Sharp and Underwood

[2014] FamCA 301

FAMILY COURT OF AUSTRALIA

SHARP & UNDERWOOD [2014] FamCA 301

FAMILY LAW – CHILDREN – Where the applicant is not the biological parent of one of the children – Parental responsibility – Where the applicant is granted sole parental responsibility for both children – With whom the children live – Where it is in the best interests of the children that they remain living with the applicant – With whom the children spend time – Where the children will spend time and communicate with the mother – Where during this time the children will have an opportunity to spend time with their half-brother who lives with the mother.

Family Law Act 1975 (Cth) ss 4, 60B, 60CA, 60CC, 61DA, 64B, 64C, 65AA, 65DAB, 117(1), 117(2A).

Donnell & Dovey (2010) 42 Fam LR 559.

APPLICANT: Mr Sharp

RESPONDENT: Ms Underwood

INDEPENDENT CHILDREN’S LAWYER: Sarah Cleeland Lawyers

FILE NUMBER: BRC 222 of 2012

DATE DELIVERED: 9 May 2014

PLACE DELIVERED: Brisbane

PLACE HEARD: Brisbane

JUDGMENT OF: Hogan J

HEARING DATE: 20 & 21 February 2014; 22 April 2014

REPRESENTATION

COUNSEL FOR THE APPLICANT: Ms Pendergast

SOLICITOR FOR THE APPLICANT: Melvin & Co

FOR THE RESPONDENT: In Person

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: Mr Alexander

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Sarah Cleeland Lawyers

Orders

IT IS ORDERED BY WAY OF FINAL ORDER

1. The children J born … 2005 and K born … 2006 (“the children”) live with the Applicant.

2. The Applicant have sole parental responsibility in respect of all major long term issues (as that expression is defined in the Family Law Act 1975 (Cth) (as amended)) in respect of the children, save that the Applicant shall, prior to making a decision about any such issue:

   (a)inform the Mother in writing of the issue about which a decision needs to be made, the decision he would like to make in respect of such issue and the reasons for that proposed decision; and

   (b)allow the Mother fourteen (14) days after the provision by him of the information referred to above to respond to the same in writing; and

   (c)consider the Mother’s response, if any, when coming to his decision about any such issue; and

   (d)inform the Mother of the final decision he has made with respect to that issue as soon as practicable thereafter.

3. The Applicant shall have sole responsibility for making decisions about the children’s day to day care, welfare and development whilst they are in his care.

4. Save as is prescribed by Clauses (15) and (16) of this Order, the Mother shall have the sole responsibility for making decisions about the children’s day to day care welfare and development whilst they are in her care.

5. The children spend time with the Mother at all reasonable times as may be agreed between the parties in writing and, failing agreement, not less than:

   (a)       each alternate weekend from 6.30 pm Friday to 5.30 pm Sunday;

   (b)       for one half of the gazetted Queensland school holiday periods.

6. The Mother shall ensure that the children attend any sporting fixture which occurs during any period of time they spend with her and, for the purpose of facilitating this, the Applicant shall provide to the Mother a copy of the relevant fixture list for such sport forthwith upon it becoming available.

7. The Applicant shall not enrol the children in more than one sporting or other activity which requires their attendance on a weekend at any given time without the prior written consent of the Mother.

8. The Mother shall collect the children from the Applicant’s residence at the commencement of the time the children spend with her and the Applicant shall collect the children from the Mother’s residence at the conclusion of the time the children spend with her.

9. The children shall communicate with the Mother by telephone in the period from 6.00 pm until 6.30 pm on each Tuesday and each alternate Friday and to facilitate this communication:

   (a)       the Mother shall initiate the telephone call to the children;  and

   (b)the Applicant shall ensure the children are available to receive the telephone call.

10. During any period when the children are spending time with the Mother, the children shall communicate with the Applicant by telephone in the period from 6.00 pm to 6.30 pm on each Tuesday and each alternate Friday and to facilitate this communication:

    (a)       the Applicant shall initiate the telephone call to the children;  and

    (b)the Mother shall ensure the children are available to receive the telephone call.

11. For the purpose of the December/January school holidays in each year:

    (a)the Mother shall collect the children at the commencement of the Christmas school holidays; and

    (b)the Applicant shall collect the children at 2:30 pm on Christmas Day and retain the children until his allocated leave has expired; and

    (c)the children shall spend equal time with each party during the remaining days of this school holiday.

12. In the event the children would not otherwise be spending time with the Mother on the weekend on which Mother’s Day falls, the children shall spend additional time with her from 6.30 pm Friday to 5.30 pm Sunday on that weekend.

13. In the event the implementation of Clause 5(a) of this Order would see the children spending time with the Mother on the weekend during which Father’s Day occurs, the operation of this Clause is suspended for that weekend, so the children remain in the Applicant’s care on that weekend.

14. During the times the children are in their care, the parties shall not:

    (a)engage in any acts of verbal or physical violence or perpetuate any violence on the other party in the presence of the children;

    (b)       denigrate the other party in the presence of the children;

    (c)denigrate each other or the children’s extended family in the presence of the children;   

    (d)consumes excess alcohol or illegal drugs.

15. Save for obtaining treatment for medical emergencies, the children shall attend one General Practitioner as selected by the Applicant and, save in the case of emergency or as agreed with the Applicant in writing, the Mother is restrained and an injunction is hereby issued restraining her from taking the children to any other health practitioner.

16. Unless agreed between the parties in writing, the mother is restrained and an injunction is hereby issued restraining her from taking the children to any counsellor.

17. Each party shall immediately notify the other of any medical emergency relating to the children or either of them and shall provide all details and information necessary to enable the other party to attend upon the children forthwith.

18. Unless agreed in writing with the Applicant, or pursuant to further Order of the Court, the Mother is restrained and an injunction hereby issues restraining her from bringing either of the children into contact or communicating – whether by telephone, email, Skype or by way of physical interaction – with Mr A.

19. The parties shall:

    (a)       keep each other informed at all times as to the suburb which they reside;

    (b)keep each other informed at all times of a mobile telephone number on which they can be contacted;

    (c)keep each other informed at all times of the names and addresses of any treating medical practitioners or other health care practitioners upon whom the children attend;

    (d)inform each other as soon as reasonably practicable about any significant injury suffered by the children or significant illness which necessitates them receiving medical or hospital attention;

    (e)keep each other informed at all times of the names and addresses of any educational or child care institution or facility at which the children attend.

20. By this Order, any medical practitioner, health care practitioner or hospital upon whom the children attend is hereby authorised to provide to each party, at that party’s request and cost, all such information that such medical practitioner, health care practitioner or hospital may lawfully provide about the children.

21. By this Order, any educational or childcare institution or facility at which the children attend is hereby authorised to provide to each party, at that party’s request and cost, all information about the children’s education, progress and participation in school or childcare related activities.

22. Both parties are at liberty to attend at the children’s sporting and extracurricular activities.

23. The parties shall communicate about significant issues relating to the children via email and shall ensure that each has an operative email address, the details of which are to be provided to the other within seven (7) days of the making of this Order.

24. The Independent Children’s Lawyer is discharged.

25. The Mother pay the Applicant’s costs thrown away as a result of her non-appearance on 20 February 2014 in an amount fixed at $1,000.00 with payment to be made by 4.00 pm on 9 July 2014.

26. Save as is ordered above, there is no Order as to costs.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Sharp & Underwood 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 BRISBANE

FILE NUMBER: BRC 222  of 2012

Mr Sharp

Applicant

And

Ms Underwood

Respondent

REASONS FOR JUDGMENT

1. These proceedings, which commenced on 10 January 2012, concern J, born in 2005 (9 years old) and K born in 2006 (about 7½ years of age).

2. Whilst the Applicant is not J’s biological father, it is clear on all the evidence that he is very much his psychological father: he has been a constant and stable presence in J’s life since February 2006 – when J was about 12 months of age.

3. To use J’s own words to the Family Report Writer during his interview in April 2013, whilst pointing to the room in which the Applicant was located: “I only have one dad and he is in that room”.

4. As long ago as December 2012, the mother suggested that Mr A is J’s biological father. On 14 May 2013, I adjourned the final hearing of this matter and acceded to the mother’s application that I make orders to facilitate paternity testing. Mr A did not attend for the necessary appointments, did not participate in any paternity testing and has not appeared in these proceedings to seek parenting orders or on any occasion the matter has been listed for hearing.

5. I consider Mr A has had every opportunity to undertake the paternity testing ordered and to participate in the proceedings.

The proposals

1. The Applicant seeks the continuation of the existing parenting regime whereby the children continue to live primarily with him and spend time with the mother each alternate weekend and for half of school holidays. He also seeks an order for sole parental responsibility in relation to each of the children and proposes a change to the existing arrangements which see him undertake the transportation of the children to facilitate their time with the mother.

2. The mother now seeks that the children live primarily with her and spend time with the Applicant in the same manner as she has previously spent time with them – that is, she seeks that the Applicant spend time with the children in a manner which ‘mirrors’ the manner in which the Applicant proposes that she spend time with the children. The mother seeks that the parties have equal shared parental responsibility for the children.

3. Whilst this was the position the mother advocated at the hearing, it was not her original position: rather, she originally sought orders that the children live with her and that:

   a)J spend no time at all with the Applicant; and

   b)K spend supervised time and have supervised telephone communication with the Applicant.

4. She advanced this proposal on the basis that the children would be at an unacceptable risk of harm if they spent time with the Applicant.

Applicable Principles

1. In these proceedings, subject to s 61DA of the Family Law Act 1975 (Cth) (the Act) which obliges the Court to have regard to equal shared responsibility, and the considerations which then follow, I may make such parenting order as I think proper: s 65DAB of the Act. I must have regard to the Objects of Part VII of the Act and the Principles which underpin those Objects: s 60B of the Act. The paramount consideration when making parenting orders is each child’s best interests: s 60CA and s 65AA of the Act.

2. The matters to which regard must be had in determining what is in each child’s best interests are contained within s 60CC of the Act.

3. Whilst these principles apply in the case of both J and K, the application of them in relation to J differs somewhat because, in his case, there are parenting proposals by a ‘parent’ (the mother) and a ‘non-parent’ (the Applicant).

Application of principles in J’s case

1. In Donnell & Dovey[1] the Full Court considered the manner in which Part VII of the Act is to be applied in such a situation.

   [1] (2010) 42 Fam LR 559.

2. I consider that the following relevant binding principles emerge:

   a)‘parent’ means a biological or adoptive parent and does not include a person who stands in loco parentis to a child[2] – hence, the Applicant is not a ‘parent’ for the purpose of Part VII of the Act;

   [2]          Donnell & Dovey (2010) 42 Fam LR 559, [92].

   b)sections 60B(1) and (2) of the Act maintain a distinction between a ‘parent’ and a ‘non-parent’ as the Objects expressed in s 60B(1)(a), (c) and (d) and the Principles expressed in s 60B(2)(a), (c) and (d) specifically refer only to “parents” (or parenting)[3];

   [3] Ibid at [121]-[122].

   c)there being no distinction between parents and non-parents in s 60CA of the Act, a child’s best interests remain the paramount consideration in deciding whether to make a particular parenting order regardless of ‘the biological (or other) connection of the child to the parties to the proceedings’[4];

   [4] Ibid at [79]-[80].

   d)sections 64B(2) and 64C of the Act permit a parenting order, which includes an order for parental responsibility, to be made in favour of a non-parent as well as a ‘parent’ and an order can be made for a non-parent to share parental responsibility with another person[5];

   [5] Ibid at [82]-[83].

   e)in the absence of an order of the Court which allocates parental responsibility for a child or a parenting plan, only the ‘parents’ of a child have parental responsibility in relation to that child[6];

   f)the presumption of equal shared parental responsibility prescribed by s 61DA of the Act and considerations of equal or significant and substantial time prescribed by s 65DAA of the Act are not ‘prescribed pathways in the reasoning process towards a best interests conclusion’[7];

   g)section 65DAA of the Act has no application in circumstances where an order is made for a parent to share parental responsibility with a person who is not a parent[8];

   h)section 60CC of the Act on its face maintains clear distinctions between a ‘parent’ and a non-parent such that:

   i)section 60CC(2)(a) has no application to a person who is not a parent and any consideration of the benefit to a child of having a meaningful relationship with a non-parent is not a primary consideration;

   ii)the additional consideration in s 60CC(3)(e) of the Act does not apply to proceedings between a parent and non-parent.

   i)whilst the benefit to a child of the maintenance of a meaningful relationship with a non-parent can never be a ‘primary consideration’, this does not, of itself, mean that it will be of any less significance than the benefit to the child of the maintenance of a meaningful relationship with a ‘parent’[9];

   j)where the subject matter of a consideration which refers only to a ‘parent’ is relevant to a non-parent, consideration of the same can occur pursuant to s 60CC(3)(m) of the Act.[10]

   [6] Ibid at [81]-[83].

   [7] Ibid at [86], [121]-[122].

   [8] Ibid at [84]-[86].

   [9]          Donnell & Dovey (2010) 42 Fam LR 559, [101] - [102].

   [10] Ibid at [99].

3. I have specifically outlined this in detail so that there can be no doubt that I am fully cognisant of the different manner in which the matters must be considered in determining those parenting orders which are in the best interests of each individual child.

4. The consideration of all of the relevant matters in relation to each of the children must, of course, take place within the matrix of the relevant factual circumstances established by the evidence.

Factual Matrix

1. The parties commenced a relationship in about February 2006. At that time, J was about 11 months of age. Consequently, the Applicant is the only person he has known to fulfil the male parenting role.

2. The mother has three other children: S now aged about 20 years, L now aged about 17 years and T now aged about 15 years. Both S and T lived with the mother and the Applicant during their cohabitation.

3. In about 2007, S – who was then about 13 years of age – made allegations to the school guidance officer that the Applicant had behaved toward her in a sexual manner and that the mother had engaged in domestic violence toward her.

4. The Applicant, who strongly denies the allegations about his behaviour, says that, at the time these were made, S wanted to be able to have contact with her biological father and the mother would not allow her to do so. He says, in essence, that S made the allegations against him to help her to achieve her desire of spending time with her biological father. After the allegations were made, S went to stay with her maternal grandmother. She then went to live with her biological father in Townsville.

5. S was interviewed by members of the Queensland Police Service. The documents accepted into evidence contain an account of her complaints.  The Police determined not to proceed further because they concluded that there were inconsistences in S’s complaint.

6. The Applicant was not charged with any offence.

7. Despite her knowledge of the allegations made by S, the mother and children remained living with the Applicant until the parties separated in November 2009. At that time, the mother left the children – then three and four years of age respectively – living with the Applicant at the former joint residence.

8. T ended up living with his biological father interstate. Whilst the mother asserted he initially went simply to visit his father but was retained by him for a period of time and the Applicant asserted the mother sent him to spend time with his father because she was engaged in a new intimate relationship, there is no doubt that, however T came to be living with his father after the parties’ separation, the mother did not seek to obtain a Court Order for his return to her care.

9. Despite S’s complaint to Police, no action has ever been taken by any agency charged with the protection of children to remove the children from the Applicant’s care since the parties’ separation.

10. I do not think it is seriously in dispute that, after living with her biological father for a number of months, S returned to live with the mother for a period of time before moving to live with an aunt.

11. I accept the Applicant’s evidence that, despite the allegations she has previously made against him, S and the maternal grandmother have visited his home after separation on a number of occasions to see the children.

12. In about July 2010, the Applicant and children moved to live with his mother and her partner at their property at Suburb B. They lived there until about April 2011 when the Applicant obtained a rental property situated a short distance from that residence.  The Applicant’s mother has been significantly involved in the children’s lives.  She has helped with the children’s before and after school care needs on a regular basis.

13. At about Easter 2011, the Applicant told the mother he wanted to adopt J so he (J) would know he was his “son”. The Applicant said the mother became aggressive and told him if he went anywhere “near a lawyer or a Court room” she would immediately take J away from him. I accept and prefer the Applicant’s evidence to that given by the mother about this interaction and note that the mother’s initial proposal that J spend no time at all with the Applicant is consistent with the comments he says she made on this occasion.

1. In October 2011, T returned to live with the mother. He continues to do so. The children have the opportunity to spend time with him on the weekends and during the holidays when they are in the mother’s care.

2. The children’s time with the mother from separation in November 2009 until December 2011 happened as follows:

   a)on one or two weekends a month until about July 2010;

   b)from April 2010 until October 2010: on limited occasions;

   c)on K’s birthday in October 2010;

   d)for about two weeks in December 2010;

   e)by telephone on two occasions in January 2011;

   f)by telephone on J’s birthday in February 2011;

   g)on occasions on weekends during 2011.

3. The parties agreed the children would spend some holiday time with the mother from 25 December 2011 until 8 January 2012. However, the mother later communicated her intention not to return them to the Applicant that day.

4. On 10 January 2012, the Applicant filed an Initiating Application seeking orders that the children be returned to his care. The Application was allocated a return date of 20 March 2012.

5. In about February 2012, T, then aged about 13 years, made allegations to school personnel about the Applicant. He had not spent any time with the Applicant since the parties separated in November 2009. These allegations involved assertions that the Applicant had inappropriately touched T’s genital area, had tried to have T shower with him and had told T that he should not tell anyone about these activities. Further allegations were that the Applicant sought to meet with T in the absence of the mother and was only wearing a towel during discussions with T.

6. In the same way in which he has consistently denied any inappropriate behaviour toward S, the Applicant has consistently denied behaving in the manner alleged by T. He says, and I accept, that he only learned of these allegations when he read of them in the mother’s affidavit material.

7. On 21 March 2012 Federal Magistrate Cassidy (as her Honour then was) heard the Applicant’s application and ordered that:

   a)the children live with the Applicant and attend at the Suburb B State School;

   b)the children spend time with the mother at all reasonable times as may be agreed and failing agreement not less than:

   i)each alternate weekend from 6:30 pm Friday until 6:30 pm Sunday; and for half of all gazetted Queensland school holiday periods;

   c)the children communicate with the mother by telephone from 6.00 pm until 6:30 pm each Monday, Wednesday and alternate Friday.

8. The children returned to live with the Applicant on 21 March 2012 – this was the first time they had seen him since 25 December 2011. In addition, the children had not communicated with the Applicant during the time they were in the mother’s care.

9. Since March 2012, the children have spent time with the mother each alternate weekend from Friday evening to Sunday afternoon and during one half of all school holiday periods. The Applicant has facilitated this time by being responsible (personally and with the assistance of his mother and/or friends) for transporting the children between his home at Suburb B (and later Suburb C) and the mother’s residence in Town D.

10. On 26 March 2012, a Notification was made to the Department of Communities (Child Safety) (the Department). The Department informed the Applicant, by correspondence dated 30 March 2012, that it had concluded the matter was unsubstantiated and that the children were not in need of protection. This correspondence outlines the Department’s findings, which I accept, in relation to the Applicant’s parenting of the children.  When the children were interviewed by Police in May 2012, they appeared happy and well adjusted.

11. The Applicant was contacted by the Police about the allegations made by T. He was interviewed in August 2012. He was not charged with any offence then nor has any charge been laid against him since.

Are the children at risk in the Applicant’s care?

1. As noted above, the mother’s case as presented at trial proceeded on the basis that the children should live with her and spend unsupervised alternate weekend and block holiday periods with the Applicant. Such a proposal is contrary to any assertion that the children will be at an unacceptable risk of harm if they spend unsupervised time with the Applicant.

2. The mother’s case as originally advanced contained the assertions that, because of the allegations made by S and T about the Applicant:

   a)J is at an unacceptable risk of harm in his care and his best interests would be met by the cessation of the relationship between them; and

   b)K is at an unacceptable risk of harm in his care and his best interests would be met by the imposition of supervision over both his time and his communication with the Applicant.

3. Whilst no longer pressed by the mother, I consider it appropriate that I consider carefully the evidence relied upon by her in advancing her original position because it could not be in the children’s best interests that such allegations are left unresolved.

Allegations made by S

1. As outlined above, in about 2007, S told the school guidance counsellor that the Applicant had touched her inappropriately and that the mother had engaged in domestic violence. I accept the Applicant’s account that, at the time this information was conveyed to the guidance counsellor, S was expressing a desire, unsupported by the mother, to spend time with her biological father.

2. There is nothing in the evidence before me to suggest that I should not accept the Applicant’s consistent denials of any inappropriate behaviour toward S.

3. I further accept his evidence that S has attended at his house to see the children, albeit in the presence of the maternal grandmother. I consider it unlikely that, even with the presence of a supportive family member, S would do so if, in fact, she had been the recipient of inappropriate behaviour by him.

4. In addition, I note that S is now 20 years of age – she could easily have provided an affidavit, detailing any alleged inappropriate behaviour toward her by the Applicant, in these proceedings. This has not occurred.

5. Further, I note that, despite her knowledge of S’s allegations, made in about 2007, about the Applicant’s behaviour toward her, the mother:

   a)did not separate from him until November 2009; and

   b)left the very young children in his care at separation; and

   c)later entered into discussions with him about sharing equally in the children’s care.

6. These are not the actions one would expect from a parent who genuinely believed the content of S’s allegations. To conclude otherwise would logically compel the finding that, despite honestly believing S had been the victim of sexual abuse by the Applicant, the mother decided it was appropriate for her two youngest children – one of whom was not biologically related to the Applicant – to remain living with him in the same residence: not only for a further two years after S’s allegations were made but, also, after separation and in circumstances where she was no longer present to support them.

7. I consider that a parent who acted in such a manner – namely, to leave very young children who were incapable of self-protection within the care of a person he or she genuinely suspected or believed had sexually abused or acted inappropriately toward an older child – would significantly fail to discharge the primary responsibility of parenthood: that is, to protect children.

8. I am not prepared to conclude that the mother has so failed to discharge the responsibilities of parenthood. Rather, I conclude it is much more likely than not that the mother did not genuinely believe the allegations made by S about the Applicant’s alleged behaviour toward her. I consider it more likely than not that, in remaining living with the Applicant until November 2009 and then in leaving the children in his care after separation, the mother had no doubt that he did not present any risk to the children.  I am further buttressed in these conclusions by the mother’s account to a Departmental Officer on 21 March 2012:[11]

   a)when asked if she had ever had concern about the Applicant while they were together or if K or J had ever made disclosures, the mother said “No”;  and

   b)she said that she did not believe S either because she had been having behavioural difficulties with her at that time and S later went to live with her biological father.

   [11]         Exhibit 5, page 73.

9. I do not accept the mother’s denial during cross examination that she had told the Departmental officer the matters recorded above.

Allegations made by T

1. I have already outlined the allegations made by T against the Applicant.

2. When T was interviewed by Police on 5 April 2012 he complained that the Applicant had rubbed his shoulder and leg – when the interviewing officer raised that this could have been affection without a sexual connotation, T denied this but said that no further actions that had sexual connotations had occurred.  The Police records note that there were no actions of any intentional sexualised behaviour by the Applicant.

3. I take into account and accept the Family Report Writer’s assessment of, and comments about, her observations of T’s behaviour during the April 2013 interview. 

4. I accept that T did not display any behaviours indicative of sexual abuse or emotional distress and that he presented as a very confused child, charged with the responsibility of convincing the Report Writer that it was best for the children to live with the mother.

5. It is concerning that, despite T returning to the mother’s care in about October 2010 – and not spending time with the Applicant since November 2009 – the allegations made by T came only after the children were in the mother’s care and the Applicant had commenced formal proceedings for their return.

6. I accept the Applicant’s denials of any inappropriate behaviour toward T. I note that, despite investigation, the Department recorded an unsubstantiated finding in respect of the Notification and concluded that the children were not children in need of protection.

7. It follows from the conclusions I have reached about the allegations made by both S and T that, on the evidence before me, I am not persuaded that the children are at risk of exposure to any behaviour of that kind whilst in the Applicant’s care.

8. Further, having considered all of the evidence, including that relating to J’s recent behavioural outburst whilst in the Applicant’s mother’s care and at before school care, I am not remotely persuaded that either the Applicant or his mother present any risk to the children.

What parenting orders are in the children’s best interests?

1. There is no doubt that the children love the mother and T and wish to continue to have a meaningful relationship with them. There is also no doubt that their primary attachment is to the Applicant from whom they have received consistency and stability of care, particularly since separation in November 2009.

2. I accept the Family Report Writer’s assessment of the children’s attachments and the impact upon them of their mother’s actions in the two years or so after separation in November 2009. I accept her evidence that, following the mother’s report of the children’s behavioural problems whilst in her care, she considered this to be an indicator that their time with the mother was still not stable and that they required additional help in their relationship with her.

3. I accept the Family Report Writer’s assessment of the children’s relationship with the Applicant, his mother and partner, the mother and T.

4. The children have expressed their love for the Applicant, his mother and her partner, the mother and T. I consider it highly likely, given their ages, that, on occasion, they may well have expressed to the mother the wish to remain in her care or spend additional time with her. Such expression of wish cannot, however, be accorded particular significance given their ages.

5. I consider that the Applicant has taken every opportunity to spend time and communicate with the children and make decisions about major long term issues in relation to them. He has devoted himself to their care and support, particularly since separation in November 2009. He has enrolled them in school and ensured that, where necessary, they have been provided with professional support and assistance.

6. I accept that the Applicant has been responsible for undertaking the vast majority of parenting tasks since separation. I accept that:

   a)he has financially supported the children, both during his relationship with their mother and after separation;

   b)he took steps to enrol the children in school and arrange appropriate childcare for them;

   c)when, at the beginning of 2010, J required assistance in transitioning to school attendance, he took him to counselling at Lifeline and also to see a paediatrician. I accept he acted to obtain a referral for J to be seen by an eye and hearing specialist and a developmental and educational psychologist;

   d)he worked with J to assist in his transition from Prep at E State School to Prep at Suburb B State School;

   e)he has made appropriate arrangements to facilitate the children’s before school care in circumstances where he has continued to work to meet the children’s need for financial support;

   f)he has assisted the children with their homework and has been supportive of them in their scholastic endeavours;

   g)he has shouldered the responsibility of delivering the children to, and collecting them from, the mother’s residence on a fortnightly basis so as to facilitate them spending time with the mother;

   h)he has provided the children with a stable, consistent and caring environment;

   i)he has facilitated the children’s participation in an extracurricular activity – football – in which he himself has become involved.

7. I conclude that the Applicant has fulfilled the parenting role to the best of his ability and, as a consequence of this and the assistance provided by his mother and her partner, the children have benefited.

8. I accept the Applicant’s evidence as to the time the children have spent with the mother in the period from separation until December 2011 – as outlined in paragraph 31 above.

9. I accept that, on occasions, the mother has been inconsistent in her attempts to spend time and communicate with the children:

   a)whilst the parties reached agreement about the children spending time with the mother at Christmas 2010, the mother was three days late in collecting the children and returned them early on Christmas Day, stating that she had made plans for the rest of the day;

   b)despite agreeing to attend an awards ceremony at which J received an award in about October 2011, the mother failed to attend and did not contact J to congratulate him.

10. Whilst I accept the Family Report Writer’s assessment of the mother’s approach to time with the children and consider that, on occasions, she has prioritised her own needs above those of the children, I also note however that, since the March 2012 Orders were made, the children’s time with the mother has occurred in a regular and consistent manner.

11. The children have continued to attend at Suburb B State School. J is in Grade 4 and K is in Grade 2. Given that the mother lives at Town D, a change of the children’s primary living arrangements would necessitate a change of school and a cessation of their involvement in the football club in which they have been involved for some time.

12. A change to the children’s primary living arrangements would also mean they no longer had the opportunity to spend daily time (during the working week) with the Applicant’s mother and her partner – with whom they have a strong and loving attachment and from whom they have obtained stability, certainty and care. A change in their primary living arrangements would also remove the children from the person – the Applicant – who has met their emotional, physical and financial needs for the substantial portion of their lives.

13. Such a change to the children’s primary living arrangements would obviously provide them with an increased opportunity to spend time with both the mother and T. However, given the Family Report writer’s assessment of the strength of the children’s attachment to the Applicant, such a change would be likely to cause them significant disruption, distress and emotional harm.

14. The mother continues to assert that she believes that the Applicant sexually abused both S and T. Her initial position was that J should have no time with the father and K’s time should be supervised. Given her asserted continued belief, I consider there is a significant risk that, if the children lived primarily with her, she may not act so as to support the children’s ongoing relationship with the Applicant. My conclusion in this regard is supported by J’s comments to the Family Report writer that the mother told him that the Applicant had done wrong things to her and he was not going to live with him. I do not accept that the mother did not make these comments to the child.

15. The parties have implemented the terms of the March 2012 Order. There is nothing in the evidence to suggest       that, whatever primary living arrangements are determined to be in the children’s best interests, the practical difficulty and expense of them spending time and communicating with both parties is such as to substantially affect their right to maintain a personal relationship and direct contact with both the Applicant and the mother.

16. I accept the Family Report Writer’s assessment of the parties’ respective parenting capacity. I consider that the Applicant has clearly demonstrated his capacity to meet both children’s emotional and physical needs. In concluding that he has a greater capacity than the mother to continue to meet these needs in the future, I rely upon the contents of the Family Reports.

17. I accept the Applicant has proactively sought the mother’s involvement in the children’s lives and, by way of example, accept that:

    a)before K’s birthday in October 2010, he contacted the mother to ask if she wanted to spend time with K;

    b)in about November 2010, he telephoned the mother to ask about Christmas arrangements.

18. I consider that, by his actions after separation in caring for the children, enrolling them at school, ensuring that they attend at, and participate in, extracurricular activity, working to support them financially, putting into place appropriate arrangements for their care whilst he is engaged in paid employment and supporting them in their relationship with the mother and T by undertaking the travel necessary to ensure that such time occurs, the Applicant has demonstrated an exemplary attitude to the children and the responsibilities of parenthood. To use his mother’s words: he has stepped up to the plate.

19. I consider that, in contrast to the Applicant and as outlined in the Family Reports, the mother has struggled to put the children’s interests before hers. Stark examples of the deficits in her parenting capacity, insight about the children’s relationship with the Applicant and attitude toward the responsibilities of parenthood can be seen in:

    a)her decision to withhold the children in January 2012 and do nothing to ensure they had any time or communication with the Applicant before their return to his primary care in March 2012 on the basis that, prior to separation in 2009, she had been their primary care provider;

    b)her original determination, in all the circumstances of this case, including the Applicant’s primary care of the children from November 2009 until the present, to seek orders that would see J’s relationship with the Applicant – and the Applicant’s mother – severed immediately; and

    c)her actions in continuing to require J to communicate by telephone with Mr A in circumstances where Mr A had taken no steps to establish paternity of J; and

    d)her self-reported incapacity to manage J’s behaviour whilst in her care in circumstances where the difficulties reported by the mother seem to be less severe.

1. The evidence clearly supports the finding, which I make, that the Applicant is the party best able to meet the children’s need for consistent and stable parenting.

Parental Responsibility

1. The Applicant seeks an order that he have sole parental responsibility for major long term issues in relation to the children. He does so on the basis that he and the mother are unable to communicate or reach joint decisions about major long term issues for the children. The mother seeks an order for equal shared parental responsibility.

2. In J’s case, the presumption of equal shared parental responsibility prescribed by s 61DA of the Act does not apply and is not a ‘prescribed pathway in the reasoning process towards a best interests conclusion.’[12]

   [12]         Donnell & Dovey (2010) 42 Fam LR 559, [86], [121]-[122].

3. In K’s case, I am bound to apply a presumption that it is his best interests that his parents have equal shared parental responsibility for him (“the presumption”): s 61DA of the Act. The presumption is rendered inapplicable by the matters prescribed in s 61DA(2) of the Act or may be rebutted by evidence that satisfies the Court that it would not be in the child’s best interests for his parents to have equal shared parental responsibility for him: s 61DA(4) of the Act.

4. The evidence establishes that the parties do not communicate well at all. I accept the evidence given by the Applicant and his mother that, at changeovers, they are often subjected to abusive language from the mother or her associates.

5. The mother’s evidence was that any communication and/or consultation between the parties occurred so long ago that she could not recollect it. She accepted that they are unable to communicate about decisions and that there is little or no communication between them. I am not persuaded that the parties have been able to reach agreement or make joint decisions about matters relating to the children: rather, I consider it more likely than not that their communication has been restricted to telling each other when they are running late or informing each other of things that each intend to do (for example: about taking cakes to the children’s school).

6. Further, the existence of the allegations that the Applicant sexually abused both S and T has eroded completely any level of trust between the parties. The mother continues to assert that she will always believe that the Applicant did “something” abusive to S and T. I consider the parties are incapable of acting jointly to reach decisions about the children in the manner required by an order for equal shared parental responsibility. I consider it highly likely that there would simply be an impasse between them, with the likely consequence for the children of further conflict and instability.

7. I consider it is not in either child’s best interests that an order for equal shared parental responsibility is made.

8. The Applicant has demonstrated the capacity to make decisions about matters for the children which fall within the definition of “major long term issues”. He has acted to ensure they have received the necessary support and assistance and I have no doubt that he will continue to do so in the future. He acted to transition J to a school which, on the evidence, appears to have better suited the child and which has been better able to address his behavioural issues. Further, he engaged a tutor to assist J after assessment revealed some restrictions in his overall cognitive ability. I accept that there is no evidence to suggest that he has never made any inappropriate decision in relation to the children’s health care or needs.

9. I consider that he is capable of taking into account any opinion expressed by the mother about a particular decision.

10. I consider it in the children’s best interests that the father have sole parental responsibility in respect of all major long term issues in respect of the children, on the proviso that he illicit the mother’s opinion and consider it before making any decision about such matters.

11. I also consider, for the reasons outlined above, that it is in the best interests of each of the children to live primarily with the Applicant and spend time with the mother.

Should the children attend at a single medical practice save in emergencies?

1. The Applicant sought an order that save for in emergency situations, the children attend only at a single medical practice to ensure that they receive consistent medical treatment from a practitioner well versed in their medical history and the history of conflict between the parties. He relied upon the mother’s actions in taking the children to medical practitioners in order to attempt to establish a case that the children were, in some way, at risk in his care.

2. The mother opposed the making of such an order and did not agree that she should be restrained from taking the children to a medical practitioner of her choosing.

3. The evidence establishes that, on occasion, the mother has taken the children to medical practitioners for at least an ancillary purpose of attempting to obtain support for her case that they live primarily with her. I accept that, on recent occasion, she indicated an intention to continue to attempt to try to prove that the children were suffering adversely in the Applicant’s care. I am concerned that, absent an order that the children attend upon a single medical practice save in an emergency situation, the mother’s attempts to try to “prove” this assertion and to “have things recorded somewhere” may expose the children to unnecessary interaction with medical practitioners or other authorities.

4. I accept, for example, that despite knowing that the police had concluded their investigation into the Applicant in March 2012, the mother told a medical practitioner in June 2012 that she was concerned the children had been sexually assaulted by the Applicant and that he was under investigation. Had the medical practitioner acted to report the matter to authorities such as the Department, there is every likelihood that the children would have been involved in further investigations in relation to a matter about which the police had already concluded their investigation was at an end.

5. I accept the Family Report writer’s evidence of her clear concern that the mother was taking the children to different doctors. I accept her evidence that it is critical, to avoid them being subjected to unnecessary interventions, that the children have one medical practitioner who provides for their medical care.

6. I consider it is in the children’s best interests that, save in emergency situations, the children attend upon a single medical practice because I am persuaded that this will ensure that they are seen by a person who has the children’s medical history available to them.

7. I accept the submission made by Counsel for the Independent Children’s Lawyer that, given that the mother’s actions as outlined in paragraph 95, the mother should be restrained from engaging the children with a counsellor. This restraint will ameliorate the risk to the children of suffering emotional harm from such engagement.

Application for costs

1. The general rule in proceedings under the Act is that each party bears his or her own costs. However, if the Court is of the opinion that there are circumstances that justify it in doing so, the Court may, subject to certain considerations, make such order as to costs as the Court considers just.

2. In considering what order as to costs, if any, to make, the Court shall have regard to a number of specified matters prescribed by s 117(2A) of the Act.

3. The Applicant, who is a tradesman, privately funded these proceedings as he did not qualify for legal aid. He has done so in circumstances where he is the only party to provide financial support for the children. He receives no child support from the mother. It is clear, therefore, that money spent by him in ongoing legal proceedings about the children’s care arrangements diminishes his ability to continue to provide for them financially at present and in the future. It is trite to observe that the money the Applicant earns from his employment would have been better spent in supporting the children and facilitating their involvement in activities than on ongoing legal proceedings.

4. The mother is studying and is responsible for T’s financial support. She is in receipt of government provided financial support. The mother’s financial circumstances are extremely modest.  As noted above, she pays no child support. She submitted that, if she is required to pay the Applicant the sum of money he seeks, such order would affect her greatly. She further submitted that her financial position is worse than that of the Applicant.

5. The Applicant seeks an order that the mother pay his costs thrown away by the adjournment of the matter on 14 May 2013 to enable proposed paternity testing of J to occur. The quantum of costs said to be thrown away as a consequence of the mother’s application is in an amount of $4,283.70.

6. The mother accepted that she had not provided the father with any prior written notice of her intention to seek an adjournment. I accept the submission made by Counsel for the father that, had such notification been received, the father would have been able to consider his position and, perhaps, act to minimise the costs to him.

7. It is not disputed that both the Applicant and the mother complied with the terms of the Order made on 14 May 2013. That paternity testing of J did not occur arose because Mr A failed to participate in the process of testing despite the contents of earlier correspondence which clearly contained the assertion that he intended to do so.

8. As noted above, Mr A has not participated in any way in the proceedings. The purpose of the adjournment of the matter in May 2013 was not achieved.

9. The mother sought paternity testing in reliance on correspondence prepared by Mr A. She paid the money she was required to pay by the Order and participated in the testing. Further, the evidence establishes that she has not had any contact with Mr A since mid-2013.

10. I am not persuaded that the circumstances outlined above justify the making of an order that the mother pay the Applicant’s costs thrown away as a consequence of her application for an adjournment of the hearing in May 2013.

11. When the matter returned before me on 11 December 2013 as a consequence of Mr A’s lack of participation, I determined that the children’s interests were best served by a speedy resolution of the proceedings – I consequently set the matter down for final determination before me in a week allocated for the preparation of reserved judgments. It was listed to commence on the 20 February 2014.

12. A perusal of the transcript of proceedings for 20 February 2014, will reveal that at about 9:45 am the mother conveyed to the Court and the Independent Children’s Lawyer that she would be unable to attend at Court because of difficulties with her motor vehicle. Subsequent attempts by the Independent Children’s Lawyer and the Court officer to speak personally with the mother throughout the day were unsuccessful.

13. At 2:30 pm on 20 February 2014, I adjourned the matter for further hearing to 10:30 am the following day.  I did so to ensure that the mother had sufficient time to either rectify the difficulties with her motor vehicle or, if that was not possible, make her way to Court by using public transport.

14. The mother appeared on 21 February 2014.

15. The Applicant seeks an order that the mother pay his costs thrown away consequent upon her failure to appear on the first day of the hearing – 20 February 2014 – and those additionally incurred by him as a result of her absence that day: namely, those incurred by the appearance to finalise the matter on 22 April 2014. These costs are quantified in an amount of $4,393.00.

16. Counsel for the Applicant submitted that the Court would be persuaded that the circumstances justify the making of an order for costs given the mother’s failure to provide any evidence to substantiate her assertion that her non-appearance on 20 February 2014 arose as a consequence of car failure.

17. In the absence of any documents to corroborate the mother’s assertion that she experienced mechanical difficulties which prevented her attendance at court for the first day allocated for the hearing, I am persuaded that the circumstances as outlined above justify the making of an order that the mother pay $1,000.00 toward the Applicant’s costs thrown away as a consequence of her failure to appear on the first day of the hearing in February 2014.

I certify that the preceding one hundred and fifteen (115) the paragraphs are a true copy of the reasons for judgment of the Honourable Justice Hogan delivered on 9 May 2014.

Associate:     

Date:              9 May 2014