SARACUNA & SIDDELE
[2020] FCCA 174
•31 January 2020
FEDERAL CIRCUIT COURT OF AUSTRALIA
| SARACUNA & SIDDELE | [2020] FCCA 174 |
| Catchwords: FAMILY LAW – Final hearing – parenting – whether the child should live primarily with the mother or the father – whether the child should be vaccinated - whether the child should go to school or be home-schooled – whether the child is at risk of harm in either parent’s care – whether each parent has the capacity to promote, foster and develop the child’s relationship with the other parent and the child’s extended family – whether each party has the capacity to meet the child’s health, emotional, social and developmental needs. |
| Legislation: Family Law Act 1975 (Cth), ss.4AB, 60B, 60CC, 61DA, 65D |
| Cases cited: Goode & Goode [2006] FamCA 1346 |
| Applicant: | MR SARACUNA |
| Respondent: | MS SIDDELE |
| File Number: | SYC 7132 of 2018 |
| Judgment of: | Judge M Neville |
| Hearing dates: | 13-16 January 2020 |
| Date of Last Submission: | 16 January 2020 |
| Delivered at: | Sydney |
| Delivered on: | 31 January 2020 |
REPRESENTATION
| Counsel for the Applicant: | Mr Livingstone |
| Solicitors for the Applicant: | Go to Court Lawyers |
| Counsel for the Respondent: | Ms Otrebski |
| Solicitors for the Respondent: | Braye Cragg Solicitors |
| Counsel for the Independent Children's Lawyer: | Mr Greenaway |
| Solicitors for the Independent Children's Lawyer: | Mark MacDiarmid Family Law Specialist |
THE COURT ORDERS, ON A FINAL BASIS, THAT:
Discharge of prior Orders
All prior parenting Orders are discharged.
Parental responsibility
Subject to the sub-paragraphs (a) to (c) of this Order and to Orders 3 to 10 below, the mother shall have sole parental responsibility for the child X born in 2014 ('the child'), and:
(a)the mother shall keep the father informed of the child's progress including but not limited to matters of the children's well-being, health, education or extra-curricular activities;
(b)the father shall be entitled to communicate with the mother any concerns that he has or any suggestions he wishes to make for the progress and well being of the child; and
(c)the mother shall give due regard to such matters as are raised by the father but, in the event that no agreement is reached, then the mother shall be the person to make the final determination or decision.
(d)The mother shall authorise the father to communicate with, attend upon all medical practitioners and be provided with all reports and information in relation to the child from any medical practitioner and for the purposes of such authorisation this order shall be sufficient authority.
The parents shall each have responsibility for making decisions in respect of the child that are not major long-term issues whilst the child is in their care, including but not limited to, the child's attendance at extra-curricular activities and social functions.
Vaccination of the child
The father shall as soon as practicable have the child vaccinated by Dr C, pediatrician ('Dr C'), or by such practitioner as recommended by him and shall thereafter follow Dr C's recommendations for ongoing vaccination from time to time and update the mother of all such vaccination treatment as and when it occurs.
The father do all things necessary to cause the vaccination to be conducted in the O Hospital or clinic, as recommended by Dr C.
The father give the mother not less than 48 hours’ notice in writing of the date and time and place of such vaccination.
The mother be permitted to attend the vaccination and to remain with the child thereafter whilst the child is in the hospital or clinic, but subject to the requirements of such hospital or clinic.
That the mother be and is hereby restrained from impeding, preventing or attempting to prevent or impede the vaccination of the child.
As near as possible to 1 June and 1 December in each year, the father shall ensure that the child submits to a blood test under the supervision of Dr C or such other paediatrician to whom the child is referred by Dr C for the measurement of the child's iron, vitamin B 12, vitamin D and such other blood nutrient levels as are identified AND THE COURT REQUESTS THAT Dr C provide the parents with treatment and dietary recommendations for the child following his assessment of each of the test results referred to in this Order.
Each parent will do all things necessary to comply with any treatment and dietary recommendations made by Dr C or such other pediatrician to whom the child is referred by Dr C from time to time and both parents are authorized to confer with the paediatrician in relation to his recommendations from time to time.
Live with and spend time
The child shall live with the mother.
The child shall spend time with the father as agreed between the parents and failing agreement:
(a)Until the child commences school, during each alternate week from 1:00pm on Thursday to 3:00pm Monday;
(b)Upon the child commencing school, on a three weekly rotating cycle such that on weeks one and two of each such cycle the child shall spend time with the father from after school or 3.00pm on non-school days on Friday until 6.00pm on Sunday, and on week three the child shall remain in the mother's care;
(c)For the purposes of the preceding sub-paragraph, the rotating cycle is suspended during the child's school holiday periods, and week one of the rotating cycle shall re-commence on the Friday of the first week of required school attendance for the child in each school term;
(d)Upon the child commencing school, for one half of the child's school holiday periods as agreed between the parents and failing agreement being the first half in even numbered years and the second half in odd numbered years;
(e)If the child is not otherwise in the father's care, from 3.00pm on the day immediately preceding Father's Day in each year until 6.00pm on Father's Day.
(f)From 24th of December at 2:00pm until 2:00pm on the 27th of December in even numbered years.
The father's time with the child is suspended:
(a)From 3.00pm on the day immediately preceding Mother's Day in each year until 6.00pm on Mother's Day.
(b)From 24th of December at 2:00pm until 2:00pm on the 27th of December in odd numbered years;
Changeovers shall take place as agreed between the parents and failing agreement at Suburb P Train Station.
For the purpose of the School Holidays Orders above, the following will apply:
(a)Each school holiday period shall commence at the conclusion of school on the last day of required school attendance of the child and shall conclude at the commencement of the first day of required school attendance for the child;
(b)Changeover is to occur at 12.00 noon on the mid-point day between the first and last day of the defined school holiday period and shall, where applicable, include public holidays and pupil free days;
(c)In the event that there are two consecutive mid-point days, then changeover is to occur at 12.00 noon on the first of those two mid-point days.
Continuation of Independent Children's Lawyer's Appointment
The appointment of the Independent Children's Lawyer shall continue for a period of 12 months from the date of these Orders.
Schooling
The mother shall forthwith do all things necessary to enrol the child in, and have the child attend a school that is registered and accredited by the NSW Education Standards Authority ('NESA') and ensure that the child commences school in the first term of 2020 pursuant to the school's requirements.
Prior to enrolment the mother shall inform the father of the school in which she intends to enrol the child and the Mother is to provide written confirmation to the Father and the Independent Children’s Lawyer of X’s enrolment in school within 28 days of the date of these orders.
The mother shall do all things necessary to ensure that the father's identity, address and telephone contact number is immediately included in the enrolment form.
The mother shall authorise the father to obtain copies of the child's enrolment form and to be provided with all notices, reports and other information which she would be ordinarily entitled to receive, and for the purposes of such authorisation this order shall be sufficient authority.
The mother shall give the father not less than 28 days’ notice in writing of her intention to remove the child from any school and to enrol the child in another school.
Restraints
The mother be and is hereby restrained from:
(a)Changing the child's permanent residence outside of the Greater Sydney (Greater Capital City Statistical Area), as classified by the Australian Bureau of Statistics without the written consent of the father or an Order to that effect.
(b)Painting X’s body other than her face and hands or allowing another person to do so; and
(c)Enrolling the child in any school that is not registered and accredited by the NSW Education Standards Authority ('NESA').
(d)Home schooling or causing X to be home schooled.
(e)Bringing X into contact with or allowing her to remain in the presence of a person who she knows to be under the influence of illicit drugs or mind altering substances.
The mother shall forthwith surrender the child's passport to the father and the father shall thereafter hold the child's current passport and any renewal thereof.
Airport Watchlist
Each of Mr Saracuna born in 1985 and Ms Siddele born in 1985 and their servants and agents be and is/are restrained from removing or attempting to remove or causing or permitting the removal of X born in 2014 from the Commonwealth of Australia.
X born in 2014 be and is hereby restrained from leaving the Commonwealth of Australia.
It is requested that the Australian Federal Police give effect to the preceding order by placing the name(s) of the said child or children on the Airport Watch List in force at all points of arrival and departure in the Commonwealth of Australia and maintain the child’s name on the Watch List for a period of two years.
Upon expiration of the period referred to in Order 3 and subject to any further order of a court of competent jurisdiction, the Australian Federal Police will immediately cause the removal of the child or children’s names from the Watch List.
General
Both parents shall keep the other advised at all times of their residential address, email address and contact telephone number and shall advise the other parent within 48 hours of any change to either their residential address or telephone number.
Each parent be permitted to communicate directly with the child's school/s, sporting bodies, and medical practitioners to obtain any necessary information and/or documents about the child's progress and this Order shall constitute sufficient authority for such communication.
Both parents shall keep the other advised of the health of the child including any serious illness, medication or hospitalisation of the child as soon as reasonably practicable and to allow the other parent to visit the child if hospitalised.
Subject to any Order above governing electronic communication between the child and the mother, the child communicate with both parents by telephone at any reasonable time when she is in the other parent's care and each parent shall do all things necessary to facilitate the child communicating with the other parent by telephone on a regular basis.
Neither parent will discuss these proceedings with the child.
Each parent is restrained from:
(a)Denigrating the other parent or a person with whom the other parent has a relationship in the presence or hearing of the child, or permitting the child to remain in the presence or hearing of any other person denigrating the other parent or person with whom the other parent is in a relationship with, with the parent's knowledge or in their presence;
(b)Discussing the proceedings or any allegations raised in these proceedings with the child or permitting any other person to do so with their knowledge or in their presence;
(c)Permitting the child having access to any of the documents filed in these proceedings;
(d)Communicating any information intended for the other parent through the child;
(e)Causing the child to be a medium in any way to adult members between the mother and the father or between the mother and the father and any other person; and
(f)Discussing major long-term matters with the child including living arrangements and schooling, until such issues have been raised and discussed with the other parent, a mutual decision has been reached and consent is given by both parents to those matters being discussed with the child or the parties agree to the matter being raised and discussed with the child.
IT IS NOTED that publication of this judgment under the pseudonym Saracuna & Siddele is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT Sydney |
SYC 7132 of 2018
| MR SARACUNA |
Applicant
And
| MS SIDDELE |
Respondent
REASONS FOR JUDGMENT
Introduction
X born in 2014 (X) is presently aged 5 years. Her parents are Mr Saracuna (the Father) and Ms Siddele (the Mother).
Fundamentally, the parties have very different worldviews and this affects the type of lifestyle they intend for themselves and for X to adhere to. They are in dispute about all aspects of X’s future parenting arrangements, but particularly the issues of:
a)Parental responsibility;
b)Where X should live;
c)Whether X should be vaccinated; and
d)The school X should attend.
Background
The parties commenced a relationship in 2011. The Father contends that the parties commenced cohabitation at Suburb Q on the New South Wales Region R from 2013, whilst the Mother contends that the parties never cohabited. They separated on a final basis on 12 February 2016.
Following separation, the Father moved back to Sydney whilst the mother continued to reside in Suburb Q. The Father commenced spending time with the child in an informal arrangement for 7 nights each fortnight.
Since separation, the parties have been unable to agree on a variety of issues related to X’s upbringing.
The Father commenced these proceedings on 7 November 2018.
On 12 December 2018, the parties entered into interim consent orders providing for X to live with the Mother and spend time with the father each alternate week from 10.00am Friday until 3.00pm Monday.
On 1 October 2019 orders were made extending X’s time with the Father from 1.00pm Thursday to 3.00pm Monday each alternate week. These orders continue to be in place at the time of the final hearing.
On 20 December 2019 the matter was listed for compliance check. The Mother had recently become self-represented and sought an adjournment of the final hearing dates to allow her to seek legal representative. The Court refused this application and the mother’s time for filing and service of her affidavit material was extended to 8 January 2020. The Mother subsequently secured legal representation to prepare her affidavit and for the hearing.
The report of Single Expert Ms S dated 28 December 2019 was released to the Independent Children's Lawyer only on 7 January 2020. The matter was listed on 9 January 2020 and the Expert Report was released to the parties on that day.
The mother had previously suggested that she would be seeking for the child’s primary residence to be relocated to Queensland, however this was not pressed in her case outline filed on 13 January 2020.
The matter was listed for final hearing on 13, 14 and 15 January 2020 but the hearing could not be completed in the allocated time. Ms S gave evidence on 16 January 2020 and final submissions were delivered on that date.
X’s interests were represented by an Independent Children’s Lawyer (ICL).
The orders sought by the parties
The minutes of order sought by each party were detailed and comprehensive. For that reason their proposals are identified in broad terms in these reasons and a copy of each party’s minute of order proposed at final hearing is set out in full as an appendix to these reasons.
The Father’s position
In broad terms, the Father sought orders that X live with him and that he have sole parental responsibility.
He proposed that the Mother spend supervised time with X during daytime periods only initially at a contact centre and then by a member of the Mother’s family. X’s time would thereafter progress to unsupervised alternate weekend time and half of each school holiday period. The Father’s proposal builds in a mechanism whereby the parties would obtain reports from the contact centre and time would progress – or not – subject to him forming a view as to whether or not there were matters of concern arising.
The Father proposes that X be vaccinated.
He seeks injunctions and restraints in relation to X not being exposed to various risks including, but not limited to:
a)Illicit substance use;
b)Attendance at music festivals;
c)Images of X being published on the internet without clothing;
d)Home schooling.
The Mother’s position
It was apparent from the report of the Single Expert that shortly before the hearing, the Mother was seeking orders permitting her to relocate to Queensland with X. Through her counsel, she informed the Court at the commencement of the hearing that this was not pressed. The Mother had also sought orders the Father be restrained from feeding X beef, pork, lamb or egg products. At the conclusion of the hearing her counsel informed the Court that this restraint was not pressed.
The Mother seeks that X live with her and that she have sole parental responsibility for X.
She proposes that X spend time with her Father each alternate weekend and for half of school holiday periods.
She proposes orders that she will follow a GP’s advice and guidance in relation to X’s iron, B 12, vitamin D and blood nutrients and will provide the Father with the results of any and all tests.
The Mother seeks to restrain the Father from having X vaccinated other than with the Mother’s written consent.
The Mother also seeks restraints to protect X from exposure to illicit substance use and to shield her from the parental conflict and legal dispute.
ICL’s position
In his case outline document, the ICL proposed orders in the alternative contingent on the Court’s findings as to risk. In the event that the Court found there was no unacceptable risk to X in the Mother’s care, the ICL proposed orders that X live with the Mother and spend time with her Father 3 in every 4 weekends and for half of each school holiday period.
In the event that the Court found that there was an unacceptable risk, the ICL proposed that the Court make interim orders for X to live with the Father and spend supervised time with the Mother with a view to the matter coming back before the Court for review.
In any event the ICL proposed X be vaccinated.
At the conclusion of the evidence, the ICL submitted that the Court would find X is not at an unacceptable risk of harm in her Mother’s care and so ultimately sought orders that she live with the Mother and spend regular time with the Father.
Principles to be applied and procedure to be followed
Section 65D(1) of the Family Law Act 1975 (“the Act”) provides that this Court may make such parenting orders as it thinks proper, subject to the provisions of (relevantly) s.61DA.
Section 61DA of the Act requires the Court to apply a presumption before it makes any parenting order in respect of a child (and this is the case whether or not a party has sought a specific order for equal shared parental responsibility) that it is in the best interests of a child for a child’s parents to have “equal shared parental responsibility” for the child.
The presumption that it is in the child’s best interests for the child’s parents to have equal shared parental responsibility does not apply if there are reasonable grounds for the Court to believe that the child concerned has been subject to abuse or family violence: s 61DA(2). The presumption may, otherwise, be rebutted by evidence which satisfies the Court that it would not be in the best interests of the child for the parents to have equal shared parental responsibility: s 61DA(4).
In determining what parenting orders ought to be made in relation to a child, the best interests of the child are paramount. The best interests of a child are to be determined by an examination of the factors as set out in s 60CC of the Act. These factors are to be examined, weighed and applied against the facts of each case within the ambit of the objects and their underlying principles as set out in s 60B of the Act.
Material relied upon
The father relied on:
a)His Affidavit affirmed 18 December 2019.
b)The affidavit of Ms T affirmed 16 December 2019.
c)The affidavit of Mr U affirmed 18 December 2019.
The mother relied on:
a)Her affidavit affirmed 9 January 2020.
b)The affidavit of Dr V, filed 5 November 2019.
The Court also had before it the affidavit of Dr C, filed 7 January 2020 adduced by the ICL, and the report of Ms S, single expert, dated 28 December 2019.
All parties tendered further documents throughout the course of the hearing.
Issues
Having regard to the competing contentions made by each party, the issues for determination are:
a)Whether X should be vaccinated.
b)Whether X is at risk of harm in either parent’s care.
c)The capacity of each parent to promote, foster and develop X’s relationship with the other parent and X’s extended family members.
d)The capacity of each parent to meet X’s health, emotional, social and developmental needs.
e)Which parent X should live with.
f)The time X should spend with the parent with whom she does not live.
g)Where X should go to school and whether she should be home schooled.
The Evidence
Evidence of the Father
The Father gave evidence in the proceedings. He answered the questions asked of him in a responsive and straightforward manner. Whilst he is clearly concerned about X in the Mother’s care and whilst he accepts that he and the Mother have very different lifestyles, he was able to identify positive aspects about the lifestyle the Mother offers X. I consider that he gave truthful evidence as he sees matters.
The Father was able to identify positive features of X’s relationship with the Mother. He gave evidence that the Mother loves X “absolutely”. He agreed that she is nurturing, affectionate and that she promotes self-confidence in X. He said that the Mother enjoys various activities including outdoor pursuits and meditation which are good for X, that she enjoys and that she derives benefit from.
Whilst the Father appears to have had some reservations about a vegan diet he gives evidence that he offers vegan alternatives to X when X is spending time with him. X is then free to choose whether or not she eats meat or vegan food.
The Father is worried about X in the Mother’s care. He is concerned that she is not vaccinated and that she is at risk of infections that would place her health at risk. Although he has been worried about the fact that X is not vaccinated, he has not taken steps to have her vaccinated without the Mother’s consent.
He is also worried that the Mother leaves too many adult decisions to X. This includes not only delegating choices about diet and how she spends time but also allowing X to make decisions about whether or not X will spend time with him or seeking X’s consent to the Mother putting images of X, unclothed, on the internet.
His concern in this regard is based, in part, on the fact that X is still too young to be able to form her own views on many matters and she is influenced by the Mother in the formulation and expression of her views.
He is concerned that the Mother exposes X to adult concepts driven by the Mother’s agenda rather than X’s. For example, he is concerned that the mother has exposed X to internet movies or images of animals being slaughtered for meat in order to help X choose whether or not she wishes to pursue a vegan diet.
The Father is concerned that X is exposed to risk arising from the Mother’s lifestyle including:
a)Attending music festivals with adults who are strangers to her and in an atmosphere where people are likely to be consuming illicit drugs and he is concerned that the Mother may – on occasion – use illicit substances;
b)Having her body painted by adults who may be strangers to her – although he was clear that he was not concerned about face painting;
c)Risk of parasites or infections from drinking unfiltered water from natural sources and exposure to ticks;
d)The Mother’s use of alternative of natural remedies to treat illnesses.
When she attended on Ms S, the Mother indicated her desire to move to Queensland, and Ms S expressed a concern that there was a risk that the Mother may abscond with X and “go to ground”. For this reason, he considered that if orders are made that X live with him, her time should with her Mother should be supervised for a period to manage the risk of absconding. He did not propose supervision for any other reason.
The Father wants X to attend a mainstream school that offers her the opportunity to progress to year 12. He is opposed to X being home schooled and he is opposed to X attending the W School or the Y School.
On 12 December 2018, an order was made that the Father attend any appointment at the W School to discuss X’s progress at kindergarten. The Father accepted that he did not attend a meeting scheduled for 14 December 2018, but that the Mother had only informed him of the meeting on 13 December 2018 and it was not convenient for him to attend and that the appointment was scheduled during time X was due to spend with him. He accepted that in the SMS exchange between them that he had told the Mother that if X was not at changeover, he would contact the Police. The Father was adamant that the text messages in the Mother’s affidavit did not represent the entire conversation on the issue.
In any event, the Father gave evidence that he has made contact with the W school and at the time of hearing had a meeting with the Principal scheduled for mid-January 2020.
The Father’s gives evidence that he is concerned that that the Mother will be unable to promote X’s relationship with him. He gives evidence that the Mother is frequently late to changeover, that the Mother has unilaterally cancelled time and that it has been very difficult to negotiate any make up time.
Evidence of the Mother
The Mother was cross examined over 3 days. Her evidence was, at times, non-responsive and tangential. At times, the Mother’s answers were not directed to the question she was asked, but rather directed to what she wanted to say. On more than one occasion, the Mother had to be reminded and directed to focus on the questions she was being asked and to provide responsive answers.
For the most part, I formed the view that the Mother was a truthful witness insofar as she saw matters, however, I consider that at times she obfuscated by answering difficult questions in a non-responsive fashion or by becoming argumentative. For example, when cross-examined about the parts of the affidavit of Mr U (a family member who facilitated changeover) that were contrary to her own evidence she suggested that Mr U had been brainwashed by the Father. This was not put to Mr U during cross-examination. She made similar contentions about her sister having been brainwashed by the Father. Similarly, when questioned about things she is recorded to have told a GP that were inconsistent with her evidence about the time X spent with the Father, the Mother responded to the effect that she did not always tell the truth to doctors as it is easier. And when it was suggested to her that a doctor had suspected she may have had typhoid upon her return from a trip to Country Z in 2016 her response was to state and re-iterate that she did not have typhoid and she did not consider it relevant to disclose that matter in the proceedings.
Accordingly, I approach the Mother’s evidence with some caution.
The Mother stated in her oral evidence that she is not opposed to vaccination, and that she is open to it as long as she receives information relevant to her daughter. By this, I understand her to mean information in the nature of the information set out by Dr V as being the basis for informed consent (as is discussed further below). The Mother gives evidence that she herself has an autoimmune condition, although there is no medical evidence to support such a diagnosis.
It was abundantly clear from the Mother’s evidence that she is unable to come to terms with the fact that an order could be made that X be vaccinated and that the Mother’s consent to vaccination would not be required in those circumstances.
In terms of X’s education, the Mother’s preference is to home school X. If X attends a Department of Education accredited school, she is due to start school immediately. If she is home schooled, the Mother gave evidence that X would not need to commence until she was 6 years old. Whilst home schooling is the Mother’s preference, she gave no evidence of having obtained or developed an educational plan for X, nor of having looked into any syllabus requirements.
If X is not home schooled, the Mother is keen for X to attend a W School or a Y School. W and Y Schools are fee paying schools. She gave evidence that she understands the fees to be in the vicinity of $6,000 per annum and she would not seek the Father pay this. The Mother has an annual income of around $19,000 per annum apparently cash based. She is currently living with her own mother. The Mother gave evidence that she pays rent, bills and utilities, but there is no evidence of the amounts she pays.
The Mother has, apparently, only considered Y very recently – she became aware approximately 2 weeks before the hearing that school may have a place for X.
In the event that the Court was to restrain her from home schooling X and her finances did not extend to Y or W education, she would send X to the local public school. She accepted in evidence that she told the family consultant that she considered public schools to be too basic for X and they had a depressing aesthetic, however, her evidence was that she would send X to school and would consider a number of local public school options.
She also accepted that she has made no inquiries about the school the Father proposes for X in the event X lives with him.
The Mother does not accept the risks the Father says arise from attendance at music festivals, body painting, drinking water from natural sources or the use of natural remedies to treat illness.
In terms of her proposal to relocate to Queensland, the Mother gave evidence that this had been a plan that she and the Father had made, and that she wished to pursue that plan at the time of the Single Expert interviews. She gave evidence that on reading Ms S’s report, she changed her mind, realising that it would not be in X’s best interests and that she had family and friends and community in her local area that would be detrimental for X to leave behind.
The Mother accepts that there have been difficulties facilitating changeover. She gives evidence that X has, on occasion, told her that she does not want to go to her Father and that she respects X’s voice and feels that X’s views, wishes and feelings should be acknowledged and respected. She gave evidence that the Father has never really spent equal (or close to equal time) with X.
The Court made orders earlier in the proceedings that the Mother take down from any internet site over which she had control, any image of X in which X was unclothed. Ms S reported the Mother to have said that she had taken down some images, but that she had been busy being a Mother and in any event she had until January (2020) to take them down. She did not disagree with this account given by Ms S. She also gave evidence that she asked X before posting the photos and obtained her consent to post the photographs. When it was put to her in cross-examination on day 2 of the hearing that there were photos of X unclothed on the Mother’s Facebook account at the time of the hearing, she said she was unaware of this. On day 3 of the hearing, she confirmed that she had checked her Facebook page and had seen and removed some remaining images from the page.
The Mother did not offer much by way of positive comment about the Father in her oral evidence. I am unaware as to whether she considers X loves her Father nor the positive benefits he has to offer X.
As will be discussed later in these reasons, the Mother contends that the Father has engaged in family violence upon her and that X is at risk of harm in the Father’s household.
Evidence of Ms T
Ms T is the Father’s partner. They have been in a relationship since November 2017 and they live together with Ms T’s two children from a previous relationship – AB (aged 7) and AC (aged almost 10).
Ms T gave evidence in a forthright and responsive manner. I consider her to be a witness of truth.
In her affidavit, she gives evidence about family life and routines with warmth and affection for X.
In her affidavit, she gave evidence that in November 2019 she heard X say to the Father at bedtime “Mum says you’re an idiot. I don’t think you are an idiot.” In cross-examination, she remained firm in her recollection of this statement and of the timing of it.
She also gave evidence that she overheard a telephone call between X and her Mother on 9 November 2019 in which she heard X say “don’t worry mum, dad says he’s not taking you to court”. Again, under cross-examination she was firm in her recollection of this statement and the timing of it.
Evidence of Mr U
Mr U is the Mother’s brother-in-law. He has known the Mother for over 15 years.
He gives evidence that he assisted the parents with changeover, facilitating pick-ups and drop offs from 2016 until November 2018. He was able to do this on a weekly basis, as he routinely travelled between the Region R and Sydney for work.
He gives evidence that he facilitated a fortnightly cycle of time whereby X would live with the Father from Thursday to Sunday in week 1 and from Thursday to Monday in week 2. He was not challenged in cross-examination by the Mother (or at all) about this evidence. To the extent that the Mother’s evidence as to the frequency of time between X and her Father during this period is inconsistent with Mr U’s evidence, I prefer the evidence of Mr U.
He also gives evidence that on 22 September 2018, he heard the Mother ask X which parent she wanted to stay with, despite it being the Father’s time with X and then saying to X “If you don’t want to go with Mr Saracuna you don’t have to go”. It was not put to Mr U in cross-examination that these words were not said, and he was firm in his recollection of the episode, both as to the timing of it and the words that were said.
Evidence of Dr C
Dr C was appointed to undertake a paediatric assessment of X and to prepare a report in accordance with orders of the Court made 22 May 2019. He prepared an affidavit in the proceedings on or around 7 January 2020. That affidavit annexes, inter alia, two reports prepared by Dr C, dated 6 June 2019 and 9 August 2019, as well as Dr C’s curriculum vitae.
Dr C has had extensive experience working in children’s medicine. He is a respiratory and general paediatrician. He graduated from the University of Sydney in 1978. He was awarded Fellowship of the Royal Australian College of Physicians in 1984 and was awarded Post Fellowship of the Royal Australia College of Physicians in 2002. Whilst he specialises in respiratory paediatrics, his work in that field of practice intersects with immunology issues. I consider that he has the appropriate qualifications and experience to give expert evidence in relation to the issues of X’s general health, allergies, vaccination (including associated risks and benefits) and the impact of her diet on her health and development.
As noted, Dr C prepared two reports in the proceedings. He also provided supplementary opinion by way of email sent to the ICL on 21 October 2019[1] (subsequently forwarded to each parent) following his review of blood test results for X.
[1] Exhibit D.
Dr C gave evidence on the first day of the hearing. He was an impressive witness. His answers were responsive to the questions asked of him and he gave his evidence in a clear and logical fashion.
Importantly, Dr C has had the benefit of meeting and examining X and meeting with each of her parents.
It is clear that he recommends X be vaccinated as soon as possible and it is clear that generally, he favours vaccination for children. During the course of his oral evidence, he was invited to consider whether there are circumstances in which a child ought not be vaccinated. He considered that there were now fewer circumstances in which he would recommend a child not be vaccinated than there were when he was a younger doctor, but that he would make such recommendations where a child had an acute and recurring illness or where there was a demonstrated significant immune deficiency.
I consider that he was sensitive to and respectful and considerate of each parent’s perspective on all of the medical issues relating to X, and on the vaccination issue in particular. In this regard, I observe that in his first report of 6 June 2019, it was his opinion that X should be vaccinated as soon as possible, but he did not recommend a “carte blanche” approach to vaccination. Rather, he recommended what was, in my view, a conservative approach whereby X be tested to determine whether there were some vaccines she did not require on the basis that she had an existing resistance or immunity to them.
I therefore accept Dr C as a reliable and credible witness and place weight on the evidence he gave.
Dr C gave evidence in relation to X’s general health, allergies, vaccination and the impact of a vegan diet on X’s health and development.
In his view, X is generally a healthy child. In relation to X’s specific health needs, his evidence was as follows.
Diet
X follows a vegan diet in the Mother’s household and a non-vegan diet in the Father’s household. Dr C did not consider that there was any health issue arising for X following different diets in each household. He did not see any health issue for X in following a vegan diet provided that her iron and B12 levels were regularly monitored and that her growth was regularly assessed to ensure she was developing appropriately.
In October 2019, Dr C was provided with the results of blood tests undertaken for X pursuant to Court orders. He considered that the test results confirmed evidence of iron deficiency requiring iron supplementation and an increase in her iron consumption. In his oral evidence, he said this could be achieved by a modified vegan diet, utilising eggs and fish as a source of iron, or taking an iron supplement. He considered that X’s Vitamin B12 levels are normal and of no concern.
As long as X’s growth is regularly monitored and she is growing normally, Dr C expressed no concern for X eating a vegan diet.
In an email sent to the ICL on 21 October 2019 (and subsequently provided to each parent), he expressed the clinical opinion that X needs regular dietary review. During cross examination, he did not alter his recommendation in this regard.
Vaccination
Dr C recommends that X be vaccinated.
In reaching that view, he undertook an assessment of X and he considered and analysed serology and skin prick test results for allergies. He considered that the results did not indicate an allergy to any of the substances tested for. He did not consider that X has a sensitivity to eggs or egg products that would cause him to eliminate eggs from her diet or that would place her at risk from vaccination.
Dr C maintained the view expressed in each of his reports that X should be vaccinated as soon as possible. In his view, there was nothing to contraindicate vaccination. He considered that there was no indication that X had a particular susceptibility to risk of disease, complications or death.
Noting the Mother’s concerns as to health risks for X if she is to be vaccinated, Dr C gave evidence that if the Court determined vaccination is to occur then X could attend upon the AD Hospital (and he was willing to facilitate an admission for that purpose) or an Immunisation Clinic. He considered that the benefit of this would be to ensure that the Mother’s concerns about any health risks could be managed in a specialised environment and X could be closely monitored for any adverse effects arising from the vaccination.
Evidence of Dr V
Dr V was called by the Mother in relation to the issue of vaccination. She was called by the Mother on the vaccination issue. She prepared an affidavit annexed to which was a copy of her report (in 2 parts plus appendices) of 30 October 2019 and a copy of her curriculum vitae.
Dr V is a Doctor of Philosophy, Public Health. She has been awarded a Master of Science (Population Health), a Bachelor of Science and a Diploma of Education. Her PhD was undertaken in the field of social medicine, a health discipline concerned with improvements in health through political and social decisions.
As she is not a medical doctor, she has not examined or assessed X.
For the reasons discussed below, I am unable to place any significant weight on Dr V’s report and oral evidence.
In Dr V’s report she states that she has not come from an “anti-vaccination” position. In both her report and in her oral evidence, she considered that the question of vaccination of a child is one that should be made by the child’s parents after they have been given the information that enables them to give fully informed consent.
Dr V set out the information required to give fully informed consent as follows:
a)The risk of the infectious disease in a developed country like Australia;
b)The risks of the ingredients of vaccines on the child’s individual genetics (family history);
c)The efficacy of the vaccine in preventing the disease in the community; and
d)The known serious adverse events associated with vaccines listed on the pharmaceutical package inserts for 6 decades.
Her evidence – both oral and affidavit – indicated that she considered it imperative that a child’s genetics be analysed so as to ascertain the manner in which the various ingredients of the vaccinations on the government’s recommended vaccination program would interact with and impact upon the child’s unique genetic make-up. I infer from her evidence that in her view, such an analysis would then allow the risk of vaccination for the individual child to be determined and the efficacy of the vaccine for the individual child to be determined and then, armed with that knowledge, a parent could decide whether the benefit of vaccination for their child outweighed any risk.
In this regard, Dr V’s evidence created an impression that she was not anti-vaccination per se and that subject to genetic analysis being undertaken she may be open to or supportive of vaccination in certain circumstances.
I formed the view, however, that Dr V is more likely than not to be opposed to vaccination.
Looking closely at her report, Dr V expresses a conclusion that, having assessed the ingredients of vaccines, the risks of using all of the vaccines recommended on the government program outweigh the benefits[2]. This conclusion was not qualified in any way including by reference to genetic analysis being undertaken and in that regard, I consider that this statement is not consistent with her oral evidence that she is not “anti-vaccination”.
[2] Affidavit of Dr V, Annexure B (page 14 of 49).
On this point, I was unable to find any portion of Dr V’s report that discussed or identified any benefit associated with vaccination. Insofar as she expresses the conclusion that the risks of vaccination outweigh the benefits, as her report does not indicate the benefits (if any) against which the risk was weighed.
Her report is highly critical of government policy in relation to vaccination both in Australia and in the United States. For example, she expresses the opinion that the United States Congress acted with complete disregard for public health when it passed legislation in 1986 removing liability from vaccine manufacturers for any harm caused by vaccine. [3] I do not know how she has reached this conclusion and insofar as it is referenced with an endnote, I was unable to identify a scholarly article or other reliable extrinsic material at the corresponding note in the references section of the report, to support such a conclusion. I consider that the tenor of her report is critical of governmental policy in relation to vaccination.
[3] Ibid, p.8 of 49.
During her oral evidence, counsel for the ICL asked Dr V whether, in some instances, she would say that consideration should be given to vaccination. She responded “yes”, but when asked why consideration should be given to vaccination, Dr V answered by saying it was not for her to say whether vaccination should occur, rather, consideration could be given to vaccination where the parents have been provided with transparent information by a doctor for each vaccine to be used.
Having regard to these matters, I have formed the view that whilst Dr V states that she does not come from an anti-vaccination position, her mind is closed to the possibility that vaccination may offer any health benefit to X (or indeed to any child) and that her views in this regard have impacted on her recommendation that X not be vaccinated.
I further consider that Dr V’s report is not in compliance with the requirements for expert evidence in the following respects:
a)The basis for many of the opinions underpinning her recommendations is not clearly set out or is not otherwise clearly supported by identifiable, research based studies or empirical evidence. In many instances, where reference is made to studies they are not identified or referenced within the report. For example:
i)She writes “recent studies have strongly linked vaccines as a cause of neurological damage, autoimmune diseases and hypersensitivity…and autism”[4] (original emphasis). The studies to which she refers are not cited in her report and her opinion in this regard in relation to any link between vaccines and autism is contrary to studies emanating from Scandinavian countries as referred to by Dr C in his evidence.
[4] Ibid, p. 13 of 49.
ii)Later in her report, she states “In fact, autism has risen exponentially with the expansion of the government’s vaccination program and there is significant evidence of its link to vaccines…there are hundreds of independent studies demonstrating a direct link between vaccines and autism”[5]. None of the studies referred to was referenced in her report and there is no statistical data to support the statement as to the exponential increase in autism.
iii)Her statement “Governments are promoting the use of multiple vaccines in infants by ignoring the pandemic of autism and chronic illness that is sweeping the world and they are relying on ‘coincidence’ or ‘psychosomatic’ explanations for adverse events to vaccines instead of investigating the direct correlation between the increased autism/chronic illness/autoimmune diseases and the government’s National Immunisation Programs”[6] (original emphasis) was unsupported by reference to any study or evidence based research.
iv)Her report does not indicate any scientific, empirical or evidence based research to support her statement that “the risk from infectious diseases was reduced in developed countries before the vaccines were introduced”[7] or that “…children’s health has significantly declined as the vaccination program has expanded since 1990…the evidence clearly shows that children’s health has declined. Almost 50% of Australian children now have a life-threatening chronic illness, autoimmune disease, autism, cancer, seizures or neurological damage”[8].
b)During cross-examination, Dr V conceded she was aware that there has been controversy about research undertaken by Mr U indicating a link between vaccines and autism. When asked about the subsequent Scandinavian studies referred to by Dr C demonstrating that, contrary to her view, there is no association between vaccines and autism, Dr V conceded that she was aware of those studies and that she did not make reference to them in her report. She gave evidence that she considers that many of them are flawed in their design. She maintained her opinion that there was a link between vaccines and autism because there is no science that has proved that vaccination is not causing autism.
c)I consider that Dr V strayed into becoming an advocate for the Mother and in that regard, lost objectivity as demonstrated by the following statements:
i)“X’s mother has investigated the risks and benefits of vaccination for herself and she is making an informed decision not to vaccinate X. She should not be coerced or bullied into vaccinating her child.”[9]
ii)“The Father believes that vaccinating X…will improve her health and protect her from infectious diseases. His belief has been formed on biased industry-funded studies and marketing.”[10] (original emphasis)
iii)“If one parent does not give consent to a vaccine then the default position must be to not vaccinate the child…Both parents must give informed consent to this risk, without pressure, and with objective science…”[11] (original emphasis)
[5] Ibid, p. 17 of 49.
[6] Ibid, p. 37 of 49.
[7] Ibid, p. 15 of 49.
[8] Ibid, p. 17 of 49
[9] Ibid, p. 19 of 49.
[10] Ibid, p. 7 of 49.
[11] Ibid, p. 19 of 49.
I consider that the opinions expressed by Dr V in relation to the link between vaccines and the decline in children’s health and adverse events for children including autism inform the recommendations she makes that X not be vaccinated. Given that they are not supported with reference to evidence based research, I cannot place weight on those opinions.
I further consider that Dr V’s recommendations against vaccination for X are likely to have been influenced by her own stance against vaccination and her advocacy on behalf of the Mother.
For these reasons, I place little weight on her evidence and where her evidence is in conflict with the evidence of Dr C, I prefer the evidence of Dr C.
Evidence of Ms S
Ms S was appointed as the parties’ single expert. She is a Psychologist and Clinical Psychology Registrar. She prepared a report in relation to X and her family on 28 December 2019 and she gave oral evidence by telephone on the fourth day of the hearing.
Ms S had the benefit of interviewing each of the parents and Ms T. She observed X with the Mother and with the Father, Ms T, AB and AC.
In her report, she recommends that, effective immediately, X live with the Father and that he have sole parental responsibility for her.
She considered that the fact that the parents have diametrically opposing world views is not, in and of itself, a problem. She identified the significant difficulty in the parenting relationship was that each of the parents was rigid and unmoving in relation to some of the issues in dispute.
She described the Mother as being rigid and apparently unwilling to compromise her position on any issue. Ms S considered that the Mother was unable to critically evaluate differing points of view including on the issue of vaccination and that she assessed the Mother as being willing to engage in debate as long as the debate leads to answer that she wants.
She considered that the Father was better able to countenance differing points of view than the Mother, using the example of his support for the option of a vegan or plant-based diet whilst X was in his household. However, she considered that he was unwilling to move on other issues such as vaccination, schooling and relocation.
In terms of schooling, she considered that the term “alternative schooling” includes a W School or any non-mainstream stream school. She accepted that at the time she prepared her report she had understood that mainstream schools required a child to be vaccinated before attending, whereas alternative schools did not. It was agreed between the parties that this was not in fact that case, and Ms S readily accepted that during cross-examination.
She described X as a bright, curious child and considered that limiting her educational options by sending her to a school that did not offer the opportunity to progress to Year 12 would be short-sighted. In cross-examination by the ICL she gave evidence that from her point of view, she was not critical of W education. She considered that there are a number of education systems available and that children need different types of learning systems. It was not her personal opinion that one was better than the other.
The ICL submitted that the Court would approach Ms S’s report with caution, in part, because she has either a conscious or unconscious bias against “alternative” education in favour of mainstream education, and that she misapprehended that there was a requirement that children be vaccinated in mainstream schools but not in alternative schools. I do not accept these contentions. It was never put to Ms S in cross-examination that she held any bias – either conscious or unconscious. Having regard to her evidence about the different learning systems available I do not consider she had a closed or biased mind to either mainstream or alternative education. I also do not consider that the vaccination issue informed her views as to X’s education in a significant or substantial way.
The ICL also urged the Court to take a cautious approach to the report on the basis that Ms S has expressed her own views as formal findings, rather than leaving the fact finding to the Court, citing her observations as to vaccination requirements for schooling, her description of her assessment of the Mother’s failure to comply with Court orders as “contempt” and the statement of the risk of absconding not as being expressed as something for the Court to find, but rather as something she herself has found.
I observe that there are portions of her report which are expressed in a manner that indicates she has formed a concluded view on a factual discrepancy, for example, her reportage on the issue of whether or not the Mother has complied with Court orders appears to be premised on a conclusion that the Mother was, in fact, in contempt of Court orders. However, the contention that she had inappropriately engaged in fact finding was not directly put to Ms S in cross-examination. And to the extent that Ms S makes recommendations, there are, similarly, many points in her report where she indicates a recommendation subject to whatever findings the Court may make.
I take the concerns raised by the ICL into account, however, I do not consider that the matters raised are of such significance as to call into question the entirety of Ms S’s report and its recommendations.
The ICL was also critical of the report because Ms S did not interview X’s maternal grandmother. It is not controversial that the maternal grandmother was present on the day of the interviews, however, Ms S did not interview her. I found this a curious criticism to make in circumstances where the Mother did not adduce affidavit evidence from the maternal grandmother, and where the maternal grandmother was present with her at court throughout the hearing.
In any event, Ms S said she did not interview her because the Mother’s proposal was to move to Queensland and she would not be a part of X’s household and the Mother told her that X would not be troubled by separating from her maternal grandmother. Whilst I consider that there would have been benefit in information being obtained from the maternal grandmother, I do not consider that the report is fundamentally flawed by this matter.
The ICL also invited caution on the basis that Ms S appeared to have a flawed understanding of the incident which gave rise to these proceedings, namely the Father’s decision to retain X in his care after she had an ear infection. That incident is discussed in further detail below. I accept that Ms S’s understanding of that issue appears limited and her report was prepared without the benefit of the parties having been cross-examined on the issue.
Primary Considerations
Approach to be taken to primary considerations
In order to determine the child’s best interests, the Court must have regard to the “primary considerations” under s.60CC(2) of the Act which are:
a)the benefit to the child of having a meaningful relationship with both of the child's parents; and
b)the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.
In applying the considerations set out in the subsection (2), the Court is to give greater weight to the consideration in paragraph 2(b). See s.60CC(2A) of the Act.
The Full Court of the Family Court of Australia considered the meaning of the term “meaningful relationship” in Sigley & Evor [2011] FamCAFC 22 and:
a)approved the interpretation that a “meaningful relationship” is one which is important, significant and valuable to the child (citing Mazorski & Albright [2007] FamCA 520; per Brown J and McCall & Clark [2009] FamCAFC 92 per the Full Court); and
b)concluded that the preferred interpretation of s.60CC(2)(a) is that the Court should consider and weigh the evidence at the date of the hearing and determine how, if it is in a child’s best interests, orders can be framed to ensure the particular child has a meaningful relationship with both parents (“the prospective approach”); and
c)noted that s.60CC(3)(b) of the Act requires a Court to explore existing relationships between a child and the child’s parents and other persons and thus, depending upon the factual circumstances, its examination of the evidence as to the nature of the child’s relationships at the date of hearing (“the present relationship approach”) may also be relevant; and
d)confirmed that the legislation aspires to promote a meaningful relationship, not an optimal relationship, (M & S [2006] FamCA 1408 per Dessau J; Godfrey & Sanders [2007] FamCA 102 per Kay J and Champness & Hanson [2009] FamCAFC 96 per the Full Court); and
e)concluded that a “meaningful relationship” is a legal construct, not a psychological one, and it is for the Court, not an expert, to determine what constitutes a meaningful relationship.
The following terms “abuse” (see s.4) and “family violence” (see s.4AB(1)) are defined in the Act as follows:
abuse, in relation to a child, means:
(a) an assault, including a sexual assault, of the child; or
(b) a person (the first person) involving the child in a sexual activity with the first person or another person in which the child is used, directly or indirectly, as a sexual object by the first person or the other person, and where there is unequal power in the relationship between the child and the first person; or
(c) causing the child to suffer serious psychological harm, including (but not limited to) when that harm is caused by the child being subjected to, or exposed to, family violence; or
(d) serious neglect of the child.
family violence means violent, threatening or other behaviour by a person that coerces or controls a member of the person’s family (the family member), or causes the family member to be fearful.
Section 4AB(2) of the Act provides examples of behaviour that may constitute family violence.
A child is exposed to family violence if the child sees or hears family violence or otherwise experiences the effects of family violence (see s.4AB(3)).
Section 60CC(2)(a): the benefit to the child of having a meaningful relationship with both of the child's parents
I have formed the view that there is clear benefit to X having a meaningful relationship with each of her parents.
Each parent speaks lovingly and fondly of X and they each delight in her.
Ms S considered that X has an existing attachment to each of her parents and she appeared to have a close and comforting relationship and a secure bond with both parents. In her oral evidence, she said that the level and quality of X’s attachment to each parent would be equal, but not the same.
As noted earlier in these reasons, X’s parents have very different world views. She has the opportunity to be exposed to a rich a diverse life and each parent offers different opportunities in that regard.
Section 60CC(2)(b): the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.
The father contends that X is at risk of abuse or neglect in the Mother’s household. These risks arise in relation to:
a)Possible illicit drug use by the Mother and exposing X to risk at music festivals including a drug culture, adults painting her body and random strangers.
b)Failure to adequately supervise X
c)Failure to obtain proper medical treatment for X.
d)Publishing pictures of X, unclothed, on the internet.
He contends that if X is to live with the Mother that the risks are unacceptable and cannot be ameliorated by restraints on her behaviour.
Other than the use of marijuana as a teenager, the Mother denies any illicit drug use including synthetic drug substances.
During cross-examination she denied the Father’s suggestion that she had used a bong called “bubbles” and she denied that the Father had seen her use drugs. In the course of proceedings, orders were made that she attend for drug testing. She did so, the results were in evidence and they did not indicate any illicit substance use.
The evidence does not allow for a finding that the Mother is presently engaged in illicit drug use.
In terms of attendance at music festivals, it appears that an important part of the Mother’s life is attending at community based festival events where there is live music and dancing. I had audio visual evidence of X at some of these events. It is difficult to know what X makes of these events, as in some of the images she is asleep, in others she is wearing headphones and in one image, she is riding or playing with a tricycle.
The Mother accepted that there may be people in attendance at those events who are drug or alcohol affected, but that many of the events they attended had a family focus and a “no-drugs” policy.
I was unable to conclude from the audio visual evidence whether or not X was at risk of harm at such events. Whilst the Father gives evidence that in his view, X appears uncertain and apprehensive when people were dancing around her, the Mother gives evidence that X was not apprehensive.
It appears in the audio visual images that the Mother was in proximity to X during these events, and it does not appear that she left X unsupervised or unattended.
In terms of the body painting, it appears that X has had paint applied to her legs and arms. The evidence does not indicate who applied the paint. If it was the Mother herself who applied the paint, I do not consider this to be a risk issue. If, however, body paint was applied by a person unknown to X or other than under the Mother’s supervision, I consider that there may be a risk to her. I consider this to be the case given that in interview with Ms S, the Mother failed to appreciate that there could be any risk arising to X from having photographs of her, unclothed, on the internet. I consider that such comments demonstrate a naïve understanding of predatory behaviour in the community.
The audio visual imagery also included images of X and her Mother sitting at a lookout, apparently some distance above the ocean and not behind any safety railing or fence. The Mother conceded in cross-examination that the relevant photograph was taken at a lookout and that they were not behind any safety railing although she said that there was no barrier at the particular lookout. She disputed that they were in any danger and that it was not a great distance to the water below.
The audio visual imagery also included footage of X using a knife to cut a piece of fruit or a vegetable. In the image, X appears quite young, and it appears she is not capable of using the knife with skill or confidence.
The Father also contends that the Mother has failed to treat X appropriately with antibiotics. In October 2018, it is clear that X had an ear infection requiring medical attention. The evidence establishes that on 4 October 2018 her Mother took her to the GP and was prescribed a course of antibiotics.
The Mother attended the GP again on 16 October 2016 in relation to X’s ear and the notes reflect that the Mother had not administered the antibiotics, instead using a natural remedy. The Mother gave evidence that the doctor endorsed the use of the natural remedy, whilst I can see a reference to the natural treatment I cannot see an endorsement of it. The notes do not reflect that any pus was observed.
The Father contends that when X entered his care on 27 October 2018, he took her to a doctor to obtain some blood tests and the doctor noticed pus in X’s ear. She was referred to the emergency department where she was seen and provided with medical treatment. She was considered well enough by the doctors to attend a family BBQ that evening.
Whilst the Father is concerned about the matter and an apparent lack of attention or medical treatment by the Mother in relation to the issue, I note that the pus in X’s ear on 27 October 2018 was observed by the doctor during an unrelated attendance. It was not so obvious as to have come to the Father’s attention when X came into his care.
I consider, on balance, that X was ill and had ongoing problems with an ear infection, however, I do not consider that the Mother was negligent or reckless in relation to X’s care. She took X to a GP in a timely fashion. Insofar as the Mother did not administer the prescribed antibiotics to X, it appears that the infection had cleared up without the antibiotics, but had not fully resolved. I do not consider, however, that the use of the natural remedy in preference to antibiotics was negligent or reckless by the Mother. Nor do I consider that X was placed at an unacceptable risk of harm in relation to it.
In addition to these matters, the Father contends that the Mother’s refusal to vaccinate X has exposed her to risk not only in Australia by whilst travelling overseas. As discussed earlier in these reasons, it appears that on return from an overseas trip in 2016, the Mother took ill and the hospital considered it possible she had typhoid. X, unvaccinated, had been exposed to her Mother.
Having regard to the Mother’s evidence on this issue, I consider that X was placed at risk in this regard. Whilst the Mother was clear in her evidence that she does not accept that there was any risk to X because ultimately she did not have typhoid, that to my mind misses the point. The reality is that there was the possibility that the Mother had been exposed to typhoid. If she had contracted the disease, X, unvaccinated, would have been exposed to the disease. The Mother was prepared to take the risk of travelling overseas with X unvaccinated.
As discussed earlier in these reasons, it is not controversial that the Mother has published photographs of X on the internet, including photographs in which she is not clothed. It is also not controversial that despite the Court making orders requiring her to take down those photographs, as at the date of the hearing, she had failed to do so completely. During her evidence, she seemed unable to accept that there may be risk arising to X in this regard by predatory persons who may take access or distribute X’s image for sinister purposes.
I consider that some risks arise for X in the Mother’s care, especially from the Mother’s refusal to vaccinate her. I also accept that the Mother’s attitude to matters such as placing images of X unclothed on the internet or allowing her body to be painted give rise to risk for X.
I do not, however, consider that these risks are unacceptable if X lives with or spends unsupervised time with the Mother, as I consider that they can be managed by restraints or injunctions. Whilst the Mother’s failure to comply with the Court’s order to remove the photographs of X from the internet is concerning, there is no evidence that she is in breach of the other restraints that were put in place against her such as body painting after orders were made, illicit drug use by her, or attendance at music festivals after orders were made.
For her part, the mother contends that X is at risk in the Father’s care and in his household.
She contends that the Father has engaged in family violence upon her and in the presence of X. She gives evidence that she and X went to a women’s refuge due to the Father’s violence.
The Father denies ever having engaged in family violence.
The high point of the Mother’s evidence in that regard is that during a dispute when the parties were in the car together, the Father became agitated and hit the steering wheel and forced her out of the car.
When it was suggested to the Mother that the Father was never violent to her, she asked counsel to define “violence”. When it was put to her that she was suggesting that the Father had been physically abusive she responded to the effect “am I?”
As this was explored further with her, she conceded that there had never been physical violence by the Father, but that there are other ways of feeling unsafe.
The Mother then gave evidence that during the dispute in the car, the Father forced her out of the car, but conceded that she asked to get out of the car after the Father had told her to get out and that he didn’t want her at his birthday party. She gives evidence that X was distressed and crying.
The Mother did not describe any other incident that she contends demonstrates family violence by the Father upon her.
I found the Mother’s evidence on this issue argumentative at points, glib at points and I do not accept her contention that the Father engaged in family violence upon her.
It was not suggested to the Father that there is family violence in his relationship with Ms T.
I do not consider that there is any physical or psychological risk arising from family violence by the Father if X is to live with him or to spend time with him.
The Mother also contends that there is a risk of sexual harm in the Father’s household arising from a disclosure made by X that her step brother AB showed X his penis and asked her to suck it and that X complied with this request. This disclosure was made on or around 27 March 2019, about one week after X had complained of a stinging vagina and had said words such as “you smell like a penis”.
She reported her concerns to the Department of Communities and Justice. It is not controversial that caseworkers conducted some investigations and the matter was closed. There is no open case plan with the Department and to the extent that the Mother contends that the Department developed and implemented a safety plan, there was no evidence of such a safety plan before me.
The Father gives evidence that he was made aware of the allegation. He does not consider that the incident could have occurred as alleged, as he is unable to think of a time when the children are not supervised such as it could have happened, although he accepted that it is not possible to supervise the children at all times such as, for example, when parents are sleeping.
In any event the Father and Ms T give evidence that they have monitored the situation since that time.
The Mother concedes that there is insufficient evidence for the Court to make a positive finding about this matter. If the incident occurred as alleged, it does not necessarily indicate that abuse has occurred. At the time of the incident, there was not a significant age difference between the children and the Mother’s account does not appear to suggest any aggression, coercion or force involved in the incident.
Whilst there is a risk that there may be a repeat of such an event if it did occur as alleged, I consider that both the Father and Ms T are alert to the situation. They each present as protective and concerned parents. They are monitoring the children’s interactions. I do not consider that any order needs to be made for monitoring of X’s interactions with AB. I do not consider that the risk is an unacceptable one if X is to live with or spend time with her Father.
Additional Considerations
The Court must have regard to each of the “additional considerations” under s.60CC(3) of the Act separately, to consider how, together, they should give effect to either or both of the primary considerations in order to determine a child’s best interests.
Section 60CC(3)(a) any views expressed by the child and any factors (such as the child's maturity or level of understanding) that the court thinks are relevant to the weight it should give to the child's views;
At the time of hearing, X was 5½ years old. Ms S opined that little weight should be placed on her views due to her age and maturity.
To the extent that either parent has represented views or wishes expressed to them by X, I place little weight on those representations.
Section 60CC(3)(b): the nature of the relationship of the child with: (i) each of the child's parents; and (ii) and other persons (including any grandparent or other relative of the child)
I am satisfied that the relationship between X and each of her parents is loving and warm.
As noted earlier in these reasons, Ms S considered that X has an existing attachment to each of her parents and she appeared to have a close and comforting relationship and a secure bond with both parents. In her oral evidence, she said that the level and quality of X’s attachment to each parent would be equal, but not the same.
The Mother has been X’s primary caregiver for most of X’s life.
Ms S expressed the view that X’s attachment to the Mother has features of enmeshment. It appears to me that the Mother gives X a level of autonomy or decision making that is not always age appropriate. For example, insofar as the Mother says that she obtained X’s consent before posting photographs of her unclothed on the internet, I do not consider it possible that at under 5 years of age, X could give her consent. She is not old enough, nor does she have the developmental capacity to understand what such a decision entails and the consequences of such a decision including the loss of control of her own image.
The parents are in dispute as to the time X has spent with her Father. Having regard to my findings about Mr U’s evidence, I accept that, on balance, X spent weekly time on a shared care basis with her Father from 2016 until November 2018.
It is not controversial that X’s time with her Father changed after that point, and in more recent times, she has spent alternate weekend time with him. Notwithstanding the difficulties in facilitating time, or the possibility that the Mother may not fully support X’s relationship with her Father, it is clear that X has continued to enjoy a strong and positive relationship with the Father.
I also consider that the relationship between X and Ms T and her step-siblings AB and AC are warm and loving.
Section 60CC(3)(c) the extent to which each of the child’s parents has taken, or failed to take, the opportunity: (i) to participate in making decisions about major long-term issues in relation to the child; and (ii) to spend time with the child; and (iii) to communicate with the child;
It is clear that the parents have struggled to co-parent effectively. Whilst each of them has wanted to participate in making decisions about major long term issues, agreement has eluded them.
Whilst the mother contends that she has been the primary carer both during and after separation, the evidence supports a finding that X spent if not equal time then close to equal time with each parent throughout 2016 to November 2018. It is common ground that since December 2018, X has been living with the mother and spending time with her Father each alternate weekend from Friday to Monday, with this time being expanded in March 2019 to Thursday to Monday each alternate week.
The Mother was critical of the Father for refusing to come to the Region R, where she lives, to spend time with X. It was conceded by her that he has been under no obligation to do so and that such invitations were extended when X should have been in his care. Given the level of conflict between the parties, I do not consider it would have been of significant benefit for X in any event.
Each parent seeks to be actively involved in X’s life and has taken up the opportunity to make decisions, communicate and spend time with X where it has been made available to them.
Section 60CC(3)(ca): the extent to which each of the child’s parents has fulfilled, or failed to fulfil, the parent’s obligations to maintain the child
This is not a determinative issue in this dispute.
Section 60CC(3)(d): the likely effect of any changes in the child's circumstances, including the likely effect on the child of any separation from: (i) either of his or her parents; (ii) or any other child, or other person (including any grandparent or other relative of the child), with whom he or she has been living
The mother’s proposal would see the least change to X’s circumstances. On the totality of the evidence, X is largely a confident and happy little girl.
She has become this person whilst living primarily with her mother and spending time with her father and despite the parental conflict and the Father’s concerns that the Mother will undermine and jeopardise X’s relationship with him, it appears that their relationship is presently flourishing.
Whilst X spent equal time with each parent from 2016 until November 2018, since that time, X has not lived primarily with the father. His application would involve her leaving the primary care of the Mother and going to live with him, Ms T, AC and AB. X has established relationships with each of them and she is familiar with the Father’s household.
The ICL submitted that to change X’s primary residence would represent a seismic change. Noting X’s familiarity with the Father’s household, I do not accept it would be “seismic”, although I do accept that it will be a very significant change for X, that it will cause her some confusion and that she will miss and likely grieve for her Mother and the familiarity of the home she has known for a significant period of time.
The mother is likely X’s primary attachment figure. This is in the context not only of X living primarily with her, but where the Mother is not engaged in full time work and X appears to spend most of her time with the Mother.
A change of living arrangements would represent a significant change for X and this change would coincide with a number of other significant changes including navigating the start of kindergarten, a reduction in time with her Mother and possibly supervision of time, establishing a day to day relationship with her father, Ms T and X’s step-siblings. This is not to suggest that she has any issues with these relationships. Rather, each of these matters represents yet a further change in X’s life that must be considered if she is to live with the father.
Whilst Ms S opines that X “appears to be adaptable and sufficiently resilient to manage” this change, it is, at this point, an untested proposition.
Section 60CC(3)(e): the practical difficulty and expense of a child spending time with and communicating with a parent and whether that difficulty or expense will substantially affect the child's right to maintain personal relations and direct contact with both parents on a regular basis
As the mother no longer presses her relocation application, this is not a determinative consideration in these proceedings. The distance between the parents’ homes will remain the same, as will the practical difficulty and expense. Notwithstanding the distance between the two households, the Father has gone to considerable effort to ensure he is available to spend time with X.
Should the X to continue to live with the Mother and accede to the mother’s proposal of home schooling X, then this will offer great flexibility to the parents around possible change over times. In the event that
Section 60CC(3)(f): the capacity of: (i) each of the child's parents; to provide for the needs of the child, including emotional and intellectual needs; and (ii) any other person (including any grandparent or other relative of the child); to provide for the needs of the child, including emotional and intellectual needs
Ms S opines that both parents are genuinely advocating for what they believe to be in X’s best interests.
As discussed earlier in these reasons, I consider that it is more likely than not that the Mother delegates a greater level of decision making to X than is consistent with her age and developmental stage.
Insofar as the Mother proposes to home school X, I do not consider that the Mother has undertaken the necessary research and preparation for that to occur. There was little evidence about the Mother’s proposal in this regard in her affidavit material. I do not have evidence that X would be in contact with other children and have the same opportunities for developing social skills as she would have in a formal school setting.
Insofar as the Mother proposes W School or Y School education, I am not confident on the evidence before me that the Mother will be able to meet the cost of those schools. Whilst she has ambitions to develop a sports education business, there is no evidence as to the viability of those ambitions at this time, nor as to her capacity to generate income sufficient to meet those educational costs.
I do not consider, however, that if restrained from home schooling X that the Mother would not send her to school. The Mother appeared to have considered the possibility of public school education in the event that Y School or W School education was not an option for her.
There is no concern or contention that the Father is unable to financially support X.
In relation to the incident involving X’s ear infection in October 2018, the evidence indicates that the Father did not facilitate time between X and her Mother for a period of approximately 3 weeks. Whilst he gave evidence that he had facilitated time, it appears that it took some time for him to do so, and to my mind, it suggests that he did not appreciate – at that point in time – the significance of X’s relationship with her Mother nor the impact this unilateral decision may have had on X.
Otherwise, it does not appear that the Father’s parenting capacity is compromised.
Notwithstanding the parental dispute, on all of the evidence, X is doing well. She is happy and has meaningful relationships with her parents and her extended family. She has built these relationships over a in the four and a half years since her parents separated and in the midst of significant conflict. In more recent times, she has lived primarily with the mother and has had the love and support of her father when she has spent time with him
Section 60CC(3)(g): the maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the child and of either of the child's parents, and any other characteristics of the child that the court thinks are relevant.
X is of Australian, English and Country AE heritage. Her mother leads a lifestyle that is aimed at ethical treatment of nature. Her father lives in Sydney and leads a more urban and conventional lifestyle. X has been part of both lifestyles.
Section 60CC(3)(h): if the child is an Aboriginal child or a Torres Strait Islander child: (i) the child's right to enjoy his or her Aboriginal or Torres Strait Islander culture (including the right to enjoy that culture with other people who share that culture); and (ii) the likely impact any proposed parenting order under this Part will have on that right
There are no matters relevant to the Court’s determination with respect to this factor.
Section 60CC(3)(i): the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child's parents
Whilst both parties may have acted in accordance with what they believe is in X’s best interests, they have taken unilateral decisions at times that have impacted X’s relationship with the other parent.
As noted earlier in these reasons, in relation to the incident involving X’s ear infection in October 2018, the evidence indicates that the Father did not facilitate time between X and her Mother for a period of approximately 3 weeks. Whilst he gave evidence that he had facilitated time, it appears that it took some time for him to do so, and to my mind, it suggests that he did not appreciate – at that point in time – the significance of X’s relationship with her Mother nor the impact this unilateral decision may have had on X. The evidence in this regard appears to be at odds with Ms S’s understanding of the situation and to the extent she bases her opinion about the Father’s capacity to facilitate X’s relationship with her Mother on this incident (see especially at page 43 of her report), I approach her opinion with some degree of caution.
I also consider that the Mother does not fully appreciate or value the important role X’s Father plays in her life. In interview with Ms S, the Mother appeared to be unable to identify any positive attributes of the Father. She is reported to have told Ms S she did not consider there would be any negatives for X arising from the move to Queensland, as X has access to a phone and facetime, the Father can write X letters and they can have time together on a monthly basis.
Despite this, X’s relationship with her Father appears to have developed into a strong, connected and loving relationship.
Section 60CC(3)(j): any family violence involving the child or a member of the child's family
As noted earlier in these reasons, I do not accept the Mother’s contentions that the Father has engaged in family violence upon her as alleged, or at all.
Section 60CC(3)(k): if a family violence order applies, or has applied, (be it final, interim, contested or consented to) to the child or a member of the child’s family-any relevant inferences that can be drawn from the order, taking into account the following: (i) the nature of the order; (ii) the circumstances in which the order was made; (iii) any evidence admitted in proceedings for the order; (iv) any findings made by the court in, or in proceedings for, the order; (v) any other relevant matter.
There is no current or previous family violence order applicable to the parties.
Section 60CC(3)(l): whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to the child.
It appears that there is a risk of future litigation irrespective of where X lives, although I do not consider that this is an inevitability.
If X remains in her Mother’s primary care, then there is a risk that there will be further issues in relation to X attending for time with her Father.
If X moves to her Father’s primary care and does not cope with the significant number of changes that will occur in her life in a very short period of time, then further proceedings may ensue.
Section 60CC(3)(m): any other fact or circumstance that the court thinks is relevant.
I do not consider that there is any other fact or circumstance relevant to this matter.
Determination & Conclusion
What order should be made for parental responsibility?
I do not consider that there has been family violence such that the presumption of equal shared parental responsibility does not apply.
Given, however, the persistent conflict between the parents over many aspects of X’s care, welfare and development including the significant issues of vaccination, schooling and leisure and recreational activities and given that this conflict has, in my view, placed X’s health at risk and has impacted upon her ability to start her school education, I consider that it is not in X’s best interests for her parents to hold equal shared parental responsibility.
Subject to my findings below, I consider that it is in X’s best interests that the parent with whom she lives has parental responsibility with a requirement to inform and consult with the other parent and give consideration to their views.
Should X be vaccinated and should she receive regular blood tests to monitor her iron, B 12, vitamin D and other nutrient levels?
I consider it is in X’s best interests to be vaccinated. The evidence of Dr C clearly supports vaccination as soon as possible.
Given the Mother’s strident and steadfast refusal to give her consent to vaccinate X, I consider that it is in X’s best interests that the Father have sole parental responsibility in relation to ensuring that X is vaccinated.
I consider there is merit in the vaccination being undertaken at the AD Hospital or an Immunisation Clinic. If this occurs, I do not consider it necessary to restrain the Mother from being in attendance when X is vaccinated. As was pointed out by the Mother’s counsel, the specialised settings recommended by Dr C are likely to be staffed by people who are experienced in liaising with parents who are anxious about vaccination.
I further consider that it is in X’s best interests to have blood tests undertaken at 6 monthly intervals in accordance with the recommendations of Dr C. I consider it is in X’s best interests that the Father attend to this as the Mother expressed some hesitation on this issue in her evidence.
Should X live with her Mother or her Father
On balance, find that it is in X’s best interests to continue to live with her Mother.
I do not consider that with appropriate restraints and injunctions in places as have been proposed by the ICL, X is at an unacceptable risk of harm in the Mother’s care.
I also consider that the significance of leaving the Mother’s primary care, X’s likely sense of loss arising from that relationship, in combination with the other changes in her life including starting school and forming new relationships with teachers and peers are all detriments that are not outweighed by any risk issue in the Mother’s household.
I do consider that there is a risk that there will be some ongoing difficulty with ensuring that X spends time with her Father, given the difficulties that the Mother has had in ensuring that X attends changeover on time. I have had regard to that matter in reaching this decision. However, notwithstanding these issues in the past and notwithstanding any limitation that the Mother may have in promoting X’s relationship with her Father, X has continued to spend time with her Father and has developed a positive and loving relationship with him, Ms T, AB and AC.
What time should X spend with her Father
I consider that the minute of order proposed by the ICL, whereby X spends 3 out of every 4 weekends with the Father and half of school holiday periods is in X’s best interests and time for half of each school holiday period.
It is important that X has the opportunity to spend relaxed time in each parent’s household. The Mother will have primary care of X throughout the week. She is presently at an age where she will not be subject to the demands of homework or after school activities. As I understand the Mother’s position, if she is not home schooled, X will attend a school close to where she lives. The Mother is not working in full time employment and apparently has some flexibility in terms of the times she teaches sports. This will enable X to spend regular, relaxed time with her Mother on school days than might otherwise be the case.
Should X be home schooled?
I do not consider it is in X’s best interests to be home schooled.
The evidence does not satisfy me that the Mother has done sufficient preparatory work to ensure she is aware of the syllabus and curriculum required for home schooling. In those circumstances I cannot be confident that the needs of this bright, curious little girl will be adequately met.
I also consider that there is benefit to X in attending school so that she can form friendships and relationships with other children and teachers.
What restraints and injunctions ought be put in place?
I consider the restraints and injunctions proposed by the ICL are in X’s best interests. They manage any risk of any further distance being placed between the two households, given that the Mother has only very recently revised her plan to move to Queensland. In addition, I consider that the restraints manage the risk arising from body painting and of X’s educational needs not being met.
In addition to those restraints and injunctions, I consider that the Mother should be restrained from home schooling X and from bringing X into contact with or allowing her to remain in the presence of a person who she knows to be under the influence of illicit drugs or mind altering substances not prescribed by a GP.
To the extent that Ms S considered there was a risk that the Mother may abscond with X this gave rise to a degree of apprehension on the issue in the Father. The Father proposed a restraint on the Mother relocating and joined with the ICL’s proposed minute in this regard. The Mother did not oppose an order being made in those terms.
The Father also proposes that he hold X’s passport. The Mother seeks to retain X’s passport. On balance I consider, as was proposed by the ICL that the Father should hold X’s passport as it provides a further mechanism by which the Father’s concerns about absconding may be reduced, and it does not appear to me that there is any particular benefit to X of her Mother holding the passport.
The ICL’s proposed minute
Having regard to the totality of evidence, in addition to the above matters, I am satisfied that the orders proposed by the ICL are in X’s best interests.
I certify that the preceding two hundred and forty (240) paragraphs are a true copy of the reasons for judgment of Judge M Neville
Associate:
Date: 31 January 2020
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