SCHIEFFER & SCHIEFFER

[2013] FamCA 168

FAMILY COURT OF AUSTRALIA

SCHIEFFER & SCHIEFFER [2013] FamCA 168

FAMILY LAW – CHILDREN – Living arrangements – where the child lives with the mother – where it was reasonably practicable and in the child’s best interest to spend substantial and significant time with the father – where the child has meaningful relationships with both parents – where there was no risk of harm to the child in the care of either parent – where the child was autistic – where the mother had been the child’s primary carer – where the mother was best able to look after the child’s emotional and physical needs – where the father had failed to promote the child’s relationship with the mother after retaining the child in his care – where the father retained the child in his care in the belief the mother’s partner had sexually abused the child, but the mother was no longer in a relationship with that person

FAMILY LAW – PARENTAL RESPONSIBILITY – Allocation of equal shared parental responsibility – where the presumption of equal shared parental responsibility applied – where the parties, Independent Children’s Lawyer and family consultant all proposed equal shared parental responsibility

FAMILY LAW – PARENTAL RESPONSIBILITY – dispute over the child being educated in a mainstream class or a special needs class – where the parties resolved to determine the issue as an incident of their equal shared parental responsibility

FAMILY LAW - ORDERS – inconsistency of parenting orders with existing family violence order made by State court

Crimes (Domestic and Personal Violence) Act 2007 (NSW) ss 5, 16, 36, 38, and 42
Family Law Act 1975 (Cth) ss 61DA, 62B, 65DA and 68P

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

APPLICANT: Ms Schieffer

RESPONDENT: Mr Schieffer

INDEPENDENT CHILDREN’S LAWYER: Legal Aid NSW

FILE NUMBER: NCC 2070 of 2011

DATE DELIVERED: 20 March 2013

PLACE DELIVERED: Newcastle

PLACE HEARD: Newcastle

JUDGMENT OF: Austin J

HEARING DATE: 4, 5 & 6 March 2013

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr D Murray

SOLICITOR FOR THE APPLICANT: The Family Law Centre

COUNSEL FOR THE RESPONDENT: Mr M Graham

SOLICITOR FOR THE RESPONDENT: Hunter Family Law Centre Pty Ltd

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: Not Applicable

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Ms O’Rourke, Legal Aid NSW

Orders

1. All former orders relating to the child, B born … December 2005, (“the child”) are discharged.

2. The parties shall have equal shared parental responsibility for the child.

3. The child shall live with the mother.

4. The parties shall take all reasonable steps to ensure that the child spends time with the father as follows, or as otherwise agreed:

   (a)During New South Wales public school terms, each alternate weekend from the conclusion of school on Friday until 5.00 pm Sunday, commencing on the first Friday of each term;

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

   (c)During the New South Wales Christmas school holidays, for the first half of such holidays in the years when the holidays commence in an odd numbered year, and the second half of such holidays in the years when the holidays commence in an even numbered year.

5. Order 4 hereof is suspended during the following periods:

   (a)From 3.00 pm on Christmas Eve until 3.00 pm on Boxing Day each year, during which period the child will spend time with the mother from 3.00 pm on Christmas Eve until 3.00 pm on Christmas Day, and with the father from 3.00 pm on Christmas Day until 3.00 pm on Boxing Day in odd numbered years, with the same arrangements in reverse in even numbered years; and

   (b)From 5.00 pm Saturday until 5.00 pm Sunday on each Mother’s Day and Father’s Day weekends, during which periods the child shall live with the mother on Mother’s Day weekends and spend time with the father on Father’s Day weekends.

6. For the purposes of implementation of Order 4 hereof, the New South Wales public school holidays are deemed to commence at the conclusion of school on the last day of school term, the holidays are deemed to end at 5.00 pm on the last day preceding the day upon which the child is due to return to school, and the mid point is the day halfway between those first and last days.

7. For the purposes of implementing Orders 4 and 5 hereof, the party with whom the child is to live or spend time shall collect the child:

   (a)From school, whenever such time is to commence following the conclusion of school during school term, or

   (b)From the other party at the IGA supermarket at C Town, NSW at all other times.

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

   (a)The father each Tuesday and Thursday when the child is living with the mother, between 4.00 pm and 4.30 pm, and for that purpose the father shall telephone the child on the telephone number provided to him by the mother, and the mother shall ensure that the child is are able to receive the father’s calls on that number at that time;

   (b)The mother each Tuesday and Thursday when the child is spending time with the father, between 4.00 pm and 4.30 pm, and for that purpose the mother shall telephone the child on the telephone number provided to her by the father, and the father shall ensure that the child is able to receive the mother’s calls on that number at that time; and

   (c)The parent with whom the child is not then staying, on the child’s birthdays, between 4.00 pm and 4.30 pm, and for that purpose the parent with whom the child is not staying shall telephone the child on the telephone number provided by the other parent for that purpose, and the parent with whom the child is staying shall ensure that the child is able to receive the other parent’s calls on that number at that time.

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

10. Each party is restrained from discussing with the child, in his presence, or within his hearing, the allegations of his sexual assault by Mr D.

11. Each party is restrained from permitting the child to refer to any person other than the biological parents by use of the terms “Mum” and “Dad” respectively.

12. Each party, in so far as it is respectively known to them, shall keep the other informed of all educational, sporting, cultural, and extra-curricular events in which the child is to participate.

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

14. The parties shall forthwith enrol themselves to commence, and thereafter participate in and complete a post-separation parenting program, subject to the approval of that program by the family consultant.

15. By reason of an inconsistency between some of these Orders and an existing Apprehended Violence Order, pursuant to s 68P(3) of the Family Law Act, the Registrar of the registry of the Family Court of Australia at Newcastle shall send a sealed copy of these Orders to:

    (a)       The Registrar of the Local Court of NSW at Newcastle;

    (b)       The Commissioner of the NSW Police Service; and

    (c)The Director General of the NSW Department of Family and Community Services.

16. Pursuant to s 65DA(2) and s 62B of the Family Law Act, particulars of the obligations that these orders create, particulars of the consequences that may follow contravention of these orders, and details of assistance to comply with these orders are set out in the attached Fact Sheet, which forms part of these orders.

17. The Independent Children’s Lawyer is discharged upon the expiration of any applicable appeal period.

18. Any and all outstanding applications are dismissed.

Notation

(A)Orders 2, 4, 5, 7, 12 and 13 hereof are inconsistent with paragraph 5 of the Apprehended Violence Order made against the mother in favour of Ms E by the Local Court of NSW at Newcastle on 18 September 2012 because the mother and father (who is also a “protected person” under the order, since he is in a domestic relationship with Ms E) need to interact with one another over arrangements for the child. Division 11 of Part VII of the Family Law Act therefore applies and those parenting orders prevail to the extent of any inconsistency.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Schieffer & Schieffer has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

FAMILY COURT OF AUSTRALIA AT NEWCASTLE

FILE NUMBER: NCC 2070 of 2011

Ms Schieffer

Applicant

And

Mr Schieffer

Respondent

And

Independent Children’s Lawyer

REASONS FOR JUDGMENT

Introduction

1. The applicant mother and respondent father were perfectly happy with the arrangements they consensually made for the care of their youngest child until June 2012, when the father formed the belief that the child had been sexually abused by the mother’s partner. As a consequence of that belief the father detained the child and the mother commenced these proceedings.

2. The mother refuted the allegation that her partner had sexually abused the child, but their relationship disintegrated under the stress of the litigation and will not likely rekindle. The mother even acceded to an order precluding any future contact between the child and her former partner.

3. The father was dissatisfied with the banishment of the mother’s former partner from the child’s life, even though that would eliminate any risk of the child being sexually abused. The father instead contended that the mother’s deteriorated emotional state constituted a further risk of harm to the child and militated against the child’s return to live with the mother.

4. The conflict between the parties over the child’s primary residence was intractable, although curiously, they each proposed that they have equal shared parental responsibility for the child.

Background

1. The child who is the subject of these proceedings was born in 2005 and is now seven years of age.

2. The parties have two older children, born in 1991 and 1993, but they are now adults and not the subject of these proceedings. One of those sons now lives with the mother and the other with the father.[1]

   [1] Father’s affidavit, paras 9, 17; Mother’s affidavit, paras 33, 36; Family Report, para 11

3. There was some conjecture about the date of the parties’ final separation, but it is unnecessary to make any finding on the issue since the history after that point is relatively uncontroversial.

4. Following separation the child continued to live primarily with the mother and spend time regularly with the father.[2] That arrangement was consensual and informal.

   [2] Father’s affidavit, paras 11-13; Family Report, para 4

5. In June 2011 the father began cohabitation with Ms E, whom he has since recently married. Their household included Ms E’s two young children.[3] The formation of that relationship had no effect upon the child continuing to spend substantial and significant time with the father, even though the mother and child relocated their residence some distance further from the father at about the same time.[4]

   [3] Father’s affidavit, paras 14-16; Family Report, para 6

   [4] Father’s affidavit, paras 18, 22; Family Report, para 7

6. In November 2011 the parties entered into a written parenting agreement about the child, which provided for him to live with the mother and spend time with the father every weekend and for half of school holiday periods.[5] That agreement reflected the standing arrangements for the child.

   [5] Mother’s affidavit, paras 8-9, Annexure A; Family Report, para 8

7. In December 2011 the mother formed an intimate relationship with Mr D, although they had known one another for some time beforehand.[6] Mr D lived with the mother and the child from that point, which did not disturb the harmonious operation of the parties’ parenting agreement until June 2012.

   [6] Mother’s affidavit, para 22 (page 7); Family Report, para 9

8. On a weekend in mid-June 2012, while visiting the father, the child made a series of statements to the father which led the father to believe the child had been sexually abused by Mr D.[7] The father sent a series of text messages to the mother over the course of the next few days,[8] which the mother did not receive until the following Monday.[9] Upon receipt of those messages the mother was on notice that the father alleged Mr D had sexually abused the child and that he intended detaining the child indefinitely.

   [7] Father’s affidavit, paras 87-102

   [8] Father’s affidavit, paras 88, 106, 107

   [9] Mother’s affidavit, para 43

9. The mother was understandably distressed by such developments and immediately consulted a lawyer. Within a day documents had been prepared for filing in this Court seeking urgent parenting orders to restore the status quo, but the mother was unable to file those documents until later in the week.[10]

   [10] Mother’s affidavit, paras 44-47

10. The documents were personally filed by the mother on 22 June 2012. Coincidentally, the mother encountered the child in the company of Ms E in the vicinity of the Court complex and attempted to forcibly recover the child from her. An altercation ensued but Ms E retained the child.[11] The mother was later charged with and convicted of assaulting Ms E on that occasion.[12] Although the mother and Ms E offer remarkably different descriptions of the event, the unimpeachable factual basis for the mother’s conviction and sentence would be manifest from the statement of facts tendered to the NSW Local Court at the time of the mother’s sentence hearing, which occurred many months ago. That document was not tendered into evidence in these proceedings and neither witness was usefully cross-examined on the issue, so I decline to speculate upon the disparate versions. All that can reasonably be said about the severity of the incident is that the conviction sounded in the mother being “placed on a 2 year good behaviour bond”.[13]

    [11] Mother’s affidavit, paras 47-59, 67-69; Affidavit of Ms E, paras 44-54, 58

    [12] Mother’s affidavit, para 70; Family Report, para 14

    [13] Affidavit of Ms E, para 56; Family Report, para 14

11. The father, or at least Ms E on his behalf, notified the NSW Department of Family and Community Services (“the Department”) of their concerns about the child’s sexual abuse by Mr D.[14] The Department quickly assessed the child was not at risk of harm through sexual abuse, finding:[15]

    …the narrative does not indicate that [the child] has been sexually abused…[The mother’s] explanation of events is plausible… Triage caseworker to contact both parents to advise no further action to be taken…This matter is then to be closed…

    [14] Father’s affidavit, paras 98-99

    [15] Exhibit ICL4

12. Notwithstanding that determination by the Department, the father did not abandon his belief about the child’s sexual abuse by Mr D and the child remained resident with him and did not spend time with the mother.

13. The parties’ pending parenting dispute was determined on an interim basis on 7 September 2012 when orders were made for the child to remain living with the father, but to spend time with the mother on one day each week under the supervision of one maternal grandparent. The mother was also restrained from allowing the child to interact with Mr D, even though her relationship with Mr D had ended months before.[16]

    [16] Mother’s affidavit, paras 23 (page 7), 29-31, 83

14. The parenting arrangement created by the orders made in September 2012 was successfully implemented until it was consensually amended by further orders on 2 November 2012, which provided for the child to spend each alternate weekend with the mother in lieu of one day each week, subject to the same conditions concerning supervision and the exclusion of Mr D. Similarly, the amended regime has been successfully implemented ever since.

Proposal and evidence of the mother

1. The mother pressed for the orders set out within her Amended Initiating Application filed on 20 September 2012, which generally provided for the child to live with her and spend time with the father on alternate weekends, during school holiday periods, and on other special days.

2. In support of her proposal the mother relied upon her affidavit filed on 31 January 2013 and the affidavit of the maternal grandmother filed on 25 January 2013.

Proposal and evidence of the father

1. The father pressed for the orders set out within his Amended Response filed on 14 December 2012, which generally provided for the child to live with him and spend time with the mother.

2. On the father’s proposal, the amount of time spent by the child with the mother and whether it was the subject of supervision was dependent upon findings made by the Court about the existence of any risk of harm to the child while in the care of the mother. In the event of their being no risk of harm, the father was content for the child to spend alternate weekends, parts of school holidays, and other special days with the mother.

3. In support of his proposal the father relied upon his affidavit filed on 21 January 2013 and the affidavit of Ms E filed on the same date.

Proposal of the independent children’s lawyer

1. The Independent Children’s Lawyer perceived that there were advantages and disadvantages of the child living with either party and therefore declined to advocate for any particular outcome. However, the Independent Children’s Lawyer’s provisional view was that the child should live with the mother rather than the father.[17]

   [17] Exhibit ICL5, Order 2

2. In the event the Court concluded the child should live with the father, the Independent Children’s Lawyer contended the orders proposed by him could simply apply as drafted, but in reverse.

Applicable legal principles

1. Orders in respect of children are regulated under Part VII of the Family Law Act (“the Act”). The Act defines the meaning of a “parenting order” (s 64B).

2. When called upon to make a parenting order, the Court is enjoined to bear in mind both the objects of the legislation and the principles which underpin those objects (s 60B) in determining the nature of the parenting orders which ought properly be made (s 65D).

3. When making parenting orders the Court is mandated to regard the child’s best interests as the paramount consideration (ss 60CA, 65AA). The Act specifies with precision the criteria which the Court must contemplate in arriving at a conclusion as to what is in the best interests of the child (s 60CC).

4. The Court is required to apply a rebuttable presumption that it is in the best interests of a child for the child’s parents to be allocated equal shared parental responsibility for the child (s 61DA). Parental responsibility is defined to encompass all duties, powers, responsibilities and authority conferred by law upon parents (s 61B). The legislation dictates the manner in which shared parental responsibility is to be exercised in respect of decisions relating to major long-term issues concerning the child (s 65DAC), being matters such as education, religion, culture, health, name, and changed living arrangements (s 4), and also in respect of decisions which do not relate to such major long-term issues (s 65DAE).

5. However, the presumption of equal shared parental responsibility does not apply in certain circumstances, including in instances of child abuse and family violence (s 61DA(2)), and the presumption may be rebutted if the Court is satisfied that it would not be in the best interests of the child for the parents to have equal shared parental responsibility for the child (s 61DA(4)). The presumption applies to the allocation of parental responsibility and not to the amount of time the child should spend with each parent.

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

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

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

Best interests of the child

Primary considerations (s 60CC(2))

1. It was uncontroversial that the child enjoyed a meaningful relationship with both parents from which he does, and will continue to, derive benefit. Whatever parenting orders are made, they must ensure the retention and promotion of the child’s relationships with both parties.

2. The contentious issue, which ruptured the parties’ harmonious relations and was the genesis of these proceedings, was the alleged sexual abuse of the child by Mr D. However, that issue dissipated at a relatively early stage of the proceedings. The mother asserted her relationship with Mr D was terminated and would not be revived. In demonstration of her bona fides, the mother was prepared to consent to the Court making an injunction permanently restraining her from allowing the child to be brought into contact with Mr D, even though she saw no need for it.

3. In the face of such a concession, the parties and Independent Children’s Lawyer each ultimately acknowledged it was unnecessary to embark upon an exhaustive analysis of the evidence to determine either whether Mr D had sexually abused the child or whether he posed an unacceptable risk of such abuse to the child. That is because the permanent removal of Mr D from the child’s life necessarily means that any risk of his sexual abuse, if it ever existed, is certainly extinguished.

4. The father was guarded about acceptance of the mother’s assertions that her relationship with Mr D was terminated and was beyond revival. In fact, he and Ms E both went so far as to say they disbelieved the mother and could not be convinced otherwise. However, their reasons for holding that belief do not withstand logical scrutiny.

5. The father and Ms E believed the child was brought into contact with Mr D at a maternal relative’s home in December 2012, contrary to the existing interim injunction.[18] Their belief was based entirely upon representations made to them by the child, but it is known that the child’s representations about that event were, at least in part, false. The father acknowledged that there were no police records to corroborate the child in circumstances where such records must exist if the child’s report about police involvement was truthful.

   [18] Father’s affidavit, para 153; Affidavit of Ms E, para 79

6. The father and Ms E also relied upon the mother’s evidence in her affidavit sworn in September 2012 to the effect that she expected to resume her relationship with Mr D “once this nightmare [of the litigation] was over”. Such evidence was omitted from her current affidavit and it was suggested the omission was a deliberate attempt to mislead the Court over the nature of their continuing relationship. Suffice to say, such a suggestion is merely speculation rather than a valid inference.

7. The mother was resolute that her relationship with Mr D was over and would not be revived. Her evidence under cross-examination was generally consistent with her comments to the Family Consultant[19] and the evidence contained in her affidavit.[20] The father seems to have overlooked that the omission from the mother’s recent affidavit of evidence about the probability, or even possibility, of the revival of her relationship with Mr D may have been deliberate because her attitude has changed since her last affidavit was sworn in September 2012 and her current evidence is both truthful and accurate.

   [19] Family Report, paras 32, 67

   [20] Mother’s affidavit, paras 24.5, 23 (page 7), 29, 30, 83

8. Ms E additionally mentioned in cross-examination that she was aware the mother continued to communicate over the internet via Facebook with the fiancé of Mr D’s brother. Such evidence could never be a foundation for any finding other than that the mother communicates with that female. To assume that the mother therefore maintains her personal relationship with Mr D, or will resume her relationship with him, is histrionic and indicative of the distrust that has invaded the relationship between the mother and father.

9. Notwithstanding their lingering suspicion, the injunction will cure any problem. In the knowledge that an enforceable injunction will preclude any future association between the child and Mr D, it is impossible to contend that the child remains at risk of sexual abuse.

10. No other evidence or submission was directed to the need to protect the child from any physical or psychological harm through subjection or exposure to abuse, family violence, or neglect.

Additional considerations (s 60CC(3))

1. Once the spectre of the risk of the child’s sexual abuse was eradicated, the complexion of the proceedings changed. The parties each asserted they presented a superior residential option for the child, albeit for different reasons relating to their respective parenting capacity.

2. The father contended he remained concerned principally about the mother’s emotional stability, and to a lesser extent, about her use of cannabis.

3. The mother’s contentions were more nebulous, but may be distilled to her proven record of primary care for the child, her greater availability to care for the child, and her concerns about the father’s willingness to promote the child’s relationship with her.

4. Since they were the real issues which emerged at trial it is convenient to deal with each of them individually.

Cannabis use

1. Both parties admitted they formerly used cannabis.

2. The father said he ceased using cannabis and other illicit drugs in September 2007.[21] He adduced in evidence negative drug screens undertaken by him in July 2012[22] and March 2013.[23] I accept his evidence. Given the father was able to cease his use of cannabis voluntarily and without assistance, it is puzzling why he doubted the mother was capable of the same rehabilitation.

   [21] Father’s affidavit, para 37

   [22] Father’s affidavit, para 39, Annexure A

   [23] Exhibit F1

3. The mother admitted she continued to use cannabis until June 2012 and the father did not adduce any evidence of her use of cannabis after that time.[24] Like the father, the mother has proven her abstinence since then by providing negative drug screens in August 2012,[25] November 2012,[26] and February 2013.[27] The mother undertook those tests of her own volition as no request was made of her to do so by the Independent Children’s Lawyer in accordance with interim orders.[28] Her asserted abstinence is consistent with the history she provided privately to her psychologist in July 2012.[29]

   [24] Father’s affidavit, paras 28-33

   [25] Exhibit ICL1

   [26] Mother’s affidavit, para 38

   [27] Exhibit M3

   [28] Order 1.3 made on 16 November 2012

   [29] Exhibit ICL3

4. The father was impelled to concede the evidence did not support his concerns about impairment of the mother’s parenting capacity due to her continuing cannabis use. He conceded the mother had been an “effective and good” mother in the past, even when she was using cannabis, and the evidence now demonstrated that she was no longer using cannabis. He also conceded the mother was currently an “effective, loving and capable parent”.

Mother’s emotional stability

1. Having regard to the father’s last mentioned concession in cross-examination, his principal assertion that the mother’s parenting capacity is impinged by her emotional instability seemed somewhat of a paradox.

2. The father’s concerns about the mother were said to spring from her assault of Ms E in June 2012 several days after he detained the child, the mother’s cessation of counselling in September 2012, the mother’s breach of an apprehended violence order in December 2012, and her continuing use of anti-depressant medication.

3. The mother assaulted Ms E in the vicinity of the Court complex on 22 June 2012 in circumstances already described. The child had been detained by the father only days before and the mother was then aware that the father refused to let the child spend time with her. Since the child had always lived with her, she was understandably distressed by the turn of events in preceding days. The mother’s assault upon Ms E was unjustifiable, but the circumstances were mitigating. Stress can cause a person to act aberrantly. As the Family Consultant acknowledged, spontaneous violent conduct in moments of stress, as was the mother’s assault of Ms E, is less serious than premeditated violence.  

4. The mother convincingly expressed remorse for her assault of Ms E to the Family Consultant,[30] in her affidavit,[31] and during cross-examination. She also demonstrated an understanding of the extent of her emotional turmoil because she sought out counselling from a psychologist, on referral from her general practitioner, to assist her in dealing with the stress. The mother attended five sessions with the psychologist, but did not return after September 2012.[32]

   [30] Family Report, para 68

   [31] Mother’s affidavit, paras 58-59, 67.6, 71

   [32] Exhibit F3

5. The father was apparently concerned the mother unilaterally terminated her therapy when her condition may have required much more, which the Family Consultant agreed would be a “significant concern”, but the mother’s apparent failure to avail of therapy after September 2012 needs to be considered in context. The mother’s psychologist earlier reported back to her general practitioner in July 2012, explaining that her emotional disturbance was directly attributable to the father’s detention of the child, and while the mother had reported “passive suicidal ideation” in the preceding two weeks, she said she would “never” act on those thoughts, she had “no suicidal plan or intent”, she had “good support from family, friends and partner”, and her progress would be reviewed “over the next several sessions”.[33]

   [33] Exhibit ICL3

6. The mother attended those “next several sessions”. Although the evidence warrants an inference that the mother’s psychologist expected to conduct at least one more session with the mother in September 2012, which did not occur because of the mother’s need to attend a conflicting legal appointment, it is a leap to imply that her current emotional state six months later in March 2013 remains so compromised that she is incapable of attending to the child’s needs.

7. Self-evidently, the mother did not act on any “passive suicidal ideation”. She presented to the Family Consultant in October 2012 as a capable parent, though anxious about the outcome of the proceedings, and she presented calmly at trial in March 2013. Although the mother still takes prescriptive anti-depressant medication, it could hardly be reasonably contended that of itself proves an impingement of her parenting capacity. The very fact that the mother recognised her need for psychological therapy at first instance suggests she has sufficient insight to recognise if she ever needs it again.

8. The mother’s breach of the apprehended violence order at the child’s school in December 2012 does not materially undermine any conclusion about her current emotional stability. The apprehended violence order was made by the NSW Local Court against the mother for the protection of Ms E following the mother’s conviction for her assault in June 2012. There is a paucity of evidence about the event in December 2012, but it seems the mother’s breach of the order was manifest only in her approach to the child whilst he was in proximity to Ms E when she believed she would be deprived of the opportunity to see the child. No doubt the scene may have been unpleasant and embarrassing, but there was no actual or threatened violence even on Ms E’s version.[34]

   [34] Affidavit of Ms E, paras 70-78

9. I accept the submissions of the mother and Independent Children’s Lawyer that the mother has a demonstrated capacity to cater to all of the child’s physical and emotional needs.

The history of care for the child

1. Notwithstanding vigorous debate about the extent of the father’s involvement in the child’s care, there can be no doubt the mother was the child’s primary carer until his detention by the father in June 2012.[35]

   [35] Family Report, para 69

2. During the parties’ relationship the father was in full-time employment and the mother was not employed outside the home. Her time was wholly devoted to the care of their three children. The mother conceded in cross-examination that the father assisted in the care and supervision of the children outside of his work hours, including by his involvement in their sports,[36] but the mother credibly resisted any suggestion that the father’s role was any more than subsidiary to her own.

   [36] Exhibit F4

3. The father was involved with the mother in the child’s paediatric assessments from his infancy,[37] although the parties remained at odds over whether the father’s involvement was “significant” or “minor”. It is unnecessary to resolve the discrepancy.

   [37] Father’s affidavit, paras 40-47

4. The extent of the child’s special needs and how they are properly addressed was a simmering issue between the parties in the course of these proceedings.

5. The child was diagnosed at a young age with autism, but he has experienced steady improvement of his condition as he matures.[38] Following consultation with the child’s treating clinical psychologist, Dr F, the parties formerly agreed the child would attend a school with a dedicated Autism Spectrum (“ASPECT”) class in the 2012 and 2013 academic years.[39] Pursuant to that agreement the child was enrolled at school in G Town, but when the father detained the child in June 2012 he unilaterally withdrew the child from the ASPECT class and enrolled the child at a mainstream public school in his local area in a class behind his chronological age group.[40]

   [38] Mother’s affidavit, paras 18-19

   [39] Family Report, paras 8, 65

   [40] Family Report, paras 13, 16, 62; Father’s affidavit, para 73

6. The mother wanted the child removed from the new school and returned to an ASPECT class at another school,[41] but the father wanted the child to remain in a mainstream class at his current school because he believes the child’s further attendance at an ASPECT class would inhibit his progress.[42]

   [41] Family Report, paras 20, 35

   [42] Family Report, para 23; Exhibit F2

7. The evidence was quite unclear about precisely how much the child has improved and what should best be done about his education. The father had the child re-assessed by Dr F in July 2012, but the resultant report is equivocal about the child’s progress.[43] The report noted the child’s enrolment in the new school, but neither endorsed nor criticised that decision.  Dr F reported more recently in November 2012 that the child now warranted a milder diagnosis, but his involvement in a mainstream class would still require “supports”,[44] which was presumably a reference to the “support teachers” currently provided to the child at the new school.[45] Dr F expressly stated he was not in a position to offer an opinion about whether the child benefitted from transition to a mainstream class in July 2012.

   [43] Family Report, para 61; Mother’s affidavit, Annexure N; Father’s affidavit, Annexure B

   [44] Exhibit M2

   [45] Family Report, para 62; Father’s affidavit, para 85

8. The deputy principal at the child’s former school reported to the Family Consultant he did not regard it as appropriate for him to comment upon whether the child was ready to transition to a mainstream class.[46] Such direct evidence is inconsistent with the father’s assertion he and the mother were told by one of the teachers at the school that it was time for the child’s transition to a mainstream class.[47] The mother said in cross-examination that Dr F told her that he had “huge concerns” about the child and gave her the impression he considered the child would be better served in an ASPECT class.

   [46] Family Report, para 65

   [47] Father’s affidavit, para 65

9. The teachers at the child’s new school reported it took some time for the child to be transitioned to the school and, while he has “settled in very well”, he still “needs a lot of assistance” and was experiencing “significant difficulty academically”.[48] The child’s school report for the second semester of 2012 explained he was then only “beginning” to make progress and teachers were only “hopeful” of his smooth transition to the next grade in 2013.[49] The teachers’ assessment of the child’s progress at the new school seems more cautious and guarded than the father’s own opinion.[50]

   [48] Family Report, paras 62, 64, 68

   [49] Father’s affidavit, Annexure D

   [50] Father’s affidavit, para 76

10. While the parties have different views about the best way to cater to the child’s intellectual and educational needs, they are both vitally interested in his progress and ensuring the best outcome for him. In that respect, the parties’ parenting capacities are comparable.

11. There were, however, some aspects of the evidence that tended to impinge upon the parties’ parenting capacity, and particularly that of the father.

Promotion of parental relationships

1. When the father detained the child he decided, without recourse to the mother, to withdraw the child from his ASPECT class and enrol him at a local public school. That decision was made in clear violation of the parties’ agreement for the child to attend the ASPECT class until the end of the 2013 academic year. The decision also lacked the unequivocal support of Dr F, even though the father allegedly delayed the decision to seek Dr F’s advice.[51] In such circumstances it is difficult to accept the father changed the child’s school for no reason other than that he thought it would better suit the child’s academic and socialisation needs.

   [51] Father’s affidavit, para 72

2. There are other facts which bear upon that issue. The father was dissatisfied with the time the child spent travelling to his former school[52] and when he enrolled the child at the new school in his local area he deliberately failed to provide the school with the mother’s contact details, which were omitted from the appropriate section of the enrolment form completed by the father and Ms E.[53] The Family Consultant said the father even attempted to prevent the mother from “interacting with the new school”,[54] which attempt failed due to the mother’s persistence in arranging appointments.[55] The inference is readily available that the change of school was really to suit the convenience of the father, to enable him to exert control over the situation, and to alleviate any travel burden on the child.

   [52] Father’s affidavit, para 24

   [53] Exhibit ICL2

   [54] Family Report, para 70

   [55] Family Report, para 63

3. Irrespective of his motives, the father made an important decision about the child without consulting the mother, who was intentionally excluded.

4. The father seized control of the child in another way. After detaining the child in June 2012 he precluded the child from spending time with the mother for nearly three months, until the interim orders were made in September 2012. True it is that the father unsuccessfully attempted to make arrangements for the child to spend time with the mother under the supervision of a commercial supervisor during that period,[56] but the Family Consultant considered the father should have made a more concerted effort, with which opinion I agree. Orders were subsequently made in September 2012 for the child’s time with the mother to be supervised by a maternal grandparent. The father did not explore that possibility with the mother prior to the commencement of proceedings.

   [56] Father’s affidavit, paras 123-126

1. Leaving aside the prolonged absence of physical interaction between the child and mother, the father did not even permit the child to communicate with the mother.[57] The prevention of even telephone communication between them seems indefensible.

   [57] Family Report, paras 19, 68

2. The isolation of the child from the mother for that period of months coincided with the child beginning to call Ms E “Mum”. If the evidence of Ms E is to be accepted, the child began that practice of his own volition within only weeks of him commencing residence with the father.[58] The notes of Dr F made in July 2012 also suggest that the child was already then referring to the mother by her first name.[59] Although Ms E was not challenged about her evidence concerning the child’s voluntary choice to use those names, it is difficult to accept that a child, then only five years of age, would have spontaneously begun calling her “Mum” and the mother by her first name so shortly after his separation from the mother without either overt or tacit encouragement to do so.

   [58] Affidavit of Ms E, para 65

   [59] Exhibit F2

3. If the father and Ms E complied with Dr F’s advice to explain to the child that Ms E was not his mother,[60] their efforts were a failure because the child was not persuaded to dispense with the practice. He was still referring to Ms E as “Mum” when he met with the Family Consultant in October 2012.[61]

   [60] Affidavit of Ms E, paras 66-67

   [61] Family Report, para 55

4. Suspicion about encouragement of the child to call Ms E “Mum” is only enhanced by the knowledge that Ms E’s two children refer to the father as “Dad”,[62] even though he is not their biological father.

   [62] Family Report, para 45

5. I infer that the father and Ms E are intent on encouraging the three children within their home to view them as their prime parental figures in preference to their other biological parents. That is a worrying development because it risks weakening the meaningful relationship enjoyed by the child with the mother.

6. The preliminary results of such a campaign were manifest when the child was introduced to the mother in the company of the Family Consultant in October 2012. The child initially ignored the Family Consultant’s questions about seeing the mother, but when pressed said he did not wish to see her other than on Sundays. The child said he did not want to have a sleepover with the mother because “Dad said no”, and when again pressed was emphatic the father would oppose his sleepovers with the mother.[63] When alerted to the imminent arrival of the mother the child ran and hid, saying he did not want the father and Ms E to leave, nor for the mother to enter.[64] Happily, all of the child’s resistance to the mother dissolved immediately upon her introduction to him. The child was overjoyed to see her.[65]

   [63] Family Report, para 57

   [64] Family Report, para 59

   [65] Family Report, paras 59-60

7. I accept the Family Consultant’s characterisation of that situation as concerning.[66] It is concerning because, most probably, events in the father’s household over the preceding four months had induced in the child a reluctance to see the mother. It is therefore vitally important not to allow a situation to develop in which Ms E is substituted for the mother in the child’s life. That has not happened yet, but the initial trend is apparent.

   [66] Family Report, para 73

8. The father said he thought the child’s initial reticence to see the mother was explicable by the child’s fear, caused by his exposure to the mother’s assault of Ms E in June 2012. I reject the validity of that opinion. It is highly unlikely his exposure to that single incident some months beforehand would subsume the child’s devotion and attachment to the mother developed over the years of her primary care of him.

9. The mother was not immune from criticism over her parenting performance. The uncontested evidence is that the mother told the child at the conclusion of nearly every weekend visit with her that she did not want the child to return to the father but was obliged to ensure he did return.[67] The Family Consultant rightfully observed that such behaviour was “concerning” because it was evidence of the mother not actively promoting the child’s relationship with the father. The child would necessarily impute that conflict between his parents remained high.

   [67] Maternal grandmother’s affidavit, paras 35-36

10. On balance I am drawn to the conclusion that, while both parties have not performed to their parenting potential, the mother has a superior capacity to provide for the child’s emotional needs.

Availability to care for the child

1. The father remains in full-time employment, which entails him working each weekday. He leaves home at around 6.30 am each morning and arrives home at about 4.00 pm each afternoon, subject to an earlier finish on Fridays.[68]

   [68] Family Report, para 42

2. The father also owns a business in health and fitness some distance from his home, which involves him in working three afternoons/evenings each week, and presumably his attention to other administrative duties to ensure the viability of the business. The child attends this place of business at least three times per week and is a participant in some activities.[69]

   [69] Father’s affidavit, paras 127-129, 143; Family Report, para 43

3. Necessarily, the father delegates to Ms E responsibility for the care and supervision of the child at times when he is otherwise engaged with his employment.

4. By comparison, the mother is not employed outside her home. She is available to care for the child on a full-time basis, just as she always did prior to June 2012.

5. It must follow that the mother is able to meet all of the child’s physical needs, whereas the father is not, without the assistance of his wife. The mother’s rhetorical enquiry of the Family Consultant about why the child should be cared for by a third party, even though that person is the father’s new wife, when a biological parent with proven capacity is available to do so is incapable of a persuasive answer.[70]

   [70] Family Report, para 34

Family violence order

1. On 18 September 2012 an apprehended violence order of 12 months duration was made for the protection of Ms E against the mother.[71] The order arose out of the assault in June 2012.

   [71] Affidavit of Ms E, Annexure A

2. Although the child is not nominated as a “protected person” on the order, the order also applies to protect the child and the father because they presently live with Ms E (see ss 5, 16, 36, 38, and 42 of the Crimes (Domestic and Personal Violence) Act 2007 (NSW)). The terms of the apprehended violence order are inconsistent with both existing interim parenting orders and prospective final parenting orders because it precludes the mother from approaching or contacting the child or the father. Although the order makes an exception for contact that occurs pursuant to orders made under the Act, it is only for the restricted purpose of “counselling, conciliation, or mediation”. The mother is aware the apprehended violence order has that effect.[72]

   [72] Mother’s affidavit, para 37

3. The literal terms of the apprehended violence order are untenable in the face of the proper parenting orders this Court must necessarily make. The orders made by the Court specify the inconsistency with the family violence order and explain how those parenting orders will operate, as required by s 68P(2)(a),(b) of the Act.

4. Pursuant to s 68P(2)(c),(d) of the Act, the parties should understand:

   a)The parenting orders are inconsistent with paragraph 5 of the apprehended violence order because they require the mother and father to contact and approach one another, and for the mother and child to contact and approach one another.

   b)It is necessary to make parenting orders which are inconsistent with paragraph 5 of the apprehended violence order in order to promote the child’s best interests.

   c)If the child lives with the mother, he will no longer be a “protected person” under the apprehended violence order.

   d)If the child lives with the father, although he will remain a “protected person” under the apprehended violence order at least whilst ever he lives in the same household as Ms E, his best interests are promoted by him spending time and communicating with the mother.

   e)In either case, the mother and father need to be able to approach and contact one another, in person, by telephone, and in writing, to ensure that the child is exchanged between them.

   f)The parenting orders set out how the child is to live, spend time, and communicate with the mother and father.

   g)The parenting orders do not require breach of paragraphs 1(a), 1(b), 1(c), or 11 of the apprehended violence order, which paragraphs are consistent with the parenting orders. The parenting orders and those paragraphs of the family violence order may be consistently obeyed.

   h)Contravention, variation, or revocation of the apprehended violence order will be dealt with by prosecution or application in the Local Court of NSW.

   i)Contravention or variation of the parenting orders will be dealt with under the terms of the Act.

Parenting orders

1. One of the few issues in the proceedings upon which there was unanimity was the nature of the order allocating parental responsibility for the child.

2. The mother, father, and Independent Children’s Lawyer all proposed that the parties have equal shared parental responsibility for the child. Their mutual proposals enjoyed the support of the Family Consultant.[73] Inferentially, the parties and Independent Children’s Lawyer did not consider the presumption of equal shared parental responsibility did not apply or was rebutted on the evidence (ss 61DA(2), 61DA(4)). Alternatively, they considered the evidence warranted that outcome in the child’s best interests anyway.

   [73] Family Report, para 77

3. It is difficult to objectively conclude that the parties are capable of recapturing the trust they formerly reposed in one another for the purposes of communicating in a constructive manner about the child. That is because the mother vehemently believes the father fabricated the sexual assault allegations concerning Mr D as revenge for her proposal about their property settlement,[74] and the father and Ms E just as earnestly believe Mr D did sexually abuse the child and that the mother will resume her relationship with him despite her denials.

   [74] Family Report, paras 24, 30

4. The Family Consultant concluded that future cooperation between the parties was “highly unlikely”,[75] but still recommended an order for “joint parental decision making”.[76] It may be, as was suggested for the father, that the parties history of cooperation prior to June 2012 will resume “after the dust of the litigations settles”. It is difficult to say.

   [75] Family Report, para 71

   [76] Family Report, para 77

5. The parties’ difference of opinion is most pronounced over the child’s education, which disagreement seems almost insoluble, although there remains a glimmer of hope. The parties both professed willingness to follow professional advice on the issue, which is encouraging. It is also noteworthy that, despite their difference of opinion, neither sought that a specific order be made by the Court about the school the child is to attend. The option of such an order was debated during the trial and eschewed by the parties and Independent Children’s Lawyer. Both parties ardently solicited an order for equal shared parental responsibility, which responsibility would include any decision about the child’s future educational options. The parties must therefore have intended the decision about the child’s education to be left to them.

6. Despite some reservation, I am persuaded to make an order for the parties to have equal shared parental responsibility for the child, consistently with their mutual wish, the Independent Children’s Lawyer’s suggestion, and the Family Consultant’s recommendation.

7. Given the allocation of equal shared parental responsibility the Court is obliged to consider the option of the child living with the parties for “equal time”.

8. The mother lives at H Town and the father lives at J Town. According to the father’s evidence, the parties’ homes are situated some 45 minutes driving time apart. Presently the child attends school at J Town, but formerly attended school at G Town. During the evidence the mother mooted the prospect of the child attending a different school either in H Town or in other townships between or proximate to the parties’ homes. While the child will continue to attend his current school if he remains living with the father, the father implicitly acknowledged a change of school was necessary if the child returns to live with the mother.

9. If the child attends a school approximately equidistant between the parties’ homes then an “equal time” arrangement is arguably practicable, but it is unknown where the child will attend school. The parties have not yet agreed on that issue but wish to reserve that future decision to themselves. In such circumstances it is difficult, if not impossible, to say on the current evidence that it would be practicable for the child to live with the parties for equal time. In large measure, that will depend upon where the child is ultimately enrolled at school.

10. The best guide to the suitability of any parenting regime is found in the parties’ proposals. Neither of them proposed that the child live with them for equal time. Nor did the Independent Children’s Lawyer or the Family Consultant. The parties,[77] Independent Children’s Lawyer[78] and Family Consultant[79] uniformly proposed that the child live predominantly with one party and spend substantial and significant time with the other.

    [77] Amended Application, Orders 2-4; Amended Response, Orders 2, 4

    [78] Exhibit ICL5, Orders 2, 4

    [79] Family Report, paras 77, 80, 82

11. It follows that they mutually consider equal time to be either impracticable or not in the child’s best interests, but alternatively, the child’s residence with one party and him spending substantial and significant time with the other party is both practicable and in his best interests. I accept that outcome as correct.

12. The question then is with whom the child should predominantly live. The child should live with the mother. Although the parties have an equivalent capacity to meet the child’s intellectual needs, the mother is better equipped to meet his physical and emotional needs. I accept as correct the Family Consultant’s unchanged opinion that, absent any findings of risk, there was no good reason to alter the child’s long-term residence with the mother. He said she had done a “fantastic job” with the “predominant [parenting] load” and the child’s residence with the father over the past nine months did not create a “momentum” against the return of the child to the mother.

13. Although not a factor of substantial weight, there also remains a concern about the integration of the child with Ms E and her children. Ms E asserted the child had seamlessly integrated into their family,[80] but the child’s school counsellor recorded the child had independently reported he “finds [Ms E] bossy and doesn’t get along with younger step-siblings at father’s house”.[81]

    [80] Affidavit of Ms E, paras 18-25

    [81] Exhibit M1

14. The father said in cross-examination that, if the child lives with the mother, he would like the child to spend “most weekends” with him, much like had occurred in the past. I reject that idea because it is inconsistent with the Family Consultant’s unchallenged evidence and also the father’s own reverse proposal for the mother. The Family Consultant said such an arrangement was not “developmentally appropriate”[82] and the father proposed that the child spend alternate weekends with the mother if the child lived with him.[83]

    [82] Family Report, para 75

    [83] Amended Response, Order 4(i)

15. While there was general agreement that the child should spend alternate weekends and half of all school holidays with the non-residential parent, there was some slight disparity about the duration of the weekend visits.

16. The mother and Independent Children’s Lawyer suggested the visits should begin at 5.00 pm on Fridays, whereas the father proposed commencement from the conclusion of school on Fridays. All agreed the visits should end at 5.00 pm on Sundays.

17. There is no reason why the visits should not start from the conclusion of school on Fridays. The father finishes work at 1.30 pm on Fridays[84] and so he would be available to collect the child from school. That would enable the father’s greater involvement in the child’s daily school routine.

    [84] Family Report, para 42

18. Although the prospect of the child being returned by the father directly to school on alternate Monday mornings was discussed in the evidence, the father properly acknowledged the practicability of that arrangement depended entirely upon where the child attended school, which is still unresolved. Since the parties did not alter their proposals for the child to be returned to the residential parent on Sunday evenings I adhere to that regime.

19. The Family Consultant also noted that the child should “ideally” spend some midweek time with the non-residential parent.[85] No such order is made because the father said in cross-examination it was not feasible to travel between the parties’ households in H Town and J Town during the week.

    [85] Family Report, para 75

20. The child is to be exchanged between the parties either at his school or at the IGA supermarket in C Town, NSW, which township is located between H Town and J Town. That was the proposal of the mother and Independent Children’s Lawyer, consistently with a former interim order,[86] which has apparently worked satisfactorily. The father made no proposal and so should be presumed to accede to that arrangement.

    [86] Order 5 made on 7 September 2012

21. The orders make provision for telephone communication between the child and the parties. The child may communicate with the father twice each week while he lives with the mother and twice each week when he spends time with the father during school holiday periods. There is no need for a specific communication order when the child is only spending weekend time with the father. Provision is also made for the child to communicate on his birthday, which falls during the Christmas school holidays, with the parent with whom he is not then staying. The times of the telephone calls are intended to enable the father to call the child after he finishes work but before he departs for his other employment. The timing of telephone calls makes no difference to the mother as she does not work outside the home.

22. The Independent Children’s Lawyer proposed that both parties attend a particular educational program conducted by Unifam.[87] I decline to make an order in those terms, but an order is made that the parties attend a post-separation parenting program. Even though the father said he had already completed such a course in the past, he said in cross-examination he would be willing to participate in another program to improve communication between the parties. The reason for not making the order in the terms proposed by the Independent Children’s Lawyer is that the Family Consultant did not accept that the particular program proposed was apposite, but he suggested a post-separation parenting program of a more basic type would be more appropriate.

    [87] Exhibit ICL5, Order 9

23. The various other injunctive orders are self-explanatory and could not be the subject of reasonable opposition.

24. The Independent Children’s Lawyer also proposed an injunction restraining the parties from using cannabis “48 hours before and during the periods they care for the child”. I decline to make any such order. The law requires the parties not to use cannabis at any time because to do so is unlawful and a criminal offence. An injunction of the type proposed is entirely otiose and risks sending some form of message that it is acceptable to use cannabis at times other than those when restrained.

1. I am satisfied the orders set out at the commencement of these reasons meet the child’s best interests.

I certify that the preceding one hundred and nineteen (119) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Austin delivered on 20 March 2013.

Associate: 

Date:  20 March 2013