with precision the criteria which the Court must contemplate in arriving at a conclusion as to what is in the best interests of the child (s 60CC).

4. The Court is required to apply a rebuttable presumption that it is in the best interests of a child for the child’s parents to be allocated equal shared parental responsibility for the child (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 major long-term issues (s 65DAE).

5. However, the presumption of equal shared parental responsibility does not apply if there are reasonable grounds to believe that a parent has engaged in abuse of the child or family violence (s 61DA(2)), and the presumption may be rebutted if the Court is satisfied that it would not be in the best interests of the child for the parents to have equal shared parental responsibility for the child (s 61DA(4)). The legislation makes it clear that the presumption applies to the allocation of parental responsibility and is not a presumption about the amount of time the child should spend with each parent.

6. In the event that an order is made allocating equal shared parental responsibility, either presumptively or otherwise, the Court is then obliged to consider both the advisability and practicability of the child spending equal, or alternatively, substantial and significant time with each of the parents (s 65DAA).

7. If the presumption of equal shared parental responsibility does not apply, or is successfully rebutted, and a different form of parental responsibility order is made, then the Court’s discretion is at large in the determination of the parenting orders warranted, although that discretion must still be exercised within the parameters of the prevailing legislative provisions.

8. The principles outlined above have been authoritatively examined in Goode & Goode (2006) FLC 93-286 and MRR v GR (2010) 240 CLR 461.

Child’s best interests – primary considerations

Section 60CC(2)(a)

1. The child will certainly benefit from maintaining the meaningful relationships she currently enjoys with both parents. No submission was made to the contrary.

Section 60CC(2)(b)

1. The primary submission of the father was that the child should live with him because her physical and psychological safety was at risk due to the prospect of her being neglected and exposed to both family violence and sexual abuse within the mother’s household. To properly evaluate the evidence it is necessary to deal with those allegations individually rather than compendiously.

   Neglect

2. The mother cohabits with Mr R. The father contends that both the mother and Mr R are dependent upon prescriptive medication, which they each allegedly take in illegally high dosages. It is asserted that their dependency must induce intoxication which would preclude them from rendering proper care to, and supervision of, the child.

3. The father baldly asserts that the mother had an addiction to prescription drugs during their relationship,[18] but that is not probative evidence because the father is not seized of medical expertise. His inexpert belief is not proof of the fact. The father’s allegation that the mother was charged by police for forging prescriptions[19] is not verified by independent evidence. The mother only has convictions for minor traffic offences,[20] which tends to corroborate her evidence that she was never arrested or charged for forging prescriptions.[21]

   [18] Father’s affidavit, par 26

   [19] Father’s affidavit, pars 30-31

   [20] Exhibit ICL2

   [21] Mother’s second affidavit, par 41

1. It is common ground that the mother entered a rehabilitation facility in about mid 2009 for several days, but beyond that the evidence is inconclusive. The mother’s general practitioner recorded in her notes of a consultation on 23 June 2009 that the mother spent four days in detoxification, but the notes reveal little else.[22] The father only relates what he remembers he was then told about the mother’s treatment by her relatives.[23]

   [22] Exhibit F1

   [23] Father’s affidavit, pars 48, 51

2. Even assuming the mother was blighted by an addiction to or dependence upon prescriptive medication in mid 2009, there is no evidence at all about her current condition. The evidence about the mother’s condition over the last 18 months is silent, but for a Medicare PBS Patient Summary tendered by the Independent Children’s Lawyer, the contents of which related to both the mother and Mr R.[24]

   [24] Exhibit ICL1

3. In respect of the mother, the document discloses her transactions of medical scripts issued to her by medical practitioners on a regular basis at pharmacies in locations close to her home. The father and Independent Children’s Lawyer submitted that the mother’s scripts were so plentiful that the conclusion was almost inescapable that the mother was using the prescribed medications at a much greater rate than would be properly therapeutic. That submission is simply untenable. There is no evidence about the nature of the mother’s current ailments for which the medications are prescribed, no evidence about the therapeutic purpose or nature of medications prescribed, no evidence about the dosages prescribed to the mother, and no evidence that the dosages prescribed to the mother are inapposite to her conditions. The submissions of the father and Independent Children’s Lawyer are no more sophisticated than idle speculation that the mother seems to be heavily medicated.

4. The father asserted that the mother’s evidence is contradicted by the PBS Patient Summary, because the mother said that she no longer takes any medication[25] whereas the exhibit shows that she still does take medication. The mother’s evidence is in fact much more ambiguous than the father contends. It is equally plausible that the mother meant that she no longer takes any anti-depressant medication, in which case there would not be any necessary inconsistency between her evidence and the PBS Patient Summary. The Independent Children’s Lawyer was prepared to concede that there is no evidence proving that the mother’s recently prescribed medications on the PBS Patient Summary are of an anti-depressant type.

   [25] Mother’s second affidavit, par 37

5. Even if the mother was previously dependent upon or addicted to prescription medication, I am not prepared to conclude on the current evidence that she remains so, or that any such dependence compromises her capacity to care for the child. That would be idle speculation. Inferences of that nature urged by the father and Independent Children’s Lawyer are not capable of being drawn.

6. The evidence in respect of Mr R is more concerning though. He was convicted for possession of a prohibited drug in 2008, for using a false instrument in 2009, which instrument was a medical prescription,[26] and for forging a medical prescription in 2010.[27] There can be little doubt from the exhibits[28] that Mr R has attempted to improperly obtain prescriptive medication on numerous occasions since early 2008. That inference is not only available, but unavoidable.

   [26] Exhibit ICL5

   [27] Exhibit F4

   [28] Exhibits ICL5 and F4

7. The PBS Patient Summary discloses him to have consulted a vast array of medical practitioners on the mid north coast of NSW and to have filled an enormous number of medical scripts at pharmacies over the last three years. Although there was some dispute over the mathematics, the amount of medication purchased by Mr R in recent months would necessarily mean that he ingested a peculiarly large number of tablets on a daily basis. In conjunction with the evidence about Mr R’s convictions for passing false scripts, a logical inference may properly be drawn that he is using medication at a rate above a proper therapeutic level. It is not, however, possible to infer the extent by which his use of prescriptive medication exceeds a proper therapeutic level.

8. It may be, as the father suspects, that Mr R is stupefied for parts of every day. There is no evidence either way. However, even if that is so, the evidence falls considerably short of proving that the child is thereby at risk of harm. Although Mr R’s heavily medicated condition may render him unable to assist the mother in caring for the child, there is no evidence at all that his intoxication precludes the mother from affording the child with the care and supervision she needs.

9. I accept the father’s submission that it would be undesirable for the child to be regularly confronted in the mother’s home by Mr R in an intoxicated condition, but that undesirability does not of itself equate with a situation in which the child suffers psychological harm.

10. The father asserted that the child’s absences from school were concrete evidence of the delinquent care of the child in the mother’s household. The child was absent from school on about 50 occasions during the 2009 academic year, and on 9 occasions during the first half of the 2010 academic year.[29] Although it is clear that many of the 2009 absences were unexplained, it is unclear whether the 2010 absences were properly explained to the school. If they were, the concern significantly abates.

    [29] Father’s affidavit, Annexure F

11. The mother contended that the 2009 absenteeism is at least partially explained by her hospitalisation for some months with a serious abdominal complaint during which time the child stayed with the maternal grandmother on the mid north coast of NSW, the child having to attend medical appointments, and their subsequent move from Sydney to the mid north coast.[30]

    [30] Mother’s second affidavit, pars 9, 10, 59

12. The mother’s explanations do go some way to explaining the 2009 absenteeism. But explanation is not justification. Schooling is an important part of the child’s education and socialisation, and her progress on those fronts should not be compromised. The mother’s commitment to the child’s school attendance in 2010 is much better, but still seemingly capable of improvement.

13. The child’s school absenteeism is worrying, but the issue does not carry substantial weight in view of the evidence about the school supports now in place for the child on the mid north coast.

14. The father also submitted that the mother is unreliable in attending to the child’s medication. The child has been diagnosed with Attention Deficit Hyperactivity Disorder and prescribed Ritalin as a medication. The father asserts that over the last year the mother has not ensured the child consumes the medication, and has failed to provide the father with the medication when the child is delivered to him.[31]

    [31] Father’s affidavit, pars 62-67, 125, 130

15. The mother contends that she has been advised by the child’s treating psychiatrist, Dr E, that the child need not take the medication in school holidays.[32] However, a report from the child’s paediatrician, Dr D, dated 23 September 2009 indicates the child should be taking her medication daily.[33] A note made by the child’s school counsellor on 13 May 2010 also indicates that the child and mother are against the child taking medication and so the child was taking none.[34] The state of the evidence is concerning, but the most recent medical evidence from the child’s treating paediatrician before the Court is now some 15 months old. The evidence also suggests the child may have been prescribed medication called Concerta in lieu of Ritalin at some stage in the past.[35]

    [32] Mother’s second affidavit, par 47

    [33] Mother’s second affidavit, Annexure C

    [34] Exhibit F2

    [35] Affidavit of the maternal grandmother, par 14; Mother’s second affidavit, Annexure B

16. It would be alarmist to simply conclude on historical and piecemeal evidence that the mother and child are wilfully ignoring current medical advice. Any such conclusion should await comprehensive and current evidence, which will presumably be available at the time of final trial.

17. On the whole, the father’s contention that the mother continues to pose a risk of harmful neglect to the child is conjectural and not adequately corroborated by the evidence.

    Family violence

18. The parties each allege that the other perpetrated family violence upon them during the relationship.[36] The mother asserts that the father’s behaviour caused both the child and her significant distress. The parties’ evidence is irreconcilable, and in the absence of the evidence being thoroughly tested, no findings can be made. Notably, there is no evidence of the child being exposed to any family violence between the parties since the time of separation nearly three years ago.

    [36] Father’s affidavit, pars 33-34; Mother’s second affidavit, par 38

19. The father however submits that the child will probably continue to be exposed to family violence in the mother’s household because of the violent predisposition of the mother’s partner. There is no suggestion that the child is directly abused, but rather that she is exposed to violent conduct committed by Mr R towards the mother and others.

20. The father’s submission in that regard is premised upon two incidents that occurred in August 2009, together with some comments made to him by the child and suspicions that arise from the contents of Mr R’s criminal record. The father’s concerns were the subject of his Notice of Child Abuse or Family Violence, which was filed with the Local Court contemporaneously with the hearing that occurred on 31 August 2010.

21. The father reports that the mother telephoned him in late August 2009 soliciting his assistance to quell Mr R’s violent conduct towards her.[37] The father telephoned the police who immediately attended the mother’s home to investigate the incident. The police ascertained that the mother and Mr R had become embroiled in an argument while both were under the influence of alcohol. Neither the mother nor Mr R was injured. The police observed the child to be happy and healthy playing in her room at the time of their attendance.[38] The father asserts that the child later told him she was passed out of the house by other people to avoid the incident,[39] which could only have happened before police arrived given that police saw the child in her room.

    [37] Father’s affidavit, pars 68-69

    [38] Exhibits ICL3, ICL4

    [39] Father’s affidavit, par 70

22. The mother inferentially concedes that she did telephone the father in distress, but denies that Mr R struck her. She asserts Mr R has never been violent to either her or her children.[40] Nevertheless, for the mother to have felt the need to telephone the father during the course of the incident, she must have been frightened. In all likelihood, she was frightened for good reason, in which case the episode was an event of family violence even though the mother was not physically struck.

    [40] Mother’s second affidavit, par 48

23. In addition, the child reported to the father in or about August 2009 that Mr R had assaulted and verbally abused the mother’s older daughter.[41] The child’s report to the father directly contradicts the mother’s evidence that Mr R has never been violent towards her children. That evidence cannot be reconciled and no finding can be made about which version is correct. In any event, even in isolation, the other incident to which the police were called reflects poorly upon Mr R.

    [41] Father’s affidavit, par 71

24. The father alleges that the child informed him during the April 2010 school holidays that the mother and Mr R scream at each other, which she found disturbing.[42] No doubt the child would be emotionally upset by loud arguments between the mother and Mr R, but that evidence is insufficient to prove the frequency of such behaviour, or that it amounted to family violence as defined in the Act. That evidence does not support any inference that the mother and Mr R argue with such ferocity and frequency that it is psychologically harmful to the child.

    [42] Father’s affidavit, par 77

25. The only evidence of family violence occurring in the mother’s household is limited to one, and possibly two, incidents in August 2009. In those circumstances, the problem is not as pervasive as the father appears to fear.

26. The father urges the Court to draw an adverse inference against Mr R of his propensity for violent conduct because of his criminal convictions and his former motorcycling associations.[43] Mr R has some convictions for assault, resisting a police officer in execution of his duty, and contraventions of an apprehended violence order.[44] There is no evidence of the mother being a victim of any of those offences. Although they are indeed convictions for offences of violence, the convictions are not evidence of family violence.

    [43] Father’s affidavit, par 57

    [44] Exhibit F4

27. It is a valid submission that the Court has good reason to be wary of Mr R, but the evidence does not warrant a conclusion that he poses an unacceptable risk of causing physical or psychological harm to the child through the commission of family violence.

    Sexual abuse

28. In his Notice of Child Abuse or Family Violence the father did not allege frank sexual abuse of the child, but rather recited a risk of such abuse in the following terms:

    The child has been exhibiting sexualised behaviour since in or before April 2010 which has included: sticking her hands down her pants and touching her genitals, touching her genitals and deliberately touching the noses of other children afterwards (sic).

29. The Notice specified portions of affidavits sworn by the father and his partner which adduced evidence relevant to that allegation. Neither of those affidavits was read by the father on the appeal, although fresh affidavits of both the father and his partner were read.

30. The father alleges that during the April and July 2010 school holidays he observed the child to act in the manner described in the Notice, which caused him such concern that he contacted the Child Protection helpline.[45] The father is corroborated by his partner.[46]

    [45] Father’s affidavit, pars 75-76, 79-80, 83

    [46] Affidavit of Ms H, pars 21-22

31. There is no evidence of any action being taken by any authority following the father’s report to the Child Protection helpline.

32. The father also telephoned the mother to talk about the child’s behaviour. It is alleged by the father’s partner,[47] but curiously not by the father, that the mother acknowledged that the child acts that way “all the time”. Comments of that ilk are denied by the mother, who said she has never seen the child display any form of sexualised behaviour while in her care, and further, that the child’s counsellor has never informed her of the child exhibiting or speaking about such behaviour.[48] The maternal grandmother stated that both the mother and father had observed the child displaying sexualised behaviour long ago, before their separation.[49]

    [47] Affidavit of Ms H, par 21

    [48] Mother’s second affidavit, par 49

    [49] Affidavit of the maternal grandmother, par 16

33. The evidence of the mother, maternal grandmother, father, and father’s partner is completely irreconcilable. It is impossible to make a finding of fact about the issue. The sexualised behaviour of the child may have been occurring for years or only in recent months, and it is entirely unclear who knew of it and when their knowledge was acquired.

34. It is also alleged by the father’s partner that the father intended to speak directly with the child about her sexualised behaviour.[50] There is no evidence that the father did so, or if he did, the outcome of any such conversation.

    [50] Affidavit of Ms H, par 22

35. Even if one assumes the correctness of the father’s evidence about the recency of the child’s behaviour and the genuineness of his concerns about its origin, there is no rational basis to infer that the child is acting in a sexualised way because of her exposure to sexual abuse within the mother’s home. It is reprehensible for the father to impute such an allegation relying only on the current evidence. There are a myriad of plausible benign reasons for the child’s behaviour.

36. The father’s report of the child mentioning to him her knowledge of sexual intimacy between the mother and Mr R[51] is not evidence of exposure of the child to sexual abuse, nor of sexual abuse of the child. The term “abuse” is defined in the Act (s 4(1)) so as to require an assault of one sort or another upon the child. Even if it is accepted that the child’s knowledge of sexual intimacy between the mother and Mr R is accurate and truthful, there is no evidence to permit any inference that the child masturbates or manipulates her genitals because of that knowledge.

    [51] Father’s affidavit, par 78

37. Presently, there is no basis to conclude that the child is at an unacceptable risk of harm in the mother’s care through exposure or subjection to sexual abuse.

Child’s best interests – additional considerations

Section 60CC(3)(a)

1. There is inconsistent evidence about the expression of views by the child. The father asserts that the child told him in July 2010 that she wished to live with him for a trial period of one year, in response to which the father finally decided to detain the child.[52]

   [52] Father’s affidavit, pars 84, 87-89

2. Although the child may have told the father that, it is not convincing evidence. It may not represent the authentic view of the child. She expressed that wish only days before her scheduled return to the mother at the conclusion of her holiday with the father, in circumstances where she was probably well aware of the conflicted relationship between her parents.

3. The expression of views by the child to an independent person such as her treating neuropsychologist is much more compelling evidence. As recently as 30 August 2010 the child’s neuropsychologist, Ms M, reported that the child told her she wished to live with the mother and spend weekends and holidays with the father. She loves them both and is disturbed by their conflict.[53] I accept that evidence as being probably a more accurate reflection of the child’s views.

   [53] Exhibit F3

4. The child is not yet 11 years of age, but she is at an age where her views must carry some, although not decisive, weight.

Section 60CC(3)(b)

1. There was no contest that the child enjoys warm and loving relationships with both parents and extended maternal and paternal families.

Section 60CC(3)(c)

1. The mother has demonstrated a willingness and ability to facilitate and encourage the relationship between the child and the father. Although she relocated with the child away from Sydney to the mid north coast of NSW, she ensured that the child continued to see the father during school holidays in accordance with his requests.

2. Generally, I also accept that the father has demonstrated a willingness and ability to facilitate and encourage the relationship between the child and the mother. He acquiesced to the child remaining with the mother after separation and consented to their relocation away from Sydney. His decision to detain the child in July 2010 without advance discussion with the mother was unwise, but I infer, motivated by concerns he developed about the child rather than any desire to damage the relationship between the child and the mother.

Section 60CC(3)(d)

1. Acceding to the father’s proposal would represent a fundamental restructure of the parenting arrangement that has existed for nearly three years. I infer from the historical facts that the mother is the child’s primary attachment figure, and that separation of the child from the mother by ordering her to live in Sydney with the father, his partner, and their three children would be a substantial change for the child which would likely hold deleterious consequences for her – at least in the short term.

Section 60CC(3)(e)

1. In whichever household the child lives there will be practical difficulty and expense in ensuring that the child spends time with the non-residential parent. The father intends to continue living in Sydney with his partner, and so far as the evidence goes, the mother intends to continue living on the mid north coast of NSW with her partner.

Section 60CC(3)(f)

1. In all likelihood, the father has the capacity to provide for all needs of the child, including her emotional and intellectual needs. I find on the available evidence that the mother also has that capacity.

Section 60CC(3)(g)

1. Aside from the evidence pertaining to alleged neglect and abuse already addressed as primary considerations, no submissions were made about the maturity, sex, lifestyle, or background of the parties that would influence the outcome of the hearing.

Section 60CC(3)(h)

1. Neither the child nor the parties identify as Indigenous Australian.

Section 60CC(3)(i)

1. I am satisfied that, with few exceptions, the mother demonstrates a proper attitude to the child and the responsibilities of parenthood. She ought be more mindful of the behaviour of her partner, who probably uses prescriptive medication abusively in and around her household, and who seems prone to adopt an aggressive attitude to resolve his disagreements with others. She also needs to be more discreet in her sexual interaction with her partner, so that the child is not confronted with the reality of its occurrence. Permitting the child’s exposure to such conduct at her age and level of maturity is unseemly.

2. There was also a valid concern raised about the father’s attitude to the child and responsibilities of parenthood. As already recorded, the child told her neuropsychologist on 30 August 2010 that she wished to remain living with the mother. The report of the neuropsychologist must have come to the attention of the father, who later discussed with the child her stated views. That is the only reasonable inference to draw from the contents of the neuropsychologist’s subsequent report dated 21 September 2010, in which she states the child complained to her about being confronted by the father with the information she had divulged confidentially to the neuropsychologist.[54] For the father to have done that demonstrates a remarkable lack of insight. The opinion of the neuropsychologist, which I accept, is that the father thereby seriously compromised the therapeutic relationship between the child and the neuropsychologist. He also caused emotional disturbance to the child.

   [54] Exhibit M1

Section 60CC(3)(j)

1. The issue of family violence has already been addressed as a primary consideration. Irrespective of whether orders are made consistently with those proposed by the mother or father, there is no increased risk of exposure of the child or the parties to family violence (s 60CG(1)(b)).

Section 60CC(3)(k)

1. Having regard to the evidence adduced by the parties, there are no existent family violence orders.

Section 60CC(3)(l)

1. Making orders closer resembling those proposed by the mother or father will not likely increase the prospect of further proceedings in relation to the child. Each party proposes that the child live predominantly with one parent and spend time with the other parent with such frequency as the distance between their households reasonably allows. The Independent Children’s Lawyer agrees.

Section 60CC(3)(m)

1. The parties have both participated in the engagement of the child with the professional support she has needed, but even before separation that role fell primarily to the mother.[55] Since separation, the mother has maintained that primary responsibility.

   [55] Father’s affidavit, par 62

2. The child was referred to her psychiatrist, Dr E, before the parties separated. He began seeing the child in August 2006 in relation to her behavioural problems.[56] The child was also seeing a social worker at that time. That psychiatrist diagnosed the child with Attention Deficit Hyperactivity Disorder and subsequently prescribed Ritalin medication for her. The child maintained contact with that psychiatrist until at least 30 October 2008, which was after the parties separated. The doctor was again due to see the child in early 2009, but there is no evidence as to whether that occurred.

   [56] Mother’s second affidavit, Annexure B

3. The child began consulting her paediatrician, Dr D, on the mid north coast of NSW, by at least 20 May 2009.[57] It was probably earlier, because the doctor describes reviewing the child on that date. The maternal grandmother is the doctor’s employee, so the child’s consultations with that doctor were obviously arranged by the maternal family. The doctor continued to consult the child during 2009.[58]

   [57] Mother’s second affidavit, Annexure A

   [58] Mother’s second affidavit, Annexure C

4. The mother has also arranged for the child to consult with a neuropsychologist, Ms M,[59] for her to consult with the school counsellor,[60] and for her to be allocated a teacher’s aide at school.[61]

   [59] Mother’s second affidavit, par 24

   [60] Exhibit F2

   [61] Mother’s second affidavit, par 22

5. The mother also voluntarily undertook a parenting program in April 2010 to improve her skills.[62] It could not be said that she did so for forensic advantage in this case because the proceedings were not commenced until August 2010.

   [62] Mother’s second affidavit, par 74

6. The mother’s approach to the child’s problems has certainly been proactive.

7. In the event of an order being made that the child live with the father in Sydney, the child’s therapeutic relationships with those medical professionals and school supports would be dislocated. That is an undesirable outcome. Although the father may be able to arrange substitute supports for the child in Sydney, as he said he could,[63] the need for that does not arise if the child remains living with the mother.

   [63] Father’s affidavit, pars 143-147

8. The father complains about the mother’s failure to keep him appraised of the child’s medical and academic progress.[64] That is easily remedied by an order requiring her to do so. That is a less intrusive remedy than reversing the child’s long-standing residential arrangements.

   [64] Father’s affidavit, pars 59-67, 73, 82

Conclusions

1. There was an incident of family violence between the mother and her partner in August 2009. However, that finding does not render the presumption of equal shared parental responsibility inapplicable under s 61DA(2) of the Act because it was Mr R who engaged in the family violence, not the mother. In view of the untested counter-allegations no finding can be made about the engagement by the parents in family violence. Additionally, there are no reasonable grounds to find that the child was abused by the mother or father.

2. The presumption of equal shared parental responsibility is not rendered inoperable under s 61DA(3) of the Act. The evidence does not induce a conclusion that it would be inappropriate for the presumption to apply as an interim measure.

3. Nor am I satisfied that the evidence demands rebuttal of the presumption of equal shared parental responsibility in the child’s best interests, pursuant to s 61DA(4) of the Act. The parties both adduce evidence of their past communications with one another. Although their communicative relationship may be tense, it has not seemingly disintegrated.

4. Applying the presumption of equal shared parental responsibility obliges the Court to consider residential options of the child living for equal time with each of the parties, or living primarily with one and spending substantial and significant time with the other (s 65DAA). Neither of those alternatives is viable because the distance between their households renders it impracticable for the child to spend substantial and significant time with one parent, let alone equal time. The parties and Independent Children’s Lawyer all acknowledge that to be so. The circumstances are such that the child must live predominantly with one parent.

5. The evidence adduced by the father and Independent Children’s Lawyer is sufficient to give rise to some degree of concern about the child’s care in the mother’s home. The Independent Children’s Lawyer described his level of concern as serious, but objectively it is more fittingly described as moderate.

6. Despite his stated serious concerns, the Independent Children’s Lawyer remained uncertain as to whether the situation justified dislocation of the child from her primary attachment with the mother and loss of her therapeutic relationships with medical professionals and school supports. He described that decision as a fine balancing act. The Independent Children’s Lawyer properly recognised that there is no evidence that the child has not fulfilled her potential whilst living with the mother.

7. Self-evidently, the father’s concerns about the child were also described as serious and justified, in his submission, reversal of the child’s current residential arrangements.

8. I am not satisfied that the child is at an unacceptable risk of harm whilst living with the mother. The evidence does not impel a conclusion that the child is at such risk of harm that the appropriate response is to remove the child from the care of the mother with the consequent significant disturbances that would entail. Removal of the child from the mother would be a disproportionate response to the level of concern generated by the evidence.

9. The relative stability of the child’s current placement with the mother should remain, for the time being at least.

10. In those circumstances, the question arises about the appropriate regime for the child to spend time with the father. The parties previously agreed about that issue when they were informed by the State magistrate of his decision that the child should remain living with the mother. There is no obvious reason why the Court ought depart from the arrangement the parties mutually thought appropriate only a few months ago. The orders therefore reflect that agreement.

11. The evidence demands that the father bear the principal cost and inconvenience of implementing the child’s time with him on an interim basis. That was seemingly the arrangement in the past.[65] Although the father is in receipt of a grant of legal aid, he is at least employed[66] and enjoys some financial assistance from the paternal grandparents.[67] The mother is relatively impecunious and does not have reliable vehicular transport.[68]

    [65] Father’s affidavit, par 79

    [66] Father’s affidavit, par 109

    [67] Father’s affidavit, par 134

    [68] Mother’s second affidavit, pars 29-34; Father’s affidavit, par 116, 118

12. The father does not apparently intend to spend time with the child on the mid north coast of NSW,[69] but under the orders he is free to do so if he wishes. The father will also be at liberty to decide whether he wishes to convey the child to and from Port Macquarie Airport by aircraft or car. He has previously driven the journey.[70] The mother will be responsible for the child’s travel between her home and Port Macquarie.

    [69] Father’s affidavit, par 116, 122

    [70] Father’s affidavit, pars 124, 128, 134

13. The father was also aggrieved about the apparent failure to register the child’s birth,[71] but he did not propose any order to rectify that situation to either the State magistrate at first instance[72] or to this Court on the appeal.[73] In view of the paucity of evidence, an order dealing with the issue is best left to the final trial.

    [71] Father’s affidavit, par 92

    [72] Response dated 17 August 2010

    [73] Notice of Appeal

14. I am satisfied that the orders meet the best interests of the child until the evidence can be properly evaluated in a final trial.

I certify that the preceding one hundred and nineteen (119) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Austin delivered on 17 December 2010.

Associate: 

Date:  17 December 2010