Scales and Seddon
[2016] FCCA 2894
•11 November 2016
FEDERAL CIRCUIT COURT OF AUSTRALIA
| SCALES & SEDDON | [2016] FCCA 2894 |
| Catchwords: FAMILY LAW –Young parents living large geographical distance apart – issues of parental capacity of both parents including/arising out of the young child not having spent overnight time with his Father – both parents rely heavily on their parents’ assistance and support – until well into the final stages of the trial the Mother held a view of the Father that he was/would be a risk to the child whilst in his care – the views of the Mother about the Father were formed on the basis of the Father disclosing to the Mother that he had an incestuous same-sex relationship with his cousin when he was a teenager – no relevant risk to the child – Mother finally conceded that the Father posed no relevant risk to the care and welfare of the child – Father seeking a change in residence. |
| Legislation: Family Law Act 1975 (Cth), ss.60CA, 60CC(3)(d), (f), (i), 65DAA |
| Cases cited: |
| Applicant: | MR SCALES |
| Respondent: | MS SEDDON |
| File Number: | CAC 1837 of 2014 |
| Judgment of: | Judge Neville |
| Hearing dates: | 4 and 5 February 2016 |
| Date of Last Submission: | 26 April 2016 |
| Delivered at: | Canberra |
| Delivered on: | 11 November 2016 |
REPRESENTATION
| Counsel for the Applicant: | Mr C Wilson |
| Solicitors for the Applicant: | Crampton Legal |
| Counsel for the Respondent: | Ms J Haughton |
| Solicitors for the Respondent: | Mazengarb Family Lawyers |
Solicitor/Advocate for the Mrs G Yeend
Independent Children’s Lawyer:
Solicitors for the Independent Yeend & Associates
Children’s Lawyer:
ORDERS
The Mother and the Father have equal shared parental responsibility for the child, X (born (omitted) 2012) (“the child”).
The child live with the Mother.
The child spend time with the Father at the following times:
(a)From 9.00am until 2.00pm on the first three Saturdays following the making of these Orders at a location not further than 100km from (omitted) with the changeover to occur at (omitted);
(b)Thereafter on the first weekend and third weekend of each month from 9.00am to 2.00pm on Saturday and Sunday at a location not further than 100km from (omitted) with changeover to be at (omitted);
(c)Commencing in February 2017, on the first and third weekend of each month from 9.00 Saturday until 3.00pm Sunday at a location not further than 100km from (omitted) with the changeover to be at (omitted);
(d)Commencing in NSW School Term 1, 2017:
(i)From 5.00pm Friday until 5.00pm Sunday on the first weekend of each month with changeover to occur at (omitted) unless otherwise agreed between the parties;
(ii)In the event that a Public Holiday occurs on a weekend that the father is not exercising time, the father may instead elect to exercise the time in Order 3. (c) (i) above on that weekend and the time will commence at 5.00pm Thursday if the Public Holiday occurs on the Friday and conclude at 5.00pm Monday if the Monday is a Public Holiday;
(iii)From 5.00pm Friday until 5.00pm Sunday on the third weekend of each month at a location not further than 100km from (omitted) with changeover to occur at (omitted);
(iv)For one half of all New South Wales school holidays as agreed and failing agreement, the first half in years ending in an even number and the second half in years ending in an odd number with changeovers to take place at 4pm on the middle Saturday of the holiday period;
(e)Such other times as agreed by the parties.
The child shall spend the Father’s Day weekend with the Father, and the Mother’s Day weekend with the Mother.
The child shall spend time with the Mother from 4:00pm on 24 December until 4:00pm on 26 December in years ending in even numbers.
The child shall spend time with the Father from 4:00pm on 24 December until 4:00pm on 26 December in years ending in odd numbers.
In the event that the father is unable to exercise time pursuant to these Orders he will notify the mother as soon as is practicable.
Each party will encourage and facilitate telephone communication between the child and the other party while the child is in their care, as requested by the child but no less frequently than twice per week with calls commencing no later than 7.30pm.
Each of the parties be restrained from:
(a)Abusing, insulting, belittling, rebuking, or otherwise denigrating the other party; and
(b)Discussing these proceedings or the contents of any documents filed in or intended for use in these proceedings (including expert reports) to, with or in the presence or hearing of the child and from permitting any other person to do so; and
(c)Each party be restrained from saying unpleasant or unkind things of or about the other in the presence of or hearing of the child and will not permit any other person to do so.
The Mother be restrained from ever discussing the Father’s sexual engagement with his cousin with the child, and shall ensure, to the best of her ability, that family members or other people are also restrained from doing so.
Each party keep the other informed of changes to the child’s health while the child is in their care and as soon as practicable, notify the other parent of any medical emergency involving the child.
Each parent is to advise the other of any medical issue that impacts, or is likely to impact, on their capacity to care properly for X in writing, within seven (7) days of diagnosis.
Each party keep the other informed of their current residential address, mobile and landline telephone numbers and any available email address and where possible provide the other parent with seven (7) days’ notice of any intended change to these details.
Each party nominate the other parent as a contact for the child with any medical practitioner, school or organisation that the child attends upon and authorise them to communicate with the other parent about the child.
Within twenty eight (28) days the mother will obtain a referral to a qualified sexual assault counsellor through NSW Health Community Centres.
The appointment of the Independent Children’s Lawyer be discharged.
All extant Applications are dismissed and the matter is now finalised and will be removed immediately from the docket.
IT IS NOTED that publication of this judgment under the pseudonym Scales & Seddon is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT CANBERRA |
CAC 1837 of 2014
| MR SCALES |
Applicant
And
MS SEDDON
Respondent
REASONS FOR JUDGMENT
Introduction
This matter concerns young parents, who are not altogether confident (nor is the Court) in their parenting capacities; they each rely upon their families for support and assistance in the care of their four year old son, X.
There are not insignificant logistical issues in this matter, in addition to the constraints on each party’s parenting capacity. The Mother lives in (omitted), while the Father lives on the (omitted) of New South Wales. The Father gave evidence that he would consider moving [back] to a region closer to the Mother. The current [physical] distance between the parties is approximately 300 kilometres.
In her brief opening remarks, the Independent Children’s Lawyer (“the ICL”) indicated that the main issues related to the logistics to which I have just referred and the capacity of each of the parents to facilitate a meaningful relationship between the child and the other parent. I basically agree with the identification of the issues by the ICL. It might also be noted here that the Mother no longer sought to have the Father’s time with the child supervised.
It also seemed to be not heavily contested that, since separation, the Father’s time with the child had largely been (in some shape or form) supervised. The delicate and at times difficult reason(s) for this are considered in the course of this judgment. For current purposes it is sufficient to note that the Father had a same-sex liaison with one of his cousins when he was a youth. He informed the Mother of this encounter, which led to the Mother, in large measure until very recently, viewing all of the Father’s time with X through this prism of sexual experimentation (this was the term used by the paternal Grandmother),[1] and in turn, in the Mother’s mind, leading to a possible risk to X.[2]
[1] Transcript (4th February 2016) p.54. See also the Father’s account as set out in the first Report of Ms H (Exhibit A1) at p.9).
[2] See pars.30 and 32 of the Mother’s affidavit, filed 14th January 2016. In those paragraphs the Mother outlined what she said the Father had disclosed to her, and on the basis of these disclosures she formed a view that there was a significant history of sexual abuse within the Father’s family. In the same affidavit, at pars.34 – 36, the Mother also made complaint/concern about what she said was sexualised behaviour of the Father with the child.
It also seemed to be not earnestly contested that the Mother is and has been X’s primary carer throughout his short life. Indeed, the Father acknowledged this in his oral evidence.[3]
[3] Transcript (4th February 2016) p.25.
For the reasons that follow, the Orders that are, in my view, in X’s best interests, pursuant to s.60CA of the Family Law Act 1975 (“the Act”), are those sought by the ICL, which are supported by the Mother.
Orders Sought by the Applicant Father
The Father’s Orders Sought were received in Chambers via email on 28th January 2016. They were as follows:
1. The parties have joint parental responsibility for X born (omitted) 2012 (the Child).
2. The Child live with the Father.
3. The Mother spend time with the Child as follows:
Before school age
a. From 9.30am Friday until 4pm Monday on alternate weekends.
From school age
b. From 6pm Friday until 4pm Sunday on alternate weekends.
c. One half of all mid-term school holidays.
d. On alternate Easter's with the school holiday period adjusted accordingly.
e. For one half of the Christmas school holiday period commencing at 12 noon on the first Saturday after the completion of term 4 until 12 noon of the middle Saturday in even numbered years and on the middle Saturday at 12 noon concluding at 12 noon on the final Saturday before the commencement of the new school term in odd numbered years.
f. That a family member may effect changeover in the event of the unavailability of the parent.
g. The Mother’s Day and Father’s Day weekends to be altered accordingly.
h. That the alternate weekend time to be suspended during school holiday period.
i. In the event that X is unwell and cannot spend time with his Mother then make up time occur on the following weekend.
j. Telephone calls on Monday, Wednesday and Friday between 7 and 7.30pm with the parent who does not have the child to initiate the call.
k. Each of the parents will report as soon as possible to the other parent any serious illness or injury that may affect the child at any time and the parents will consult about the treatment that may be necessary.
l. The Father authorize any school the child may attend to provide the Mother photocopies of reports on the child's progress, newsletters and announcements of school activities and other information relating to the child's education.
m. Changeover is to occur at McDonalds restaurant (omitted).
4. In the event that the Court determine the Child live with the Mother then the Father seeks an order that he spend time with the Child as above.
Orders Sought by the Respondent Mother
The Mother’s Final Orders Sought were received in Chambers via email on 29th January 2016. These Orders were as follows (they should be read subject to the Mother’s late but proper concession earlier noted that supervision of the Father is now no longer required):
Parental Responsibility
1. That the parties have equal shared parental responsibility in relation to the child X born on (omitted) 2012 (“X”).
Parenting arrangements
2. X live with the Mother.
3. X spend time with the Father as follows;
a. From 9:00am to 2:00pm each alternate Saturday for a period of six months in (omitted), NSW and the contact be supervised by the maternal Grandmother.
b. Thereafter, from 9:00am to 2:00pm on each alternate Saturday and Sunday for a period of six months in (omitted), NSW.
c. Thereafter, from 9:00am Saturday to 4:00pm Sunday each alternate weekend, with handover to occur at McDonalds in (omitted), NSW.
d. Any other times as agreed.
4. That when X commences kindergarten, X will spend time with the Father as agreed between the parties in writing, but failing agreement as follows;
a. From Friday afterschool until 3:30pm Sunday every fourth weekend with changeover to occur at McDonalds in (omitted), NSW;
b. If the Father can facilitate contact in (omitted), NSW, from Friday afterschool until 3:30pm Sunday every second weekend; and
c. For half of each gazetted Term 1, 2 and 3 school holiday periods commencing afterschool on the last day of the school term with changeover to occur at (omitted), NSW; and
d. For two weeks during the Christmas holiday period commencing 1 January each year with changeover to occur at McDonalds in (omitted), NSW.
Telephone Contact
5. The Father and Mother are at liberty to telephone the child whilst the child is in the care of the other parent at any reasonable time and the other parent shall not unreasonably refuse such a request; and
6. X is at liberty to telephone the parent whilst he is in the care of the other parent at all reasonable times and that any request by X be facilitated by the parent.
Easter
7. That in all even numbered years commencing 2016, the child shall spend time with the Mother from 12 noon Good Friday until 4:00pm Easter Monday, unless otherwise agreed.
8. That in all odd numbered years commencing 2017, the child shall spend time with the Father from 12 noon Good Friday until 4:00pm Easter Monday, unless otherwise agreed.
9. That any provision for time under these Orders that are inconsistent with Order 7 and 8 be suspended.
Christmas
10. The child shall spend time with the Father from 12:00 noon to 4:00pm on Boxing Day in 2016 in (omitted), NSW, unless otherwise agreed.
11. That in all even numbered years commencing 2018, the child shall spend time with the Father from 12 noon Christmas Eve until 4:00pm Boxing Day, unless otherwise agreed.
12. That in all odd numbered years commencing 2017, the child shall spend time with the Mother from 12 noon Christmas Eve until 4:00pm Boxing Day, unless otherwise agreed.
13. That any provision for time under these Orders that are inconsistent with Orders 10 to 13 be suspended.
Protection of X
14. That the Father must ensure that the child does not come in contact with the Father’s cousin, Mr M.
Therapeutic Counselling
15. X attend Therapeutic Counselling.
Specific issues
16. That each party is hereby authorised to obtain from X’s school all notices, letters, school reports and invitations and to attend parent/teacher interviews or other activities to which parents are invited.
17. In the event of a medical emergency involving X, each party must contact the other parent as soon as practicable.
18. That the parties advise the other of any change of telephone number or residential address within 24 hours of such change occurring.
19. That the parties not criticise or denigrate the other party or the other party’s family in the presence of or within hearing of X.
20. That the parties encourage and not undermine X’s relationship with the other party.
21. Any other order as this Honourable Court sees fit.
Orders Sought by the Independent Children’s Lawyer
The Independent Children’s Lawyer filed her Minute of Orders Sought with the Court electronically on 8th March 2016 (noting that these Orders Sought were different to the document emailed to Chambers on 5th February 2016). The Orders as sought by the Independent Children’s Lawyer are as follows:
1. The Mother and the Father have equal shared parental responsibility for the child, X born (omitted) 2012 (“the child”).
2. The child live with the Mother.
3. The child spend time with the Father at the following times:
(a) From 9.00am until 2.00pm on the first three Saturdays following the making of these Orders at a location not further than 100km from (omitted) with the changeover to occur at (omitted);
(b) Thereafter on the first weekend and third weekend of each month from 9.00am to 2.00pm on Saturday and Sunday at a location not further than 100km from (omitted) with the changeover to be at (omitted);
(c) Commencing in June 2016, on the first and third weekend of each month from 9.00 Saturday until 3.00pm Sunday at a location not further than 100km from (omitted) with the changeover to be at (omitted);
(d) Commencing in NSW School Term 1, 2017:
(i) From 5.00pm Friday until 5.00pm Sunday on the first weekend of each month with changeover to occur at (omitted) unless otherwise agreed between the parties;
(ii) In the event that a Public Holiday occurs on a weekend that the Father is not exercising time, the Father may instead elect to exercise the time in Order 3. (c) (i) above on that weekend and the time will commence at 5.00pm Thursday if the Public Holiday occurs on the Friday and conclude at 5.00pm Monday if the Monday is a Public Holiday;
(iii) From 5.00pm Friday until 5.00pm Sunday on the third weekend of each month at a location not further than 100km from (omitted) with changeover to occur at (omitted);
(iv) For one half of all New South Wales school holidays as agreed and failing agreement, the first half in years ending in an even number and the second half in years ending in an odd number with changeovers to take place at 4pm on the middle Saturday of the holiday period;
(e) Such other times as agreed by the parties.
4. In the event that the Father is unable to exercise time pursuant to these Orders he will notify the Mother as soon as is practicable.
5. Each party will encourage and facilitate telephone communication between the child and the other party while the child is in their care, as requested by the child but no less frequently than twice per week with calls commencing no later than 7.30pm.
6. That each of the parties be restrained from:
(a) Abusing, insulting, belittling, rebuking, or otherwise denigrating the other party; and
(b) Discussing these proceedings or the contents of any documents filed in or intended for use in these proceedings (including expert reports) to, with or in the presence or hearing of the child and from permitting any other person to do so; and
(c) Each party be restrained from saying unpleasant or unkind things of or about the other in the presence of or hearing of the child and will not permit any other person to do so.
7. Each party keep the other informed of changes to the child’s health while the child is in their care and as soon as practicable, notify the other parent of any medical emergency involving the child.
8. That each party keep the other informed of their current residential address, mobile and landline telephone numbers and any available email address and where possible provide the other parent with seven (7) days’ notice of any intended change to these details.
9. That each party nominate the other parent as a contact for the child with any medical practitioner, school or organisation that the child attends upon and authorise them to communicate with the other parent about the child.
10. Within twenty eight (28) days the Mother will obtain a referral to a qualified sexual assault counsellor through NSW Health Community Centres.
11. The appointment of the Independent Children’s Lawyer be discharged.
The Father’s Evidence
The Father confirmed that he currently lives with his parents in (omitted) on the (omitted) NSW; the property is rented by his parents. He owns a property in (omitted) which is currently tenanted.[4] The Father confirmed that he lived with his parents for financial and all other support. He currently has various loans which he hopes to have paid off in approximately five years’ time, at which time his intention is to live on his own.[5]
[4] Hereafter, all transcript references will be to the evidence given on 4th and 5th February 2016. References will be “T” followed by the relevant page number.
[5] T 13.
The Father’s intention, when he moves out of home [again], would be to stay in the (omitted) area, although he acknowledged that he has other family in the (omitted) area.
The Father acknowledged, after some discussion, that if his financial difficulties abated, he could or might consider moving back to the (omitted) area, which would make his time with X much easier. At the same time, he said that he was having difficulties seeing past his financial problems.[6]
[6] T 14.
Then followed a discussion with the Father, which I confess I found somewhat problematic, where the Father said that he sought to have X live with him but also that he would ultimately put him into some form of pre-school while also reducing his work hours to enable him to be the child’s primary carer.[7] Such a course may, of course, inevitably lead to further financial pressure on the Father. This is in circumstances where he currently pays no rent to his Mother and step-Father, nor does the Father contribute financially to the outgoings of that household, including for food. This is because he said that all his financial resources were directed to the funding of the current litigation.
[7] T 15 – 16.
The Father confirmed that in the two years since separation he had spent only three and a half hours of time with X unsupervised. Currently, he spends two hours per fortnight of supervised time with X.[8] He also confirmed that he had not contacted the pre-school directly to obtain information about X’s progress.[9]
[8] T 17 & 21.
[9] T 18.
The Father confirmed that he is currently on some [identified] medication, and that some four or five months prior to trial he had blacked out at work due to “personal and work stresses.”[10] Part of the stresses, he said, related to the current proceedings.
[10] There was further discussion about the Father’s medication, which is for stress and to assist him with sleep, at T 24. He has been taking this medication – Mirtazapine – for three or four years. Further still, at T 43 – 44, the Father expanded to say that even during the latter part of the relationship with the Mother he had been taking the same medication but at a smaller dose.
The Father also confirmed that he has never cared for his son overnight.[11] In my view, this was a telling question and answer, along with others, which goes significantly to the capacity of the Father. I do not say this critically but simply by way of observation of his capacity and experience as a parent, particularly in circumstances where the Father is seeking Orders for X to live primarily with him.
[11] T 20.
The Father said that he was only thinking about the impact on X of a change in residence for the first time when/while he was in the witness box. This was in circumstances where he quite readily acknowledged that X was well settled in his Mother residence, with the maternal Grandparents, which had been his environment since separation some two years or so ago.[12]
[12] T 26 – 27.
The Father agreed that he could spend time with X in (omitted) for extended day visits as a preliminary to spending overnight time with him at (omitted).[13] This was, in part, in the context of extended discussion about (a) the cost of travel, and (b) the likely impact on the child being introduced to the new environment of the Father’s residence with his family.
[13] T 30.
With certain assurances from the Mother (e.g. not to discuss anything with X, at any time, about the Father’s sexual engagement with his cousin as a young person), the Father said that he felt he could communicate with the Mother in relation to matters concerning X. An Order formally restraining the Mother from ever discussing such matters with X will add a further layer of protection, in my view, for all concerned. The events of the past, having been relevantly assessed by experts and accepted by the Court, need to stay in the past.
Importantly, after noting or agreeing with propositions about X and communication with the Mother, such as (a) the Mother requesting that the Father attend a paediatric appointment for X with her, and (b) the Mother’s agreement for unsupervised time between Father and son to commence/resume, the Father said that he felt he could build on these things with the Mother. Importantly, the Father acknowledged that X was well looked after in the Mother’s care.[14]
[14] T 31 – 32.
Under questioning by the ICL, the Father said that he had thought about the possible impact on X of significant car travel upon the Father moving to (omitted). He said that he had contemplated there being DVDs in the car, and that X would likely be asleep for some (or much) of the long trips. In further exploration of his insight into possible care of X with such regular and long travel, the Father said that he could draw upon his own experience as a child (between the ages of 9 – 12) travelling, notwithstanding that he was much older at the time than X is now.[15]
[15] T 33 – 34.
Respectfully, the Father’s evidence on this score was, in my view, not particularly insightful. He endeavoured to show how he had thought about the consequences for X (which is obviously commendable), but his primary point of reference was his experience as a child. While better than nothing, and life experiences can be quite formative, in this instance I do not see that there was much that would genuinely be of assistance to X or to his Father. This is especially so given the Family Consultant’s evidence that at least some of X’s “issues” may be related to a possible diagnosis of autism.
The Father did acknowledge that his move to (omitted) had made the relationship between the parties and X more difficult.[16] In this regard, the Father had undertaken a post separation parenting course; he outlined what he had derived from that course, such as better communication, civil discussion between parents and the like.[17]
[16] T 34 – 35.
[17] T 35.
Notwithstanding the Father’s acknowledgement of the difficulties his move to (omitted) has caused for both parties, at the same time he also stated that the move caused no particular difficulty for X as a result of the Father’s relocation.[18] Respectfully, in my view this showed a lack of insight into (a) issues of logistics for the co-parenting relationship with the Mother, and (b) the difficulties the constant and long-distant movement between households necessarily poses for a young child, who may have some form of autism (according to the Family Consultant), transitioning between two, quite geographically distant households.
[18] See T 34.
The Father confirmed that he and the Mother had not had a telephone conversation for approximately two years. As the ICL put it to him, this area of communication with the other parent was something of a “brave new frontier.” The Father basically agreed.[19]
[19] T 38.
In the course of discussion with the Father, he agreed with the suggestion of the Court that if the child remained living with the Mother and spent each alternate weekend with the Father, one of those weekends could be in the (omitted) region. This would reduce to some degree the amount of travel for the child, and spread out travel for the Father.[20]
[20] T 42.
By way of general observations: the Father impressed as a very thoughtful parent who clearly loves and cares very much for young X. However, he has quite limited experience in relation to the care of such a young child, and his reference points, such as his own experience as an older child (around 12 years of age) travelling regularly to see his own Father, do not, in my view, provide very comparable or apposite touchstones for the care of X. The Father certainly needs the assistance of his family both for support generally, given his stress and anxiety issues, as well as in relation to ongoing care of X. If/when he spends time with his son in (omitted), presumably he will have the assistance of his wider family in that area, although there was only very general evidence from the Father about their availability and support.
Subject to what is said later, these reasons or observations clearly militate against a change in residence for X. At this stage, the Father clearly does not have the requisite skills to care for a young child on a full time basis. The Father will continue to require the assistance and support of his family – on virtually all fronts – for some time to come. As well, it seemed to me that the Father had intellectually thought through some of the consequences, challenges or risks of changing X’s residence. However, his appreciation of the practicalities (financial and otherwise) and the likely emotional toll on X in being removed from his Mother’s care was, in my view, quite deficient.
The paternal Grandmother (Ms J) also gave brief oral evidence. Apart from supporting her son financially and being available to look after her Grandson, Ms J confirmed that she has only seen X (since separation) at the contact centre. This had been on four occasions only, each of two hours.[21] There was little else in her evidence that assisted.
[21] T 48.
The Mother’s Evidence
The Mother confirmed that she does not have a working motor vehicle, or the funds to have her car fixed.[22] This fact obviously adds to the logistical issues that permeate this matter.
[22] T 58.
After being taken through a short time frame of the Father’s alleged sexualised behaviour with the child (in late 2013 and early 2014), the Mother confirmed that she had taken a video (on her phone) of the Father’s time with X on one particular occasion. She was concerned with what she considered to be a sort of “groping” of the child’s bottom by the Father. However, upon showing the video to police, the Mother confirmed that the police said that there was nothing wrong with the Father’s conduct. She also showed the material to one of the family consultants (Ms S) who also said that there was nothing of concern.[23]
[23] T 62.
There was extensive examination of the Mother and her belief that X was in some way at risk when in the company of his Father. This included, in January 2015, a visit to the Child at Risk Health Unit at (omitted) Hospital. Leading up to this, because of the Mother’s fears for X with the Father, she prevented time between the Father and X, notwithstanding Orders that permitted it to occur.[24]
[24] T 64 – 71.
After all the examinations and checks, it was put to the Mother, particularly in the light of Ms H’s most recent Report (discussed later in these reasons) in which it was considered that there was no risk of abuse to the child spending time with his Father, the Mother confirmed that X still has “behavioural problems” that need to be addressed.[25]
[25] In fact, there are three reports before the Court – one from Ms S in December 2014, and two from Ms H – in May 2015 and January 2016. In all of them there is a conclusion that there is no risk to the child from the Father in relation to any abuse. See further the discussion at T 72 – 73.
A strong part of the Father’s case was that just as the Mother denied the Father’s time with X on the basis of various investigations undertaken by the Child at Risk Health Unit at (omitted) Hospital, and by JIRT regarding allegations about the child being sexually interfered with, it was highly probable that the Mother would continue to raise issues of possible abuse of the child against the Father and thereby lead to the Father and son time being curtailed if not stopped again. It was against that background that many questions were asked of the Mother about the various investigations to which I have referred.[26] Often, the responses by the Mother were either that she did not understand the question, and or that she had little information otherwise to give. Frequently, it took a number of attempts in putting questions to the Mother for her to grasp what was being asked of her.
[26] T 83 ff.
Certainly, in answer to a question whether the Mother still held a belief in early 2015 that the Father had sexually abused X, the Mother said that she “only had concerns about X’s behaviours and what X had told [her].”[27] The distinction between the question put and the Mother’s answer was/is important, notwithstanding that the Father’s case or position was that (a) the Mother had only very recently changed her belief, and (b) she had a “pattern of behaviour” about those beliefs.
[27] T 87.
The Mother did ultimately confirm that in early 2015 she still considered X to be at risk of abuse from the Father. However, she also said that upon receipt of the January 2016 Report from Ms H, which confirmed that X [still] was not at any relevant risk with the Father, the Mother “had [now] to come to terms with that” and that she would assist X about what he was saying and doing.[28] At the same time, while she acknowledged her change in view about X being at possible risk in the Father’s care, she confirmed (more by way of comment) that nothing had actually been done about the Father’s alleged history of sexual abuse.[29]
[28] T 91. See also the significant discussion at T 105 – 107.
[29] T 96.
By way of comment: I took this aspect of the Mother’s evidence, like much of the Father’s evidence, to be an indication or confirmation of both parties still having difficulties in dealing with (a) their broken relationship, (b) the causes of the break-up and the stresses that were present while they were together, and (c) their need for assistance to deal with these matters and the various allegations each has levelled against the other.
The Mother confirmed that she is on anti-depressant medication (and for situational stress), which she has been taking for approximately six months.[30]
[30] T 100.
In answer to questions from the ICL, the Mother said that she had completed some counselling, and agreed with the family consultant’s recommendation that further counselling would assist her, especially in relation to “trust” issues with the Father. Likewise, she confirmed that it was her idea for the Father to attend medical appointments with her for X. She also said that she was content with the Father telephoning her in relation to matters involving X. The parties however need to provide each other relevant contact details; the Mother said she did not have the Father’s telephone number. She also confirmed that she would be happy for X’s time with his Father to be unsupervised, to begin with some time in (omitted), and then to progress with X spending time with his Father at his residence at the coast.[31]
[31] T 112 – 113.
The Mother said that her Mother was very open and even handed, and welcomed the re-introduction of unsupervised time between X and his Father.[32]
[32] T 116.
In general terms, the Mother’s evidence was quite limited. She appeared to frustrate many of the questions from the Father’s Counsel. I did not take her lack of, or limited responses to, these questions as indicating a ploy to subvert the cross examination. I took her inability to understand a number of the questions to be reasonably genuine, although this caused the Court to have some concerns about her parental capacity in terms of her trust of the Father for the purposes of the co-parenting relationship. I also took her actions in arranging for X to be seen by various investigators following either disclosures and or unusual behaviour as being essentially protective. As such, I did not, and do not, take her actions as being motivated by a desire to prevent the Father spending time with X. Her actions also showed, in my view, still her relative lack of experience as a parent and that her judgments in relation to the Father remain influenced by and filtered through the Father’s revelation to her, during the relationship, of his relatively brief incestuous and same-sex relationship with his cousin.
Having told the Court that she now accepts the reports of experts (on multiple occasions) that X is not at risk in his Father’s care, she needs to honour her evidence and to seek out assistance (as set out in the ICL’s orders sought), such as with a relevant counsellor, to deal with and move on from previously held beliefs about the Father. The Court stresses the importance of the Mother honouring her own evidence in relation to these matters.
The maternal Grandmother was briefly cross examined. She confirmed that she thought unsupervised time between X and his Father was good, that they needed to form a bond, and that she was reassured by Ms H’s report that X had not been abused by his Father. Indeed, it seemed sort of common ground that there were some other things going on with X (e.g. possible autism) that are going to be looked at by a paediatrician in the near future.
The maternal Grandmother confirmed that she held no concerns about the Father spending time with X. She would support and encourage the Mother to support the relationship between Father and son.[33]
[33] T 122 & 124.
Documentary Evidence of the Expert
Ms H prepared two reports.[34] The first was provided on 24th May 2015; the second was released on 29th January 2016. They became Exhibits A1 and A2. I need only note the following from those Reports; I do so summarily.
[34] Because Ms H’s reports are more recent than that of Ms S, I do not propose considering the latter’s Report of December 2014.
In her first report (p.13), Ms H noted that although at the time of that assessment the Father and X had not seen each other for six months, the child recognised Mr Scales and engaged in play with him. The family consultant observed that Father and son “demonstrated attachment behaviours” and that the Father is “bonded” to X.
She noted, in the same place, that both parents appropriately engaged with X, they listened to him and appeared focussed on his needs during their visit. She said that she did not identify any deficits or difficulties in either of the parents to meet the child’s needs. She said that based on her observations (limited as they necessarily were) both parents were “responsive caregivers who are fully invested in the continuing development and progress of X.”
Ms H noted that (p.14) the Mother’s strongly held beliefs that the Father poses a risk of sexual harm to X appear to cause her “considerable anxiety.” She suggested that the Mother would likely benefit from seeing a suitably qualified sexual assault counsellor in relation to her concerns. Indeed, she noted that it would benefit X if the Mother’s concerns were addressed as soon as possible.[35]
[35] See also the discussion at p.16 of this first Report of Ms H.
Ms H’s assessment (pp.14-15) of the Father as a possible risk of sexual offending harm to the child put it at “low.” She said that the Father acknowledged a number of factors that were present at the time of his “experimentation” with his older cousin when he was an adolescent. She noted the Father’s strenuous denial of any inappropriate sexual behaviour in relation to X.
Again, at pp.16 and 18 of her first Report, Ms H confirmed that X was securely attached to both of his parents. The child’s responses to his parents, in her view, suggested that his needs are being met and that he was confident with both parents. This was reassuring for the Court that the child’s relationships with both parents is well established and is in a good position to flourish with both of them, especially after the conclusion of the litigation. Again to state the [hopefully] obvious: stability and routine are important for children and will naturally be important for X here in spending regularly and consistent time with his Father. Stability and routine assist parents as well.
In general terms, Ms H suggested (p.17) that there be a regime of gradual introduction of overnight time between X and his Father.
In her second report (Exhibit A2: dated 29th January 2016), Ms H noted (again very summarily stated) the following.
First, at p.4, Ms H recorded that the Father was again assessed to represent a low risk to sexually offend. She also confirmed that the Father was now seeking the full time care of X; this was so notwithstanding that it was acknowledged that X had always been in the full-time/primary care of his Mother.
Secondly, at p.6 of this Report Ms H recorded the Mother’s ongoing concerns about the child being at risk of possible sexual abuse in spending time with his Father, notably if it was unsupervised.
In the same place, the report writer recorded the Father’s concerns about the Mother’s continuing belief in the risk he posed to their son, noting that he had spent supervised time at the (omitted) Contact Centre in September 2015. Since that time the Father said that he has spent regular but still limited time with X, which otherwise had gone well.
Again, Ms H noted (at pp.7 & 8) that X was observed with both parents (and others), and that X seemed to be well attached to and comfortable with both parents.
Of some moment were Ms H’s comments to the effect that if there was a change in X’s living arrangements the child would likely have some short term separation anxiety. She said (at p.8):
X’s level of anxiety would likely be directly proportional to Ms Seddon and her family’s level of anxiety in relation to him spending regular and overnight time with Mr Scales and his family. It is my view that Ms Seddon will find it difficult to support X emotionally in these circumstances which could make any changes more difficult for X in the short and long term.
At p.9, Ms H recorded the strengths and weaknesses of the Mother’s parenting capacity, including her ongoing beliefs in relation to the risk that she perceived the Father to pose to X. In the same place, she noted the Father’s parenting strengths, but (in my view) somewhat curiously, she did not identify any weaknesses in this regard. I say “curiously” because the Father’s experience as a parent is necessarily quite limited.
At p.10, the report writer said that she did not identify any physical abuse by either parent of the child. However, she expressed concerns about the Mother’s continuing belief in the risk posed by the Father to the child. She said (in my words) that if this were to continue it could ultimately cause damage to the child.
At p.11, it was recorded that, at this stage, the Mother was still opposed to unsupervised time between Father and child. At p.12, the Father and his family indicated to the report writer that they were sensitive to any separation anxiety issues with X from his Mother should he come to live with them.
The Mother proposed that the Father spend regular time with X in (omitted) (where the Father has family), albeit not overnight. Ms H said that the continued supervision of the Father and his time with X as proposed by the Mother would likely be detrimental to their relationship (see p.9 of the Addendum).
Finally, Ms H recommended (at p.13) that X be referred for paediatric assessment in relation to his general physical development and also to a specialist psychologist in relation to any possible diagnosis regarding autism spectrum disorders.
Expert’s (Ms H) Oral Evidence
In the light of the above Reports, Ms H gave the following oral evidence. Because it was more recent, and more nuanced, I give greater weight to this evidence than to the matters addressed in her Reports.
Ms H agreed that it was a good and encouraging sign that both parents would attend X’s upcoming paediatric appointment/ assessment.[36]
[36] T 128.
The expert confirmed the Mother’s belief of the child being at risk of abuse while in the Father’s care but was now somewhat, but agreeably, surprised at the Mother (a) accepting Ms H’s assessment that there was no such risk, and (b) accepting further that X could and would start spending unsupervised time with his Father.[37]
[37] T 128.
Certainly, in her view, the Mother needed assistance to continue to understand issues around sexual abuse as well as in relation to parenting strategies generally in the light of her previously long-held beliefs about the risk posed by the Father, and concerning X’s expressions of self-harm, which may be related to the child possibly being on the autism spectrum.[38] Ms H also commented that the Mother’s actions in limiting the Father’s time with the child were essentially protective of X.[39]
[38] See, for example, the discussion at T 139, and other places.
[39] T 129.
Of some significance was the following exchange with the ICL:[40]
[40] T 131.
… I think that Ms Seddon, to some extent, probably relies on her mother in – in some respects around issues. I understand from talking to them that Ms Seddon is the primary carer, but certainly her mum is there, and her mum has experience in terms of parenting and – so I think that relationship would be – I think it would be supported, yes.
Okay?‑‑‑Would support her daughter.
And if that’s the case – so would it be fair to assume that if the mother could – or if the mother has changed her views or is in the process of changing her views around the father, that it would be more optimum for X to remain with the mother given that he has been living there up until this point in time?‑‑‑Yes. If Ms Seddon can facilitate a relationship with X’s dad, with Mr Scales, then X – that would support X in a very positive way. And, yes, he has always lived with his mum, and I think that that would be probably the more ideal placement in those circumstances.
Contrary to my own view, Ms H said that she thought the Father fully appreciated the possible impact on X of a change in residence. I say this primarily because of the unchallenged evidence that (a) the Father has spent only supervised time with X for quite some time, (b) X has not spent overnight time with his Father, and (c) X has been primarily cared for by his Mother, certainly since the separation of his parents. Further, my view might reasonably be seen in the context of some later comments made during the course of the trial, thus:[41]
… both parties seem to say to me that, “If the other party doesn’t do something, then this is my position. I would like X to live with me.” And both parents also said to me that if certain things were in place, then they would – they would – and what Mr Scales was saying was that he didn’t perceive Ms Seddon to be a bad mother. He thought that X was attached to his mum. He said he had no real issues with Ms Seddon’s parenting of X. His main issue was in the way that it had cut him out of X’s life. If that could be facilitated in a way that X and he had those opportunities to build a relationship, genuine opportunities and – and more than just the odd supervised contact, he was saying that he would – he would accept that. He was happy with that. If that couldn’t be achieved, then he was saying to me – and that was my understanding was that, “Then I would like X to live with me.”
[41] T 131 - 132.
In relation to the difficulties posed by travel, Ms H noted that the younger the child, usually the greater the difficulties.[42] She also commented, in large measure because of X’s young age and the physical distance in travel, that twice monthly might well be a burden on the child and that every third week might be best in the time-with arrangements. Some sort of graduated increase in frequency might be best. And in any event, it might be that once X starts school, arrangements might again have to be re-visited.[43]
[42] T 132.
[43] T 132. See also the discussion at T 133 – 134.
Ms H confirmed that the basis of a sound relationship between Father and son is established. There is secure “attachment” between them. X directs his Father in play, and also takes direction from his Father. Again, the expert noted that the real issue was more about the travel strain on the parties but especially on X.[44]
[44] Among many places, see T 137.
Ms H was of the view that overnight time between Father and son could start in perhaps three months’ time, after some regular time in (omitted).[45] She had not thought about the option of fortnightly time between the Father and X, with one weekend being in (omitted) and the other being in (omitted). But otherwise, she agreed that the more time between the Father and X was important.[46]
[45] T 136.
[46] T 137.
I need only note that cross examination by the Father’s Counsel was essentially limited to “time-with” arrangements, while the focus of questions from Counsel for the Mother focussed on the limited time that the Father has actually spent with X since separation (and at a contact centre largely) and how well settled X was with his primary carer, his Mother. I need not elaborate further on these matters.[47]
[47] See the extended discussion at T 139 – 148.
Submissions on behalf of the Applicant Father
The Father’s Closing Written Submissions were filed by way of email to Chambers on 9th March 2016. These Submissions are set out in full below (including footnotes and emphases as per original submissions):
1. This matter fundamentally concerns who four year old X [DOB: (omitted) 2012] should live with and details of when and how he will spend time with the parent he does not live with.
2. At the close of Trial the issues between the parties were:
a. Whether the Child should live with the Mother or the Father;
b. If the Child lives with the Mother when he should commence spending overnight time with the Father;
c. If the Child lives with the Mother how often he should spend time with the Father once he starts school (presumably in 2017).
3. At the start of the Trial the Mother sought that the Child spend time with the Father on a supervised basis for on alternate weekends for six months. During cross examination the Mother changed her position and accepted that the Child could spend time with the Father without supervision.
4. After the Trial ICL put forward draft Orders in which she, in summary, proposes that:
a. The Child live with the Mother;
b. during 2016 the Child spent time with the Father in the (omitted) area every alternate Saturday and Sunday from 9.00am to 2.00pm or 3.00pm;
c. From the commencement of the NSW school term in 2017 the child spent time with the Father once per month from 5.00pm Friday to 5.00pm Sunday (with no restriction as to location).
5. The Mother has not put forward further draft Orders. Presumably she intends to rely on the ICL’s proposed orders.
6. The Father seeks the orders set out in his Amended Initiating Application that the Child should:
a. Live with the Father;
b. Spend alternative weekends with the Mother (with the orders to apply should the Child live with the Mother).
LIVE WITH
7. The Father’s case from January 2015 has been that the Mother would not be willing or able to facilitate a relationship between the Child and the Father if the Child lived with the Mother: s60CC (f) & (m). Despite the Mother’s change of position at the start of the Trial the Father maintains that the Court would not be satisfied that the Mother could or would facilitate the relationship between the Child and the Father if the Child lived with her.
8. The parties separated on a final basis in December 2013 when the Child was 10 months old. The Mother’s evidence is that she formed a view that the Child was at risk of sexual abuse by the Father at about the time of final separation or very soon after separation. Her view was at the latest formed in late January 2014: M 17/2/15 par 61.
9. The Mother’s view continued unabated up to and including 18 January 2016 when she was interviewed by Ms H: Exhibit A2, page 10; Seddon 14/1/16 par 27, 34, 36, 66, 76.
10. The Mother provided evidence for the first time that she had a change of perspective during cross examination on 4 February 2016. The Mother’s explanation for her change of position was opaque, inadequate and concerning.
11. On 31 October 2014 Ms S's Report was completed and provided to the parties. Ms S opined that the Child had not been exposed to any sexual abuse by anyone (including the Father): Exhibit A3 par 7.4.1. The Mother was not dissuaded from her belief by Ms S's Report. Her response was to contradict and challenge Ms S: Seddon 17/2/15 pars 30 – 41. The Mother went so far as to depose that she had: “directly observed him [the Father] engaged in sexualised behaviours towards my son”: Seddon 17/2/15 par 35.
12. On 24 May 2015 Ms H provided a Report. This report was released on 15 June 2015. In that Report Ms H opined that the Child had not been exposed to violence [of any sort] in the care of his parents: Exhibit A1, page 19. The Mother was not persuaded by Ms H's May 2015 Report and four weeks later took the Child for an interview with JIRT.
13. On 23 July 2015 the Child was interviewed by JIRT at least in part in the Mother’s presence: JIRT Record of Interview 23/7/15 Exhibit C. JIRT found no evidence to support allegations that the Child had been sexually abused by anyone: COPS Records 24/7/15; Exhibit D. The Mother didn’t let JIRT’s assessment get in the way of her belief. On 8 August 2015 the Mother attended on Dr L a Sexual Abuse Psychologist and on 18 August 2015 she had her then solicitor send a letter to the Father outlining further allegations that she considered supported her assertion that the Father posed a serious risk to the Child: see Mazengarb Lawyers letter 18/8/15; Seddon 14/1/16; Annexure “A”.
14. On 29 January 2016 Ms H completed her Addendum Report. This report was released to the parties via email at 5:11pm on 2 February 2016. The Trial commenced on 4 February 2016. In the Addendum Report Ms H reiterated her previous opinion that the Child had not been subjected to abuse: Exhibit A2, page 10.
15. During cross examination on 4 February 2016 for the first time the Mother gave evidence that she no longer considered the Father posed a risk to the Child. The Mother’s evidence was to the effect that sometime in the intervening hours between 5:11pm 2 February 2016 and 10.00am 4 February 2016 she experienced some sort of “road to Damascus” experience that caused her to completely reverse a view she had steadfastly held at least since January 2014.
16. The Mother’s explanation given in cross examination was that Ms H's Supplementary Report had caused her to change her belief about the Father. The Mother, despite being asked ad nauseam, was unable or unwilling to explain how her change had occurred other than to say that it was what Ms H had said. The Court would not be satisfied that the Mother would have the equivalent support Saint Paul found in Saint Ananias or Saint Barnabas after the scales fell from his eyes.
17. According to Ms H the Mother interpreted all of the Child’s behaviours through the “lens” of the belief that the Child had been sexually abused by the Father: Exhibit A2; page 10.[48]
[48] The use of the word “lens” is presumably a reference to David Hume’s view that the eye is but a particular sort of lens which must give but one representation of the world of “external objects” in D Hume (1739) A Treatise of Human Nature, ed L. Selby-Bigge. Oxford: Clarendon, 1888.
18. The Mother has a history of managing the truth in less than frank ways, for example the Mother sought to portray the JIRT interview on 23 July 2015 as traumatic for the Child and, via her then solicitor, asserted that the Child “screamed and cried after the interview”: Mazengarb Lawyers letter 18/8/15; Seddon 14/1/6; Annexure “A”. In cross examination the Mother retreated from this position.
19. The Mother has a history of refusing to comply with Court orders if they do not accord with her view of how things should go. On 16 December 2014 an Order was made for the Child to spend time with the Father. The Order was ignored over the following weeks with the issue being remedied only after the Father filed a Contravention Application on 30 January 2015. The Mother’s explanation for the contravention was that she had “serious concerns” about the Child’s safety in the Father’s Care: Seddon 14/1/16 par 8. By “serious concerns” the Mother meant that she believed the Father would sexually abuse the Child.
20. Ms H opined that because of the Mother’s [unfounded] belief she would be unable to work cooperatively with the Father and would only facilitate a relationship between the Child and the Father if the relationship were to be conducted within the parameters of the Mother’s proposed contact regime: Exhibit A2; page 12. Ms S held the same view as Ms H and opined that it would be “problematic” for the Mother to support a relationship between the Child and the Father because of her belief that the Father is a paedophile engaged in grooming the Child: Exhibit A3; par 7.4.3.
21. Apart from the Mother’s belated conversion in the hours immediately preceding the Trial all evidence is that the Mother would not be willing or able to support the Child having a meaningful relationship with the Father because she believed that the Father was a paedophile engaged in grooming the Child. In circumstances where the Mother has known Ms H’s opinion for some nine or so months, (and known that Ms H’s opinion was supported by Ms S and the JIRT investigation) but had steadfastly refused to alter her position despite this knowledge, the Court would now be circumspect in accepting the Mother’s bland assertion that she gave up her “lens” sometime between 5.11pm on 2 February and 10.00am 4 February. That is the genuineness of the Mother’s abrupt and sudden conversion should be viewed with scepticism or at least the Court would be reticent in accepting the likely permanency of this change of heart. Without more the Mother’s last minute change of heart would not be sufficient for the Court to accept that she has discarded her entrenched view and is now willing and/or capable of supporting the Child having a meaningful relationship with the Father.
22. In contrast the Father has constantly maintained a stance of supporting the Child’s relationship with the Mother and has not at any time (despite the Mother’s outrageous allegations) descended into criticising the Mother or her family. In this regard the Father’s behaviour has been exemplary. The Father’s evidence on this point was not challenged. The Court would be satisfied that the Father would strongly support a meaningful relationship between the Child and the Mother if the Child were to live with him.
23. The evidence is that the Child has a strong relationship with both parents. Ms H opined that if the Child were to live with the Father and there was an adjustment period the Father would be competent to manage this change sensitively: Exhibit A2, pages 11-12. Ms H maintained her opinion under cross examination. It is submitted that in cross examination Mr Scales gave evidence supportive of the proposition that he would be child focused and sensitive to the Child’s needs during any transition period should the child live with him.
TIME WITH
24. The Father maintains that the Child should spend substantial time with the parent he does not live with (including that parent’s extended family) and that in all the circumstances, including the geographic distance between the parties, substantial time would best be achieved by the Child spending overnight time each alternate weekends with the parent he does not live with.
25. Should the Court determine that the Child live with the Mother the Father’s application is that the Child should spend time with him at his home in (omitted) so that the Child may also develop a relationship with his grandparents. This application is supported in principle by Ms H and but for the distance issue was not challenged by the Mother.
26. The geographic distance between the parties is a live issue, particularly considering the Child is four years old. The Mother lives in (omitted) and the Father lives in (omitted). The travel time between the two places is about 3 ½ hours each way.[49]
27. The distance issue needs to be weighed against the benefit of the Child spending significant and meaningful time with the Father and his extended family particularly given that the Child has been deprived of spending time with the Father and his family for much of his life. The Mother’s evidence is that the Child expresses significant disturbing behaviour that she to date has had difficulty managing. It has been suggested by Ms H that one possible explanation is the Child may be on the autism spectrum: Exhibit A2 page 13-14. Notably this possible explanation for the Child’s behaviours came about because the Father (despite having spent minimal time with the Child in the preceding months) observed that the Child exhibited repetitive behaviours and discussed them with Ms H (See Exhibit A2, page 13). The Mother on the other hand did not make any observations of similar ilk and, as previously discussed, obsessively viewed all of the Child’s behaviour through the lens of sexual abuse.
28. The ICL (and presumably also the Mother) proposes that the Child spend day only time with the Father during 2016 and then spend time with the Father once a month in 2017. This proposal is not consistent with the unchallenged expert evidence of Ms H. Ms H’s evidence was that the Child should “spend equal or significant and substantial time with Mr Scales and his family” and that the child “would cope with any overnight absences from his Mother or Ms Seddon’s extended family: Exhibit A2 pages 11 and 12.
29. In light of the Father’s strong bond with the Child; insightful observations of the Child’s behaviours; the Mother’s lack of insight and inability to view the Child’s behaviours outside of the lens of sexual abuse; should the Court decide that the Child not live with the Father the Court would reject the ICL’s (and Mother’s) proposal for time with the Father and order that the Child spend time with the Father at his home in (omitted) as proposed by the Father in his Amended Application.
[49] Per Google Maps.
Submissions on behalf of the Respondent Mother
The Respondent Mother’s Submissions were filed on 24th March 2016 and are set out in full as follows; unfortunately, some of them, for example par.11, do not seem to have taken into account the Mother’s change in position and concession or acknowledgement, given at trial, whereby she accepted Ms H’s latest Report that contained – again – that there was no risk to the child spending unsupervised time with the Father. That being so, in my view it was inappropriate to raise in submissions matters or restrictions on the Father’s time with the child in circumstances where the Mother’s evidence was that she no longer sought supervision of the child’s time with the Father. Further, I take the Mother’s concession at the hearing that the Father does not pose any relevant risk to the child (a) to be her acknowledgement and agreement for the Father to spend unsupervised time with X, and (b) that this concession was a sincere expression of her now firmly held view (some very small typographical errors have been corrected; emphasis in original):
The Applicable Law
1. In determining parenting matters under Part VII of the Family Law Act 1975 (hereafter referred to as 'the Act') the Court must regard the best interests of the child as the paramount consideration: s.60CA. The objects and principles of Part VII are set out at s.60B.
2. The Mother supports the ICL's proposed order that the parties have joint parental responsibility for the child. The Father also seeks that order, even if the child were to live with him.
3. If the Court makes such an order, then pursuant to s. 65DAA(l) the Court is required to consider certain things and in particular, whether spending equal time with each of the parents is reasonably practicable.
4. In this case, neither party seeks an order for equal time and it is submitted that such an order is not reasonably practicable given the geographical issues in this case.
5. Pursuant to s.65DAA(2), if the court does not make an order for the child to spend equal time with each of the parents the court must:
“(c) consider whether the child spending substantial and significant time with each of the parents would be in the best interests of the child; and
(d) consider whether the child spending substantial and significant time with each of the parents is reasonably practicable; and
(e) if it is, consider making an order to provide (or including a provision in the order) for the child to spend substantial and significant time with each of the parents."
6. In determining what orders are “reasonable [sic] practicable” the Court must have regard to the matters set out in s 65DAA (5).
7. The Mother now seeks the same orders as the ICL which limit the travel X will have to undertake as a direct consequence of his Father having moved to (omitted) and his refusal to return to live in the (omitted) area, even if that would mean he could spend more frequent time with X.
8. It is submitted that alternate weekend contact is not “reasonably practical” in this matter because:
a) It results in round trips for the child of 600km and 7 hrs per weekend visit to either parent;
b) The Mother does not have a car or the financial resources to fund such frequent travel;
c) The parties are unable to communicate at a level necessary to resolve any difficulties that may arise in implementing such frequent travel;
d) X is only 4 years of age and such frequent and long travel will be a significant burden on him and more particularly so when he starts school next year.
9. As s.65DAA refers to the best interests of the child the Court must then go back to consider s.60CC which specifies how the Court must determine what is in a child's best interests.
S 60CC Determining child's best interests
2(a) the benefit to the child of having a meaningful relationship with both of the child's parents
10. The child would benefit from having a meaningful relationship with both parents but the dilemma for the Court is how to achieve that when the Father has moved about 300 km from the child at a time when he has had no unsupervised time with the child since 24 August 2014 (when the child was about 30 months old) and the Father refuses to return to the area where the child is residing.
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
11. The Mother has filed a Notice of Risk and sets out in her affidavit a number of concerning incidents in relation to the conduct of the Father towards the child[50]; statements the Father has made about his being sexually abused in the past[51]; the Father's neglect of the child[52]; and the child's unusual behaviour.[53]
[50] Paras 29, 34, 35, 27, 28, 36, 39, 40 of the Mother's affidavit filed on 14 Jan 2016.
[51] Paras 30, 32 of the Mother's affidavit filed on 14 Jan 2016.
[52] Para 37 of the Mother's affidavit filed on 14 Jan 2016
[53] Paras 40, 42, 44, 45, Annexure A, 46 of the Mother's affidavit filed on 14 Jan 2016
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
12. The child has just turned 4 years of age, having been born on (omitted) 2012. His wishes would not carry any weight except to the extent that he is willing or unwilling to go to his Father at handovers.
3(b) the nature of the relationship of the child with the parents and other people
13. The parties separated in December 2013 when the child was less than 2 years old. He is closely bonded to his Mother who was his primary carer until separation 5 and has effectively been his sole carer to the exclusion of the Father since that time. The Mother's chronology attached to her case outline should be taken to be incorporated in these submissions. The history of the child's time spent with the Father is set out therein.[54]
[54] Paras 37, 38, 39, 40, 43, of the Mother's affidavit filed on 14 Jan 2016.
14. The child and Mother reside with the maternal Grandmother and step-Grandfather and there is no evidence to suggest that the child is not well settled in this household.
15. The Mother's evidence is that when the child does not spend time with the Father, the child is more settled.
16. The Father lives with his parents who have had limited involvement with the child. The applicant's Mother, Ms J’s evidence is to the effect that she and her husband have only seen the child on less than half a dozen occasions in the context of short supervised time.[55] She gives no evidence to suggest they had anything to do with the child before 25 October 2015.
[55] Para 15 of her affidavit filed on 14 Jan 2016.
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;
17. The Father admits he knows nothing about X's progress and uses the excuse that this is because he hardly sees him.[56] However his evidence was that he did not ask for any such information.
[56] Paras 23 and 27 of his affidavit filed on 14 Jan 2016.
(ii) to spend time with the child;
18. This is one of the more significant features of this case. The Father moved over 300km away from the child which has directly impacted on his ability to progress the time he spends with the child.
(iii) to communicate with the child
19. There is no evidence to suggest that the Father has tried to have any communication with the child other than via the contact centre.
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
20. The Father pays no child support for the child despite being in full-time employment. The Mother is totally dependent upon Centrelink benefits to provide for the child's financial needs.
3(d) the likely effect of any changes in the child's circumstances
21. Ms H did not observe the child to be closely bonded to the paternal Grandmother[57] and the paternal Grandfather did not present at the assessment interviews. Nor is he a witness.
[57] Page 8 of her report.
22. Ms H did however find the child had a strong and secure attachment to the Mother and maternal Grandmother with whom the child currently lives.
23. Ms H was of the view that the Father and his Mother “appear” to have the capacity to support X emotionally if he went to live with the Father.[58] However, Ms J has apparently only seen the child on a handful of occasions for 2 hrs at a time and the Father himself admits he had no experience in the care of the child.[59]
[58] Page 8 of her report.
[59] Para 27 of his affidavit filed on 14 Jan 2016.
24. It is submitted that the court would find that the Father lacks the insight and experience with X to be able to fully comprehend his emotional needs if X were to be removed from the Mother's household or to act appropriately to alleviate the child's distress. The Father words are not backed by any significant experience in caring for the child in the absence of the Mother.
25. It is submitted that putting X into the Father's household would be the equivalent of a social experiment to see if they can cope with his care and the trauma the child will suffer due to the loss of the family he is closely bonded to. The child is currently well settled in his current home with his extended family.
26. It is submitted that the Father's choice to move to (omitted) to gain his family's support at the expense of his relationship with his son speaks volumes about his capacity to put the welfare of his son first.
27. It is submitted that the Court will not be satisfied that at this stage, the Father has the capacity to care for his son for a whole weekend, let alone the rest of the child's life.
28. On the Father's case, the child will be travelling 1,200 km every 4 weeks from now onwards and that will not change when he attends school next year.
29. It is submitted that it is just too much to expect such a young child will be able to cope with not only the 7 hrs of travel each time but also the hectic weekend at the other parent's residence while also going to school all week. Such as change [sic] to the current arrangements can only adversely affect the welfare of the child.
30. The Father's submission that he and his parents have been “deprived of spending time with X for much of his life” should be rejected. The Mother did not move away from where the Father lived. His Mother does not explain her absence from the child's life until 25 October 2015.
3(e) the practical difficulty and expense of a child spending time with and communicating with a parent;
31. The child is 4 years of age and the trip for his to spend time with the other parent is now 600 km return.
32. The fact the Father fails to comprehend the impact of such travel on the child demonstrates his lack of insight into the needs of the child.
33. Neither party have the funds to cover the cost of frequent travel between (omitted) and (omitted). The Mother is unemployed; has no financial capacity to fund such travel and does not have a car. The Father has borrowed heavily to fund these proceedings and is dependent on his parents to keep him as he has no ability to pay for his living costs.
3(f) the capacity to provide for the needs of the child
34. The Mother has had sole responsibility to care for the child post separation without any assistance from the Father and the Court would have no concerns about her capacity to provide for the child.
35. The Father talks about putting the child into preschool but has not even thought to find out what that entails or what it costs.
36. The Court will have real concerns whether the Father's health is such that he can care for the child. The admissions by the Father that he has “blackouts” is concerning if he were to have the care of the child. The Mother's evidence is that he was medicated for depression during the relationship[60] and it is submitted that his moving to (omitted) because he needed the support of his family suggests some vulnerability on his part.
[60] Para 54 of her affidavit filed on 14 Jan 2016.
37. The Father pays no child support despite working full time. He attempted to demonstrate to the court his commitment to the child by his paying 100% of the cost of Ms S's report but he conceded that half of that was in lieu of his paying child support to the end of 2014. He has paid nothing else by way of child support and it is submitted that demonstrates he has no financial capacity to take on the full costs of caring for X on a full time basis.
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
38. Being 4 years old and having been only in the full time care of the Mother, the child will be particularly vulnerable to any significant changes in his living arrangements, whether it be change of residence or the significant travel proposed by the Father.
3(h) if the child is an Aboriginal child or a Torres Strait Islander child:
39. Not applicable
3(i) the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child's parents
40. This has been previously addressed.
3 (j) any family violence involving the child or a member of the child's family;
41. The Court will accept the evidence of the Mother as to the controlling behaviour of the Father towards her during the relationship and his physical and verbal abuse violence she experienced at his hands and his impatience with X.[61]
3 (k) if a family violence order applies
42. There is no family violence order
3(1) 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
43. It is submitted that making an order that the child live with the Father is likely to lead to further proceedings. Neither the Father nor his parents have ever had the sole care of the child and there is a significant difference between the child being happy in their company during the short, supervised time she had with them at Ms H's office and them taking her away permanently from her current living arrangements.
44. The Mother has been warned of the consequences for her and the child if she does not encourage the relationship between the Father and the child and facilitate the time X spends with his Father.
45. The orders proposed by the ICL and supported by the Mother will result in the Father being able to develop and maintaining a meaningful relationship with the Father.
[61] Paras 14-21 of her affidavit filed on 14 Jan 2016.
Submissions by the Independent Children’s Lawyer
The Written Submissions of the Independent Children’s Lawyer were filed with the Court on 26th April 2016; they are set out in full below (emphasis added; some minor typographical errors have been corrected):
1. These proceedings concern the parenting arrangements for the child X born (omitted) 2012. X is four (4) years old.
2. A final hearing in this matter was conducted over two days on 4 and 5 February 2016. At the conclusion of the proceedings both parents sought Orders, in summary, for X to live with them and spend time with the other parent on weekends and during school holiday periods. The Mother lives in (omitted) NSW and the Father moved post separation to the NSW (omitted). It is conceded by both parents that time will be limited as a consequence of the distance between their respective homes. The Father gave evidence that he would not move closer to the Mother's home.
3. Ms H prepared a report and addendum report and attended in person for cross examination. Ms H comments in the addendum report at page 7 “Overwhelmingly Mr Scales wants X to be happy and to have the opportunity to develop to his potential in a family who love him.” If the recorded desire of Mr Scales is accurate, it concords with the objectives of this Court in determining the respective applications of the parties with reference to the Act.
4. Both parents and their Mothers were cross examined. Somewhat controversially, the Mother changed her views regarding risk in the relationship between the Father and X following receipt of the addendum report. Under cross examination this change was predicated on an acceptance of the conclusions of Ms H and alternate explanations for X’s behaviour, in particular “It is my opinion that X should be referred for a paediatric assessment at The (omitted) Hospital in relation to his general physical development and to a qualified child psychologist with qualifications in the diagnosis of Autism Spectrum Disorders (ASD) and Trauma such as Dr D in the ACT. " (Addendum Report, Pages 13-14)
5. There was no compelling evidence advanced that the Mother was disingenuous in her concerns prior to resiling from them. As a consequence, the litigation and the arrangements between X and his Father have been fraught. The Father gave evidence as to the negative financial and emotional costs of these proceedings. Under cross examination he appeared keen for finality and demonstrated scepticism in relation to the Mother's 'change of heart' which was reasonable. However, the Father under cross examination, was not compelling is [sic: “in”] his explanation as to how he would comprehensively manage the change in living arrangements for X as proposed by him. His time with X prior to the trial had largely and most recently been limited to supervised time. He, despite his willingness to do so, did not have recent experience in managing the day to day care arrangements for X. On the basis of the Father's cross examination, the conclusion that the Father had the capacity to manage such a change as suggested by Ms H is rejected.
6. Both the Mother and the Father demonstrated some positivity and willingness to improve the communication between them which was non-existent at the time of the hearing. This willingness appeared genuine by both parties. Under cross-examination, both parents appeared to share the view that their communication had been compromised by the litigation. The benefit of either parents parenting proposal for X involves some speculation. On balance however, a punitive approach to the Mother by changing the living arrangements for X, would be punitive to X with reference to his age and attachments. Under cross examination, the Mother was firm in her basis for change in attitude (the addendum report) and her willingness to facilitate time between the Father and X in the future.
7. Both parents now seek Orders for equal shared Parental Responsibility pursuant to s61DA. Given the age of X, his possible health issues and the parties’ willingness to communicate about these issues as conceded under cross examination, there is no proper basis to disturb this presumption.
8. With reference to s65DAA, neither party seeks or has suggested that an equal time arrangement is reasonably practicable. The parties live a significant distance from each other which would limit the availability of mid-week time. Ms H, although optimistic about the benefit of regular time between the Father and X conceded some logistical issues.
9. The Father seeks in the alternative alternate weekend time with X. This is the arrangement ultimately proposed by the ICL with the location designed to limit the travel for X. As such travel has never been undertaken, the ability for X to cope with the trip to and from the (omitted) from (omitted) is unknown. There is however an ability to move the impost of significant travel from X to the Father. He owns prope1ty [sic] and has family close to (omitted). He deposed to a willingness by his employer to manage his work arrangements to meet the time with X and has demonstrated a willingness and ability to travel to (omitted) [Contact Centre] on an interim basis. The Father is in employment and the Mother is not.
10. Both parents advanced at trial a willingness to support a meaningful relationship and to move on from a co-parenting relationship of some dysfunction. With reference to s60CC(2)(a) X is reported by Ms H to be attached to both parents.
11. The evidence does not support the child being at risk in the Father's care and in need of protection with reference to s60CC(2)(b). That is conceded by the Mother. The risk of psychological abuse identified in the care of the Mother is mitigated by her changed position.
12. With reference to the additional considerations in s60CC:
a. S60CC(3)(a) X is “unable to express a view in relation to who he wishes to live with” (Addendum Report Page 7)
b. S60CC(3)(b) “X appears to have a strong and secure attachment to Ms Seddon and Ms A” and “is attached to Mr Scales.” (Addendum Report Page 8)
c. S60CC(3)(c) Both parents have sought to maximise their relationship with X.
d. S60CC (3) (ca) the Mother was critical of the financial support of the Father to which he had explanations relating to the costs of these proceedings. Any such issues should conclude with the conclusion of the litigation.
e. S60CC(3)(d) The ICL has filed a minute of Order. This proposes a more graduated approach than that proffered by Ms H. X has been having short periods of supervised time with his Father only. The position of the Mother is relatively new and the parties may benefit in the Mother having confidence in the transition to unsupervised time and then overnight time on a more graduated basis than advanced by Ms H under cross examination. The following conclusions of Ms H have been considered together in that regard:
i. In my observations of X he was not distressed when separated from Ms Seddon, or Ms A albeit for a short period of time and it seems likely that he would cope with separation from them during weekend contact visits including overnight absences from his Mother and Ms Seddon family. (Addendum Report Page 8);
ii. X’s level of anxiety would likely be directly proportional to Ms Seddon and her family's level of anxiety in relation to him spending regular and overnight time with Mr Scales and his family. (Addendum Report Page 8); and
iii. It is my view that Ms Seddon will find this difficult to support X emotionally in these circumstances which could make any changes more difficult for X in the short and long term. (Addendum Report Page 8).
f. S60CC(3)(e) the distance between the parties is not controversial. The Father has the capacity and demonstrated ability to spend some time with X near his home which would make the frequency as sought by him more achievable for X.
g. S60CC(3)(e) Ms H identified the Mother and Father as having relevant parenting capacity with the conclusion that the beliefs held previously by the Mother “appears the major barrier to Ms Seddon parenting capacity.” (Addendum Report Page 9) The Mother consents to the order for the referral for Counselling as suggested by Ms H.
h. It is submitted that s60CC (3) (g) and (h) have limited relevance to these proceedings.
i. S60CC(3)(i) both parents demonstrate a willingness to undertake the responsibilities of parenthood and the Father has pursued his relationship with X in the face of significant obstacles.
j. It is submitted that S60CC(3)G), (k) have limited relevance to these proceedings.
k. S60CC(3)(1) the Father has offered an alternate weekend time proposal as his alternate position. Presumably he would comply with such an arrangement. The Mother consents to the Orders sought by the ICL.
l. S60CC(3)(m) it is noted that X living with the Mother and spending time with the Father is the current arrangement.
Further Submissions on behalf of the Applicant Father
The Father then filed Further Submissions in Reply on 1st April 2016 (pursuant to Orders made on 25th February 2016), set out in full as follows:
1. The Mother asserts in paragraph 8 b) of her Submissions that she does not have the financial resources to fund travel so the Child may spend time with the Father at his home. This submission is repeated at paragraph 33. With respect there is no evidence that the Mother would not be able to contribute financially to such travel. This was not part of the Mother's case. The Mother's submission at paragraph 8 b) and 33 should be rejected.
2. The Mother asserts at paragraph 8 c) that the parties are unable to communicate “at a level necessary” to enable implementing travel arrangements. This was not part of the Mother's case and is contrary to the Mother's position in cross examination that she would be willing to encourage the relationship between the Child and Father. The Mother's submission at paragraph 8 c) should be rejected.
3. It appears Mother's position up to the first day of Trial that the Father was a risk to the Child has returned. At trial much was made of the Mother's belated 'conversion' to the view that the Father no longer posed a risk of harm to the Child. In cross examination the Mother went so far as to say that she would agree for the Child to spend unsupervised time with the Father immediately.
4. The Mother, at paragraph 11 of her Submissions, appears to have resiled from her recent conversion and again asserts that the Child needs protection from the Father and cites the Notice of Risk and her affidavit evidence in support. This abandoning of her position appears to be echoed and supported in paragraph 44 in which it is hinted that the Mother may not encourage a relationship between the Child and the Father. The Mother's submission at paragraph 11 should be rejected.
5. At paragraph 18 of her Submissions the Mother states that time spent with the Child is “one of the more significant features of this case." The Father agrees with this submission.
6. The Mother asserts that the Father's moving away from where the Child lives “has directly impacted on his ability to progress the time he spends with the child." This is not factually correct. Until the Trial the Father spent supervised time only with the Child because the Mother persisted in her (unfounded) allegation that the Father was a risk to the Child and only consented to the Father spending the supervised time with the Child after she was confronted with a contravention application.
7. The whole history of this case irrefutably shows that the Father has made all legal attempts possible to spend time with the Child and that the Mother has made every effort (both legal and otherwise) to thwart the Father's attempts. The Mother's submission at paragraph 18 should be rejected.
8. The Mother's submission at paragraph 19 should be rejected. The Child [sic – Father] only communicated with the Child through the contact centre because the Mother refused the Father to spend any other time or have any other communication with the Child.
9. The Mother, at paragraph 20, submits that ''The Father pays no child support for the child despite being in full-time employment." This submission is repeated at paragraph 37.
10. With respect the submission at paragraph 20 and 37 is not correct in fact. It was not part of the Mother’s case in her affidavit evidence, oral evidence, Case Outline or any submissions made by the Mother's Counsel during the course of the trial that the Father did not pay child support.
11. In cross examination of the Father it became apparent that there was an agreement between the parties that for a limited period only the Father did not pay child support as he was paying the whole of the cost of the Expert's Report. The Father's further oral evidence was that was paying child support.
12. Lest there be any further confusion on this point attached is the Father's CSA “Payment History" from 1 January 2015 to 31 March 2016. The Mother's submission at paragraphs 20 and 37 should be rejected.
13. Ms H's two reports and oral evidence all support the proposition that the Child was well bonded with the Father (despite the limited time they had spent together). Ms H's evidence was that she was of the opinion that the Father would be able to manage any difficulties should the Child be upset by living away from the Mother. It is respectfully submitted that the Father's answers on this issue during cross examination similarly showed that the Father was sensitive to the possible issues and had considered how he may address the Child's concerns.
14. In light of the way the Mother has conducted herself and her case, from the filing of the Initiating Application (12 December 2014).to the first day of the Trial (4 February 2016), and the Father's continual battle to spend any time with the Child the Mother's submission at paragraph 26 that the Father's decision to move to (omitted) to obtain support from his family “speaks volumes about his capacity to put the welfare of his son first" is offensive, demeaning and insulting. It is a submission that does not deserve a serious response except to suggest that an Officer of the Court should focus on attempting to assist the Court by making reasonable submissions based on the evidence.
15. The Mother submits, at paragraph 32, that the Father lacks insight into the Child's needs because he proposes that the Child travel to spend time with the parents. The Father's position, as explained in his cross examination, is based on his own experience in travelling to spend time with his Father when he was young. The Father appreciates more than most the difficulties associated with travel and young children. However the Father also appreciates the need to live in a supportive environment and for the Child to have a meaningful relationship with both parents.
16. The Mother submits, at paragraph 33, that the Father lacks the funds to pay for the travel costs. The Father's position was and remains that he has or will acquire sufficient funds to ensure the Child spends time with both of his parents. The Mother's submission should be rejected.
17. The Mother submits, at paragraph 43 that if an order is made for the Child to live with the Father such an order “is likely to lead to further proceedings." The Mother does not make clear the basis for this submission but if it is coupled with paragraph 44 one may infer that this is some sort of threat that the Mother may not comply with the Court's orders should it make an order for the Child to live with the Father. Given the Mother's history of not complying with the Court's orders this could be a possibility, however it would be most unusual to not make an order because of a threat that one party would not comply with such an order.
It should also be noted (as set out in his submissions) that annexed to the Father’s Reply Submissions was a Payment History to the Child Support Agency dated from 1 January 2015 to 31 March 2016.
Consideration & Disposition
A helpful jurisprudential touchstone to assist the Court to navigate the invariably delicate (and sometimes treacherous) legislative pathway is conveniently set out in Brown J’s judgment in Mazorski v Albright.[62] There her Honour helpfully set out what she termed “the twin pillars” of Part VII of the Family Law Act 1975 (“the Act”), namely, subject to any relevant statutory refinement, the children of a relationship should have, to the degree that it is in their best interests to do so, a meaningful relationship with both parents, and equally, the children of the relationship should be protected from any relevant risk or harm.
[62] Mazorski v Albright (2008) 37 Fam LR 518. Brown J’s decision has been cited with approval in a significant number of Full Court judgments, including McCall v Clark (2009) 41 Fam LR 483, Sigley v Evor (2011) 44 Fam LR 439, and Maluka v Maluka (2012) 45 Fam LR 129.
In detail, in Mazorski v Albright at [3] – [6], her Honour said:
[3] The provisions in the Family Law Act 1975 (the Act) relating to children rest on twin pillars. The first is the importance to children of having a meaningful relationship with both parents; the second is the need to protect children from physical and psychological harm. These are stressed in s.60B(1) which sets out the objects of the legislation relating to children and are reiterated as the primary considerations in s.60CC(1).
[4] When deciding what parenting orders to make it is the best interests of the children which are the paramount consideration. In determining where those best interests lie, the Court must consider the primary and additional considerations set out in s.60CC.
[5] There is a presumption that it is in a child’s best interests for his or her parents to have equal shared parental responsibility for him or her (s.61DA). The presumption relates to the allocation of parental responsibility, not the time a child spends with each parent. The presumption does not apply if there are reasonable grounds to believe that a parent has engaged in abuse of the child or family violence. The presumption may be rebutted if the Court finds that it would not be in the best interests of the child for it to apply.
[6] If the presumption applies, and there is an order for equal shared parental responsibility, the Court must consider whether spending equal time with each parent would be in the child’s best interests (s.65DAA(1)) and, if no such order is made, consider whether spending substantial and significant time with each would be in the child’s best interests (s.65DAA(2)).
Her Honour also made important observations about “meaningful” as that term is used in Part VII of the Act in the context of what is comprehended by a “meaningful relationship.” At [20] - [26], her Honour outlined a range of relevant considerations. I set them out below, and again respectfully (and gratefully) adopt Brown J’s observations, thus (emphasis added):
[20] The Family Law Amendment (Shared Parental Responsibility) Bill Revised Explanatory Memorandum (2006) refers to the concept of a meaningful relationship on a number of occasions. At para 52 it noted that the primary factors mirror the first two objects set out in the new s.60B and that the objects are elevated to primary considerations as they deal with important rights of children and encourage a child-focused approach. The paragraph continues:
The elevation of the object relating to the benefit to the child of having a meaningful relationship with both parents is consistent with the introduction of a presumption in favour of equal shared parental responsibility.
[21] Here, the concept of a meaningful relationship is closely tied with the introduction of the presumption of equal shared responsibility, and the passage links the concept of a meaningful relationship with the objects of the Division. The objects use the words “meaningful involvement”.
[22] At para 128, discussion of a meaningful relationship is again linked to discussion of the presumption of equal shared parental responsibility, the explanatory memorandum noting:
The government considers that it is important to ensure that a child has a meaningful relationship with both parents and that both parents participate in decisions about the child. The presumption of equal shared parental responsibility is not a presumption of 50:50 joint custody. The presumption relates solely to the decision making responsibilities of both parents. New section 65AA inserted by Item 31 is the provision dealing with the time a child spends with each parent and the circumstances where the Court should consider equal time arrangements.
[23] When considering s 65DAA, the explanatory memorandum states (at [196]–[199]):
[196] Subsection 65DAA(2) recognises that an equal time arrangement will not be appropriate in some cases but that the Court must consider other arrangements that promote a meaningful relationship. This provision places an obligation on the Court in situations where there is equal shared parental responsibility and equal time is not appropriate, to consider whether it would be in the best interests of the child and reasonably practicable for the child to spend substantial and significant time with both parents. This is intended to ensure that in making parenting orders related to time that the Court focuses not just on the substantial quantity of time that is spent with each parent, but also on the significant type of time. The note in this section emphasises that the best interests of the chid remain the paramount consideration for parenting orders. This is set out in s 60CA by item 9.
...
[199] Section 65DAA (2) – (4) is intended to ensure that the Courts consider arrangements that are much more than “1 weekend a fortnight and half of the holidays” or an 80:20 arrangement. It is intended to ensure a focus both on the amount of time and the type of time. It would include both day time contact and night time contact. It recognises that what is important is that the focus be on ways that both parents are able to develop a meaningful relationship with their children and share important events including everyday time with the child. It recognises that in order to have a meaningful relationship and to share equal shared responsibility that this would generally involve “both” parents spending both substantial and significant time with their children.
[24] The New Shorter Oxford English Dictionary on Historical Principles, Clarendon Press, Oxford, 1993, defines “meaningful” as “full of meaning or expression; significant; amenable to interpretation; having a recognisable function in a language or sign system; able to function as a term in such a system”. “Meaning” is defined as “having intention or purpose; chiefly with a qualifying adverb (as well-meaning)”. A second definition is “conveying or expressing meaning or thought; expressive, meaningful, significant; suggestive”. These definitions are repeated and further fleshed out in the Oxford English Dictionary, 2nd ed, Clarendon Press, Oxford, 1989. It defines “meaning” (in generalised use) as “significance”. The examples provided take the matter no further.
[25] The Macquarie Dictionary, 4th ed, Macquarie University Press, Sydney, 2005, defines meaningful as “full of meaning; significant”. Within the definitions of meaning, the relevant one defines the word as “expressive or significant: a meaning look”.
[26] What these definitions convey is that “meaningful”, when used in the context of “meaningful relationship”, is synonymous with “significant” which, in turn, is generally used as a synonym for “important” or “of consequence”. I proceed on the basis that when considering the primary considerations and the application of the object and principles, a meaningful relationship or a meaningful involvement is one which is important, significant and valuable to the child. It is a qualitative adjective, not a strictly quantitive [sic] one. Quantitive [sic] concepts may be addressed as part of the process of considering the consequences of the application of the presumption of equally shared parental responsibility and the requirement for time with children to be, where possible and in their best interests, substantial and significant.
Leaving to one side for the moment the sometimes regarded as thorny if not artful legislative scaffold in Part VII of the Act, the critical and determinative issues for my part hinge around four aspects of the evidence. The first two of them are undisputed, namely: (a) the Father’s lack of parenting experience (other than as assisted by his family), and (b) the immense physical distance between the residences of each of the parents. A third issue of significance, which is not conceded but which, in my view, is related to his lack of parenting experience, is the Father’s lack of insight into the likely negative impact on X in removing him from his Mother’s primary care. A fourth dimension of significance is the Mother’s relatively recent “conversion” (this term is used by the Father’s Counsel in his submissions) to accepting the view of two experts that the Father poses no relevant risk to the care of the child. Related to this is how certain the Court can be regarding the Mother’s change of heart and her consequent facilitation of the child’s nonetheless still good relationship with his Father. These matters individually, and certainly collectively, in my view point clearly to Orders being made as proposed by the ICL, which are now also supported by the Mother.
In addition to the Court accepting and adopting as its own the submissions of the ICL, I note very briefly the following matters by reference to the said “legislative scaffold” (or pathway). Without necessarily referring directly to each of the considerations, I should be taken to follow, in order, the prescribed list of “considerations” in s.60CC(3). What follows should be taken to be formal “findings”, being the Court’s assessment of all the evidence.
Given the age of the child, there are no “views” to consider.
There is a good and close relationship between the child and both parents. That said, the Mother has been, and currently remains, the child’s primary carer; I also record (not for the first time) that the Father has had very limited parenting experience, and in more recent times, such experience has been very much founded upon and supported by his family.
The issues of parenting experience relate also to questions of the parents participating in decision-making in relation to the child’s major long term issues, spending time and communicating with the child. As well, this consideration must also be considered in the light of the Mother’s high level of anxiety in relation to X spending unsupervised time with his Father, although this view has been tempered somewhat, albeit quite recently.
Leaving aside questions of child support raised by the Mother against the Father, I do not understand there to be any challenge to the Mother having properly maintained the child over the years, or that, to the limited degree the Father has been spending time with X (aided by his family) that there have been any deficiencies in this regard.
If there was to be a change in residence from the Mother’s primary care, it is certain, as Ms H attested, that there would be some anxiety on X’s part. Indeed, given that X has been in the Mother’s primary care all his life, in my view, there would likely be a very significant impact, certainly in the short to medium term, on X. In my view, this would be magnified in view of the Father’s limited parenting experience, even with the aid of his family, and by the limited contact (supervised) which the Father has recently had with his son.
The practical issues (including expense – e.g. the cost of petrol) have been noted earlier in these reasons. In particular, the Father living (omitted) and the Mother in (omitted) places very significant logistical issues on the “spend time with” arrangements, irrespective of with whom X were to live. This is emphasised by the fact that the Mother does not currently have a working vehicle, and as such, the Father will be undertaking the majority of the travel.
It is significant and hopefully over time useful that the Father has both a rental property close to the Mother’s residence, as well as family in the same general region. These are factors that can and should assist in the “time with” arrangements generally because the adverse impact on the child of travel is, in my view, very significant. I do not consider it to be particularly relevant, however in my view, the Father’s evidence regarding the amount of travel he did as a child, but when he was significantly older than X currently is, is not relevantly comparable. Such evidence did not advance matters much at all.
The issues of (i) the respective capacities of the parents (s.60CC(3)(f)), and (ii) their attitudes towards parenting (s.60CC(3)(i)), have been relevantly canvassed particularly in the evidence of Ms H. It is unnecessary to repeat my concerns about the limitations regarding the Father’s parenting experience. It was plain on all the evidence for the reasons already given. Suffice to say that the Father has never cared for the child overnight, or spent more than a few hours of unsupervised time with him since separation. Also in short, the Mother’s capacities are also somewhat limited, primarily in her insight into what the Father can offer to X and that he does not pose any risk to him; further, she is regularly aided and generally supported by the constant and/or regular presence of her Mother.
Issues relating to the age and maturity of the child have previously been noted. It is unnecessary to repeat them.
There are no issues of family violence to consider. The Court notes again however the somewhat limited trust that the parties have towards each other. They nonetheless clearly love X and will do, within their respective capacities, whatever can be done in his best interests.
It should also be clearly stated, particularly in the light of the Mother’s evidence that, given that there are now three Reports by two experts regarding the issue of “risk” in relation to the Father and X, it is imperative that both parents make the Orders of the Court work. The Orders are in X’s best interests. Any past fears or distrust cannot, and must not, be used to undermine the operation of the Orders. To do so would potentially risk the Orders being re-visited, with potentially adverse consequences for any offending party.
The Orders I propose are, in my view, the least likely to lead to further litigation, accepting that this is a discretionary judgment. The Orders, I note, contain a requirement for the Mother to undertake counselling to assist her as indicated by Ms H.
A couple of final comments.
First, the issue of the Father’s “blackouts” was considered in the course of cross-examination but did not feature all that prominently in submissions. The Father’s evidence was that, among other things, stress (like many things) does not assist his condition. In circumstances where the child will continue to reside primarily with his Mother and spend regular but still limited time with his Father, the Court may reasonably assume that any possible risk arising from the Father having a “blackout” when X is with him will thereby be reduced. One might also reasonably expect (and of course hope) that once the dust and din of litigation dies down that this particular “stressor”, for both parties, dissipates. Moreover, if the Father’s “blackout” condition persists, given the history of the matter and the Father living with his parents, the Court can be reasonably confident that the Father will seek out (a) relevant medical assistance, and or (b) the [further] support of his family as required. To this end, there will be an Order to provide for the parents to advise each other of any medical issue that impacts (or is likely to do so) on their capacity to care properly for X.
Secondly, I have already mentioned that it is clear that both parents love and care for X very much. Again, once the stress of the litigation goes away, the Court may reasonably expect that both parties may be able to co-parent in a more effective and co-operative way, as well as attending to their own personal needs, such as the Mother attending to counselling as recommended by Ms H.
Thirdly, for my part, I did not take any necessarily adverse view of the Father moving to the (omitted) to live with his parents. He saw that he needed support; he secured it with his family. Nothing more should be drawn from this move, accepting that it has caused the logistical issues to which I have referred.
Finally, the potential diagnosis of autism for X is a significant consideration. Subject to the detail of it and any treatment or therapy, the Court may take judicial notice of the need for stability and routine for children with autism. This being so, such a diagnosis, or even the potential for it, added to the Court placing even greater emphasis on the need for X to remain with his primary carer, his Mother. Related to this aspect is the risk to X of being separated for extended periods from his Mother. And for similar reasons, significant sensitivity to the travel demands on him is very important.
To state the obvious: especially, but not only, if X is diagnosed with any medical condition (including autism), it is imperative that both parents attend any and all medical appointments.
In my view, the Orders proposed by the ICL, supported by the Mother, are in the best interests of the child. Certainly, both parents need to continue to grow in their experience as parents. X plainly needs both of his parents. And as I have said, the Mother needs to continue with whatever assistance she requires to continue to learn to trust the Father and his capacities to care for X.
I certify that the preceding one hundred and one (101) paragraphs are a true copy of the reasons for judgment of Judge Neville
Date: 11 November 2016
Key Legal Topics
Areas of Law
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Family Law
Legal Concepts
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Procedural Fairness
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Injunction
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Remedies
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