SANTOS & DERRICKS
[2020] FCCA 150
•31 January 2020
FEDERAL CIRCUIT COURT OF AUSTRALIA
| SANTOS & DERRICKS | [2020] FCCA 150 |
| Catchwords: FAMILY LAW – Parenting – long history of conflict between the parties and protracted litigation – significant geographical distance between the parents’ residences – the subject child’s relationship with his siblings in both households is a crucial consideration – order for equal shared parental responsibility sought by consent despite volatile co-parenting relationship – orders made for the child to live with the Mother and spend time with the Father. |
| Legislation: Family Law Act 1975 (Cth), ss.60CC(3)(a) – (m) |
| Cases cited: Collu & Rinaldo [2010] FamCAFC 53 Mazorski v Albright (2007) 37 Fam LR 518 McCall v Clark (2009) 41 Fam LR 483 Moose & Moose (2008) FLC ¶93-375 Vontek & Vontek [2017] FamCAFC 28 |
| Applicant: | MR SANTOS |
| Respondent: | MS DERRICKS |
| File Number: | CAC 825 of 2015 |
| Judgment of: | Judge Neville |
| Hearing dates: | 21 & 22 November 2018; 10 May 2019 |
| Date of Last Submission: | 22 July 2019 |
| Delivered at: | Canberra |
| Delivered on: | 31 January 2020 |
REPRESENTATION
| Counsel for the Applicant: | Mr R Wilkinson |
| Solicitors for the Applicant: | Rodney Kennedy Solicitors Pty Ltd |
| Counsel for the Respondent: | Mr J Moffatt |
| Solicitors for the Respondent: | KPW Lawyers |
| Counsel for the Independent Children’s Lawyer: | Ms M Davis |
| Solicitors for the Independent Children’s Lawyer: | Tarella Law |
ORDERS
All previous parenting Orders regarding the child, [X] (born: … 2012) (“the child”), be and are hereby discharged.
Parental responsibility
The parents have equal shared parental responsibility for the child.
By this Order, each parent authorises any school or child care facility that the child attends, to give to the other parent any information regarding the child, including but not limited to school newsletters, school photo order forms, school reports, examples of school work and each parent is at liberty to attend any school function to which parents are normally invited.
By this Order, each parent authorises any doctor, health care provider or health care facility who treats the child, to give to the other parent any information regarding the child.
In order to facilitate Order 4 above, each parent shall advise the other within two days of the child attending any appointment with a health care provider:-
(a)of any appointment attended by the child;
(b)the name of the doctor or health care provider seen by the child;
(c)the name, address and phone number of the doctor, health care provider or health care facility;
(d)any recommendation made by the health care provider;
(e)any medication prescribed for the child together with the directions for administration.
In the event of an emergency or hospitalisation, each parent is to notify the other as soon as reasonably practicable via text message.
The parties are to communicate about the child:-
(a)in the event of an emergency or hospitalisation regarding the child, each parent is to notify the other as soon as reasonably practicable via text message;
(b)for general information including medical information, by using the “Talking Parents” mobile application to exchange information regarding [X]; and
(c)in the event the mobile application is not available, they are to exchange a communication book at handover.
Each parent shall keep the other advised of their residential address, email address and mobile telephone number.
Each parent shall advise the other parent of any change to their residential address, email address or telephone number within 24 hours of such change.
Live with
The child shall live with his Mother.
Time with the father
The child shall spend time with his Father during school terms for one weekend per month from 7.00 pm on Friday until 3.00 pm Sunday. Absent any other agreement in writing between the parties, this shall be the first weekend of each month.
The child shall spend time with his Father during term school holidays from 12 noon on the first Saturday in the first weekend of the holidays until 12 noon on the second Saturday in the term holidays.
The time in Order 12 will take place in accordance with the holidays of the school the child is attending.
The child shall spend time with his Father during the Christmas school holidays:-
(a)In 2019 and each alternate year thereafter, from 12 noon on the day that is the midpoint of the school holidays until 12 noon on the Sunday prior to the new school term; and
(b)In 2020 and each alternate year thereafter, from 12 noon on the day after the last day of term until 12 noon on the day that is the midpoint of the school holidays.
For the purposes of Order 14 above:-
(a)The school holidays commence on the day after school finishes;
(b)The school holidays end on the Sunday before school recommences;
(c)In the event there is an odd number of days in the school holidays, the midpoint is the day in the middle of the school holidays;
(d)In the event there is an even number of days in the school holidays, the midpoint handover will take place on the last day of the first half of the school holidays.
The child shall spend with his Father at all other times agreed in writing between the parties.
Handover
For the purposes of handover, absent any other agreement in writing, the parties shall meet at Location A on B Road.
Telephone and electronic communication
The child shall have reasonable telephone communication (and electronic communication if available) with each parent and not less than:-
(a)each Wednesday and Friday between 6.00 pm and 7.00pm;
(b)on the child’s birthday; and
(c)on each parent’s birthday.
The parent who is not caring for the child shall telephone the child on the other parent’s mobile telephone number.
Restraints and injunctions
Each parent is restrained and injuncted from abusing, insulting, belittling, rebuking or otherwise denigrating the other parent or member of their household or extended family, to or within the child’s hearing, or permitting any other person to do so.
Each parent is restrained and injuncted from discussing these proceedings or the contents of any documents used in these proceedings with or within the child’s hearing, or permitting any other person to do so.
The Mother is restrained and injuncted from allowing or bringing the child into contact with Mr C.
IT IS NOTED that publication of this judgment under the pseudonym Santos & Derricks is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT CANBERRA |
CAC 825 of 2015
| MR SANTOS |
Applicant
And
| MS DERRICKS |
Respondent
REASONS FOR JUDGMENT
Introduction
Although egregious parental discord, and immense geographical distances, are crucial considerations in this matter, ultimately, the Court’s decision turns on the relationships between siblings. Formally, there is only one child – 7½ year old [X] – who is the subject of the proceeding. However, it is his relationships with his young sister [Y] in his Mother’s household, and the 5 siblings in his Father’s household, that are key to the Court’s Orders that are in [X]’s best interests.
This is a typically long and needlessly troublesome matter that has embroiled the parties and their son, [X], since 2015. Regrettably, with each major relocation by each of the parties, the logistical and other issues have been magnified, and the troubled co-parenting relationship has become ever so much more difficult.
In one of the family reports (the details of which are noted below), Ms D simply stated that “Mr Santos and Ms Derricks cannot communicate at all without arguing.”
The bitterness and difficulty in the co-parenting relationship cannot be overstated. It is heightened because of the Mother’s intense hatred of, and often-times violent action towards, the Father’s partner, Ms E, who she has known for many years and to which is added some curious, close family history between them. Briefly stated, Ms E had previously been in a relationship with the Mother’s brother, thereby Ms E’s three older children are the Mother’s nieces.
To add to the complexity of past family arrangements, the maternal Grandmother had once lived for a significant period of time with the Father’s uncle.
It is not in dispute that for most of [X]’s life, he has lived primarily with his Mother and spent regular time with his Father. At various times over the years, the Father has failed to return the child to the Mother. Sometimes, in my view, this has been for good reason, not the least being the significant domestic violence to which the Mother was subjected by her partner in 2017. The Mother had her arm broken by her then partner, Mr C. Mr C is the Father of the Mother’s young child, [Y]. It remains a contested issue as to what “presence” Mr C is in the life of the Mother. Certainly [X] has communicated at times with his Father about Mr C being present while [X] is with his Mother. This would be contrary to Court Orders.
As noted, [X] has one sibling in the Mother’s residence, and multiple siblings in the Father’s residence (3 children of Ms E from a previous relationship and 2 young children of Ms E and the Father).
The issues in dispute are identified, in my view reasonably accurately, in the Independent Children’s Lawyer’s (“ICL”) Case Outline. Although set out in more detail later, it is convenient to note those issues here:
(a) Parental responsibility – sole or shared;
(b) Where the child lives, taking into consideration:
i. Sibling relationships (one half-sibling with each parent);
ii. Any risks to the child in the care of either parent;
iii. Parenting capacity – neglect of child’s health or school needs;
iv. Parenting capacity – child brought into contact with people who present a risk to the child;
v. Parenting capacity – compliance with Orders;
vi. The poor communication and lack of effective co-parenting between the parties; and
(c) Which people in each parent’s life present a risk to the child and what restraints may be necessary to protect the child.
Directly relevant to both the “live with” and “spend time with” issues, are two more recent factual matters: (a) Ms E has had another child with the Father, thus [X] has two half-siblings in the Father’s household; and (b) between the initial hearing in November 2018 and the resumed hearing in May 2019, the Father and his family moved for employment reasons from Town F to Town G in New South Wales. It would seem uncontested that the Father did not advise the Mother of this move. This meant and still means that the distance between the Father’s residence in Town G and the Mother’s residence in Town H (or thereabouts) is just over 650 kilometres, and a driving time of approximately 7½ hours. As a consideration under s.60CC(3)(e) regarding “difficulty and expense” (potential and actual), firstly on [X], and secondly on his parents and others, regarding the travel involved between the two centres, is a very significant factor.
For completeness, I note that the parties initially lived in Town F, in country New South Wales. In 2017 or thereabouts, after going to the Father’s house and kicking the door in to retrieve the child, the Mother moved to Town H. Whether there was some form of consent by the Father was debated. The distance between Town F and Town H is about 230 kilometres, a drive of some 2½ hours or thereabouts. This first move made the “time with” arrangements for [X] and the Father difficult, to say the least. As already noted, the Father’s more recent move has compounded the problems of “time with” arrangements, regardless of whichever parent is [X]’s primary carer.
The Mother’s Case Outline, filed 22nd November 2018, summarily identified the following issues, many of which are as noted by the Father. The Mother’s issues in dispute were:
a) Where the child lives
b) Risks to child in care of either parent
c) Ability of parties to follow orders
d) Parties ability to meet financial obligations of child
e) Other people brought into contact with child
f) Parental capacity – neglect of child’s basic needs, education and health
The Father’s identified issues were as follows (per his Case Outline, filed 19th November 2018):
a) With which parent will the child live?
b) What time will the child spend with the non-resident parent?
c) Is the child at risk with the mother because of the mother’s volatile personality?
d) Is the child at risk in the mother’s household because of the mother’s relationship with Mr C?
e) Will the mother promote a meaningful relationship between the father and the child if she is the resident parent?
f) Is the child at danger in the father’s household because of his, and his partner Ms E’s alcohol abuse, as claimed by the mother?
g) Is the child at risk, as claimed by the mother, because Ms E abuses illegal substances regularly, including “ice”.
I agree with the more singular and simple comment in the Father’s submissions that the primary issue really boiled down to the primary residence of [X].[1] All else, such as the “time with” and school holiday arrangements, follow from the determination of this issue.
[1] Contrary to direction from the Court, and multiple subsequent requests from the Court, the Mother never filed any [final or other] Written Submissions. No explanation was ever given regarding this, notwithstanding the risk of difficulty it might pose for the Mother’s case, as well as the not insignificant discourtesy to the Court. The Father and the ICL filed submissions as directed.
As the ICL noted in her written submissions (filed 1st July 2019; par.17), there was no objective evidence provided to substantiate the contentions in paragraphs (f) and (g) raised by the Mother. Indeed, for my part, Ms E has been a model of support for the Father and the care of [X] (and their own children), all the while being the subject of abject vilification and appalling behaviour by the Mother. She has borne it all with significant dignity and almost resigned calm. In a great many respects, to speak somewhat colloquially, she has “kept the [parenting] ship afloat” against all odds and tempests.
Although both parents have a more than reasonable “claim” (so to speak) to being [X]’s primary carer, not without some misgivings, for the reasons that follow, [X] shall live with his Mother. He is to spend time with his Father once per month (an Order that must follow from the geographical distance between the parties). He shall spend half of each school holidays with his Father (and his younger siblings). Indeed, if the parties lived closer together, it is more likely than not that an equal time arrangement would be ordered. Moreover, if any more of the Mother’s outrageous conduct were to occur, [X] would very likely reside primarily with his Father.
Further on the subject of the “misgivings” to which I have just referred, I note that during the course of the resumed hearing in May 2019, Counsel for the ICL indicated the view that neither party gave credible evidence in relation to their own past poor behaviour – of which there were ample examples. I largely accept this submission except that in my view, at trial, and over the long course of the litigation, the Father has been and in my view remains a credible witness. He acknowledged, for example, various difficulties he had experienced in the past (indeed quite some years ago now) as a result of some mental health issues. My comments here are supported by observations and comments by the Family Consultant, Ms D, noted below.
The appalling co-parenting relationship would ordinarily preclude an Order for equal shared parental responsibility. Curiously, both parties, and the ICL, seek an Order for equal shared responsibility. Against better judgment this Order will be made. In part, it is as much to ensure that the Father is not “sidelined” by the Mother about decisions concerning [X], as anything else. Absent any other agreement in writing between the parties, communication is to be via email or SMS.
Finally, in no pre-emptive or prejudicial way I need to record (as already adverted to) that if there is any significant breach of these Orders by the Mother (and/or that [X]’s relationship with his Father is not encouraged and supported), subject to evidence and submissions, it is likely that [X] would be removed from her care and thereafter he would live primarily with his Father and spend time with his Mother.
Applicant’s orders sought
The Applicant’s abbreviated Orders sought were contained in his Case Outline filed on 19th November 2018. They were as follows:
PROPOSALS (Abbreviated)
Applicant father…
· Live with the father
· Equal shared parental responsibility
· Spend time with the mother;
· Alternate weekends from Friday until Sunday pm
· Half school holidays
Respondent’s orders sought
The Respondent Mother’s Orders sought were contained in her Case Outline filed on 22nd November 2018. They were as follows:
Proposal… Respondent Mother
a. Equal shared parental responsibility
b. Live with Mother
c. Time with Father;
i.Every third weekend from Friday until Sunday
ii.Half school holidays
Independent Children’s Lawyer’s orders sought
The Orders sought by the Independent Children’s Lawyer were outlined in the Minute filed on 10th May 2019. They were as follows:
ORDERS
IT IS ORDERED
1. That all previous parenting Orders regarding the child [X] born … 2012 (“the child”) be and are hereby discharged.
Parental responsibility
2. That the parents have equal shared parental responsibility for the child.
3. That by this Order, each parent authorises any school or child care facility that the child attends, to give to the other parent any information regarding the child, including but not limited to school newsletters, school photo order forms, school reports, examples of school work and each parent is at liberty to attend any school function to which parents are normally invited.
4. That by the Order, each parent authorises any doctor, health care provider or health care facility who treats the child, to give to the other parent any information regarding the child.
5. In order to facilitate Order 4 above, each parent shall advise the other within two days of the child attending any appointment with a health care provider:-
a. of any appointment attended by the child;
b. the name of the doctor or health care provider seen by the child;
c. the name, address and phone number of the doctor, health care provider or health care facility;
d. any recommendation made by the health care provider;
e. any medication prescribed for [X] together with the directions for administration.
6. In the event of an emergency or hospitalisation, each parent is to notify the other as soon as reasonably practicable via text message.
7. The parties are to communicate about [X]:-
a. in the event of an emergency or hospitalisation regarding [X], each parent is to notify the other as soon as reasonably practicable via text message;
b. for general information including medical information, by using the “Talking Parents” mobile application to exchange information regarding [X]; and
c. in the event the mobile application is not available, they are to exchange a communication book at handover.
8. Each parent shall keep the other advised of their residential address, email address and mobile telephone number.
9. Each parent shall advise the other parent of any change to their residential address, email address or telephone number within 24 hours of such change.
Live with
10. [X] shall live with his mother.
Time with the father
11. [X] shall spend time with his father during school terms, on the weekend following week three and week seven of the term, from 7.00 pm on Friday until 3.00 pm Sunday.
12. [X] shall spend time with his father during term school holidays from 12 noon on the first Saturday in the first weekend of the holidays until 12 noon on the second Saturday in the term holidays.
13. The time in Order 12 will take place in accordance with the holidays of the school [X] is attending.
14. [X] shall spend time with his father during the Christmas school holidays:-
a. In 2019 and each alternate year thereafter, from 12 noon on the day that is the midpoint of the school holidays until 12 noon on the Sunday prior to the new school term; and
b. In 2020 and each alternate year thereafter, from 12 noon on the day after the last day of term until 12 noon on the day that is the midpoint of the school holidays.
15. For the purposes of Order 14 above:-
a. The school holidays commence on the day after school finishes;
b. The school holidays end on the Sunday before school recommences;
c. In the event there is an odd number of days in the school holidays, the midpoint is the day in the middle of the school holidays;
d. In the event there is an even number of days in the school holidays, the midpoint handover will take place on the last day of the first half of the school holidays.
16. [X] shall spend with his father at all other times agreed between the parties.
Handover
17. That for the purposes of handover, the parties shall meet at Location A on B Road.
Telephone and electronic communication
18. [X] shall have reasonable telephone communication (and electronic communication if available) with each parent and not less than:-
a. each Wednesday and Friday between 6.00 pm and 7.00pm;
b. on [X]’s birthday; and
c. on each parent’s birthday.
19. The parent who is not caring for [X], shall telephone [X] on the other parent’s mobile telephone number.
Restraints and injunctions
20. Each parent is restrained and injuncted from abusing, insulting, belittling, rebuking or otherwise denigrating the other parent or member of their household or extended family, to or within [X]’s hearing, or permitting any other person to do so.
21. Each parent is restrained and injuncted from discussing these proceedings or the contents of any documents used in these proceedings with or within [X]’s hearing, or permitting any other person to do so.
22. The mother is restrained and injuncted from allowing or bringing [X] into contact with Mr C.
Family reports of Ms D
Ms D produced two reports for this matter: the first, dated 28th August 2017 (Exhibit A); the second, dated 30th June 2018 (Exhibit A1). Ms D also provided an “updating Note”, dated 21st July 2018, which became Exhibit A2. Relevant parts from these Exhibits are noted below. Because of difficulties in the evidence of the parties (noted below), the independent evidence (documentary and oral) of Ms D assumed even greater moment.
For current purposes, from the first Report of Ms D (Exhibit A), it is sufficient to note the sections of it that record [X]’s interaction with the Family Consultant with his Mother and his Father, together with Ms D’s evaluation and recommendations (pars.71 – 84; emphasis added):
[X] with his mother
71. [X] was resistant talking to me by himself, appearing very shy. He clung to his mother in an anxious manner. Ms Derricks said she would not allow [X] to talk to me by himself and said she had advised the ICL of this. She told me that she was not going to leave [X] alone with anyone whether he was willing to see me or not. Ms Derricks attributed this to “things that I have heard that have happened”, referring to an incident that happened in Town I some months ago when a child was sexually assaulted by a massage therapist. [X] looked increasingly anxious during this discussion. Ms Derricks expressed her opinion that she had “asked around” and understood I was not allowed to talk to her son. She refused consent but [X] was not willing to talk to me anyway. He was actually too young to express any reliable view.
72. In response to my query, Ms Derricks said there was no trauma in her background. During the incident when she went to get [X] back, Ms Derricks alleged Mr Santos hit her and told the story in front of [X]. Ms Derricks was the fourth child in a family of five children. She described her childhood as okay, saying she had grown up with her mother and stepfather. Many years ago there was some violence between her biological parents. Now that she lived in Town H, Ms Derricks said that she saw her father nearly every day. [X] leant on his mother in a tired manner.
[X] and his father
73. [X] ran to his father and immediately cuddled him in an affectionate manner. Mr Santos happily reciprocated, commenting on how much [X] had grown. Mr Santos chatted to [X] about his baby sister and baby brother. [X] impressed as quite shy and quiet. He did not appear to have known that he would see his father on the day.
74. [X] leaned against his father’s knee, looking very comfortable and relaxed. [X] enjoyed standing on his toes to try to look taller than his father. They chatted about [X]’s cat. They talked about [X] going to school next year. [X] did not respond when asked if he had met Ms E. Mr Santos said he had met her in the past. Mr Santos chatted about some fish he had recently caught. They then chatted about [X] playing cricket like Mr Santos did when he was older.
75. During previous visits in Town J, Mr Santos said he had been taking [X] to the local swimming pool, recognising the importance of him learning to swim. If [X] came to him for weekends, Mr Santos told me he would take him fishing, camping and four-wheel driving.
76. [X] shrugged when I asked him if he would like to go to visit his father. He nodded when his father asked him if he had fun during previous visits with his father. Mr Santos said that he used to take [X] to the movies. [X] did not appear to recall staying at his father’s house when he was much younger.
77. Prior to the observation session, Mr Santos and [X] played in the office play room while I interviewed Ms Derricks. Mr Santos adhered to Ms Derricks’ condition that he not put [X] in contact with Ms E who waited at the back with baby [K]. To his credit, Mr Santos did not suggest [X] meeting [K] either.
78. During his mother’s interview, [X] obviously enjoyed his time with his father in the playroom. Mr Santos farewelled his son without undue fuss, in an affectionate manner. [X] responded affectionately to his father.
EVALUATION
79. It would seem that [X]’s parents’ relationship broke down because they were both very young and both became involved with other people. However, a great deal of bitterness has ensued from this, particularly because Ms E was Ms Derricks’ sister-in-law and her children are Ms Derricks’ nieces. The matter is further complicated by Ms Derricks’ suspicion that her current partner is the father of Ms E’s youngest child. Ms Derricks is very caught up in the enmeshed family relationships and preoccupied with her entrenched perceptions of Ms E.
80. Ms Derricks did not impress as an insightful, very intelligent or well educated young woman. Throughout her interview she continually referred to [X] as “my son” and indeed had little awareness of the importance of his father in his life and demonstrated no capacity or indeed any willingness to promote this. She does not trust that Mr Santos will act protectively (should there be any reason to do so) regarding [X] and Ms E. The past history indicated she and her family were quite capable of seeking to take matters into their own hands in front of [X]. Ms E dropping off Mr Santos’ wallet at a hotel seemed likely to impact on [X] much less adversely than his grandmother smashing a window with a garden gnome and Ms Derricks grabbing him from Ms E in a heated dispute.
81. Conversely, Mr Santos was patient and calm throughout the interview process avoiding arguing with Ms Derricks about her demand that Ms E not come into contact with [X], respecting this restriction and not seeking to introduce [X] to his baby half-brother. It was perhaps not surprising that Mr Santos sought to cut some periods of time with [X] short when he was younger. It might well have been difficult for Mr Santos to occupy a small child in a country town such as Town J at the weekend, without a base, particularly if he did not have much money.
82. Regardless of Ms Derricks’ views, [X] has a right to know his father and to establish a relationship with his half-brother. Despite her attitude in her interview, in her Response, Ms Derricks proposed that [X] spent two nights alternate weekends with his father. This would accord with Mr Santos’ current wishes and should afford [X] the needed opportunity to enjoy time with his father and half-brother, as well as his cousins. Ms E will necessarily have to be involved and Ms Derricks will have to trust Mr Santos to care for their son in a protective manner.
83. In terms of travel for contact purposes, the parties could either meet halfway in Town J for both pick-ups and drop offs or one or other could do the entire journey at the commencement and at the end of contact periods.
RECOMMENDATIONS
84. That [X] spent [sic] two nights alternate weekends with his father and resides with his mother the rest of the time.
It will be readily seen that [X], at the time of the interviews, showed close affection for both parents, albeit with signs of anxiety.
Because of the large amount of important detail in it, I need to set out significant parts of Ms D’s second Report, from June 2018 (Exhibit A1).
First, Ms D recounted a very difficult encounter with the Mother at the outset of the interview with her. It is sufficient to note the following from this preambular section of her Report (unfortunately, there are no paragraph numbers to this section).[2]
[2] See pp.3 – 5 of this Report.
Ms D noted the following:
During the planned observation of [X] with his mother, a most unfortunate incident arose. When she came into my office to be seen with [X], after greeting him, Ms Derricks said that her lawyer, Ms Piggott, had said she had to ask me if [X] was allowed to go home with her after the interviews. When I told Ms Derricks that I could not authorise her leaving with [X], she repeated what her lawyer had allegedly said and again asked me if she could do so. Ms Derricks continued to say that she had been advised that the decision about who [X] went home with was up to me.
Next Ms D recorded (the account speaks for itself):
When [X] was with his mother, I again asked him if he would talk to me by himself but he again refused to do so. While Ms Derricks took [Y] back to her mother, [X] was briefly left with me. He told me he had been pleased to see his Mum but had no thoughts about what he wanted to do. When Ms Derricks returned to the room, I told [X] that he was due to go home with his father. Ms Derricks again asked if [X] could go home with her. She began to argue that [X] was supposed to be in her care. I advised her that the decision about who [X] was to live with was not up to me but was rather up to the Judge.
Crying, Ms Derricks clung to [X] who was also crying, saying to her son “You don’t want to go, do you?” They both continued to sob, clinging to each other. I told Ms Derricks that any decision about who [X] was to leave with was between her and Mr Santos and was certainly not my decision. [X] became very upset. Ms Derricks told me that her lawyer had told her to ring her if any problems arose. Ms Derricks went on to tell me that if [X] was crying, she was not letting him go. Heatedly, Ms Derricks told me that she did not have to let [X] go because he was in her care. I again said I could not authorise her to take this action, she repeated that the court orders said that [X] was in her care.
Mr Santos came to the door of the room and urged [X] to come to him. Mr Santos again urged [X] to come with him. Ms E was in the background and asked both parties not argue in front of [X].
When I cautioned both parties that I prefer not to have a scene in the office premises, Ms Derricks accused Mr Santos of behaving in an abusive manner. [X] continued to sob, clinging to his mother. Ms Derricks made an urgent call to her lawyer and advised me she was asking her lawyer to send the court orders over.
Ms Derricks erroneously advised her lawyer that I was trying to force [X] to go with his father and that [X] did not want to go. [X] had not actually expressed a preference either way. I corrected Ms Derricks when she said that I had said that [X] had to go and reiterated my advice that the decision as to who he left with was not up to me...
Without detailing all of the introductory part of her Report, Ms D concluded it, thus:
After a few minutes, Mr Santos picked [X] up and left the premises with him. Ms Derricks angrily verbally criticised me for letting him go and I yet again advised her that I was not in a position to stop this from happening. Ms Derricks continued to be very upset, saying [X] was kicking and screaming as he was carried down the street. I could not observe this from where I was standing. She reiterated that [X] had not wanted to go.
Ms Derricks’ mother came in to the room and cautioned her daughter to calm down. Ms A Derricks commented “He’s won again”. Heatedly Ms Derricks again told me off for not having intervened, telling me that I could have done so. Ms Derricks angrily argued Mr Santos had behaved in an abusive manner. Angrily Ms Derricks said, “That’s my child”. Her mother again urged her to settle down.
To state that this whole unnecessary episode reflected poorly on the Mother is an understatement. I move to the other parts of this Report.
Apart from (a) the Mother saying to Ms D (par.35) that she was not stopping [X] seeing his Father but then stating that she “no longer thought Mr Santos should see [X]”, and (b) Ms D recording (par.38) that the Father was worried about (among other things) [X]’s stutter, it is sufficient to note the following from this second Report.
Although there are very brief sections in the Report that deal with “Child Safety and Wellbeing”, and “Alcohol and Substance Use”, I will first set out an equally brief, but largely uncontested account of an incident regarding family violence and abuse. After noting at par.46 that the parties cannot communicate without arguing, at par.47, Ms D recorded an incident that is corroborated with records from NSW Police:
During an incident in December 2017, as noted, Mr Santos alleged [X] witnessed his mother being assaulted by her previous partner. On the very first morning drop off, Mr Santos alleged Ms Derricks assaulted Ms E outside [X]’s school, in front of him. He said Ms Derricks was waiting at school because Ms E was late due to roadworks on the way. Mr Santos said allegations made by his sister that he had assaulted her were dismissed by the Court and found to be false. He said Ms Derricks had raised this matter even though she was not present at the time.
Regarding the interactions between [X] and his parents, Ms D noted the following at pars.50 – 55:
[X] and his father
50. [X] was very quiet when he came to the room with his father. Mr Santos told me that [X] had received a tablet on his birthday and enjoyed playing games on it. [X] told his father what the game he enjoyed was called. We talked about a new doona cover his grandmother had bought him. Mr Santos said that [X] also had a new two-wheeler bike, which he could ride without trainer wheels. Mr Santos told me that until [K]’s birth, [X] had been his parents’ only grandchild. [X] appeared comfortable and relaxed with his father. His father pointed out that both he and [X] had little raised dots on their ears. Mr Santos advised [X] who had red hair, had also had blue eyes until about 12 months ago when they turned brown.
51. When I asked [X] how he felt about his mother possibly coming to the interviews that afternoon, he said he did not know.
52. At the end of the observation session with his father, [X] declined to talk to me by himself. [X] would not talk to me even in his father’s presence. His father advised that he was talkative at home. [X] began laughing into his father’s side but still did not talk. Mr Santos tried to talk to [X] about having recently had snow fights. In response to his father’s request to tell me what he had been doing recently, [X] told me he had been sliding down the snow. I gathered this had been on his jacket.
53. Warming up slightly in his father’s presence, [X] told me about his birthday cake. He said Ms E had made him a cake. [X] and his father chatted about his birthday presents. They then began to chat about what food [X] like. When asked what his favourite food was, [X] responded “chips and gravy”. They then talked about going fishing and camping. [X] told me where they went fishing and camping before Christmas. Mr Santos told me that [X] had caught heaps of fish. [X] laughed when his father told me a story about how he had caught his father’s fish.
[X] and his mother
54. [X] immediately cuddled into his mother who became upset. Both Ms Derricks and [X] cried as they cuddled each other. When I asked them if they spoke on the phone, Ms Derricks responded “when he does not hang up on me”. By this I think I understood she meant Mr Santos rather than [X]. She alleged even Mr Santos or Ms E would hang up on her when she rang. During the incident described under “Limitations to the assessment”, I suggested I brought [X]’s little sister, [Y] into the observation session.
55. After Ms Derricks went to get [Y], [X] was obviously very glad to see her, cuddling her. [Y] smiled at him. She then put her arms up to cuddle her brother. [X] was very gentle with his sister. Ms Derricks commented that [Y] did not know what to do at home without [X] being there. The children continued to cuddle each other. [Y] continued to lean on her brother and cuddle him. [X] continued to be very gentle towards his sister. Ms Derricks chatted about their cat.
From Subpoenaed records, at par.56, Ms D noted:
Subpoenaed material from the New South Wales Police noted Mr Santos’ record dated from 2006 and included him being a patient under the mental health act in 2015 and 2016 as well as being a person of interest and a witness in assaults and Apprehended Violence Orders. Ms Derricks was recorded as a victim of domestic violence in June 2017. The police interview report dated … 2018 details the incident in which Ms Derricks assaulted Ms E outside [X]’s kindergarten room at Town H Primary School, while holding her daughter, the police applied for an Apprehended Violence Order (AVO) on behalf of Ms E who sustained red marks to her throat and left arm. Records were also provided for a further incident between the two women on 19 January 2018 when Ms Derricks verbally threatened Ms E. Both incidents were in front of the children and involved Ms Derricks using extremely offensive language.
From the records of the Department of Family and Community Services (“FACS”), Ms D recorded (par.57):
A FACS contact record dated 28 December 2017 noted [X] was screened for “symptoms of significant psychological harm” and it was noted that he had begun hitting himself when he was frustrated and had developed a stutter over the past 12 months. It was reported that [X] had said his mother got cranky and told him he could not stutter and that he seemed to stutter more when he was anxious, becoming quiet, withdrawn and teary when it was time to return to his mother’s care. Medical neglect and domestic violence were also considered as possible concerns because Ms Derricks had not taken him to a speech pathologist and had not taken to the dentist with a sharp broken front tooth or kept his teeth clean. Other concerns reported to the Department were that Ms Derricks yelled at [X], causing him to stutter and had not sought medical attention for recurrent nosebleeds.
The Evaluation section of this Report, plus the Recommendations, were as follows (pars.58 – 68) (emphasis added):
58. This is a very difficult, entrenched matter and the incident which occurred during the report interviews was most concerning. While it was not surprising that Ms Derricks was distressed, given the length of time since she had seen her son, her behaviour was completely self focused and she was not able to pay any attention to the effects on her son. Ms Derricks’ angry behaviour towards me and police records suggest she has marked difficulty controlling her anger when thwarted or provoked and is unrestrained in expressing this in front of her children. Such behaviour is very frightening to children and [X]’s fear and extreme anxiety was very obvious in my office. He is likely to become an anxious child unless such behaviour ceases.
59. Ms Derricks’ persistence in misrepresenting what I was saying to her suggested an impaired ability to listen and comprehend what was being said to her and a tendency to distort advice to suit herself.
60. The main people involved in this matter are considerably enmeshed and family tensions are consuming and emotions very heightened. Ms A Derricks’ extreme antipathy towards Ms E in no way assists her daughter or indeed her own relationship with her grandchildren.
61. In the absence of an ability to do home visits, it is not possible to provide a comprehensive assessment in this matter. Such as assessment should perhaps more properly be carried out by FACS, given concerns about [X] being exposed to family violence; and medically neglected by his mother. Ms Derricks moved [X] away from his father and engaged in a new relationship which involved violence and which she has now apparently terminated, after having another child. Given her limited financial means, Ms Derricks’ decision to move so far away from Mr Santos and from her primary support system was not a wise one and now makes it difficult for [X] to spend time with both parents.
62. I note that as far as I am aware, FACS have not been notified of any concerns about Mr Santos and Ms E’ care of [X] whereas there have been chronic, ongoing concerns about Ms Derricks’ care. Indeed, it was Ms E who cautioned both parties about their behaviour in front of [X] in my office. Mr Santos also remained calm throughout the report process.
63. [X]’s current symptoms described by Mr Santos are most concerning and symptoms such as stuttering, self-harming and encopresis suggest [X] is a highly anxious child. It was reassuring that Mr Santos reported [X]’s symptoms were reducing and to be hoped this can continue. Specialist intervention would be useful. It must be noted that not wetting the bed at one house (Ms Derricks’) is not an indication that [X] is happier there. Indeed, on the contrary, it might reflect them being less relaxed there.
64. A further concern must be Ms Derricks’ attitude to [X] spending time with his father and to Ms E’ necessary involvement in the transport arrangements required for this. The police records detailed the previous problems that arose and I have no confidence that problems would not arise again in future, to [X]’s detriment. Ms Derricks now does not even support [X] spending any time at all with his father if he is placed in her care and indeed previously withheld him for some months after she relocated to Town H. Conversely, Mr Santos recognises the importance of [X] maintaining his relationship with his mother and is willing to do at least some of the transportation required.
65. [X] was obviously very attached to his little half-sister, [Y], and indeed in an email sent later in the day of interviews in Town J, Mr Santos said [X] had told him he had not wanted to leave his half-sister when he saw her in my office and had told him that when his mother was angry, he protected his little half-sister and hidden in his room with her, fearing Ms Derricks would hurt her if he was angry. [X] also has a half sibling on his father’s side and it is important that these relationships are maintained.
66. Unfortunately, I have no confidence that whatever decision the Court makes will be accepted by both parties or that they will be able to implement time for [X] with both of them. This would be considerably assisted if Ms Derricks returned to Town F and perhaps she could consider this now her most recent relationship has ended.
RECOMMENDATIONS
It is therefore respectfully recommended
67. That [X] primarily resides with his father;
68. That [X] spends two nights every second weekend with his mother.
The final piece of this concerning puzzle from Ms D was her “Note to the Court”, dated 21st July 2018 (Exhibit A2). This Note briefly recorded various reports from the Department of Family and Community Services (most of which had been noted by the Family Consultant in earlier Reports) and from NSW Police records. Ms D concluded this Note in the following terms (par.3.1 & 3.2):
3.1 Although the FACS material allays concerns about the physical environment provided by Ms Derricks, other concerns including her exposure of the children to her previous partner and her meeting the children’s medical needs remain. My concerns about [X]’s current symptoms as reported by his father (Para 63, report 30/6/18); my concerns about Ms Derricks having moved so far away (Para 61, report 30/6/18) and in my particular, my own observations regarding Ms Derricks’ poor emotional regulation (Para 58, report 30/6/18) remain. The NSW police material reinforces my concerns about Ms Derricks’ very poor behaviour when emotionally aroused and leads to questions about how she would manage any challenging behaviour likely to be demonstrated by an anxious, unsettled child.
3.2 This is a challenging matter. I stand by my previous recommendations.
Oral evidence of the Family Consultant
Summarily, Ms D’s relatively brief oral evidence was as follows. It began with cross-examination by Counsel for the ICL.
Accepting that she had not seen the parties for some time, Ms D confirmed the obvious fact that the parties do not have a good relationship. She opined that the parents, at times, have indicated their desire to have a better relationship but they simply do not see how it can be achieved.
Ms D confirmed the further obvious fact that the Father’s move to the New South Wales south coast necessarily imposed an immense travel burden on all and notably on [X]. The distance and travel time involved will necessarily impact the frequency upon [X]’s time with the non-resident parent, and all others in that household.
Ms D said that any denigration of which the subject child becomes aware (or witnesses) is likely to be damaging. She provided the example of the particularly acrimonious relationship between the Mother and Ms E.
In relation to the number and range of critical comments set out in her second Family Report, Ms D confirmed that she was concerned about the Mother’s ability to control her anger. Such conduct, unless it ceased, was likely to continue to lead to heightened anxiety for [X]. If this conduct by the Mother did not change she would remain quite concerned for [X].
In response to questions from Counsel for the Mother, she agreed that the Mother was a relatively unsophisticated person about whose capacity Ms D had a number of reservations. She further agreed with the proposition that the Father effectively removing [X] from his Mother’s care was likely to be a source of ongoing stress.
The primary issue from Ms D’s perspective was the need for stability in [X]’s life.
There was nothing to cavil with in Ms D’s evidence.
Oral evidence of the Applicant Father & Ms E
The Father’s evidence was in two parts: the first tranche during the hearing in November 2018; the second during the limited, resumed hearing on 10th May 2019. Respectfully, in the Father’s, Mother’s and Ms E's evidence, there was little if anything new or surprising. Each person reasonably faithfully adhered to the account of particular events that are set out in the swag of Affidavits filed over the life of the litigation. Summarily stated, the Father’s evidence was as follows.
The Father confirmed that he has no formal qualifications but has worked, while in Town F, for a business. He works in a similar establishment now at Town G.
He confirmed that in the early years of his relationship with the Mother (around 2016) he had some mental health issues. On one occasion, he presented to Town L Hospital. Since giving up drinking and more generally, in recent years there have been no issues in this regard.
The Father confirmed that he became aware that his regular requests to police to perform welfare checks on the Mother and her care of [X] were a further source of tension and difficulty for the Mother. His concern, always, was for [X]’s welfare.
The Father confirmed that at times in the past he had withheld [X] from returning to his Mother. Again he said that this was out of concern for the child. This included an occasion in May 2018 when he thought that [X] had been abused in some way that left bruising on the child. The bruises were investigated. While the police had some concerns, no further action was taken and [X] went back into his Mother’s care.
The Father also conceded that in retaining [X] in his care, it meant that the child was not maintaining relationships with his peers at school.
The Father further acknowledged that a major reason for his concern remaining in the Mother’s care – in my view understandably so – related to the presence of Mr C in the Mother’s life. Mr C is the Father of the Mother’s only other child, [Y], to whom [X] is clearly very closely attached, as well as very protective towards. Mr C’s danger to the Mother – breaking her arm in one encounter by closing a door on it in 2016 – is and remains a cause of significant concern to the Father. While the Mother variously describes or confirms that Mr C is not “around”, one would be very brave (among other things) to accept such general assertions from the Mother.
The Father accepted and indeed conceded that reports/notes from [X]’s school confirm that the child was always well-presented and well-mannered at school. This gave him a degree of confidence about the Mother’s care of the children at her home. He also accepted that if there was some way of assuring him that Mr C would not (or ever be) in attendance at the Mother’s residence while-ever [X] was there, his concerns for [X] would largely be allayed.
The Father also acknowledged that a number of his concerns regarding the care and well-being of [X] (apart from his genuine concerns regarding the presence of Mr C) may be more questions of emphasis or that they are capable of other explanations, which are not quite as alarmist as he first thought.
Generally, I found the Father to be candid in his evidence. He reasonably readily accepted where matters could be explained in ways different to what he had initially thought regarding [X]’s care and welfare while he lived with the Mother. Likewise, as I note briefly below, I found Ms E to be a good and fair witness.
Very briefly stated, Ms E said that she acknowledged that [X] had a very close relationship with his younger sister, [Y]. She said that likewise, [X] had a close relationship with her children. She said that she doubted if the relationship between [X]’s parents could or would ever change.
I need only note that the further evidence of Mr Santos and Ms E on 10th May 2019 related to whether they had seen Mr C with the Mother in Town J recently. Both of them said that they had done so. The Mother rejected this account, as did her Mother. In my view, little actually turns on the competition between the witnesses on this aspect. I need not consider it further.
Mr Santos confirmed that he had planned to move to the south coast for approximately 4 years. He conceded that he did not tell the Mother, or [X] (nor Ms D, nor even his lawyer) at any time previously. He said that he moved to the coast in approximately March 2019. It was at this time that he received a job offer. He accepted that moving to the coast, because of the distance and travel times, will make time with [X] – for either parent – more difficult. The Father confirmed too that he works a four-day per week roster, which means that if required, he can travel on Fridays to pick up [X]. The Father generally accepted the Court’s proposition that if [X] was to live primarily with his Mother and spend more limited time with the Father during term time but longer time during the school holidays, it would almost seem to [X] that he was going on regular holidays.
Oral evidence of the Respondent Mother
The Mother’s evidence, briefly stated, was as follows.
Among a number of very concerning pieces of evidence, was that, the Mother believed the Father’s partner (Ms E) would likely hurt [X] “out of spite.” This was (and remains) an astonishing – and unfounded – proposition. It highlights the almost depraved thinking at times of the Mother about or towards Ms E. I reject such a contemptuous proposition completely.
The Mother confirmed that she went to the Father’s residence to retrieve [X], and had kicked in a door. She acknowledged that her actions may have been somewhat traumatic for [X]. In my view, they would have been traumatic for almost anyone.
The Mother said that she was basically disinterested in what the Father and Ms E do. Such a statement, somewhat blithe, does not really accord with the facts concerning the Mother’s almost manic, vitriolic interest in Ms E. Likewise, her comments do not quite fit the various accounts in the Family Reports of Ms D (especially Exhibit A1) regarding her conduct and comments towards the Father and Ms E. For such a young person, as the Mother is, it is very concerning how bitter and almost twisted she is towards Ms E, and certainly unregulated in her emotional and other outbursts.
The Mother asserted that she had changed in her character and actions since doing a parenting course and is meeting regularly for assistance from support staff at Counselling Service M.
The Mother confirmed that the injunction that is directed to prevent her bringing [X] into any contact with Mr C is difficult, especially for Mr C to see his daughter, [Y]. She also said that she does not believe the Father’s evidence that he no longer drinks: alas, another instance of lack of trust between the parties.
The Mother said that she had not seen Mr C for perhaps 15 or 18 months. Regrettably, with much of her evidence, I have my doubts about the accuracy and truthfulness of the Mother’s account here.
Indeed, generally, I found the Mother’s evidence to be both inconsistent and even erratic at times. There was little that was reliable in her evidence. She is emotionally unregulated (which was patently on display in the interviews with the Family Consultant, Ms D), and alarmingly remains consumed with her hatred of Ms E. Not quite to the same degree, she is regularly hostile to the Father. She has limited parenting capacities. All this said, she clearly loves [X].
Written submissions on behalf of the Applicant
The Applicant filed written submissions on 6th June 2019. They were as follows:
FINAL SUBMISSIONS
Prepared on behalf of the Applicant father
THE ISSUES
1. The major issue in this case can be said to have been reduced to the issue of residence.
2. During the trial, the parties professed to accept that:
a. There will be equal shared parental responsibility;
b. The child will spend time with the non-resident parent at a rate that accepts the realism of the tyranny of distance between the two households;
c. The child will spend time with the non-resident parent for half of all school holidays;
3. In deciding this question of residence your Honour will consider the relevant matters set out in s.60CC of the Act. The primary considerations are the benefit to the child of having a meaningful relationship with each of his parents, balanced against the overarching requirement to protect [X] from harm.
4. It is the father’s contention that if [X] continues to live with the mother, he will be unable to maintain a meaningful relationship with his father AND he will be exposed to an unacceptable risk of harm.
THE WITNESSES
5. The father gave evidence. He was honest and made concessions, including concessions against interest, in which he admitted that he had distanced himself from [X] at a time when he felt his mental state suggested that it would be in [X]’s best interest. There were times, in oral evidence, when his recollection of the detail of incidents may have suffered, but in my submission your Honour will find that the father made an honest attempt to tell the truth and not exaggerate.
6. It is my submission that your Honour will have perceived Ms E as an impressive and reliable witness, who had a reliable memory of the events that she personally witnessed and who despite the level of vitriole, animosity and slander she has experienced from the mother over the years, at no time demonstrated malice towards the mother, refraining from criticism and maintaining a level of objectivity throughout.
7. The mother gave evidence in which she appeared to pay scant regard to the truth. In answer to cross-examination, she was evasive throughout and appeared to be consistently inventive. When confronted with inconsistent evidence, the mother appeared unruffled in embracing her latest story.
8. Typical was her account, in oral evidence, of her invasion of the father’s home, accompanied by her family, on 5 May 2015.
9. Describing the incident, the mother had told the Family Consultant (FR1 10) that she had gone to the father’s house to recover [X]: “…kicked the door in and got him back.” In her November 2018 affidavit, the mother admits she smashed a window to get in. Followed by her mother and father she entered the house where she came upon the father, a fight took place and her mother seized the child.
10. In the witness box the mother re-invented the story to have no knowledge of any smashed window. She, accompanied by her party, proceeded direct to the rear of the house where she was confronted by the father, and Ms E holding the child. At this point she alleges she was struck to the ground and allegedly kicked and punched whilst her mother and father passively looked on.
11. In my submission, the most disturbing part of the mother’s oral evidence was that, faced with her conflicting earlier descriptions of events, she insisted that her present recollection of events was the truth.
12. In my further submission your Honour will entirely reject any evidence given by the mother that is not corroborated. Nor will your Honour accept any assurances given by the mother.
13. Notably the maternal grandmother did not give evidence at the trial, except briefly on 10 May 2019. Despite the father’s detailed description of the 5 May 2015 events in which he describes Ms A Derricks as having, at the mother’s urging, smashed the front door window with a concrete gnome, the mother chose not to call her mother to give evidence.
14. It is submitted that this lack of evidence with respect to the home invasion, and other matters alleged by the mother, invoke the principle in Jones v Dunkell.
15. It is further submitted that your Honour will not accept the evidence of Ms A Derricks in respect of the evidence she gave on 10 May 2019.
16. Ms. D, the Family Consultant wrote two reports and a Note to the Court. In her 2018 report she was unequivocal in her recommendation that [X] live primarily with his father. In her later Note to the Court, she stood by that recommendation.
17. Ms D gave oral evidence on 10 May 2019. She could not be persuaded to give any meaningful further expert evidence.
MEANINGFUL RELATIONSHIP
18. The mother has clearly inferred on numerous occasions during the course of this matter that she does not wish to facilitate [X] having time with his father. She told the Family Consultant, (FR1 24), that she would not stop [X] seeing his father, “but went on to say : ‘It stops at overnight.’”
19. In FR1 31 the mother told the Family Consultant that she would only allow [X] to see Mr Santos on Saturdays. She explained that she would not travel on Friday nights and, at any rate, she could not afford it.
20. In June 2018, (FR2 35), the mother told the Family Consultant that she “no longer thought Mr Santos should see [X].” In FR1 she told the Family Consultant, (FR1 33) “I don’t really care what the court says because in the end it is what’s good for [X]. I know what’s good for my son.” (My underlining.)
21. It is submitted that what the mother knows is good for ‘my son’ is dictated by her belief that the father is unimportant in [X]’s life and that she, the mother, appears to feel impelled to do everything that she can do to insult and vilify Ms E.
22. All other considerations apart, once the scrutiny of the court is removed, and given the distance that separates the two households, it is highly likely that the mother will be less than diligent in facilitating contact between [X] and his father.
23. In this regard, it is noteworthy that in evidence given on 10 May 2019, when it was gratuitively suggested to her by counsel for the ICL, the mother set the scene for non-compliance with any order for her to facilitate time. She eagerly agreed with counsel that her car was in poor condition and that she would have problems taking [X] to any changeover point.
24. More alarming, however, is the mother’s attitude to Ms E, to whom the mother has directed a constant, almost childish stream of abuse and invective. Nor has the mother limited her attacks upon Ms E to matters which are relevant to parenting and/or safety issues involving Ms E.
25. According to the mother, Ms E’ daughter [N] was not fathered by Ms E’ then partner, Mr Derricks. Her youngest daughter was not fathered by Mr Santos. These gratuitous insults are not supported by any evidence, (despite the fact that the alleged father of Ms E’ youngest could well have given evidence).
26. The mother has also: accused Ms E of being’ “always drunk”, (FR2).”argued that FaCS were currently involved with Ms E regarding her children,” (FR1), stated that Ms E “has taken it out on other people’s kids before,” (FR1), stated that she is aware “that Ms E has a long history of substance abuse including ICE…”, (mother’s trial affidavit).
27. In FR1 61, the father told the Family Consultant that he “did not know what [X] had been told about him but understood his partner……had been made out to be a really horrible person to [X].”
28. In FR1 24 the mother opined that [X] “was not entitled to know [K], his half-brother….”(My underlining).
29. In cross-examination the mother could not identify or point the court to any evidence to support her derogatory and schoolyard remarks about Ms E. She was convinced of Ms E’ current drug and alcohol abuse despite making the concession that she had not attended the Santos household since May 2015 and had never witnessed signs of such drug and/or alcohol abuse at changeover. Subpoenas answered by the police and FaCS did not produce evidence to support her contentions.
30. Ms A Derricks, the maternal grandmother, was equally ungracious and inventive in her description of Ms E, telling the Family Consultant , (at FR2 36), that Ms E (and the father) “..belted the hell out of Ms Derricks..”, a claim for which neither she nor the mother provide any evidence, nor did the mother make such a claim in affidavit or oral evidence.
31. At FR2 36, Ms A Derricks described Ms E, (the mother of three of her grandchildren) to a complete stranger as “a know-it-all bitch!”
32. The Family Consultant comments: (FR2 60) “Ms A Derricks’ extreme antipathy towards Ms E in no way assists her daughter or indeed her own relationship with her grandchildren.”
33. Overall, in her vendetta against Ms E the mother brings no evidence from her brother and her mother, who both have a long association with Ms E. The mother’s animosity towards Ms E is not restricted to verbal attacks. On 26 February 2018 Ms E was returning [X] to school after a weekend spent with his father. A police COPS report in the tender bundle describes the mother physically assaulting Ms E whilst Ms E held her baby in her arms, leaving her with injuries. The police investigated and took a statement from the mother who claimed that Ms E’ injuries were self inflicted!
34. Your Honour can have no doubt whatsoever that a meaningful relationship between [X] and his father will NOT be promoted in the Derricks household.
35. The mother’s performance, as described by Ms D at page 3 of the 2nd Report must cast doubt upon the mother’s ability to abide by court orders once the immediate scrutiny of the court has be lifted.
36. The Family Consultant opines at FR 64 that: “A further concern must be Ms Derricks’ attitude to [X] spending time with his father and Ms E’ necessary involvement in the transport arrangements…..”
37. The mother’s stated concerns that the father put [X]’s life in danger by allowing Ms E to approach him and the boy in a restaurant is particularly disturbing. Is the mother indulging in schoolyard banter, or does she really believe what she says?
38. It is predicted that orders that [X] live with his mother and spend time with his father will result in continuing conflict and court involvement.
RISK OF HARM
The Mother
39. The father makes no claim that the mother will deliberately physically harm [X].
40. However, your Honour may have grave fears for the future psychological well-being of the child if he remains in the mother’s full-time care, especially if [X] is less frequently, (because of the increased distance between the households), exposed to the settling influence of his father’s household.
41. In FR1, at 71, the Family Consultant recounts a conversation with the mother in which the mother refused to leave [X] alone with the Family Consultant which the mother attributed to “..things that I have heard have happened.” She was referring to an incident that had happened in Town I in which a child had been assaulted by a massage therapist. “[X] looked increasingly anxious during this discussion.”
42. In FR, page 4, the Family Consultant describes an incident in which the mother aggressively attempted to coerce her into handing [X] over to her and writes: ”Crying, Ms Derricks clung to [X], who was also crying, saying to her son: ‘You don’t want to go, do you?’ They both continued to sob, clinging to each other.”
43. In FR2 58 Ms D writes: “…her behavior was completely self focused and she was not able to pay any attention to the effects on her son. Ms Derricks’ angry behavior towards me and police records suggest she has marked difficulty controlling her anger when she is thwarted or provoked and is unrestrained in expressing this in front of her children. Such behavior is very frightening to children and [X]’s fear and extreme anxiety was very obvious in my office. He is likely to become an anxious child unless such behavior ceases.” (My underlining.)
44. The mother amply demonstrated that behavior in front of [X] on at least two occasions. Firstly, she participated in a violent home-invasion of the father’s home on 5 May 2015 in which, if the father’s contemporaneous account to the police is to be believed, she assaulted Ms E, and, secondly she assaulted Ms E at the Town H Public School on 28 February 2018, as noted above.
45. Ms D recommends that [X] lives primarily with his father. In a Note to Court on 12 July 2018 Ms D notes: “I stand by my previous recommendation.”
46. In the father’s submission your Honour has the benefit of an opinion by a court appointed expert, who is also a qualified clinical psychologist, that the child may become an anxious child if the mother’s behavior is not modified.
47. Prior to a re-opening of her case on 10 May 2019, the mother gave no evidence of any attempt to seek to modify her behavior assisted by professional therapy or advice. On that day in May 2019 it was suggested to the mother by counsel for the ICL, with absolutely no supporting evidence, that she was, indeed, undergoing therapy. The mother eagerly embraced the suggestion. However, despite the claim that she was currently undergoing therapy, she could not identify the therapy she was receiving, nor did she present evidence of what the therapy was claimed to promote, or what, if anything, it has achieved.
48. In view of the fact that the mother, throughout her affidavit and oral evidence in this matter demonstrated a complete inability to consistently tell the truth, your Honour may be sceptical about the existence and/or the efficacy of the claimed treatment.
49. In the father’s submission it must be borne in mind that this is the woman who, in May 2015, lead a posse of her relatives to smash their way into the father’s home, against his protests, knowing their son to be present and in complete disregard to the possible presence of other young, nervous or elderly people, violently snatched the child from his carer’s arms. It remains a mystery why a potentially serious criminal offence was not prosecuted by the police.
50. The mother openly admitted that the window in the front door of the house in which the father resided was smashed and that she and her family entered the house uninvited.
51. It is submitted that there is an unacceptable risk of psychological harm to [X] in the full-time care of the mother.
Mr C
52. In her trial affidavit the mother deposes to Mr C not having been in contact with [X] since December 2017. She does not claim that she has not associated with him since that date.
53. On 22 November 2018 the mother was cross-examined with regard to [X]’s exposure to Mr C, despite orders restraining the mother from allowing such exposure. She gave evidence that Mr. C attended her house to see his daughter, [Y], but only when [X] was spending time with his father.
54. On 10 May 2019 the mother re-opened her case to argue against the proposal by the ICL that the order restraining the mother from allowing [X] from coming into the presence of Mr C be continued as a final order.
55. Both the father and Ms E gave evidence that they had observed the mother, the maternal grandmother, [X] and Mr C and other family members in Location O restaurant in Town J early in the afternoon of 22 March 2019.
56. The mother and the maternal grandmother denied that Mr C was with them on that day when the family had lunch at the restaurant..
57. The mother gave evidence-in-chief, on 10 May 2019, that she had not seen Mr C for about eighteen months and that he showed no interest in their daughter [Y].
58. Her evidence was markedly in conflict with the evidence that she had given on 22 November 2018 where she had said that Mr C visited regularly to see his daughter, but only on weekends when [X] was spending time with his father.
59. Counsel for the ICL told the court that the mother on that occasion, had been referring to a period some eighteen months before giving that evidence.
60. Counsel’s assertion is directly challenged. No such qualification was put upon her evidence.
61. In cross-examination on 10 May 2019, the mother revealed that she now recalled that she had in fact seen Mr C quite recently in a shopping centre. The mother said that she was alerted to his presence by their daughter, [Y], recognizing him. He appeared, the mother said, to be eager to approach his daughter, but restrained himself because of the presence of [X].
62. This evidence was, once again, in direct conflict with her evidence, given only a few minutes before, that she had not seen him for about eighteen months and that he had shown no interest in his daughter. Had the court been given to understand that Mr C no longer lived in the local area?
63. In the father’s submission your Honour will not accept the mother’s evidence that Mr C no longer visits the mother’s home.
64. The child [Y] was born on 28 March 2017 and if, as the mother stated in evidence, Mr. Derricks had not taken any interest in the child since December 2017, when the child was nine months old, then that child would NOT have recognized her father in a shopping centre eighteen months later. Your Honour may also ponder why, if Mr C is no longer on the scene, and showed no interest in his daughter, the mother felt it necessary to re-open her case.
65. Orders were made on 21 December 2017 restraining the mother from bringing [X] within 100 metres of Mr C. These orders were made following an assault upon the mother by Mr C.
66. On 29 November 2017, at 9pm, Mr C had returned to the home he shared with the mother, [X] and the child [Y], aged 6 months. He was intoxicated. Soon after he arrived home an argument started which resulted in Mr C slamming a door on the mother’s wrist. As she walked towards the door to leave the premises, with the baby in her arms and [X] by her side, Mr C grabbed her by the neck, causing injuries. As she attempted to call the police, Mr C grabbed the mother’s mobile ‘phone and threw it down in the street.
67. A COPS report, in the tender bundle, gives greater detail of this assault and notes that the mother informed police that Mr C has a problem with excessive alcohol consumption which causes him to become loud and aggressive toward her.
68. In paragraphs 36 and 37 of his trial affidavit the father gives evidence of [X]’s concern for his mother as a result of the assault upon her that he had witnessed. Paragraphs 39 to 43 give evidence of [X]’s subsequent report to his father that Mr C was still attending his mother’s residence and [X]’s fear and distress as a result.
69. As noted above, the mother’s eagerness to resist a permanent restraint upon Mr C and the quite blatant lies she told in the witness box with regard to her relationship with Mr C, lead to the probability that she continues her relationship with him and he therefore poses an unacceptable risk of harm to [X].
70. If your Honour believes that the mother has not told the truth in her evidence in court, then the order, made in December 2017, restraining her from bringing the child into the presence of Mr C has proved ineffective. An injunction to prevent future exposure of [P] to Mr C would be impossible to police and would be equally ineffective.
71. Your Honour would be justified in forming the view that after the close scrutiny of this court is removed, Mr C WILL continue a close association with the mother.
OTHER RELEVANT CONSIDERATIONS OF S.60CC MATTERS
VIEWS OF THE CHILD
72. [X] has not expressed any wishes as to who he prefers to live with. He is just 6 years of age.
73. R v R (Children’s Wishes) [2000 FamCA 43] urges your Honour to take a holistic view of the evidence in deciding the views of the child. Quite clearly [X] loves his mother and his father.
74. There is no evidence to suggest that [X] would be concerned about a change of residence to his father’s household where he now has two siblings. Although he appears to be protective of his half-sibling [Y] in his mother’s household, any fears he may have with regard to her safety can be allayed by regular Skype communication with his sister.
75. [X]’s psychological and physical safety must remain the court’s primary concern.
NATURE OF THE RELATIONSHIPS
76. Clearly [X] has a close relationship with both his mother and his father.
77. It is not clear what relationship [X] has with his maternal grandmother.
78. [X] has a close relationship with his half-sister, [Y], whom he appears to feel protective of as a result of their common exposure to the violence of Mr C.
79. [X] has expressed his fear of Mr C to his father and to Ms E.
80. Ms E gives evidence of a strong bond with [X], formed in his baby years as his aunt and rekindled after the separation imposed by court orders. In her affidavit Ms E describes that bond and the interaction and activities they enjoy together.
81. Ms E deposes to [X] having “a strong bond with my girls and appears quite fascinated with his baby brother, with whom he plays for hours.” That evidence was not challenged.
SUMMARY
82. If the court were to order that [X] live with his mother and spend time with his father:
· Your Honour may have grave concerns about the mother’s commitment to promoting and facilitating a meaningful relationship between [X] and his father and any relationship with his aunt and stepmother and with his paternal half siblings.
· In this concern, your Honour may be dismayed by the almost paranoid hatred displayed by the mother and the maternal grandmother to Ms E .
· Your Honour will have grave concerns with regard to [X]’s psychological wellbeing in the mother’s continued care. In observations of the mother and the child, a 6 year old, the child is almost continuously clinging to his mother and sobbing. In contrast, in observation with his father he is acting like a normal 6 year old boy.
· Your Honour will have grave concerns for the child’s safety in the presence of Mr C who will undoubtedly have unrestricted access to the household when the court steps back from this case.
· It would directly conflict with the recommendation of the court-appointed expert, a clinical psychologist, who has assessed the child’s best interests in great detail.
Written submissions on behalf of the Respondent
The Orders dated 20th May 2019 directed the Respondent to file and serve her written submissions no later than 17th June 2019.
The Court received correspondence from the solicitor for the Respondent on 22nd July 2019 seeking the Court’s “indulgence” and requesting an extension for the filing of written submissions until 31st July 2019. The Court also received correspondence from the Independent Children’s Lawyer requesting that the matter be listed for further directions to address any issues of procedural fairness that may arise from the Respondent Mother’s non-filing of written submissions.
In the light of this correspondence, the matter was listed for further directions on 12th August 2019. The Court made an Order that, should the Respondent Mother seek to file any written submissions, she was to file and serve an Application in a Case and supporting Affidavit seeking leave of the Court.
Curiously and unfortunately, notwithstanding Orders and further indulgence granted to her, the Respondent Mother did not file any written submissions or any further material. Although this was unexplained, as well as something of an affront to the Court, in certain respects it made little difference to the result. In part this is because, certainly in recent years, the ICL (as opposed to her Counsel who properly took, in my view, a more considered approach to the positions of both parties) has strongly and consistently supported the Mother’s case in almost all relevant respects over the life of the litigation.
Written submissions on behalf of the Independent Children’s Lawyer
The Independent Children’s Lawyer filed written submissions on 1st July 2019, which were as follows:
Submissions of the Independent Children’s Lawyer
1. These submissions are made in accordance with directions made on 20 May 2019. They are made without the benefit of submissions being filed and served by the mother, however any material not dealt with will be raised in submissions in reply.
2. The matter relates to the live with and spend time with arrangements for [X] born … 2012.
3. The submissions are divided into history of the matter in so far as it is uncontested, the contested history in so far as it is considered probative to the issues to be determined, and the rationale for the Orders sought by the Independent Children’s Lawyer. The evidence offered by the parties and the expert will be considered within each topic.
Uncontested History
4. The parties and their various supporters are able to agree on very little. However, the history of [X]’s life until September 2017 is not substantially contested.
5. [X]’s mother was his primary carer during her relationship with [X]’s father and following separation.
6. Out of a sense of fear that she may relocate without his permission, [X]’s father over held [X] following an agreed visit on 5 May 2015. In the context of some ill-advised and what the father accepts to be threatening messages, the mother and her family attended the father’s residence and recovered [X] by force.
7. That incident was no doubt traumatic for all parties, not the least [X]. No one involved acted reasonably, rationally or with any real insight into [X]’s interests. Whether the father assaulted the mother during the incident (as alleged by the mother and her supporters) or the mother assaulted the father’s (then) new partner (as alleged by the father and his supporters) is not a matter the court needs to determine. The incident is too far back and occurred very close in time to what was a bitter and acrimonious separation.
8. The incident was offered to the Court as a study of the mother’s explosive temperament. In the view of the ICL, the incident was a compelling portrait of the parties at the time of the incident. The remainder of the evidence over the many years since can be used to assess whether anything has changed.
9. The incident was traversed at some considerable length with the mother during her oral evidence. She accepted frankly that she behaved badly and that she was untruthful at times in the narrative of the event she gave over the course of the last 3.5 years.
10. In any event, the mother then relocated with the father’s consent from Town F to Town H, NSW and Consent Orders were entered into by the parties on 12 June 2015 to allow for regular time between [X] and his father.
11. There was some issue in the matter about compliance with those orders, however it was the father’s compliance with the restriction on Ms E that was complained of, not the mother failing to provide [X] for time. The father accepted that he did not pursue the time available to him for a number of reasons, including his at times poor mental health [see in particular the police notes about Mr Santos’ suicidal thoughts and admissions for mental health support]. In addition, when reflecting on this period, Ms D in her evidence opined that it was probably very difficult for the father to keep [X] entertained for long day periods without a home-base. No criticism is levelled at the father for this period of not taking up all available time, however it follows that no such criticism should apply to the mother for this period.
12. In that same period between June 2015 when the mother relocated from Town F until September 2017 when new orders were entered into to set out the father’s time and lift the restriction on Ms E’ presence, the objective evidence is that [X] was doing well. He was enrolled in day care and preschool and was meeting all his developmental markers. According to the tendered pre-school notes, he was clean, healthy and happy.
13. Time occurred in accordance with the September 2017 Orders until December 2017, when the father over held [X] due to his concerns about domestic violence in the mother’s household.
14. It is uncontested that the mother’s then partner, Mr C, was violent towards her in November 2017. The mother acted protectively – she contacted the police, she sought medical treatment, she obtained an Apprehended Domestic Violence Order. Mr C was charged and on bail conditions that limited his contact with the mother.
15. The father acted appropriately – he spoke to the mother about the incident, he raised his concerns about [X], he initially accepted her reassurance. However due to his on-going concerns and, most particularly, his inability to trust the mother, the father over held [X] until he was ordered to return him on 21 December 2017.
16. At the same time, the father raised a large number of medical and dental concerns about the mother’s care for the child. None of those issues were supported by objective evidence.
17. Also at that time, the mother raised a large number of drug and alcohol concerns about the father and Ms E. None of those issues were supported by objective evidence.
18. Between the child’s return on 21 December and 28 February, the father sought and obtained seven police welfare checks on the mother and [X]. None of the checks found Mr C at the house or raised any other concern about [X]’s care. Child Protection authorities were involved in investigation at both houses and found that the only risk to [X] were the adults’ inability to trust each other or shield [X] from their conflict.
19. In the months that followed and in particular in the father’s next over-holding of [X] from a scheduled visit on 5 May 2018, what becomes clear is that Mr Santos cannot be satisfied by or about the mother’s care of [X]. She sets out in her May 2018 affidavit (confirmed in the Department of Family and Community Services notes at TAB 6) that she has engaged with Counselling Service M to undertake a parenting programme. She provides evidence of medical and dental care. She engages with child protection. She is checked on by police.
20. His evidence at the hearing is that he simply wants [X] to be healthy and happy. He appears to genuinely be motivated by that goal. The difficulty is that he simply cannot accept that [X] is healthy and happy with his mother.
21. Mr Santos kept [X] with him from 5 May 2018 until 21 August 2018 when he was returned in accordance with Orders. In that time, [X] did not go to school or visit with his mother, other than for the Family Report Assessment interview on 20 June 2018.
22. Upon return, the mother provides [X] for time with his father in accordance with the 21 August 2018 Orders. On that first visit, and on the eve of a special fixture for Final Hearing, Mr Santos again retained [X]. On this occasion, he presented [X] to hospital with concerns about physical and sexual assault.
23. In the submission of the ICL, this incident is the pinnacle of the probative evidence in the case. The records of the police and hospital are tendered in the case [TAB 3, 4 and 6]. The incident displays the father and Ms E belief that the mother is incapable of properly parenting the child. It displays an independent assessment of [X] that does not bear out the concerns. It displays the inability of the father and Ms E to accept that information. Most tellingly, in the mother’s attendance to the hospital on 2 September 2018 and her interaction with highly suspicious hospital staff, it displays the mother’s growth.
24. The matter had its first new hearing dates on 21 and 22 November 2018 in Town J, where all witnesses other than the family report writer were cross examined. The matter was listed for Ms D’s evidence on 10 May 2019 in Canberra.
25. Ms D did two reports and a note in the long course of the matter. Her first report in August 2017 recommended that [X] stay with his mother and spend alternate weekends with his father. The second report in June 2018 recommended that [X] stay with his father, have alternate weekends with his mother and that Ms Derricks return to Town F. Her note of 21 July 2018 did not alter her June recommendations.
26. Ms D accepted that the primary reasons for her change between August 2017 and June 2018 were the father’s concerns about the child’s care and the mother’s unrestrained emotions. Her evidence was that if the court was satisfied as to [X]’s care and there was evidence of change to the Mother’s emotional regulation, that would be positive for [X] and remove her concerns. She argued that the most important thing now was stability.
27. In the hiatus between hearing dates of 21 & 22 November 2018 and 10 May 2019, Mr Santos and Ms E moved their family from Town F to Town G in NSW, more than doubling the distance between the father and [X]’s residences. Mr Santos did not tell the Mother, expecting her to find out from [X]. He did not tell the Court until filing an affidavit on 9 May 2019. His evidence on that point was unsatisfactory in terms of his ability to co-parent and his insight into the impact on [X] of being a messenger between his parents on any issue, let alone so substantial a change of circumstance. His evidence was that moving to the coast was the long held wish of he and Ms E but that it was initially shelved until after a decision about [X]. The idea of relocation was never canvassed in the very long proceedings. The Court is left to question whether, upon receipt of Orders as sought by him, the father was then going to relocate with the child.
28. What is clear on his evidence is that he did not suggest or discuss a reduction in the time [X] spends with him, even though he accepts that was a known consideration of the move. After evidence and some discussion at court on 10 May 2019, although invited to consent to a change in frequency and changeover location, he required the Court to set out the new reduced frequency of his time with [X], reflected in the Orders dated 28 May 2019.
Contested history
29. There are about five major incidents where the parties dispute the facts:
a. Who was assaulted on 5 May 2015 as referred to in paragraph 7 above;
b. Whether the mother assaulted Ms E at [X]’s school on 26 February 2018;
c. Whether the mother allowed Mr C to come into contact with [X] between 21 December 2017 and 5 May 2018 as alleged by the father;
d. Whether [X] was the victim of physical and or sexual abuse in September 2018; and
e. Whether Mr C was present with the mother at Location O in March 2019.
30. The Court is able to make findings of credit in relation to specific disputes of fact or findings as to credit generally.
31. In the submission of the ICL it is not necessarily helpful to the determination of this matter to make findings specific to each disputed incident as in general, the incidents expose the heightened conflict and lack of trust between the parties regardless of who is believed. As set out in the ICL’s Case Outline, that conflict and lack of trust are the real risk to [X].
32. Clearly, if the Court were to find that [X] was the victim of physical and or sexual abuse in his mother’s home, that would be a determinative factor in the decision to be made. In the submission of the ICL, such finding is not open on the evidence.
33. The issue of exposure to Mr C is relevant to the determination of what Orders are required to meet [X]’s best interest and are dealt with at paragraphs 43, 44 & 45 below.
Rationale of the ICL
34. Both parents are able to properly provide [X] with his day to day needs. Both parents have a good relationship with [X]. [X] enjoys time with the other members of each parent’s household, including siblings. Both parents are incapable of seeing the good in the other parent.
35. What sets the mother apart are:
a. her growing ability to self regulate as evidenced by her attendance at the Hospital in September 2018 when [X] was admitted for physical and sexual abuse concerns.
b. Her consistency in facilitating weekend time in the face of retentions, and even relocation, by the father.
c. [X] is settled in school and in Town H. He has primarily resided there since 2015 and has a cohort of friends from pre-school with him at school.
36. In addition, Ms D cautioned against further instability for [X] in her evidence. He has had enough disruption in his young life and should stay primarily resident with his mother.
37. For those reasons, [X] should live with his mother.
38. The parties are agreed that [X] should spend half of each school holiday period with his non-resident parent.
39. The weekend time that [X] spends with his father needs to be clearly and unambiguously set out in Orders. These parties are unable to negotiate or rearrange time. The ICL supports orders that specify the weekends the father spends with [X] by reference to the weeks of school term, as in that format, there is no room for misunderstanding or difference of interpretation.
40. The concern for time set out by reference to calendar months is that there is likely to be disagreement as to how such Orders for weekend time interact with holiday time or special events such as Mother’s and Father’s Day. What if school goes back in the first few days of the new month and the child has spent time with his father until the return to Term time? Is the next weekend a travel weekend? In this case, uncertainty will lead to conflict.
41. It is unfortunate that the father’s move to NSW means a different changeover location is necessary. From the mother’s perspective, she is being put to trouble and expense as a result of circumstances to which she did not contribute. However, the parents’ convenience is subservient to the best interest of [X]. [X]’s father should not put his or anyone else’s safety at risk by undertaking all of the onerous travelling. It is in [X]’s interest for his parents to meet approximately half-way between their residences.
42. The ICL supports changeover occurring at Location A. It is open late and early, is well lit with good facilities and provides both parents with the ability to wait for the other, as well as rest and refuel for the return travel. In the submission of the ICL, Town Q does not offer the same facilities and convenience. There is no law in the determination of a changeover location.
43. The restraint on Mr C is continued in the Orders sought by the ICL. The mother’s evidence is confused on this point and needs to be reviewed in terms of the evidence given in November 2018 and May 2019. It is unclear from the notes or recollection of the ICL what evidence the mother gave as to what period of time she was seeing Mr C on weekends that [X] was with his father. Her evidence in May was that she has seen him almost not at all since his move to Narrandera. The father says that Mr C was present at Location O with the mother in March following her grandfather’s funeral.
44. The evidence from Mr Santos and Ms E was not compelling on this point. Such is the high level of conflict in this matter that it is almost impossible to accept that they saw Mr C with the mother, with no doubt as to who was there, and did not report that to the police. It is almost impossible to believe it would not be in the affidavit filed by Mr Santos on 9 May 2019 when he notified of his new residence arrangements. Their evidence was inconsistent as to who actually saw him, where they saw him, what he was doing, and what happened next. It should not be accepted as a reason for a continued injunction, particularly as it may cause distress to [X] if an on-going injunction has the effect of subjecting him to questioning about what happens while he is with his mother.
45. Injunctions are a serious remedy that should be used only where necessary. [X] was exposed to a very frightening event and an injunction was certainly appropriate at the time, even though there is some evidence of an AVO being in place. While it is arguably unnecessary for the protection of the child to continue the injunction in this case, such is the level of mistrust between these parties that an injunction for a limited time (for example 12 – 24 months) would strike a balance between protecting [X] from Mr C and from unnecessary continued involvement in his parents’ conflict.
Outline of principle
In Mazorski v Albright, in the light of, and by reference to, relevant Full Court authority, Brown J conveniently set out an overview of principle in relation to Part VII of the Family Law Act 1975 (“the Act”). Respectfully and gratefully, I adopt her Honour’s comments. Brown J said:[3]
[3] The provisions in the Family Law Act 1975 (the Act) relating to children rest on twin pillars. The first is the importance to children of having a meaningful relationship with both parents; the second is the need to protect children from physical and psychological harm. These are stressed in s.60B(1) which sets out the objects of the legislation relating to children and are reiterated as the primary considerations in s.60CC(1).
[4] When deciding what parenting orders to make it is the best interests of the children which are the paramount consideration. In determining where those best interests lie, the Court must consider the primary and additional considerations set out in s.60CC.
[5] There is a presumption that it is in a child’s best interests for his or her parents to have equal shared parental responsibility for him or her (s.61DA). The presumption relates to the allocation of parental responsibility, not the time a child spends with each parent. The presumption does not apply if there are reasonable grounds to believe that a parent has engaged in abuse of the child or family violence. The presumption may be rebutted if the Court finds that it would not be in the best interests of the child for it to apply.
[6] If the presumption applies, and there is an order for equal shared parental responsibility, the court must consider whether spending equal time with each parent would be in the child’s best interests (s.65DAA(1)) and, if no such order is made, consider whether spending substantial and significant time with each would be in the child’s best interests (s.65DAA(2)).
[3] (2007) 37 Fam LR 518 at [3] – [6]. Brown J’s comments were endorsed by Boland J (with whom May & O’Reilly JJ agreed) in Moose & Moose (2008) FLC ¶93-375 at [67] – [68].
Her Honour also made important observations about the term “meaningful”, as used in Part VII of the Act, in the context of what is comprehended by a “meaningful relationship.” At [20] through to [26], her Honour outlined a range of considerations. I set them out below, and again respectfully (and gratefully) adopt Brown J’s observations, thus:[4]
[4] Brown J’s remarks in this regard were endorsed by the Full Court in Moose & Moose (2008) FLC ¶93-375 at [69], and even more recently by a differently constituted Full Court in McCall & Clark (2009) 41 Fam LR 483 at [115] & [121]. More recently still, a further Full Court in Collu & Rinaldo [2010] FamCAFC 53 at [335], similarly endorsed Brown J’s remarks, as did the Full Court in Vontek v Vontek [2017] FamCAFC 28 at [26].
[20] The Family Law Amendment (Shared Parental Responsibility) Bill Revised Explanatory Memorandum (2006) refers to the concept of a meaningful relationship on a number of occasions. At para 52 it noted that the primary factors mirror the first two objects set out in the new s 60B and that the objects are elevated to primary considerations as they deal with important rights of children and encourage a child-focused approach. The paragraph continues:
The elevation of the object relating to the benefit to the child of having a meaningful relationship with both parents is consistent with the introduction of a presumption in favour of equal shared parental responsibility.
[21] Here, the concept of a meaningful relationship is closely tied with the introduction of the presumption of equal shared responsibility, and the passage links the concept of a meaningful relationship with the objects of the Division. The objects use the words “meaningful involvement”.
[22] At para 128, discussion of a meaningful relationship is again linked to discussion of the presumption of equal shared parental responsibility, the explanatory memorandum noting:
The government considers that it is important to ensure that a child has a meaningful relationship with both parents and that both parents participate in decisions about the child. The presumption of equal shared parental responsibility is not a presumption of 50:50 joint custody. The presumption relates solely to the decision making responsibilities of both parents. New section 65AA inserted by Item 31 is the provision dealing with the time a child spends with each parent and the circumstances where the court should consider equal time arrangements.
[23] When considering s 65DAA, the explanatory memorandum states (at [196]–[199]):
[196] Subsection 65DAA(2) recognises that an equal time arrangement will not be appropriate in some cases but that the court must consider other arrangements that promote a meaningful relationship. This provision places an obligation on the court in situations where there is equal shared parental responsibility and equal time is not appropriate, to consider whether it would be in the best interests of the child and reasonably practicable for the child to spend substantial and significant time with both parents. This is intended to ensure that in making parenting orders related to time that the court focuses not just on the substantial quantity of time that is spent with each parent, but also on the significant type of time. The note in this section emphasises that the best interests of the chid remain the paramount consideration for parenting orders. This is set out in s 60CA by item 9.
…
[199] Section 65DAA (2) — (4) is intended to ensure that the courts consider arrangements that are much more than “1 weekend a fortnight and half of the holidays” or an 80:20 arrangement. It is intended to ensure a focus both on the amount of time and the type of time. It would include both day time contact and night time contact. It recognises that what is important is that the focus be on ways that both parents are able to develop a meaningful relationships with their children and share important events including everyday time with the child. It recognises that in order to have a meaningful relationship and to share equal shared responsibility that this would generally involve “both” parents spending both substantial and significant time with their children.
[24] The New Shorter Oxford English Dictionary on Historical Principles, Clarendon Press, Oxford, 1993, defines “meaningful” as “full of meaning or expression; significant; amenable to interpretation; having a recognisable function in a language or sign system; able to function as a term in such a system”. “Meaning” is defined as “having intention or purpose; chiefly with a qualifying adverb (as well-meaning)”. A second definition is “conveying or expressing meaning or thought; expressive, meaningful, significant; suggestive”. These definitions are repeated and further fleshed out in the Oxford English Dictionary, 2nd ed, Clarendon Press, Oxford, 1989. It defines “meaning” (in generalised use) as “significance”. The examples provided take the matter no further.
[25] The Macquarie Dictionary, 4th ed, Macquarie University Press, Sydney, 2005, defines meaningful as “full of meaning; significant”. Within the definitions of meaning, the relevant one defines the word as “expressive or significant: a meaning look”.
[26] What these definitions convey is that “meaningful”, when used in the context of “meaningful relationship”, is synonymous with “significant” which, in turn, is generally used as a synonym for “important” or “of consequence”. I proceed on the basis that when considering the primary considerations and the application of the object and principles, a meaningful relationship or a meaningful involvement is one which is important, significant and valuable to the child. It is a qualitative adjective, not a strictly quantitive [sic] one. Quantitive [sic] concepts may be addressed as part of the process of considering the consequences of the application of the presumption of equally shared parental responsibility and the requirement for time with children to be, where possible and in their best interests, substantial and significant.
Consideration and disposition
Briefly, and in sequential order of the considerations in s.60CC(3), I note the following.
[X] has not expressed any particular view regarding where or with whom he should primarily live. Given his young age, even if he had done so, it would unlikely carry much weight.
He has a close relationship with both parents. He nonetheless remains caught between their ongoing hostility and, according to Ms D, he shows signs of anxiety and other related concerns. These arise, again according to Ms D, from the child’s [ongoing] exposure to the conflict between his parents. [X] has expressed fears about the Mother’s former partner, Mr C.
[X] has a close relationship with all his siblings. He is particularly close to his sister [Y]. Indeed, there is evidence that he is genuinely protective towards her, notably trying to protect her when the Mother and Mr C have been engaged (seemingly regularly – at least in the past) in [mostly] arguments. This borders on the heroic when [X] is surrounded by adults who are incapable and or unwilling to put [X]’s interests (and [Y]’s) above their own narrow, self-centred, and emotionally unregulated aberrations. So much energy has been wasted on the fights between adults – across the board. If only this useless expenditure of effort over the years had been directed positively towards the benefit of the children involved and to advance their interests rather than to spite and to belittle partners past and present. One can only wonder what might have been.
Whatever the nature of the limitations, individually and collectively, of the parents, on a day-to-day basis, there appears to be little difficulty in both households being able to provide the basic physical and other needs of the children in them, including in particular, [X]. Again, I highlight the immeasurable benefit to the Father and the children in his household of the labours of Ms E who has not only borne so much of the hurtful and appalling action of the Mother but also has often tried to steer a more conciliatory path, which is in the best interests of the children generally, including of course, [X].
Issues of communication with [X], and between parents, remains problematic.[5] As already noted, the “time with” arrangements will now be especially problematic because of the travel distance (and the time involved) between the parents.
[5] This aspect and what is referred to in the previous paragraphs are intended to summarise the situation regarding the “considerations” in s.60CC(3)(c), (ca), (f) and (i) in the light of the evidence before the Court, notably from the Family Consultant.
Two matters, in my view, weigh heaviest in this matter. They arise under s.60CC(3)(d) and (e).
Put shortly, the number of children in the Father’s and Ms E’ household have the benefit and support of (i) two parents and (ii) each other. With no negative connotation, they have the benefit and support of “numbers” and, it would seem on the evidence, a degree of peace and lack of volatility in that household. On the other hand, in the Mother’s household, there is only the Mother and [Y]. If [X] was to live primarily with his Father, in my view there would be a significant risk that he would ultimately fret over missing [Y] and worry (with some justification) about who would protect his baby sister, especially from the aggression of Mr C when he comes “visiting”. He will be able to maintain his good and close relationship with his siblings in his Father’s household through monthly “time with” arrangements and during school holidays.
I have remarked on it many times already, so it is unnecessary to detail further my concerns – recognised by all – about the burden of travel between Town H and Town G.
There remain issues of family violence, to varying degrees, both as between the somewhat regularly aggressive relationships between the adults, and in the form of the spectral figure of Mr C.
As earlier indicated, albeit almost contrary to the evidence, there will be an Order for equal shared parental responsibility. All parties and the ICL, curiously perhaps, agree on such an Order. Following such an Order, to the degree that it can at least be recorded, the practicalities and geography preclude an equal time arrangement. The same matters preclude Orders for significant and substantial time.
[X] shall live primarily live with his Mother. Although it was a very near run thing that he would live primarily with his Father, for the reasons given, this is in [X]’s best interests at this time and into the foreseeable future. This is with the qualification given at the start of these reasons regarding the risks to the Mother if she does not promote and facilitate [X]’s relationship with his Father.
[X] shall spend one weekend per month with his Father, and half of all school holidays. Absent agreement in writing between the parties, this shall be the first weekend of each month. Changeover shall be at Location A. Otherwise, the Orders proposed by the ICL shall be made as being in [X]’s best interests.
I certify that the preceding eighty-seven (87) paragraphs are a true copy of the reasons for judgment of Judge Neville
Associate:
Date: 31 January 2020
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