SEPHTON & LEHL

[2019] FamCA 758

FAMILY COURT OF AUSTRALIA

SEPHTON & LEHL [2019] FamCA 758

FAMILY LAW – CHILDREN – Undefended hearing – Where the mother had indicated that she was not going to participate in the final hearing – Court satisfied that the mother had adequate notice and opportunity to participate – Where the Independent Children’s Lawyer supports the father’s application for sole parental responsibility, for the child to live with him and for the child to spend time with the mother as agreed in writing between the parties – Orders made – Father given sole authority to apply for the child’s passport – Child’s name removed from the Airport Watchlist to allow for overseas travel.

Family Law Act 1975 (Cth) ss 61DA, 65DD, 60CA, 60CC, 65Y

APPLICANT: Mr Sephton

RESPONDENT: Ms Lehl

INDEPENDENT CHILDREN’S LAWYER: Legal Aid NSW

FILE NUMBER: SYC 2279 of 2015

DATE DELIVERED: 9 September 2019

PLACE DELIVERED: Sydney

PLACE HEARD: Sydney

JUDGMENT OF: Loughnan J

HEARING DATE: 9 September 2019

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Anderson

SOLICITOR FOR THE APPLICANT: Australian Family Lawyers

FOR THE RESPONDENT: No appearance

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: Ms Shea

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Legal Aid NSW

Orders

1. Orders are made in the terms of the document titled “Short Minute of Order” (Exhibit 5 dated 9 September 2019) as set out hereunder:

   (1)That the Father have sole parental responsibility for the child, namely W, born … 2012 (“W”).

   (2)That W live with the father.

   (3)That unless provided beforehand that the Mother within 24 hours of the making of this Order, email to the Father, her full current residential address and full details of her partner including his full name, date of birth, place of birth and occupation and otherwise each parent keep the other informed in writing of their current home and email address and any other change in their contact details including mobile telephone numbers.

   (4)That the Mother have time with W as agreed upon in writing by the parents.

   (5)That the Mother be at liberty to receive the school newsletters and parent information including any school reports and that this order serve as an authority for any school attended by W to provide this information directly to the Mother.

   Parental Communication:

   (6)That unless otherwise ordered, the parents communicate by email or text message to each other with such communication to be confined to the Mother’s time with W, or in the event of an emergency or unforeseen delay by a parent at changeover.

   Restraints

   (7)That the Mother be restrained from coming within 100 metres of the Father’s residence or his or his wife’s place of work at any time unless expressly invited to do so.

   (8)That the Father be restrained from coming within 100 metres of the Mother’s residence or place of work at any time unless expressly invited to do so.

   (9)That neither parent denigrate the other parent or members of their family directly to W or within hearing range of W.

   (10)That neither parent convey messages to the other parent via W.

   Passport and overseas travel

   (11)That the Father, Mr Sephton, born … 1988, have the sole authority to do all things and sign all documents to apply for and have an Australian Passport for W, date of birth … 2012, to be issued by the Australian Passports Office and to be released to the Father and with this order to hereby authorise the Australian Passports Office to issue and release that passport upon Father’s sole application.

   (12)That the Father be permitted to take W outside of the Commonwealth of Australia on vacation.

IT IS FURTHER ORDERED:

1. That the name of the child W born on … 2012 (female) be removed from the Airport Watchlist and IT IS REQUESTED that the Australian Federal Police assist with the implementation of this order.

NOTATIONS

A.The Court notes that there is an agreement by the father to pay the costs of the Independent Children’s Lawyer in the sum of $1,650 within 21 days of the date of this order.

Note:  The form of the order is subject to the entry of the order in the Court’s records.

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

Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).

FAMILY COURT OF AUSTRALIA AT SYDNEY

FILE NUMBER:  SYC2279 of 2015

Mr Sephton

Applicant

And

Ms Lehl

Respondent

REASONS FOR JUDGMENT

1. The document titled Short Minute of Order is exhibit 5, and I make orders in terms of that document.  What follows are the reasons for that decision.

2. These are parenting proceedings about W, born in 2012 (“the child”).  At the time of the hearing, she was seven years of age.  Her parents are Mr Sephton (“the father”) and Ms Lehl (“the mother”).  The father commenced the proceedings in April 2015 and the orders he sought were largely consistent, broadly speaking, with the orders that have ultimately been made.  He has consistently sought sole parental responsibility for the child and that she live with him. 

3. Until today, the father consistently sought that any time between W and the mother be supervised, at least for a period. For the purposes of s 65Y of the Family Law Act 1975 (Cth) (“the Act”) he sought authority to remove W from the Commonwealth for holiday travel. He sought that the mother and he be restrained from approaching the residence and workplace of each other without express invitation. He sought a non-denigration order. In circumstances that will be discussed more fully, the mother seeks no orders in these proceedings.

4. As to the written evidence, the father relied on his Initiating Application, filed 14 April 2015; an Amended Reply, filed 24 October 2017; his affidavit, filed on 15 July 2019; the affidavit of Ms Sephton, filed 15 July 2019; the affidavit of Ms B, filed 15 July 2019; and the affidavit of Mr H Sephton, filed that same day.  The mother did not present any evidence at the hearing.  There was expert evidence from a single expert witness, Dr D, in a report dated 31 October 2015 and an updated report dated 22 June 2018.

5. The hearing commenced on 9 September 2019.  When the matter was called, the father attended and was represented by a solicitor and counsel.  There was no appearance by or on behalf of the mother.  The Independent Children’s Lawyer (“ICL”) was represented by Ms Shea of counsel.  On 16 August 2019, the mother sent a text message to the father, which is exhibit 2, to the following effect:

   Hi Mr Sephton.  I have received the court orders from your solicitor.  After very long consideration, I have decided not to file any documents.  I am thinking about W’s best interests in doing this.  W has a stable environment with you and Ms Sephton, and I don’t want her to grow up going house to house with so much uncertainty.  I request that you both please continue to provide that stability for her in the future.  I’m always a phone call away if W needs me or wants to speak to Y or Z.  I won’t change my number.  Her grandparents, Mr and Ms Lehl, are there for her as well if she wants to contact them at any time.

   If W ever needs anything, just let me know.  I hope you will also do the right thing by her.  All the best.  Regards, Ms Lehl.

6. On 30 August, the mother sent an email to the ICL to the following effect:

   Dear Ms Tin, I refer to your letter relating to your costs.  I advise that I’m not in a position to pay your costs due to being unemployed and currently on Centrelink payments.  I suggest that the father pay your costs for initiating this family law matter and failing to settle on numerous occasions.  As advised to the father and his legal representatives, I am no longer defending this matter and will no longer appear on court dates for this matter.

7. Albeit that the orders now pressed by the father are in different terms to those of which the mother had notice on 16 and 30 August 2019, they are not inconsistent with the orders he earlier sought.  Given, too, that the Court is not strictly bound by the range of orders sought by the parties in identifying orders in the best interests of a child, and given the sentiments expressed by the mother in exhibits 1 and 2 – that is the text message and email – in my view, it would not be unfair to the mother to proceed with the hearing against her on an undefended basis. 

8. The father was born in 1988 and was aged 31 years at the time of the hearing.  The mother was born in 1984 and was aged 35 years at the time of the hearing.  The parents met in 2009 and commenced cohabitation in about June 2010.  They were engaged in early 2012 while the mother was expecting the birth of W.  W was born, as I have said, on 11 June 2012. 

9. The parents separated on 5 January 2014.  The parents’ relationship was characterised by significant conflict and hostility.  The mother would often exhibit explosive anger and fits of rage, and she was physically abusive at times.

10. The father has since re-partnered with Ms Sephton, and they were subsequently married.  The father and Ms Sephton have one child together, X, who was born in 2017.  X is two years of age.  In addition to W, the mother has two other daughters:  Y, born in 2017 and Z, born in 2019.

11. The only lay evidence before the Court is that of the father and his witnesses, and their evidence is unchallenged.  Dr D gave evidence as an expert, and there was no challenge to his credit or his opinion.  He refers to some evidence of representations made by the mother, and of course, that material is not otherwise in evidence before me.  When W was a few months old, the mother put her hands loosely around W’s neck.  The father says that though the mother was not actually choking her, her actions made him believe that she would.  In December 2012 or early 2013 the mother said to the father:

    I’m going to kill myself.  Today might be the day that you come home, and W and I are lying here dead.

12. The mother continued to make threats of suicide throughout the day.  The father sought assistance from police, and the mother was taken to Suburb C Hospital, where she stayed for two or three nights.  During the period between 2012 and 2014, the father contacted the Department of Family and Community Services; I will refer to them as FaCS, although the Department was recently renamed the Department of Communities and Justice.  That contact was about threats that the mother had made towards W. 

13. Case workers from FaCS arranged for the parties to engage with the Brighter Futures program.  The mother’s behaviour improved slightly during this period, but the father still observed her to display explosive and abusive behaviour.  Between January 2013 and January 2014, the father tried to leave the relationship with the mother several times due to her physical and emotional abuse, being denigrated, assaulted and threatened by the mother. 

14. Around 2012 or 2013, the mother hit the father on the head with an iron.  This is going back a bit in time.  He went to Suburb C Police Station, where the police applied for an apprehended violence order (“AVO”) against the mother for his protection and that of W.  The AVO was later removed at the request of the father.  He said he made that request to make the mother happy and try and keep the family together. 

15. In 2013, the mother accused the father of punching her in the stomach, and an AVO was placed against him for about a week before it was dismissed at the Local Court at Suburb C.  The father denied and denies those allegations.  The parents separated on 5 January 2014 after the mother punched the father in the head several times, resulting in the father having a black eye.  He left their home but did not take W with him. 

16. He says that at that time he believed that the mother’s aggression was directed towards him, and that she only threatened W to instil fear in him.  He thought that without his presence, the mother would have no reason to be aggressive towards W.  He moved into a townhouse with a friend.  He saw W at the former home after work or on weekends, and W spent overnight time with him from 5.00 pm Saturday until 7.00 pm Sunday, and that arrangement continued for some months. 

17. The parents agreed that the father would see W each alternate weekend from 5.00 pm Saturday to 7.00 pm Sunday, and on the intervening weekends from 9.00 am to 7.00 pm on Sunday.  In August 2014, the father contacted a mediator to facilitate mediation between the parents.  On 13 September 2014, the father noticed what appeared to be bruises on W’s thighs and scratch marks on her leg.  He contacted FaCS and made a report.  The mother sent a text message to the father in response to the effect:

    W has been seen by a doctor and I am treating her legs with medication.  I did not hurt her and never would.  She had been trying to get out of the cot and getting caught between the rails in the middle of the night.  W was rubbing her legs because she was trying to rub off the spots, and it grew to a big patch.  I’m only telling you because I can see that you genuinely care about her.  She may have blood problems or haematology issues.

18. The father says that he noticed similar bruising in around November 2014 upon collecting W from the mother’s care.  He said those bruises did not reappear once W moved into his full-time care.  On 28 November 2014, W was taken into the D Hospital at Suburb E to treat an injury to her arm.  Ms F, an officer from FaCS, arrived at the hospital and said to the father, “I need to speak to Ms Lehl about what happened.  We want an explanation as to how the injury to W occurred.” 

19. A cast was placed on W’s arm.  The father was told that she could go home that night.  Ms F told the father, “I will still need to speak to Ms Lehl further.  We were notified by the medical staff because of concerns that W’s fracture was not one that would normally happen due to a fall, and we need answers about how it happened.”  The father understood that W would be discharged and the mother would take her home, and he left the hospital. 

20. At around 8.30 the next day, so this is 29 November 2014, the father received a phone call from Ms F.  She asked the father, “Are you able to come in and pick up W, because I’m not happy for Ms Lehl to take her home”.  That was the end of that message.  Upon arrival at the hospital, Ms F said to him words to the effect, “We have concerns about W going home with Ms Lehl.  She is at the police station giving a statement.  We do not accept the explanation that she has given about W’s injury.  Basically, Ms Lehl cannot explain how W sustained the injury.” 

21. Later that day, Ms F asked the father to sign a safety plan and he was then allowed to take W home with him.  W has lived with the father since 29 November 2014.  The Joint Investigative Response Team, which is an agency of FaCS and the police, applied for a provisional AVO against the mother for W’s protection.  The father made a witness statement for the police on 2 December 2014 and the mother was charged with assault.  That charge was ultimately withdrawn by the prosecution. 

22. The father commenced these proceedings on 14 April 2015 in the Federal Circuit Court.  He sought both interim and final orders.  The interim orders sought were to the effect that the child be placed on the Airport Watchlist, live with him, and spend supervised time with the mother.  On 20 May 2015, orders were made without admissions and without opposition from the mother, including orders to the effect that W spend time with the mother, supervised by specified family members, and that the child be placed on the Airport Watchlist. 

23. Other orders were made by consent, also on a without admissions basis, including orders that the parents be restrained from physically disciplining the child, and that the father participate in chain of custody urinalysis testing.  A final AVO was made on 3 June 2015 for the protection of W at the Local Court at Suburb K for six months.  On 21 October 2015, the parents attended interviews with Dr D, who is a clinical psychologist, and his single expert report was released to the parties on 5 November 2015. 

24. The proceedings were transferred to this Court by the consent of the parties on 9 December 2016.  The proceedings came before the Court for the first date of a less adversarial trial on 4 October 2017, and the Court noted that there had been no appearance by or on behalf of the mother and that it was not possible to contact her by telephone, despite the fact that there was correspondence between the parties suggesting that she would be available by phone. 

25. On 25 June 2018, an updated report by Dr D was released to the parties.  Trial directions were made by me on 20 October 2018, including an order for the filing of lay evidence.  The trial was fixed for a date to be allocated, and the lay evidence was to be filed not later than eight weeks prior to that.  Ultimately, the trial was fixed to commence today.  The mother did not file any affidavits pursuant to those trial directions, and on 13 August 2019, further orders were made.  Again, it was noted that there was no appearance by the mother. 

26. The Court noted that in the event that the mother’s evidence-in-chief was not filed and served within seven days from that date, 13 August, an application would be made on 9 September for the trial to proceed undefended against her.  And as I have said, the mother failed to file any material or to be present at Court so as to rely on any material. 

27. Dr D is a clinical psychologist, and he has an Honours degree in psychology awarded in 1976.  He has a Master’s degree in clinical psychology awarded in 1981 and a PhD conferred in 1995.  He has worked as a child psychologist at a community health centre, then was a senior clinical psychologist for FaCS.  He has been a Family Consultant providing reports pursuant to Reg 7 of the Family Law Regulations for this Court.  In recent years, he has been employed as an academic at a university and is a member of various colleges.

28. These proceedings are governed by Part VII of the Act. Section 60CA of that Act provides that proceedings are determined on the basis that the best interests of the child are the paramount consideration. Section 60CC identifies matters that are relevant to the determination of what is in a child’s best interest and that requires the Court to consider primary and additional considerations in s 60CC(2) and s 60CC(3) respectively.

29. A sequence of decision-making for identifying appropriate parenting orders under Part VII starts with parental responsibility. Section 61DA of the Act creates a presumption in favour of equal shared parental responsibility. That presumption may not apply but, if it does, it can be rebutted. If an order is made for equal shared parental responsibility, s 65DAA requires the Court to consider certain patterns of living arrangements. Findings are made by reference to what is in a child’s best interest.

30. For the purposes of the determination of these proceedings, I will follow an approach of looking at the current parenting arrangements; the parties’ proposals; make findings about matters in s 60CC; consider the relevance of s 61DA; where s 65DD is not relevant, assess the proposals against the best interests consideration.

31. The current arrangements have W living with the father and spending intermittent time with the mother.  “Intermittent time” is putting it a bit high.  As Ms Shea has pointed out, the child has had only two occasions with the mother this year.  The father has set out in his affidavit a table where he identifies against what the orders provided for the time that the mother has spent and it is significantly less than half of the ordered time.

1. There is some reference in the documents in matters that the father has referred to and in matters that Dr D has referred to of the mother experiencing problems with her supervisors, referring to the fact that often they advise her late about their availability.  As to proposals, the father proposed the orders that I have made and the ICL is of the same mind.  As I say, the mother has no proposals.  The fact is that there is no dispute about the arrangements proposed for W.

2. As to s 60CC, as to the primary considerations, the first of those is the benefit of a child having a meaningful relationship with both parents.  At this time, the mother does not seek any orders about W.  By her recent communications, it appears that she wants the message sent that the door is left open to a relationship between her and W, and I gather that she wants W to be aware of that, and I must say that is an entirely proper position.

3. The father too, by the orders that he has consistently sought and the reference in the orders that he has sought today, makes it clear that he too wants there to be a meaningful relationship between the mother and W, provided, of course, that that is a relationship that is on terms and in circumstances that are safe and appropriate for the child.  I am satisfied that, subject to those considerations and the other considerations in s 60CC, the relationship between the mother and W is important and should be promoted.  There is no issue that the same applies to the relationship between W and the father.

4. As to the need to protect W from physical and psychological harm, from being subjected to or exposed to abuse, neglect or family violence, which is the second of the primary considerations, the legislation provides that it is to have priority over the first.  There has been family violence.  It is likely that W has been the victim of family violence.  There is no doubt that she has been exposed to family violence and, on the evidence, that has been at the hands of the mother.

5. As to the additional considerations, the first is in relation to any views the child might have and the weight that those views should have.  Dr D did not tax W with that issue.  W is only seven now, so, obviously she was younger at the times of the interviews for the earlier reports.  W is too young to have any relevant views.  It is increasingly understood that it would be respectful to have children involved in decisions about their welfare, but family violence is not something that a child can opt to be exposed to.  So, as so often happens in cases that reach this stage of proceedings, this is not one that would be assisted by W’s views, even if she was a bit older.

6. As to the nature of the relationship of the child with each parent and others, Dr D says that W is primarily attached to her father and perhaps also to his wife.  He said that she seems to have an excellent relationship with her paternal grandparents, and that is reflected in their affidavits.  And Dr D felt that W’s relationship with her mother seemed to be more than just one of recognition.  He said in his report:

   There does appear to be warmth and a bedrock of attachment in that relationship despite its truncated nature and despite what I believe to be some difficulties Ms Lehl has in being active and involved with her daughter.  W appears to have warmth in the way in which she describes her relationship with both X and Y despite Y’s young age.

7. Next, the extent to which each of the parents has taken or failed to take the opportunity to participate in decisions, spend time and communicate with a child.  The child has exclusively lived with the father since November 2014.  And as I said, the father, in his affidavit, sets out the pattern of time that the mother has had with the child, commencing at paragraph 371 of his affidavit.

8. Dr D mentions this and I think, although one would not make too much of it, it is possible that the mother simply has not been in a position to present herself to the child in a way that would be in W’s best interests.  To that extent, it might be said that the mother showed some insight in not spending time with W on some occasions.  As I say, I do not want to make too much of that.  There is the flavour of that idea in the sentiments the mother expressed in her recent text message to the father.

9. I mean, there is a fundamental issue arising out of this criterion.  The social scientists tell us that it is very important for children to have a meaningful relationship and regular contact with their parents.  Part of their self-image is made up of the contact they have with their parents, what they see of themselves in their parents and the validation of their parents having time with them.

10. The concern arising from the orders I have made is a risk that W is going to feel abandoned by her mother.  That is something, no doubt, that the father and his wife have had to cope with over the last few years, and it is something that cannot be disguised in an order that provides for no regular time.  But better that, of course, than an order that says there will be time every second weekend where that time is frustrated.  Then there can be a rejection repeated every alternate weekend.

11. The extent to which each of the parents have fulfilled or failed to fulfil their obligation to maintain a child.  Since 2015, W has been wholly maintained by the father.  The mother pays nominal child support.  There is reference to the reason for that in her communication with the ICL, but it still remains a fact.

12. The next criterion is the likely effect of any changes on the child, including separation from parents and so on.  The fact is, sad or not, there are no changes proposed.  Dr D said that:

    …W appears to be quite comfortable and feels secure in contact with her father but does appear to be somewhat anxious about the thought of spending more time with her mother.  In part, I think it is a function of the mother’s own behaviour, her lack of capacity to engender warmth in her contact with W but also because W perceives, perhaps justifiably, that her mother is primarily focused on Y and not upon herself.  In addition, W has not had much time with her mother and thus has not been able to develop routines and behaviours that promote bonding and comfort.  Nonetheless, it appears to me that there is a requirement for W and her mother’s relationship to develop and given W’s age, that needs to start now.  I believe that there is a benefit to be had for W being able to expand her relationship with her mother and her mother’s family and there may even be a benefit for the mother in feeling less supervised, less distrusted and more able to naturally engage with her daughter as a consequence. 

13. And that is the end of the quote.  That is a reference to Dr D’s recommendation that any supervision cease.  The next criterion is:

    …the practical difficulty and expense of a child spending time with and communicating with a parent.

14. Those matters will be addressed under the orders I have made by the terms of any agreement the parents might make about the child having time with the mother.  It must be said that it looks as though supervision has been difficult to manage in the past.  I am not told, but one might anticipate that, for the time being at least, the father may well require a level of supervision for the time being.  Certainly, that was the recommendation of the ICL because of factors such as the lack of any information about the mother’s residence, for example.

15. As to the capacity of each of the parents, Dr D said that he was concerned that the mother may have some difficulty at times in recognising and responding to W’s emotional needs.  He reported:

    I think the mother does have difficulties in the expression of emotion and these are issues.  Her attempt to deal with these deficits through therapy in the past seems to have been unsuccessful.  Ms Lehl has had difficulties in generating warmth and also focusing on two children at the same time.  To that end, I have some concerns about Ms Lehl’s ability to provide a warm, emotional climate for her daughter on an ongoing basis but, on the other hand, I also believe that the current situation creates ongoing conflict for Ms Lehl in the sense of distrust about her behaviour with her daughter which prevents her from being able to act in a natural way towards her.

16. Dr D does not perceive any difficulties on the part of the father and Mrs Sephton to meet W’s needs. 

17. As to the maturity, sex, lifestyle, background of the child, the child’s characteristics and of the parents, W has a diverse cultural background, with her mother’s family being of Country G Indian background and her father being of the Jewish faith.  The father says that he will support W to learn about Country G Indian culture and heritage.  He notes that because of the mother’s unwillingness to cooperate, his numerous requests to her for him to be able to spend time with W over Jewish holidays, such as Hanukkah, have been unsuccessful in the past. 

18. That suggests that there might have been some problems with the mother providing relevant support.  There is no detailed evidence, I do not think, about what the father is planning to do in relation to the child’s cultural background but, presumably, he would include her in his own observances of religion and culture.  It will be a more difficult thing, obviously, in relation to the Country G Indian background. 

19. As to:

    …the attitude to the child, and to the responsibilities of parenthood, demonstrated by … the … parents -

20. Dr D, in his updated report, said:

    Whilst Mr Sephton describes a range of behaviours that appear to indicate that he has accepted and able to discharge the responsibilities of parenthood appropriately, I am concerned that both parents appear to be playing a kind of tit for tat game about communication between them, in particular, I am most concerned about Ms Lehl and her passive aggressive stance towards Mr Sephton which is clearly self-defeating and does not take into account her daughter’s needs for continuity of experience and predictability of adult actions.  If she appears to lack insight into the impact of her behaviour on her daughter, her supervisors do not appear to have assisted her in that.  To that end I think that Ms Lehl continues to struggle with putting her daughter’s needs ahead of her own.

21. In the literal words of the mother’s recent text message to the father and in her conduct in these proceedings, there is a considerable vote of support and of confidence in the father by the mother leaving things as they are.  She obviously thinks that W will be loved and well cared for in the father’s care. 

22. I have referred to family violence.  I have referred to the family violence order.  As far as I know, there are no current family violence orders in place.  They are the relevant s 60CC factors.

23. As to parental responsibility, s 61DA does not apply because there has been family violence and that means that the Court is to make an order about parental responsibility that it thinks is proper. What is proper is in the best interests of the child. The logic, of course, is that the parent with whom the child lives must exercise parental responsibility. Notwithstanding the glimmer of hope in the recent communication from the mother, Dr D does not think that the parents have a sufficient relationship to manage joint parental responsibility and I agree. In his updated report, he said:

    Although in my original report I had suggested shared parental responsibility, it seems impossible to imagine that the kind of personality attributes each parent possesses allow for joint parental responsibility to work. Both are stubborn, suspicious of the other and looking for reasons to complain, and passive aggressive in their responses to the other.  Such poor post separation communication does not bode well for important decisions to occur.  It is recommended that parental responsibility reside with [the father].

24. That is the order that has been made.  As to living arrangements because the Court will not make an order for equal shared parental responsibility, there is no requirement in the legislation to consider any particular pattern of living arrangement.  Dr D recommends that supervision end, that there be orders to allow W to have contact with her mother regularly through telephone or Skype; that W be able to telephone her father when she is with her mother.  He recommends that there be no supervision but he predicts some problems if supervisors are required and are not available for handover because of the difficulties the parties have had coming together. 

25. He recommends that the mother enrol in a Circle of Security course, which is a parenting after separation course.  As the ICL notes in her outline it does not bode well that there is no suggestion the mother has taken on the recommendations of Dr D to date.  Dr D went on to make recommendations after that course had been completed there be a transition to overnight time and so on.

26. As the ICL has said, there are some things that argue against the lifting of supervision for the mother’s time, in particular, those two things that I have mentioned - the fact that the mother has not taken up the recommendations of Dr D and the fact that the mother has not provided information about her residence.  It is not satisfactory in the normal course for a parent not to know where a child is living for significant periods of time, particularly in a case where there have been such concerning incidents as those that have been outlined. 

27. As to W now, we have a report from her school.  She has obviously had some problems.  There has been a reference to some speech development problems.  In a way, her 2018 school report was a little bit better, I would have thought, than the 2019 report.  She, like all children, I suppose, seems to be better at some aspects of her schoolwork than others.  Her performance in 2019 has been in terms of outcome in the school parlance, on average, a developing performance, as opposed to meeting grade standard. 

28. What does come through both in the 2018 and in the 2019 reports is that this is a delightful child.  The class teacher and the principal both make reference to that and that, no doubt, is in part a tribute to the situation that of the child in the father’s care.  The last few years have not provided the best environment for W and you might expect that something has to give when you have got these serious issues boiling around her, at an age when her biggest problem should be what she wears or what she eats.  She has had to carry around with her concern about a very puzzling interaction and relationship with her mother, and that means and has meant that the load has fallen to the father and to his partner and to the extended family.  So one might understand why the performance has not been entirely consistent. 

29. What is consistent in the school report is her effort (as opposed to the outcomes) at the top level or penultimate level.  All is good from that point of view.  That augurs well for the orders that the father seeks and the ICL promotes, orders that have her continuing to live in the father’s household. 

30. The father set out in his affidavit at some length what she has been doing of recent times, including particularly her relationship with the members of his extended family.  He gives evidence about the assistance he has pursued in relation to her speech from immediately she came into his care, a report done at Macquarie University as to speech pathology and assessments done with a private speech pathologist. 

31. There were some concerns about her hearing, but they were resolved.  The father says that by around late 2016 W was talking a lot.  Obviously, he was relieved in relation to that issue.  He talks about her preschool routine and extracurricular activities, says he and the school are very happy with how she has fitted in at Suburb C Public School.  The father gives evidence about what he and others do at home in relation to reading.  W appears to be interested in Italian, science, sports, netball, and she likes the dog.  Her swimming lessons continue.  The father talks about the sibling relationships within the household. 

32. I should have mentioned in terms of capacity the father addresses in his affidavit his compliance with the CDT and urine-analysis regime over three years or so.  He has complied with all of the required tests.  He has shown no tests positive, no tests showing that he has abused – misused alcohol.  As with the ICL, he too expresses his concerns about unsupervised time.  He sums things up at the end of his affidavit.

    I have a stable home and family environment for W and believe that I have a strong marriage with Ms Sephton.  Ms Sephton and I have a secure home.  W and X have a good relationship.  We live close to my family and friends.  I have a stable income and have been employed by J Group since January 2005, progressed my career with this company.

33. The father’s wife gives evidence that she is an officer of the Australian Defence Force.  She indicates that she will not allow her career to jeopardise her time with W and X.

34. The father seeks an order that he be able to take the child out of the country without the impediment caused by s 65Y, which requires the consent of the other parent or an order. I have made an order under s 65Y, and that is appropriate.

35. Overall the orders meet the requirements of the child’s best interests.  W is a lucky girl to have a safe and loving home to live in.  In a perfect world she would have a reliable and safe and regular relationship with her mother.  That may be possible in the future.  I think the orders the father sought and the ICL supported maximise the chance of that, because they have the complete flexibility.  There is no rigidity about weekends or any particular day.  The orders leave the arrangements open to some spontaneity, for arrangements to be put in place and changed, by agreement.  The father will be in a position to make assessments about whether he thinks something is possible or practicable or safe, and he can do that in real time.  In my view the orders made reflect the best interests of the child.

I certify that the preceding sixty-six (66) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Loughnan delivered on 9 September 2019.

Associate: 

Date:  22 October 2019