Sharpe and Anstey
[2013] FCCA 169
•12 August 2013
FEDERAL CIRCUIT COURT OF AUSTRALIA
| SHARPE & ANSTEY | [2013] FCCA 169 |
| Catchwords: FAMILY LAW – Contested residence – father alleges sex abuse of child by child’s half-brother – father withdraws allegations under oath – father then re-litigates allegations at subsequent hearing – findings – no unacceptable risk – Court satisfied father did not believe allegations – father has significant mistrust towards mother and shows no respect for mother’s parenting abilities – limited time for child with father. |
| Legislation: Family Law Act 1975, ss.60CC, 61DA |
| Rice & Asplund [1979] FLC 90-725 Mazorski & Albright [2007] FamCA 520 H & H [2003] FMCAfam 4 |
| Applicant: | MR SHARPE |
| Respondent: | MS ANSTEY |
| File Number: | BRC 1639 of 2011 |
| Judgment of: | Judge Willis |
| Hearing dates: | 18, 19, 20, 21 & 26 March 2013 |
| Date of Last Submission: | 26 March 2013 |
| Delivered at: | Cairns |
| Delivered on: | 12 August 2013 |
REPRESENTATION
| Counsel for the Applicant: | Mr RM Galloway |
| Solicitors for the Applicant: | Mumfords Lawyers |
| Counsel for the Respondent: | Mr G Shoebridge |
| Solicitors for the Respondent: | Greenhalgh Pickard Solicitors |
| Counsel for the Independent Children's Lawyer: | Ms K Oakley |
| Solicitors for the Independent Children's Lawyer: | Ms S Pearce |
ORDERS
All previous parenting orders with respect to X born (omitted) 2008 (“the child”) are discharged.
Parental Responsibility
IT IS DECLARED that the presumption of equal shared parental responsibility is rebutted in the best interests of the child.
Subject to these Orders, the mother shall have, to the exclusion of the father, parental responsibility in respect of all major long-term issues (as that expression is defined in the Family Law Act 1975 (the Act)) in respect of the child for the major long term issues save that the mother shall, prior to making the sole ultimate decision about any such issue:-
(a)advise the father in writing of the decision intended to be made;
(b)seek the father’s written response in relation to such decision and if the father wishes to express an opinion in reply, he shall do so in writing only and within the time frame stated by the mother.
(c)by reference to the best interests of the child the mother will consider any such responses prior to making any such decision; and
(d)Advise the father in writing as soon as reasonably practicable of her ultimate decision.
(e)In exercising sole parental responsibility, the mother is restrained from changing the child’s surname and relocating the child’s permanent residence such that the time to be spent between the father and child provided for in these orders is not possible without the prior written agreement of the father or Order of the Court.
In carrying out her decision pursuant to Order 3 herein, in the event of an emergency and the mother does not have the opportunity to advise the father of the decision and seek his written response, the mother will advise the father of the decision made, as soon as practicable following the emergency.
The mother shall have sole parental responsibility for decisions regarding the day to day care, welfare and development; and
The father shall have sole parental responsibility for the day to day decisions regarding the day to day care, welfare and development of the child SUBJECT ALWAYS TO THE RESTRAINTS UPON THE FATHER referred to in these Orders. Specifically noting the restraint upon the father to take the child to a doctor, hospital or allied health professional as defined specifically in these Orders (see Orders 36-40 herein) SAVE AND EXCEPT in the event of a true medical emergency as defined in these Orders.
THE COURT NOTES THAT: In exercising parental responsibility the mother is not required to enter into a debate about the long term decision to be made or the day to day medical decision to be made. These Orders authorise the mother to make such decisions. In addition, in terms of medical issues, the mother is not required to:
(a)Comply with requests of the father that the child be taken to the doctor; and
(b)The mother is not required to debate with the father medical treatment of the child or justify steps she has taken to address medical matters nor is she required to debate or justify any other issues arising from her sole parental responsibility.
Residence, time and communication
The child is to live with the mother at all times, other than when the child spends time with the father as set out in these Orders.
The child will spend time with the father at the following times and subject to the RESTRAINTS SPECIFIED IN THESE ORDERS.
Regular weekends
For 2 months from the date of this Order:
From Friday afternoon at 3pm until the following Monday at 9am each alternate weekend NOTING THAT in the event that either the Thursday preceding the Friday or Monday after the weekend is a public holiday or student free day, the father’s time will commence on the Thursday afternoon or conclude on Tuesday morning in lieu of Friday or Monday. The specific time on Monday or Friday in this Order are subject to change upon the parties being able to avail themselves of the facilities at (omitted) Contact Centre (“the Contact Centre”) or any other supervision contact centre subsequently nominated by the mother, as referred to in Order 20 herein.
After 2 months from the date of this Order:
(a)The father will spend time with the child each alternate weekend commencing Friday after school and concluding at the commencement of school on the following Monday morning. In the event that the Friday or Monday is a public holiday or student free day, the father’s time will commence on the Thursday after school or conclude on Tuesday morning at the commencement of school.
(b)The father will spend from after school or 3pm Wednesday in the off week until 9 am or before school Thursday in the off week.
Upon child commencing prep school
The father will spend time with the child each alternate weekend commencing Thursday after school and concluding at the commencement of school on the following Monday morning. In the event that the Thursday or Monday is a public holiday or student free day, the father’s time will commence on the Wednesday after school or conclude on Tuesday morning at the commencement of school.
The father’s midweek time spent with the child pursuant to Order 11(b) herein will cease.
Block holiday time during school holidays
Upon child commencing prep school, the father will spend holiday time with the child for one half of each of the school holiday periods, being the first half in the first year of school and each alternate year thereafter, and the second half in the second year of school and each alternate year thereafter. The first of such block holidays to commence in the first school holiday period after the child has commenced attending prep school NOTING THAT this will apply to each and every school holiday throughout the year including Christmas and therefore the child will spend alternate Christmas’s with each parent.
Changeovers
Until the child commences prep all changeovers are to occur to and from the Contact Centre.
The parties are to forthwith do all acts and things to undertake the intake procedures required to use the facilities of (omitted) Contact Service. Changeovers and use of (omitted) Contact Service is at the discretion of (omitted) or other Contact Service, as the case may be.
Upon the parents securing a position at the contact centre and up until the child commences attending prep school, the commencement and conclusion of the father’s alternate weekend time and/or Wednesday afternoon will need to allow for the child to be taken to and collected from the Contact Centre. The specific times referred to in Orders 10 and 11 will therefore vary and the precise time for handovers will be a time nominated by the mother in writing, such time to occur between 3 and 5pm on Friday and between 8 and 9am on the Monday (or the relevant day accounting for a public holiday or student free day) and Wednesday between 3 and 4 pm and concluding between 8 and 9 am the following morning. The time nominated by the mother will take account of the travelling time to and from the child’s current day care centre and the changeover location.
After the child commences attending prep school, handovers which occur on a school day will occur to and from the prep-school/school SUBJECT ALWAYS to the discretion of the school to allow this to occur. If the school objects to this arrangement, all the changeovers will revert to the contact centre and will happen before and after school on the relevant days set out in this Order, at times nominated by the mother to allow for travelling time to and from her home and the school to the contact centre.
After the child commences prep school, all other handovers which occur on a non-school day, will occur to and from the contact centre.
Whilst these orders refer to (omitted) as the supervision centre to facilitate handovers, the mother is at liberty from time to time, to nominate an alternate contact supervision centre in the future.
Each of the parties are to pay one half of the cost of the contact centre.
Communication
The father will spend telephone time with the child only twice a week at 6pm for no longer than ten minutes after which time the mother is at liberty to end the call. It is at the discretion of the mother as to whether the phone call is placed on speaker phone or the child uses the hand held phone. The mother is to nominate forthwith in writing the two days of each week for this regular telephone communication. The mother is at liberty to change the days and/or time, from time to time, on seven days’ notice to the father, to accommodate the child’s routine and extra-curricular activities. The mother is to initiate the first call of the week and the father is to initiate the second call. The father’s telephone time is subject to the specific restraints referred to in these Orders.
Whilst the child is on block holidays with either parent, the regular phone calls referred to in Order 22 herein will be suspended and in place thereof, the parent with whom the child is holidaying will initiate one phone call per week between the child and the other parent. If a parent is holidaying away with the child on the child’s birthday, the holidaying parent will facilitate a telephone call between the child and the other parent on the child’s birthday.
Each of the parties shall keep the other advised as to their residential address, mobile telephone numbers and email addresses and inform the other of any change within two (2) days of any such change.
Each parent will immediately notify the other if the child is seriously ill or is to be admitted to hospital on any occasion when the child is in that parent’s care.
The parties will communicate about any issues of relevance regarding the child’s welfare by way of emails and the use of the communication book is to be discontinued forthwith. In the event of a true emergency, each party is to telephone the other forthwith.
The child’s birthday
Subject to Order 29 herein, the father will spend time with the child on the child’s birthday if the child is not otherwise spending time with him in the following manner:
(a)If the child’s birthday falls on a school day, the father will spend time with the child from after day care or school until 9am the following morning or the commencement of school.
(b)If the child’s birthday falls on a non-school day, the father will spend one half of that day from 3pm until the following morning at 9am with the child.
Subject to Order 29 herein, the mother will spend time with the child on the child’s birthday if the child is not otherwise living with her in the following manner:
(a)If the child’s birthday falls on a school day, the mother will spend time with the child from after day care or school until 9am the following morning or the commencement of school.
(b)If the child’s birthday falls on a non-school day, the mother will spend one half of that day from 3pm until the following morning at 9am with the child.
In the event that the child’s birthday falls during either parent’s block school holiday time with the child, the specific provisions referred to in Order 27 and 28 herein WILL NOT apply unless the holidaying parent is holidaying at home. THE COURT NOTES that it is not intended that the provisions for each parent to spend time with the child on his birthday operate so as to prevent or interrupt the block holiday period of either parent in any year if that parent is travelling away with the child for the holiday period.
Father’s Day and Mother’s Day
The child is to spend the Father’s Day weekend with the father and the Mother’s Day weekend with the mother and to enable this to occur, the Father’s alternate weekends referred to in Orders 10-12 herein, are to be swapped to accommodate this timing.
Overseas travel
The mother and father are to do all acts and things and sign all documents necessary to obtain an Australian passport for the child and to ensure that the child’s passport is kept up to date at all times.
The mother and father are permitted to take the child outside of Australia after the child commences prep school for the duration of their respective holiday time provided for in these Orders (any longer time will only be as agreed between the parties in writing prior to departure). The travelling party is to provide no less than 45 days notice of the intended travel, including a detailed itinerary of proposed travel including dates of departure and arrival at the various destinations and copies of child’s return airline tickets.
The mother is permitted to retain possession of the child’s passport other than at such times when the child is travelling with the father. The father is to return the passport to the mother within 5 days upon the child’s return from any overseas travel.
Injunctions
The father’s time spent with the child set out in these Orders, or any other time agreed to between the parties, is subject to the following conditions and restraints:
The father is restrained from using any device to record his telephone communication or interactions with the mother or child. The father is restrained from requesting, permitting or enabling any other person to record his telephone communications or interactions with the mother or child.
The father is restrained from recording any handovers which take place with the child referred to in these Orders. The father is restrained from requesting, permitting or enabling any other person to record the handovers with the child.
The father is restrained from taking the child to any doctor or making any appointments to have the child attend a doctor. This includes a restraint upon taking the child for a medical assessment of any kind (including but not limited to any doctor, hospital, paediatrician, health worker, specialist or allied health worker of any kind) SAVE in the case of a true medical emergency. In a true medical emergency the father is to take the child to a hospital or doctor for treatment of the medical emergency and straight away contact the mother who is to then make the necessary decisions.
The father is restrained from attending at the child’s doctor or treating health professional with or without the mother or the child and he is restrained from requesting or receiving information from any treating doctor or health professional as referred to in these Orders.
The father is restrained from taking the child to or making any appointments for the child to attend upon any counsellor, social worker, psychologist, psychiatrist or any other allied health professional.
If the child is sick during the time the child is with the father, the father is to forthwith contact the mother and follow the mother’s decision in relation to the appropriate medical treatment or doctor’s attendance. The father is to ensure the child is given any and all prescription medication or other medication or treatment advised by the mother whilst the child is spending time with him.
The father is restrained from directing the mother to attend at his home or elsewhere to collect the child. If the father considers the child is not well enough to attend school or day care the child is to be returned to the mother by the father. The father is to contact the mother and deliver up the child to the mother, at either the contact centre or other location nominated by the mother.
General restraints
Each of the parents are restrained from enrolling the child in an activity which requires the child’s attendance in the other parent’s time with the child, without the prior written agreement of the other party.
Each of the parents are restrained from discussing the issues arising in this litigation (which includes a restraint on discussing the child’s living arrangements with the child) directly with the child or in the presence or hearing of the child and each will remove the child from the presence or hearing of any other person discussing this litigation or the child’s living arrangements.
The father is only permitted to attend at the child’s school with the permission of the school authorities and any attendance by the father at the child’s school is at the discretion of the school.
The mother is granted leave to provide a copy of the Orders to the child’s school and day care, or any medical or other specialists or counsellors, police or other persons or institutions whose involvement with the child touches upon the issues dealt with in these Orders.
The Independent Children’s Lawyer is discharged.
All outstanding Applications be removed from the pending cases list.
NOTATION:
(a)That pursuant to section 65DA(2) of the Family Law Act 1975 the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders are set out in Attachment A and these particulars are included in these orders.
IT IS NOTED that publication of this judgment under the pseudonym Sharpe & Anstey is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT BRISBANE |
BRC 1639 of 2011
| MR SHARPE |
Applicant
And
| MS ANSTEY |
First Respondent
REASONS FOR JUDGMENT
The parties in this matter are unable to agree about the living arrangements of their young son, X, born on (omitted) 2008 (“the child”). The father, Mr Sharpe, was born on (omitted) 1975 and was aged 37 at the time of trial, and the mother Ms Anstey, was born on (omitted) 1980 and was aged 32 at the time of trial.
Background
The mother has a child from a previous relationship, Y, born on (omitted) 1997. Y was born when the mother was 17. Y lived as a child of this relationship and was aged 8 when the parties met and aged 15 at the time of trial. The parties had a relationship of about five years.
They became acquainted online at a time when the mother was living as a single mother with Y at (omitted), and the father was living at (omitted) with his parents. The parties began to live together in late December 2005, that is, after a period of getting to know each other for three months.
The parties remained living at (omitted) up until June 2006, a period of some six months, at which time they left (omitted) and relocated to (omitted). The parties were to remain living in (omitted) until their separation in December 2010. Unfortunately, the parties’ separation was a difficult matter, and at the point of separation on 23 December 2010 the mother rang the police to attend at the family home and the father was asked to leave, which he did.
There is some debate as to the extent of the involvement in parenting of Y’s biological father with the mother. It seems agreed however that Y has had limited time with his father, and that there was a period of at least two years in which Y had no time at all with his father.
Following separation the parties organised, with some difficulty, for X to spend periods of time the father. Y and X remained living with the mother. At the time the mother contacted the police it appears that she advised the police of incidents of domestic violence that had been perpetrated upon her by the father. As will be seen later in these reasons, the mother has subsequently admitted to the father that she may have overstated one allegation made to the police. This exaggeration seemed to be that the father “pushed” her, which he denies, and has been a constant source of annoyance and resentment by the father toward the mother. The mother told the father there were plenty of other incidents she could have made reference to in her domestic violence application. The mother ultimately accepted an undertaking from the father to be of good behaviour and did not press ahead for a final domestic violence order.
Arrangements were made for Y and X to spend some time with the father in the days following separation, which included a Christmas visit. The father assisted the mother in preparing the home for exiting and the inspection for return of the bond.
It seems that there were occasions on 3 January, 5 January, 6 - 9 January, 10 January and 12 - 15 January 2011 that Y and or X spent time with the father with the mother’s seemingly reluctant agreement. On 16 January 2011 the father attended at the parties’ home in (omitted) with his own parents to collect his belongings, and not unsurprisingly there were difficulties with the mother resenting the involvement of both of the father’s parents and them physically both being directly in the former matrimonial home, as the father’s agents in helping him to remove items that the father sought to retain.
On 19 January 2011 a temporary protection order was granted in the Magistrates Court at Beenleigh, with the mother as the aggrieved and the father as the respondent. As I have referred to the mother relied on the alleged violence by the father on 15 January 2011 and her other allegations of violence by the father against Y to support her request for a temporary order. In terms of the violence against Y, I will refer to this incident more particularly elsewhere in these reasons, but the physical violence is primarily to do with an incident in which Y had committed a theft within an office which the mother cleaned. The father gave Y a hiding by physically smacking him about six times on the bottom and legs. Y says that he was hit “in the guts” as well. This occurred when the parties were living together. It is the father’s position that the mother asked him to punish Y in this way, as part of their joint parenting. The mother denies this, and suggests to the Court that the father was out of control and cruel to Y and this was the catalyst for her finally leaving the relationship. She says that there were welts and marks left after the father had administered the agreed punishment. The father denies the extent of any marks left as alleged by the mother. Having made the denials, the father admitted when asked by the Court, that he did not see Y without his clothes on after the event, so he would not know if marks and welts were left by him.
After the Temporary Domestic Order was issued it seems that the mother provided copies of the orders to the (omitted) Child Care Centre, where X was attending, and on (omitted) School, where Y was attending. The domestic violence order taken out by the mother included Y but not X on the order. On the same day that the temporary protection order was granted Lifeline issued a section 60I certificate.
The father was permitted to spend time at the day care centre with X on 21 January 2011 for 45 minutes, as organised by his solicitor at the time.
On 2 March 2011 the father commenced proceedings in the Federal Magistrates Court seeking parenting orders for equal time for both Y and X. X was then aged 2 years and 8 months. The matter was listed for 6 June 2011.
On 23 March 2011 the parties attended mediation at the Family Relationships Centre. At this time the father had been working in (omitted) for various different agencies, and also part time for (omitted). The father says that in the weeks following separation:
A (omitted) colleague advised me to keep a hidden small recording device with me and ‘on’ at all times relevant, to protect myself against false allegations.
To say that the father has followed this advice since that time would be an understatement. The father has been actively engaged in making hours and hours of recordings, even including four or more hours (which I have listened to) of himself having a contact visit with X. Staff at a day care centre and other children have been recorded, the mother’s phone calls have been recorded, home visits within his mother’s home and his mother’s car have been recorded, the latter by either him or his mother. I will have more to say about the recordings later in these reasons.
Ultimately on 19 May 2011 the mother did not proceed with the Domestic Violence Application but rather the issue was resolved by the father offering and the mother accepting an undertaking by the father to be of good behaviour.[1] The father says he was ready to defend the proceedings but resolved the matter instead by way of the undertaking. The tenor of father’s material is that he agreed to an undertaking to be of good behaviour on the basis that he got to see his child again.
[1] Exhibit BMS5.
During the period between when the temporary domestic violence order was issued in late January 2011 and when the matter was listed for hearing in the State Magistrates Court, the father did not spend time with either X or Y. Some contact had been organised post separation, though there is dispute as to the amount of time that was agreed to. From late January 2011 until the parties attended mediation, the father did not have contact with X. On 16 May 2011 the parties made arrangements for the father’s time to recommence. Even then the father’s time did not recommence for another couple of weeks. On 31 May 2011 the father saw X again and this was the first time in four and a half months that X saw his father. This absence of seeing X for so many months has been another issue about which the father strongly complains and about which he continued to hold a sense of grievance at the time of this trial two years later. The mother says in this interim period she was intimidated by the father’s actions and she and Y needed to recover from the turmoil of the relationship difficulties. She says also that she was not confident in dealing with the father without the certainty of orders. I note that the mother tried to organise mediation as seen elsewhere in these reasons.
When the father’s application for parenting Orders was heard by Federal Magistrate Lapthorne (as he then was) interim Orders were made providing for X to spend specific time with his father as set out in the orders. The times were not for week on/week off, but rather were in keeping with X’s young age and they unfolded on an increasing basis. At that stage X was not yet three, and the orders provided for the father to spend time with him on Tuesday and Thursday each week for four hours between 3.30pm and 7.30pm for a period of one month. For the following two months, the father’s time with X was Tuesday and Thursday from 3.30pm to 7.30pm and 3.30pm Friday until 4pm Saturday in the first week and in week two, from 3pm Saturday until 4pm Sunday. After that stage, the father’s time in week one was from 3.30pm Tuesday until 3pm Wednesday, and Thursdays from 3.30pm to 7.30pm and in week two, Wednesday from 3.30pm to 7.30pm, and 3.30pm Friday to 4 pm Sunday. A Family Report was ordered and was completed by Ms L.
In July 2011 the mother relocated to her current residence at (omitted).
In September 2011 the father relocated to his current residence in (omitted). Whilst the father refers to “his property” it is actually a home owned by his parents. The father says he pays rent of over $300 per week to his own parents. It backs on to his parents’ home and also on the property is the family owned business which involves making (omitted). The father says that X’s great-grandmother lives close by, and that nearly all our other family members live within one kilometre of my property.[2]
[2]paragraph 57 of the father's trial Affidavit.
First trial - April 2012
The first Family Report of Ms L was released in September 2011; it makes reference to Y’s wish not to spend time with the father and notes that a significant issue in the demise of this relationship was the issue of Y and the troubled relationship between the father and Y. Y was interviewed and he expressed his relief that the parties had separated. Y had been a child within the family circle since he was 8 years old. Y then aged around 13 ½ gave evidence of what he called “a beating” he received literally at the hands of the father. Y told the report writer that during the relationship between his mother and the father he deliberately misbehaved so that he and his mother could essentially extricate herself (and him and X) from the situation with Mr Sharpe.[3]
[3] Paragraph 8.5 First Family Report.
The mother had raised with the report writer what she believed to be examples of the father’s harsh step-parenting of Y including a threat made by the father to Y when he was little and still sucking his thumb, which involved the father making a threat to Y by holding a knife against Y’s thumb showing Y saying this is what we will have to do if he continued to suck his thumb. This incident was conceded by the father who told Ms L he had become frustrated by Y sucking his thumb, though he nonetheless felt he had been an appropriate and supportive parent whilst conceding the incidents reported by the mother and Y.
Ms L considered that the harsh discipline methods of the father raised issues as to his future parenting and disciplinary methods and the necessity for the father to undertake parenting training especially around discipline. Ms L interviewed Y about the significant issue of the father punishing Y for stealing a USB stick by giving him a hiding and noted Y’s evidence of the father’s smacking leaving hand marks and welts which correlated with the mother’s evidence.
The close attachment of X with both parents is noted by Ms L as is the father’s failure to acknowledge the close relationship between X and his brother Y. Ms L recommended that given the strong attachment of X to his brother, it would be in their best interests to be together as much as possible. The final recommendation included that X remain living primarily with the mother and his brother and noted X’s primary attachment to the mother.
After this report was released in September 2011, one month later in October 2011 the father raised an allegation not previously raised with Ms L. The allegation was that he and his family observed behaviour by X and heard disclosures by X which caused the father to allege that Y was implicated in sexualised conduct by Y towards X. The evidence put forward by the father of alleged sexual abuse included an event in which X inserted the tail of a plastic toy crocodile into his anus and X allegedly making disclosures regarding Y touching his private parts and touching or tickling him on the anus. X was born on (omitted) 2008 so in October 2011, X was 3 years and 3 months of age. These concerns were reported to the statutory authorities who have concluded that such concerns do not meet the statutory threshold for abuse. This followed Police inquiries and an interview with X who made no disclosures nor did he repeat any of the comments raised by the father.
Consequently an updated Family Report was ordered on 2 March 2012 by Federal Magistrate Spelleken (as she then was). Ms L noted in the second family report that the father had been taking X to a social worker who said she specialized in child sex abuse, for the period November to May, around six months. Ms L also noted that apart from the report commissioned by the father and his lawyers from a social worker, Ms R, there was no finding of sexual abuse in relation to X. There had been nothing coming out of the assessment process that indicated X was either displaying sexualised behaviour, or had been sexually abused and/or sexually destabilised in any way in his functionality other than reported by the father to be occurring in his care (not that of the mother and/or at child care”[4]). Ms L noted with concern that X had been subjected to various interventions including medical assessment for sexual abuse by the GP (according to the father); and interview by Queensland Police and assessment/treatment by Ms R (despite his age).[5]
[4] Paragraph 8.19.
[5] Paragraph 8.21 of the second Family Report.
Reservations were expressed about the report of Ms R being one sided in that the mother was not advised of the six months of engagement with Ms R, the mother had not consented to the engagement and involvement of Ms R and Y (the alleged perpetrator according to Ms R) was not interviewed and there was no corroboration of Ms R’s conclusions. Ms L recommended that the evidence of Ms R needed to be tested in the forthcoming trial.
Ms L recommended that if it found that there has been no sexual abuse of X and if the father does not accept this and/or continues to pursue this avenue and subject X to assessments/interventions, it is suggested that an Order be made for his time with X to be supervised. Otherwise, X continue to live primarily with the mother and spend each alternate weekend and one afternoon each week (reduced from one night) with the father along with other recommendations. Ms L recommended that the mother have sole parental responsibility for making decisions about X’s care, education and special needs/interventions. Reference was made in the report to difficulties with the day to day medical matters being handled inappropriately by the father and the parties’ poor communication. Minimum direct contact between the parents was also recommended.
The first trial commenced on 4 April 2012. The father was represented by solicitor and Counsel as was the mother. On the first day and at the commencement of the trial, the father’s then Counsel advised the Court that in relation to sexual abuse allegations relating directly or indirectly to the half sibling Y, that my client seeks to retract or rescind from those allegations, and I will be seeking the Court’s leave to lead evidence in relation to that particular issue.[6]
[6] ICL 10.
The father took the stand specifically just to give evidence that he no longer pressed the issue of Y having sexually abused X. Both of the Family Reports of Ms L were before the Court as was the report from Ms R. Ms L and Ms R were then called to give their evidence and be cross-examined once the father made his retraction. The first hearing day then concluded. On the second day the parties resolved the matter by way of Consent Orders consisting of more than 30 individual orders providing for the current Orders. No findings of the court were made about the evidence of Ms R or the father as the father formally withdrew his sex abuse allegations under oath.
The father now at this current trial says, both Ms Anstey and the family report writer, Ms L, were not of the same opinion as Ms R and me, and sought to discredit us in the Court proceedings.
I consider it is important to set out what was said by the father at that time under oath, as shown in the transcript of day one of the hearing on 4 April 2012:
Mr Selfridge: Mr Sharpe, you’ve been present in the Court and you’ve obviously given instructions to your legal representatives in relation to those allegations that formed the most recent – particularly the most recent material, and a whole series of investigations were conducted in relation to allegations that X had been sexually abused by someone and/or, namely, his half-sibling Y; yes? --- I did
Now in terms of your own position, do you say that Ms L, as intimated to her Honour, that you no longer stand by those allegations, and you seek to retract and withdraw them from before the Court? --- I do.
What’s your reason for doing that, Mr Sharpe? --- There has been no corroborative evidence, no physical evidence of any sort from any other person, other than Ms R, and X has basically come to me with these disclosures, and as a concerned Dad I just acted on them.
Okay. Is that truly your belief, in terms of drawing a line in the sand in relation to this? --- It is. I’ve never believed, from the outset, that Y was responsible, and I’ve stated that to every authority along the way, including Ms R, and what’s done is done. We will move on from here.
Okay. Do you still hold a belief that something has happened to your son? --- It’s not a belief. I have concerns for my son’s behaviour, but I don’t believe that there’s any evidence to suggest that anything has occurred to X.
You say you have some concerns; what do you have concerns relating to, then? --- Just what X has told me. However, there are many, many possible explanations for the reasoning that he stated – what he stated.
Now, it could be suggested that there is a tactical, or a calculating reason, for you to disengage from these beliefs or these allegations; what do you say in response to that? --- Not at all. There’s no corroborative evidence to suggest that anything has occurred with X.
Thank you, Mr Sharpe. I have no further questions for the witness, your Honour.
There were no further questions. At that point it was intended that the father would be cross-examined more comprehensively about the remaining issues after hearing the evidence of the experts. Ms R was available first and she was cross-examined.
After the cross-examination of Ms R, Ms L was cross-examined also on 4 April 2012. Some eight weeks passed until the second day of the trial occurred on 31 May 2012. The parties with the help of their solicitors and Counsel then resolved their parenting arrangements through Consent Orders. Final Orders were then made by consent by Judge Spelleken.
On 31 May 2012, orders were made on a final basis by Consent which provided for X to live primarily with the mother and spend each alternate weekend with the father from Friday 3pm to before school on Monday and a night in the off week from 3pm Tuesday to 9am Wednesday (“the Consent Orders”). There was to be no holiday time with X until he commenced preparatory school and the parties had equal shared parental responsibility, however, importantly the equal shared parental responsibility was altered so that medical matters remained solely the mother’s decision. This was agreed to between the parties. There had been many issues of a medical nature which had caused friction and disagreement between the parties and which directly involved X. This included the father’s inappropriate administering of cream and pulling back of X’s foreskin causing his penis to become red and sore. This was discovered by the mother after X had been returned to her by the father. The father said he followed the advice given to him by his brother at the time.
Although the parties obviously spent much time agreeing to the comprehensive Consent Orders with over 30 primary orders and other subsidiary orders, the mother said that within 18 days of agreeing to final Consent Orders, the father raised the issue of X attending a private primary school, (omitted) College, with the fees to be paid by his parents. The mother says that the reference to (omitted) College made previously by the father had, she thought, only been a reference to High School and that she was not even aware that a primary school and prep school existed at (omitted) College until the father raised the issue of X attending.
The 2013 trial
The father now says the retraction he made at the first hearing regarding the sexual abuse allegations regarding X was a mistake made under pressure from his legal advisors. What is not apparent in the father’s explanation of the “pressure” he was under to recant his allegations and sign consent orders is that (a) he had already received legal advice about the inadequacy of his sex abuse allegation component of his case prior to the trial and (b) there was, a significant period between the first day of trial 4 April, 2012 31 May 2012[7], a period of some 8 weeks after the first day of trial.
[7] See order of 2 March 2012 setting down matter for a day and a half, day one on 4 April, and second day 31 May 2012; and the transcript.
The father now says that whilst preparing for a contravention following an incident in November 2012 he realised for the first time that he could make an application to vary the final Consent Orders. The issue in November 2012 involved an incident at the father’s home following a handover. After the successful handover, the mother’s partner instigated a discussion with the father, which the father agreed to have. The end result was a breakdown of their discussion, Mr T (the mother’s partner) directing insults to the father, the father being sarcastic to Mr T, and the father then retreating indoors. After that, the mother’s partner Mr T endeavoured to get the father to come outside. This attracted the intervention of the father’s brother, who came fairly swiftly it seems, to the father’s rescue armed with a pair of Stilsons (a monkey wrench) and seemingly encouraged the mother’s partner to leave the premises whilst swearing and approaching Mr T. The mother’s partner retreated to the car where the mother and X had remained throughout. He grabbed a camping knife which happened to be sitting in the centre console and held it up at the father’s brother, then got in the car and drove away. I will have more to say about the conflicting version of events as between the mother’s partner, the father’s brother and the father elsewhere in these reasons.
The father, represented by his then new and current lawyers, filed an urgent application on 3 December 2012. The father’s new solicitors prepared an initiating application on behalf of the father seeking orders to discharge all 32 Consent Orders made on 31 May 2012, and seeking to reverse the living arrangements for X previously recommended in the two Family Reports and agreed to by the parties whilst legally represented. The father gave evidence at this trial that up until the November 2012 incident, he had no idea that he would be back in Court hearing his case again.[8]
[8] Transcript 18 March 2013, page 113, line 10.
The first return date for the father’s further and current application was 7 December 2012. The father sought Final Orders that the X live with him, and spend supervised time at (omitted) every Saturday and Sunday with the mother, and 2 hours mid-week if (omitted) offers “offsite supervision”, together with a few hours on Mother’s day Christmas Day and X’s birthday. An Order was sought that Y shall be entitled to spend time with X at such times as the mother spends time with X.
An Order was sought that the mother’s partner have no contact with X. In relation to the November 2012 incident, the father says of Mr T “his violent behaviour connected with me has escalated to the point of a violent rampage at my home in front of X.”
The father also raised other issues. The father says that once when he collected X from day care, he was wearing a nappy so full that his track pants were wet from overflow. The father alleged that the child said his mother had put the nappy on him the night before and the father noted the child had been signed in at 10.20am. Other issues raised by the father included X being collected from day care wearing footwear and clothing that was substantially too small for him and were items he wore prior to separation. The father also said that sometimes the child came into his care wearing the same clothes and underwear, unwashed, that the child had been sent back in the previous day and the child saying he had slept in them. The father alleges also that there was an unexplained bruise on X’s abdomen and a smaller bruise on his other side on 25 November 2012.
The father alleged that the mother had preferred to send X to day care quite ill rather than be cared for by her or by the father, the most recent occasion being Tuesday, 15 February 2013. When the father consulted his new lawyers about the November 2012 incident, he says he realised, seemingly for the first time that orders could essentially be varied following the contravention hearing. After this, the father has filed an Initiating Application and at trial relied on his amended Initiating Application dated 14 February 2013.
The final Orders sought by the father cover an expansive range of issues about passports, the parties attending dispute resolution, the father not being permitted to relocate from the (omitted) region with X without the prior written agreement of the mother, the father being permitted to travel interstate with X on giving the mother one week’s notice of his intention to do so and the father being permitted to travel overseas with X on giving the mother a month’s notice and an itinerary provided he travels to Hague Convention counties for up to 4 weeks and the child’s passport was to be held by the father. He filed a Form 4 Notice of Risk of Abuse.
Orders were sought on similar terms on an interim basis. It is fair to say that the father’s orders represented a radical departure from the Consent Orders in that X would no longer be living with the mother as he had done all his life and X would have only supervised time with the mother and Y.
The mother sought different Orders too, primarily sole parental responsibility given the continuation of difficulties she has communicating with the father and co-parenting with him.
On 7 December 2012 the matter was listed for an urgent interim Orders were made that X live with the father and an Order issue pursuant to s 69ZW for information from the Queensland Police. A subpoena was subsequently issued to Queensland Police on 10 December 2012. An interim hearing occurred and a further Order was made on 14 December 2012 that the child again live with the mother, and the father was to arrange with the paternal grandparents to return the child to the mother. The Orders also dealt with the alleged issue which bought the matter back to Court in that an Order was made the child not be bought into contact with the mother’s partner Mr T. On 17 December 2012 the matter was set down for another trial on 18 March 2013.
At the conclusion of the interim hearing on 14 December 2012 before Federal Magistrate Spelleken (as she then was) Counsel for the father and Counsel for the mother each indicated that their respective clients each sought different Orders from those agreed upon at the former final hearing in 2012 and each indicated that neither sought to agitate issues arising from Rice & Asplund.[9] An Independent Children’s Lawyer (ICL) was appointed and a third family report organised by the ICL, prepared by Ms P.
[9] Affidavit of Helena Mumford filed by leave 16 March 2013.
It is the father’s view, as set out in his material for this trial that the final orders are not in X’s best interests. The father says:
I signed off on final orders because my then barrister Mr Selfridge said to me, ‘The Judge does not like that you haven’t been communicating with Ms Anstey about X’s emotional issues. Why haven’t you been communicating with her?’ I said, ‘My solicitor advised me not to communicate with Ms Anstey.’ Mr Selfridge then said words to the effect, ‘If you accept Ms Anstey’s offer you will get more time than what you have now otherwise Ms Anstey will be able to go into Court and argue that she should be allowed to relocate to Brisbane and then you’ll only get every second week. The Court will be aware that generally that is all fathers get in this jurisdiction.’
The father says he ‘made a mistake” in making the concession recommended to him by his solicitor and Counsel who told him that he didn’t have any forensic evidence to support his case (for sexual abuse) and without this forensic evidence he would have to go into Court and recant his side of the case. The father now says that he was also told that if he pursued this part of your case it highly likely that you will end up with supervised time. Ms L’s report is very damaging to you. A lot of consideration will be given to the report by the Judge. Ms L recommends that you only have supervised time if you pursue this issue without forensic evidence. The father alleges that his solicitor said before you raised this issue Ms L had recommended that X spend more time with you.[10] The father then states in his affidavit that I was taken by surprise and shocked by their advice but I accepted it as so. The father’s position is that he made a mistake whilst under pressure from his legal advisors.
[10] Paragraph 267 and 268 Father’s trial affidavit.
In his 2013 trial material the father says:
I was shocked and taken by surprise at the advice I had received at the eleventh hour. I felt more than ever that X needed me in his life as much as possible. Ms Anstey’s relocation to Brisbane and an each alternate weekend proposal would not enable me to be there for him and keep him safe. It was unacceptable. I lost confidence in my legal representation and did not know what I could do in that situation. I have never been in a legal trial before. I regret agreeing to the orders; I made a mistake.[11]
[11] Paragraphs 106 and 107 of the father’s trial Affidavit.
The father’s affidavit sets out further references to the legal advice he was given at the time and it is a significant part of his case that he agreed to consent orders because he was told he ought to agree to orders because he had no forensic evidence to support his case and that it was highly likely he would end up with supervised time as recommended by Ms L and that Ms L’s report was very damaging. It is clear that the father is laying the blame for his actions in making the admissions he made on 4 April 2012 and his agreement to entering in Consent Orders, with his former solicitors.
Whilst the father’s material says that there have been so many contraventions of Orders by the mother, too numerous to detail here[12] there is no record of any contravention being determined by the Court.
[12] Paragraph 189 of Father’s trial affidavit.
During questioning at this trial, the father advised the Court that he has never informed his previous lawyers or Counsel of his current assertions as to being pressured by them to agree to withdraw the allegations or agree to final Consent Orders. The Consent Orders were made on 31 May 2012 and include 32 separate Orders many with sub sections and canvass comprehensively a substantial range of parenting issues over 12 pages.
Father’s orders now sought
The father at this trial has moved away from his initial Amended Application seeking Orders that X live with the father and the mother have supervised time only with X. The father now seeks an Order now that X live primarily with him and spend time with the mother for the same periods he has spent time with X under the current Orders. In the event that the Court does not make this Order, the father seeks an Order that X live week on week off with the father and mother. The father seeks a permanent restraint that X not be permitted to be in contact with mother’s partner Mr T based on an incident in November 2012 (“the November incident”) and information which came to the father’s knowledge through this litigation from the Queensland Police subpoenaed material of Mr T’s domestic violence in a previous relationship. The father alleges the mother herself was in a previous domestically violent relationship with a former partner, which the mother denies, saying she had a friend in such a relationship, not her. The mother says the father is distorting what she told him about that relationship for his own gain.
Orders for special days and half the holidays are also sought. The father’s case outline sets out a raft of other orders about doctors, travel, handovers, overseas travel and other issues, including equal shared parental responsibility. The father also seeks an Order that upon X commencing schooling that X attend the (omitted) College which is a private school and that he be removed from (omitted) Day Care Centre and attend the pre prep facility offered at (omitted) College for the remainder of this year. This school is about 35-40 minutes away from the mother’s home and slightly less from the father’s home. The father conceded at the trial that he cannot afford the school fees though I note in his material he says that he can afford the school fees, which is false. Neither can the mother afford the school fees. The father’s real position is his mother, the paternal grandmother, will pay the fees. The paternal grandmother has confirmed to the Court that she would pay the fees whether the fees were $14,000 as she first thought or $4,000 which was later determined to be closer to the fees. The grandmother says she would do this for any grandchild.
The father also seeks Orders that if X is not to attend the pre prep at (omitted) College, that X be removed from his current enrolment at the (omitted) Day Care Centre where he has been attending for some years and re-enrolled for the remainder of the year at a day care centre at the (omitted), in between the mother and father. This appears to be the suggestion of a compromise made by the report writer in the Family Report commissioned by the ICL, Ms P. One of the father’s motivations for seeking this change is that the (omitted) Day Care Centre have banned the father from entering the premises. The father therefore is not able to do handovers or collections from the centre and has had to have the assistance of the paternal grandfather to collect X on the father’s days. The father asserts that his banning from the Centre was primarily due to the (omitted) Day Care Centre (a place where the mother used to work as a (omitted)) taking sides with the mother, rather than any conduct on his part. The father denies he was demanding and difficult in his dealings with the (omitted) day care centre. The father also makes some other criticisms of the centre relating to the care of X including that his nappy or clothing has been wet from urine of several occasions. If the Court does not agree to (omitted) College, the father also disagrees with the mother’s choice of state school. The mother has suggested that X attend (omitted) Primary School closer to her home, however the father does not agree with this and says if the child is not to attend (omitted) School, he prefers (omitted) State School.
The father expressly states in his affidavit that he has no confidence in the mother’s parenting and believes he is the best parent to be the primary carer, or at least to share the parenting on an equal time basis.
The father has included in his evidence at this trial the previously retracted sexual abuse allegations that Y, X’s older half-brother, is responsible for sexual interference with X. The father also asserts that the mother is alienating X from himself and his family.
Mother’s orders now sought
The mother’s response to the father’s application is that she seeks an Order that X remain living with her and an order for sole parental responsibility for all issues not just medical. The mother seeks to defer the issue of block holiday time for X until X starts prep next year. The mother is opposed to X having to change day care centre as he has been attending at (omitted) for over 2.5 years, he is familiar and well settled with the centre and the children and the staff. The mother also asserts that it is an unnecessary disruption to his pre-school education and that X has to make a change at the end of the year in any event and further change in between this period is just too much unnecessary disruption for X.
In seeking an order for sole parental responsibility, the mother’s position is that it has become impossible for herself and the father to agree on long term issues jointly. The mother says that an Order for equal shared parental responsibility will lead to a continuation of what she perceives as the father being unreasonable, non-co-operative and rigid in her endeavours to co-parent with him and the complications which arise in trying to communicate and jointly agree upon various parenting issues. Those issues include schooling, whether the child is left handed or not, the cause of bruising, issues to do with X being well enough to return to day care, what treatments to give X including creams and alleged miscommunication. Overall, the mother says the difficulty in dealing with the father on these and other issues which routinely arise in raising children will, she believes, just continue on into the future. The mother complains that the father’s behaviour is controlling, bullying and intimidating and whatever strategies she tries to reduce their conflicted communication, it does not work.
The mother asserts that the father has fabricated the story of alleged sexual abuse by Y towards X in order to be vindictive and that the father and his family are determined to undermine her parenting to secure an Order that X live primarily with the father.
In terms of schooling, the mother prefers the (omitted) Primary School in (omitted). In respect to the (omitted) College the mother says neither she nor the father can afford to pay the fees. The mother says that the school is also too far away from where she lives and that it involves unnecessary and inconvenient travel whether by car or bus which she does not support given X’s young age. The father’s position was X could travel by bus on the 40 or so minute bus journey twice a day. As will be seen elsewhere in these reasons the father’s assertions about the assistance that would be provided by the school to X on the bus were without foundation.
The mother says that she and the father disagree about approaches to parenting and points to the difficulties she and the father had in trying to co-parent Y who was about 5 when the parties started living together. The mother says that she and the father disagree about parenting issues relating to X, that the father is distrustful of her parenting and that the father’s continued assertion that X has been sexually abused by his half-brother Y are deeply hurtful. The mother contends that in pressing these assertions, the father shows no insight into realizing the far reaching effect on herself and her family, including Y and X, of this ongoing allegation. The mother’s contention is that the father is pressing the sexual abuse allegations simply as a way to punish the mother in his unrelenting quest to exhaust the mother and create difficulties for her. The mother also considers that the father is likely pressing the abuse allegations against Y, as a response to Y’s rejection of the father following the breakdown of the parties’ relationship. The mother does not accept that the abuse has ever occurred and she does not believe that the father ever believed that it had.
The mother is opposed to the restraint that X not be permitted to come into contact with her partner Mr T. The mother was witness to the November incident. This incident is another issue about which there was much time spent at the trial. The mother says that the father and his brother are exaggerating the degree of aggressiveness shown by Mr T. The mother contends that the father’s brother was most hostile and aggressive and was heading towards the car shouting threats to her and obscenities. The mother was in the front seat of the car and X in the back. The mother says that Mr T reached in a took out a camping knife and held it up showing Mr S, but then got in the car and drove away. In regard to the evidence of domestic violence perpetrated by Mr T against his former partner, the mother accepts that it occurred but says that the dynamic and relationship she has with Mr T has no element of domestic violence at all. The mother says she and Mr T have a good relationship though she concedes there have been arguments and she has sworn during those arguments. The mother says the X has a good and fun loving relationship with Mr T and she denies that X is frightened of Mr T. The mother’s evidence is that X was distracted with toys in the back of the car during the November 2012 incident and she does not believe he was affected by it. The independent evidence of X’s good relationship with both Mr T as seen in the Family Report confirms this view. Mr S (the father’s brother) says he also still maintains a good relationship with X, as seen elsewhere in these reasons, I accept this.
Consent Orders were issued in relation to property matters between the parties on 26 August 2011. The father indicated during the current trial that he disputes that his Consent was ever given for those Orders and that is a matter he will be pursuing with the Court.
At the time of trial, the father is continuing to work in the family business of making (omitted) which is run by the paternal grandmother. It seems she and the father are the only two employees. The father has previously during the relationship worked as a (omitted). In the past he has applied to join (omitted).
The father has not re-partnered and remains living in a home owned by his parents, next door to his parents and working in the family (business omitted) on the same or adjoining block to his own parent’s home.
As to the sex abuse allegations, X was spoken to by Police and made no disclosures. There have been various notifications through the Department of Child Safety in respect of X. None of the allegations investigated by the Department of Child Safety and or the Police have met the threshold for departmental intervention or constituted abuse.
On 18 December 2012 a temporary protection order was made at the instigation of the father in the Maroochydore Magistrates Court at the request of the father naming the mother as the respondent. The Police refused to prosecute this Application for the father on the basis the alleged threat of the mother was taken out of context and was a civil matter. The threat was contained in a long conversation the mother had with the father, which the father recorded. I will refer more to that conversation elsewhere in these reasons however, the threat was that her boyfriend would attack if the father’s abuse against the mother continued. The father prosecuted his application privately, and the mother consented without admissions, saying she did not have the funds to get legal representation and contest the application and she just wanted it to end. The father has included his brother Mr S and each of his parents on the Order.
In the lead up to the trial in March 2013, the parties were seen arguing about whether or not Mr T could attend the Family Report interviews. The father was opposed to him attending the interviews. On 19 February 2013 the father also filed an Application in a Case seeking drug (both blood and hair follicle) testing of the mother and Mr T.
On 21 December the mother filed an Application in a Case for Mr T to be included in interviews with the family report writer, given that the father was objecting to the inclusion of Mr T. On 26 February 2013 procedural orders and ex tempore orders were made by FM Spelleken that Mr T is to participate in interview for the preparation of those updated family reports and the mother was to attend for drug tests; to be a blood test taken within 24 hours of a request by the ICL.
On 21 February 2013 the father caused a letter to be sent to the mother seeking that X come into his care the night before the home visit by the family report writer with make-up time in lieu so that X is “settled for the home visit and not distressed.”[13] The mother refused this request. The father’s solicitors wrote to the mother’s solicitor’s expressing their disbelief at what they (the solicitors) referred to as “their view” of the father’s reasonable request and querying why the mother did not agree with their view.
[13] Annexure BMS16 to the Father’s trial Affidavit.
Home visits were conducted by the ICL appointed report writer, Ms P based on the (omitted region). On 11 March 2013 Ms P filed her Family Report and this matter commenced the final hearing on 18 March 2013.
At the commencement of the this trial when I raised the issue of Rice & Asplund, I was informed by each Counsel for the mother and father that it had been agreed at a previous mention that no one was raising any issues to do with Rice & Asplund[14] as each party wanted the current Orders changed. I dealt with issues other arising from this raised by Counsel at the commencement of this trial, including a request that I disregard previous family reports and that I disregard previous events occurring prior to Consent Orders, both which I declined to do.
[14] [1979] FLC 90-725.
I informed the parties that I considered that all of the matters and issues between the parties need to be ventilated, cross-examination needs to occur of all of the relevant witnesses and that once final orders are made in this matter, that each of the parties will need to cross the legal threshold of Rice & Asplund in regard to any further applications they might choose to bring in relation to altering parenting orders.
The specific orders sought by each of the parties are extremely lengthy and I draw from that that each of them is trying to accommodate every situation that might occur in the future, often based on what has occurred in the past. I accept the comments of the mother at trial that by the time the orders are read to the end, it is difficult to remember what the orders said at the beginning. Counsel for the father Mr Galloway also noted the unnecessary complexity of the Orders. I agree with those sentiments. The father seeks orders as set out in his Case Outline and Amended Application filed on 22 March 2013. His Orders extend to some 10 double sided pages and are extensive.
The mother has also provided a minute of orders sought. Her Orders appear to be also based largely on the previous Consent Orders with some alterations.
I have set out the primary positions of each of the parties and I note that there are many other orders sought in relation to a variety of issues such as overseas travel, relocation and other matters which I will address in my final orders.
During the trial I have been assisted by the Independent Children’s Lawyer and her Counsel. At the conclusion of the trial, the ICL, through her Counsel Ms Oakley, sought orders that X remain living primarily with the mother and spend each alternate weekend from Friday to Monday with the father and special occasions with the father, however prior to this occurring the ICL recommends that the father have only supervised time only for a period of six calendar months during which he spends two hours each week supervised at (omitted). Orders are suggested regarding limited telephone time and the Independent Children’s Lawyer supports the mother having sole parental responsibility for all long term matters. The ICL also recommends a Family Consultant be appointed pursuant to s.65L for 12 months. The ICL supports the use of a contact centre (omitted) for all changeovers. The mother and father are not opposed to this albeit it is inconvenient for the parties or should I say more inconvenient than using the current day care centre.
A draft of Orders sought has been provided by each party.
In these reasons, statements of fact constitute findings unless indicated otherwise. I have had regard to the parties’ oral evidence, material, the exhibits, Case Outlines and the helpful written submissions prepared by Mr Shoebridge for the mother. At the conclusion of the trial, I thanked Counsel, Mr Galloway, Ms Oakley and Mr Shoebridge for the expedient manner in which they each conducted this five day matter.
The Law
This application is governed by the principles set out in Part VII of the Family Law Act 1975 (Cth) (“The Act”). In making parenting orders, the best interests of the child are the paramount consideration. The Act provides two primary considerations described by Justice Brown in Mazorski & Albright [2007] FamCA 520 as “twin pillars”. Her Honour stated: “The first is the importance to the children of having a meaningful relationship with both parents; the second is the need to protect children from physical and psychological harm. These are stressed in s 60B (1) which sets out the objects of the legislation relating to children and are reiterated as the primary considerations in s 60CC (1).” The Family Law Legislation Amendment (Family Violence and Other Measures) Act2011 made significant changes applying to matters filed on or after 7 June 2012, which this application is. As a result of those legislative changes, when applying the primary considerations under s 60CC (2) the Court is required to give greater weight to the second consideration, that is, protecting the child from harm.
When I determine the best interests of X, I will consider also the several additional considerations set out in s.60CC(3) when evaluating each of the parties proposals for X’s future living arrangements. Reference will be made to the allocation of parental responsibility. If an order for equal parental responsibility is to be made, section s.65DAA (1) of the Act is invoked. In MRR v GR [2010] HCA 4 3 March 2010 the High Court stated that ss.65DAA (1) (a) and (b) and 65DAA (2) (c) and (d) are expressed in imperative terms and oblige the Court to consider both the question of best interests and whether it is reasonably practicable that the child spend equal or if not equal, significant and substantial time with each parent. A determination as a question of fact that it is in the child’s best interests and reasonably practicable that equal time (or significant and substantial) be spent with each parent is a statutory condition which must be fulfilled before the Court has power to make a parenting order of that kind. It is only when both questions are answered in the affirmative that the Court may give consideration to making an Order for equal time, or if not equal significant and substantial time.
This matter involves allegations by the father of sex abuse of the child by his half-brother Y. I have had regard to the authorities regarding unacceptable risk as referred to in cases such as the High Court case of M & M [1988] HCA 68; [1988] 166 CLR 69. In order to make a positive finding of sexual abuse, as opposed to a finding of unacceptable risk, this Court would need to be satisfied towards the strictest end of the spectrum, given the serious nature of the allegations, and the case law as set out in Briginshaw v Briginshaw (1938) 60 CLR 336. It is now more appropriate to refer to s 140 of the Commonwealth Evidence Act which is derived from this High Court decision. Dixon J concluded that inexact proofs, indefinite testimony, indirect inference or equivocal hypothesis will not do: Briginshaw at 362.
The factors mentioned in the Briginshaw test were stated by Dixon J. in Briginshaw v Briginshaw (1938) 60 CLR 336 at p. 362 who said:
“The seriousness of an allegation made, the inherent unlikelihood of an occurrence of a given description, or the gravity of the consequences flowing from a particular finding are considerations which must affect the answer to the question whether the issue has been proved to the reasonable satisfaction of the tribunal. In such matters “reasonable satisfaction” should not be produced by inexact proofs, indefinite testimony, or indirect inferences.”
In M and M (1988) FLC 91-979 (High Court) their Honours Mason CJ, Brennan, Dawson, Toohey and Gaudron JJ considered the tests appropriate to define the magnitude of the risk which will justify a court in denying a parent access (now contact) to a child. The majority of the High Court concluded that “To achieve a proper balance the test is best expressed by saying that a court will not grant custody or access to a parent if that custody or access would expose the child to an unacceptable risk of sexual abuse.”
In M and M (supra) the appellant (whose argument was rejected) had urged the High Court to an approach which required identifying the allegation of sexual abuse as the paramount issue for determination by the Court. The Court stated that, “In proceedings under Pt. VII of the Act in relation to a child, the Court is enjoined to “regard the welfare of the child” as the paramount consideration” (sec. 60D). The paramountcy of this consideration in proceedings for custody or access is preserved by sec. 64(1). The consequence is that the ultimate and paramount issue to be decided in proceedings for custody of, or access to, a child is whether the making of the order sought is in the interests of the welfare of the child. The fact that the proceedings involve an allegation that the child has been sexually abused by the parent who seeks custody or access does not alter the paramount and ultimate issue which the Court has to determine, though the Court’s findings on the disputed allegation of sexual abuse will naturally have an important, perhaps a decisive, impact on the resolution of that issue.”[15]
[15] 77,080.
Their Honours continued “But it is a mistake to think that the Family Court is under the same duty to resolve in a definitive way the disputed allegation of sexual abuse as a court exercising criminal jurisdiction would be if it were trying the party for a criminal offence. Proceedings for custody or access are not disputes inter parties in the ordinary sense of that expression.”
A little later in their judgment,[16] their Honours stated, “No doubt there will be some cases in which the Court is able to come to a positive finding that the allegation is well founded. In all but the most extraordinary cases, that finding will have a decisive impact on the order to be made respecting custody and access. There will be cases also in which the Court has no hesitation in rejecting the allegation as groundless.”
[16] 77,081.
In this matter at the commencement of the trial the father was requested to produce his file with his former solicitors, given he expressly waived legal privilege. This process occurred during the trial, and consequently, the father needed to be recalled when the documents were actually all produced and after Counsel for the other parties had an opportunity to examine the documents as and when they were produced, to answer further questions from the Independent Children’s Lawyer and the mother’s Counsel.
The father’s witness Ms R, Social Worker, attended Court without her file and notes. She subsequently sent by fax her notes, however, this took longer than anticipated and in any event, Ms R was selective in what she sent to the Court, which resulted in several requests from the ICL’s Counsel for further documents as it was apparent that the material forwarded was incomplete. This ultimately led to the father having to be recalled.
During the trial when the paternal grandmother gave evidence, it became apparent that one of the foster children of the grandmother’s sister was also called Y. This child was part of the father’s extended family and had been for several years. Both the father and his mother had given evidence of X’s ongoing contact with “Ms B” and all of her five foster children, one of whom is a boy called Y about the same age as X’s brother. This information of which I was not initially aware, nor was the ICL’s Counsel, warranted further questioning of the father.
Primary Consideration – need to protect child from physical or psychological harm from being subjected to abuse, neglect or family violence.
The sexual abuse allegations
In considering the primary consideration of protecting X from harm, I need to carefully examine the sexual abuse allegations and also the risks posed by Mr T towards X amongst other issues. The Court is required to give greater weight to protecting the child than to the second of the primary considerations being the benefit to the child of having a meaningful relationship with both of the child’s parents.
At the outset, my strong impression of the father’s evidence was that he sought to assume the role of merely passing on observations of concern that troubled him, whilst maintaining that he had no view about whether or not such abuse had happened. The father sought to distance himself from raising the issue of sexual abuse of X seeking instead to suggest his lawyers got reports, or his doctor recommended a certain course or saying Ms R has the knowledge about what occurred, he is just a lay person. This was evident throughout the father’s cross examination when the father was questioned about his beliefs, in what I consider was a rehearsed response, not dissimilar to his own mother, the following exchanges took place under cross-examination by Mr Shoebridge of Counsel for the mother:
Mr Shoebridge: You have suggested in these proceedings that X has been sexually abused, haven’t you?
The father: No I have not. I have reported what I’ve seen and heard.[17]
[17] Transcript page 33, line 35 to 40.
Later the father said when asked whether he believed that X was sexually abused, the father replied I have some very serious concerns about what has occurred with my son X, your Honour. When that answer was followed up again by Counsel inquiring do you believe that X was sexually abused the father replied I do not form a belief; I have concerns in relation to what I’ve seen and heard and the findings of Ms R.
The father says in his affidavit material however:
Ms R told me, and I do verily believe, that sexualised behaviour initiated by Y or by someone had taken place between Y or someone and X during the period October 2011 to December 2011. My then solicitors obtained a report from Ms R.
...I admit my deep concern that Y had initiated inappropriate sexualised behaviour with X.
I consider that the father has conducted himself and instigated forensic inquiries consistent with a strong desire to demonstrate to this Court that something sexual was happening to X and it was caused by his half-brother Y. The father’s mother attempted to portray herself in the same manner in Court. I consider that the father very purposefully set out to gather what he regarded as evidence to support allegations of sexual abuse. This consists of statements made by X from about October 2011 to December 2011 only to the father or to X’s paternal grandparents. When X made the statements he was just over three years old. Most if not all of the initial statements made by X appeared to occur around bath time or when X, whilst still naked, plays with the father after a bath and before bed. The father says he purchased a protective behaviours book which speaks of “private parts” and thereafter the father reports that X made references to his “private parts” and Y touching them.
To explain his initial concerns, the father provides a narrative in his trial affidavit material over three paragraphs.[18] The father says that he noticed “uncharacteristic change in X’s behaviour” and that X disclosed “particular” things in the father’s presence which really worried him. The father refers to:
[18] Paragraphs 257, 258 and 259.
a)X bending over during play time and pulling his bottom cheeks aside and pointing at this rectum [and] “asked me to tickle him there”.[19] (I note here that the word initially used in the referral letter of the child’s general practitioner Dr J was “ticked” not tickled. Ms R said she thought the father meant tickled).
b)On an occasion whilst in the bath, X was playing with a plastic crocodile, and having referred to the tail of the plastic crocodile toy as “sharp” then proceeded to put the tail of the crocodile toy into his anus.”
c)Having read the protective behaviour books to X and teaching X about “his private parts” the father then reports X made further statements specifically concerning Y. For example: On 12 November 2011 X said when Y touches my private parts I say stop cause I don’t like it. I note the father told his own psychologist Ms E that X had become very attached to this book.
d)In the months after the final consent orders were made the father says X continued to be distressed in his sleep, wakes up and cries and complains of bad dreams and says he has bad dreams at the mother’s house. He said X refused to sleep alone in his own bed and was adamant that he must sleep with the father. I note in the family report the father says X loves to sleep with him.
e)X tells the father and the father’s mother and father when he wakes up crying that I had a bad dream. Y was touching my private parts. The father also says that at “other times” X had made comments randomly and unexpectedly saying Y touches my private parts when I was a (name omitted) but not anymore because I’m a big (name omitted) now. and I won’t touch anybody’s private parts because I’m a good boy not like Y”. (name omitted) and (name omitted) have been confirmed by the mother to be different age groups at the day care centre.
f)The father says that when X spoke to him about Y touching his private parts the father said to X, “If something is not right you need to tell your mum”[20] and that X responded, “My mum says that it’s okay for Y to touch my private parts. I don’t want to tell my mum.”
g)The father worries about X’s overly aggressive behaviour when he visits his little friends and at the day care centre. The father had often seen him be very physically aggressive towards other children and that X punches other children in the stomach so hard with his closed fist that the other child doubles over. The father says that X is at times aggressive with the father, grabbing him “somewhere” and saying “Does that hurt Dad.”
h)The father’s narration continues that after he had noticed the bath incident and after there were statements from X specifically referring to Y, disturbed sleep and aggressive behaviour and other issues were out of character for X, “I thought it prudent to seek advice from my then solicitor, and I sought advice from X’s personal doctor as to what steps should be taken for X.”[21] The father took X to his general practitioner and says a referral was made by Dr J to a child clinical psychologist, Dr M in late October/early November. The mother made her own enquiries following on from the father’s advice that X had a red line around his foreskin and a rash at the base of his scrotum. Dr S concluded having examined X in the presence of the mother that X had a sore buttock, no issue with penile soreness and that zinc cream should be applied. After receiving the father’s advice that X had been referred by his GP to a psychologist, the mother made her own appointment to see Dr J to discuss why X had been referred to a child psychologist, and was informed that this GP, after examination of X, saw no physical signs that X had a sore bottom or penis. The mother then contacted Dr M and after an appointment of almost an hour, says she was advised there was no requirement to bring X in for an assessment.[22]
i)The mother then accused the father of fabricating things and that the father was only doing this to improve his prospects in the then Court proceedings which were still on foot for X.
j)The father denies that he has fabricated anything. The father says that as X continued to make disclosures of a sexualised nature, X’s doctor referred me to another child psychologist Ms M who preferred not to assist due to Court proceedings being on foot, and a social worker, Ms R who agreed to consultations with X. I was informed by Ms R and do verily believe that X made the same type of disclosures to her that he had made to me and my family.[23] The referral to Ms M is dated 1 November 2011 and is seen amidst the bundle of documents provided by Ms R which forms part of exhibit ICL8. A further letter of referral was subsequently tendered dated 4 November 2011 addressed to Ms R, Psychologist.[24] Ms R is not a psychologist. The letter of referral with Ms R’s name on, improperly described as a psychologist, instead of a social worker specialising in sex abuse of children, is in precisely the same terms as the original referral from the doctor to a child psychologist. The father requested this referral. The mother did not know of this referral or that the child was being taken to Ms R.
[19] Paragraph 257, father’s trial Affidavit.
[20] Paragraph 275, father’s trial Affidavit.
[21] Paragraph 259 father’s trial Affidavit.
[22] Annexure 8, mother’s Affidavit filed 21 March 2012.
[23] Paragraph 263 of the father’s trial Affidavit.
[24] ICL 4.
In all of the circumstance and after considering the primary and additional considerations, I consider it is unrealistic to assume that these parties can work together in making joint decisions in exercising equal shared parental responsibility. I intend to order that the mother have sole parental responsibility subject to a restriction on relocating to a place that would interfere with the Orders the Court’s makes and changing the child’s surname. I am satisfied that in regard to parental responsibility, this order is essential to prevent ongoing conflict and the consequences of that conflict on X.
Evaluation
I consider that enabling X to have a meaningful relationship with the father needs to be seen in the context of the significant deficit in the fathers’ capacity to parent and attitude towards the mother. The father’s time with the child needs to accommodate his strongly held and negative views of the mother and the damage that will cause. The father’s conduct in prosecuting in this Court sex abuse allegations which he did not himself believe had occurred has caused significant distress and cost the mother emotionally and financially. This conduct has a profound effect on his parental responsibility, attitude to parenting and capacity to parent. That the father was prepared to implicate X’s brother in these allegations is deeply troubling. Y and X’s relationship is loving and strong. The sibling relationship will often outlast that of parent and child. The father sought to fracture X’s relationship with Y and cause unnecessary distress to the mother.
I am troubled with the father’s parenting style. The father’s constant checking and policing of the mother’s parenting is very troubling and it even continued during the trial as seen in cross examination of the mother on a theme of the mother having a troubled relationship with Y based on messages the father was still receiving from Y’s school. The father was watching the messages. This aspect of the father’s behaviour is most troubling. His attitude as seen in other situations including ignoring their request of day care staff to leave the Centre saying he has a Federal Court Order enabling him to be at the day care centre, and that he has unfettered access to the centre, is most concerning. This dominance manifests itself in his parenting style and communication with the mother.
I have had regard to each of the competing proposals. As can be seen from my reasons, I have serious concerns regarding the father’s ability to parent and his attitude towards parenting. I am satisfied that the father has advanced sex abuse allegations which he does not believe ever occurred.
X is now becoming aware of the conflict going on around him and Ms L notes he is starting to show a tendency to care-take his father and being aligned with him. If this continues, I am certain that he will become caught in a dangerous wedge between each of his parents whom he loves so much.
Having traversed the relevant section 60CC factors, I am confident in the mother’s ability to be the primary parent of X. I am satisfied that the mother will always encourage X’s relationship with the father. I consider that if X was in the primary care of the father, this would simply expose the child to the possibility of emotional distress, being removed from his primary carer and also from his much loved brother. Importantly it would expose X to significant influence of the father’s attitude towards the mother and Y and his unfailing mistrust and suspicion of the mother and Y.
I also have serious concerns about the father’s lack of capacity if he were to assume the role of primary carer. The father does not have the parenting experience or competency to be the primary carer. The father lacks the ability to provide for X’s emotional well-being as a primary carer. The father’s suspicion and mistrust is strongly held as is his lack of confidence in the mother’s parenting role and skills.
The father does not respect her point of view, whether it is her opinion on X being ready to return to day care following chicken pox, or her assurances that she was not responsible for a bruise. The father does not consider the child is safe in the mother’s care as he expressly stated in his Affidavit. The father does not consider the mother is worthy of being informed that X is being taken to a social worker specialising in sexual abuse of children, and did not tell her that until the report from Ms R was prepared.
I am satisfied that the father did not believe the sex abuse allegations he put forward against Y and which implicated the mother. I regard the re-running of the sex abuse allegations as more about the father undermining the mother and creating problems for Y that in pursuit of any genuinely held view that X was sexually abused. I am deeply troubled about the father’s conduct surrounding this issue. Generally, whilst I am satisfied that X enjoys the current time he has with the father, I have significant concerns in relation to the long term effect of X living with the father either primarily or on an equal time basis.
In evaluating each of the parties’ proposals, I am satisfied that it is in X’s best interests to live primarily with the mother. I do not regard the father as an appropriate candidate to be the primary carer of X for the reasons put forth. For the same reasons, I do not consider the father’s proposal of X spending equal time with himself and the mother is the order that is in X’s best interest. I consider that X’s best interest require that he spend regular but limited time with the father and his family.
It is proposed by the mother that the father spend each alternate weekend with X and a night in the off week. The ICL puts forward each alternate weekend. I am troubled that the mid-week contact will simply be another opportunity for conflict to arise, and for the father’s suspicions to be fuelled by what he might see as issues which are not being handled to his satisfaction. I consider it is important to remove the opportunity for conflict to arise between the parties, though I also accept that the mother wishes to promote the relationship if it was possible to do so whilst protecting X from the father’s hostilities toward her. Ms P suggests that upon X commencing school the time in the off week could be added to the father’s alternate weekend to have one block time.
I have considered the suggestion of the father having supervised time for the next six months which is made in the context of Ms P suggesting some reprieve for X whilst his parents underwent more counselling. Ms L has increasing concerns about the child becoming aligned with the father and noted the child starting to care-take the father. I do not intend to make Orders for counselling with these parties as it as their conflict is entrenched and I do not consider counselling will assist. I am not persuaded that supervision is called for at this time. Noting that the Court has made certain findings. This position would no doubt alter if the father chose to continue to raise the sex abuse allegations as noted by Ms L. If the father persists with these and similar allegations in the future, I would anticipate that he would only have supervised time, if any at all.
I am satisfied that X’s time with the father should be limited so he has less exposure to the father’s attitude towards the mother and his ongoing mistrust of the mother and Y. Similarly, I am concerned about the risk to X through the influence of his paternal grandparents. The paternal grandmother is highly aligned and supportive of the father’s actions. The paternal grandfather shows little respect or regard for the mother. I am satisfied that the paternal grandmother is not in any way impartial and that she is heavily involved in this litigation and is hostile to the mother.
I am troubled to read of the issues that the father says X has at his home when faced with handovers and of the father’s discussions with X about family reports and where he wants to live. I consider that X needs a reprieve for a period from the current hostilities as does the mother. I accept the basis of the recommendation of the ICL, X spending each alternate weekend with the father. I am also mindful that the mother wishes for X to have a good and meaningful relationship with the father and that she has based her proposal for 3 nights a fortnight for that to occur.
I intend to initially order that X spend time with the father each alternate weekend for a period of 2 months from the date of these Orders, to give X and the mother an opportunity to have a reprieve from the conflict.
Thereafter I am satisfied that it is in X’s best interests to spend each alternate weekend with the father and overnight night in the off week up until X commences prep school. Once X commences prep school, I agree with the recommendation of Ms P that the third day in the fortnight should be added to the alternate weekend. I consider in doing so that X will be less likely to be exposed to the potential difficulties in a midweek school night spent with the father. These times in my view provide an opportunity for X to have a meaningful relationship with the father. I intend to order various restraints in relation to the time spent by the Father with X, as set out in these reasons which I regard as essential to X’s best interests. In doing so, the Court has an expectation that the restraints will be fully complied with as they are an integral component in ensuring X’s wellbeing.
In turning to other orders sought, I make the following findings.
Restraint - Mr T
The November 2012 incident with Mr S and Mr T involved adults both over-reacting and acting dangerously and badly. I do not however consider that this incident, nor Mr T’s domestic violence issues with one of his previous partners are sufficient to warrant an order for a permanent restraint on Mr T’s coming into contact with X. If I was to make such an order based on the November incident, I would also have to make the same restraint against Mr Sharpe as he was equally poorly behaved and I am satisfied he was the aggressor initially, though I am also satisfied that Mr T was abusive towards the father.
I have independent evidence that X has an affectionate relationship with Mr T. I am also satisfied that Mr S has been an involved and fun-loving Uncle for X and that this is still the case. I do not intend to issue a restraint from preventing X from coming into contact with Mr T as I do not consider Mr T represents an unacceptable risk for X or that it is necessary to protect X from Mr T any more than I consider it necessary to protect X from Mr S.
I am satisfied that the mother is in a healthy relationship with Mr T and that she has the capacity and willingness to act protectively and quickly in the event that her relationship with Mr T deteriorated.
(omitted) College
I intend to make Orders for the mother to have sole parental responsibility and therefore the decision of schooling will be a matter for the mother. However, to avoid any further unnecessary communication and applications in relation to this matter, I have considered the competing proposals. Neither the mother nor the father can afford (omitted) College. The father can only afford $25.00 per month child support and the fees are beyond his financial capacity. He has admitted this. Geographically, the school is further away from the mother’s home than his. The mother’s home is 30kms away from (omitted) College and it involves inconvenient and unnecessary travel for X, the mother and father. The proposed bus travel for X seems inappropriate given his young age and the inherent difficulties involved. X will be living primarily with the mother. There are advantages in him attending a school local to his area and to be able to socialise with children from his school. It is not appropriate to empower the paternal grandparents with the responsibility of educating X, in the face of strong opposition from the mother, a parent of the child. I am satisfied that the grandparents offer to pay will enable the grandparents to continue to play an intrusive role in X’s upbringing. Having therefore considered the competing applications, I consider it is in X’s best interest to attend the school nominated by the mother, the (omitted) State School.
Block holidays
I am not satisfied that X is emotionally mature enough to spend significant periods away from his mother for block holiday periods at the present time. Block holiday time will therefore not commence until X commences prep school.
Telephone calls
In relation to telephone calls between the father and X, given X’s age and the findings I have made about the father’s lack of respect for the mother and Y, I do not intend to have a situation occurring where twice a week or more, the father spends 40 minutes or more on the phone with X. I consider the father’s conduct in the past in this regard, has been non-child focused and intrusive into the mother’s household. Therefore, the father will have telephone communication with X twice per week. It will be a condition of the call that the father is restrained from tape recording the calls or permitting anybody else to do so. It will be at the mother’s discretion as to whether or not X has the call on speaker phone or a hand held receiver. The mother is at liberty to disconnect the call after 10 minutes. The mother is to nominate which two days of each week the phone calls are to occur and she will have liberty to alter those times on notice to allow for X’s routine and extra-curricular activities. I propose that the mother initiate the first call of the week and the father initiate the second and that the calls occur at 6:00pm, unless the mother advises in writing a more convenient time, taking into account X’s routine.
The father’s tape recording
I am critical of the father for secretly taping the child for hours and for taping the child’s phone calls and the father’s phone calls with the mother and I intend on issuing a restraint from preventing him from doing so in the future. The father shows no signs of ceasing this activity and I am satisfied that if he continues to do so in the future it will inevitably come to the attention of X and this will ultimately implicate X in this activity and compromise his relationship with the mother. I intend to order that the father’s telephone time with X is subject to the father being restrained from taping X and similarly that the father be restrained from taping the mother or any handovers.
I have made an Order for the mother to have sole parental responsibility in relation to all major long term decisions which includes long term medical decisions. Because of the father’s tendency to create major drama and conflict about simple childhood illnesses I do not intend the father to have any involvement in making decisions for X’s day to day or long term medical issues. I am quite satisfied that to do otherwise the father will continue to subject the child to extensive testing or challenge the mother about illnesses and ailments such as chicken pox, rashes and tick bites. I intend to Order that the only occasion which the father is permitted to take the child for any medical attention is in the circumstance where the child suffers a true medical emergency. If and when that occurs, the father will be ordered to contact the mother forthwith (so there is no mistake, this means immediately) and as soon as the mother is able to attend or speak to the medical practitioner or health worker, she will be the only parent authorised to deal with the medical situation.
The father will not be permitted to attend at the child’s doctors’ surgery with or without the mother or X; nor is he permitted to contact the doctor about X’s condition or make appointments for the mother (or anyone else) to take X to the doctor. Except for the true medical emergency I have made reference to, the father (or his agent) is not permitted to take the child to any doctor, paediatrician, specialist of any kind or any other health worker for any reason including to obtain a second opinion or for any treatment or assessment or consultation of any kind. In the event of a true medical emergency the father is to ensure that where possible takes the child to (omitted Medical Clinic).
Noting the father’s conduct in taking X for months of assessment by Ms R without any agreement or notice to the mother and noting the Order I have made for sole parental responsibility for the mother and so there is no confusion, I also intend to make it clear in the Orders that the father (or his agent) is not permitted to take the child to any counsellor, social worker, psychologist, psychiatrist or any other allied health professional at all for any reason at all. The father is not permitted to request information from any of the aforementioned persons or agencies about the child or the mother. To enable the father to do so would most certainly result in queries and challenges to the mother’s advice and lead to further conflict and unnecessary medical intervention and testing for X.
I am confident that the mother alone has the ability to make pragmatic and appropriate decisions for all of the major decisions which arise to do with education, religion, medical matters and any other long term issue and I am also satisfied that it is appropriate that the mother make all of the decisions (both long term and day to day) in relation to X’s medical matters.
Father’s attendance at prep school/day care
In terms of the father being able to be present at X’s school in the future, this will only occur on the condition that the school agree the father can attend (or similarly any extra-curricular activities). So there is no mistake in the future as has occurred in the past, the father’s attendance at school or any extra-curricular activity will always be at the discretion of the school or the organiser of such extra-curricular activities. The Orders of this Court do not in any way compel any school or institution to allow the father to attend at school or any extra-curricular activity other than as permitted by that school or organiser.
(omitted) Day Care Centre
In relation to the proposal that X be moved from his current day care centre, I do not intend to accede to this request. I am satisfied it is in X’s best interests to remain at his current day care centre where he is well familiar with the centre, the staff and the children. I consider it an unnecessary disruption for him to be enrolled for the rest of the year in another day care centre as I have referred to elsewhere in these reasons.
Handovers
In relation to handovers, because of the ongoing conflict between the parties, for the remainder of this year, I intend to Order that the handovers will occur at (omitted) or other supervised facility nominated by the mother. I wish to remove the parties’ conflict from the day care centre and I do not consider that the paternal grandfather is in anyway separated from the conflict in this matter. Until X commences prep school and to enable X to be delivered to and collected from (omitted), the collection time at (omitted) on Friday afternoon will be between 3:00 and 4:00pm as nominated by the mother in writing and similarly the return time for X to (omitted) at the end of the father’s weekend will be between 8:00 and 9:00am onwards as nominated by the mother in writing who shall bear in mind the opening times of the centre and the travelling time for X both to and from the centre and on to day care. Once X commences prep school, on school days all handovers will occur to and from school (subject to the school’s agreement) and any mid-holiday handovers will occur at the supervision centre nominated by the mother.
In making an Order that the handovers occur at (omitted) (or a subsequent supervision centre nominated by the mother), this arrangement will always be at the discretion of (omitted) and this Order is not in any way intended to override that discretion. If the father fails to comply with the rules of the supervision centre or any other supervision centre nominated by the mother, it is entirely at the discretion of the centre to cease to provide their services.
Overseas travel
In terms of overseas travel I intend to Order that the parties do all acts and things and sign all documents necessary to obtain a passport for X and that the mother be the permanent custodian of the passport.
In terms of any future proposed travel by the father, I do not intend to Order that he have any longer than the regular alternate weekend contact for the remainder of the year and a night in the off week, after the period of 2 months has passed from the date of these orders. By definition, this excludes overseas travel in 2013. In 2014, when the father is to have half of the school holidays once X commences prep school, thereafter, on notice, and provided the itinerary is supplied, each party shall be permitted to travel overseas with X in their respective holiday period. Any alteration or extension to the holiday period will be required to be made by prior written agreement between the parties. The block holidays will commence in the first school holiday after the child commences prep.
Special occasions
I intend to make Orders about special occasions of Father’s Day, Mother’s Day and the child’s birthday. I do not intend to make Orders that either parent is restricted in the kilometres that they can travel with the child in their own time nor do I intend to make Orders that either party is to offer the other party the first opportunity to look after X. I regard these Orders nothing more than surveillance orders enabling one party to monitor the other parent’s movements.
Given the poor communication and the state of their relationship, I do not intend to make Orders to split X’s time between each family on Christmas Day. I consider that it will be more settled and peaceful for X to alternate the first half and second half of holidays each year which will automatically include X spending days at Christmas with either one or other of the parents.
Similarly, I do not propose to make orders for the parents’ birthdays as these can be celebrated at other times. I do not propose to make the draft Orders in the father’s draft of how the parents should behave towards one another, they are almost unenforceable and would require surveillance of the other parent’s time with the child and encourage cross examination of the child. I do not intend to make orders that the parents adhere to the existing criminal law of not consuming illegal substances, nor do I intend to make Orders about what happens if a phone call is missed. This is an invitation to breach the Orders.
In terms of communication between the parties I intend to Order that the parties each establish an email address and all of their ongoing communication and non-urgent communication relating to X occur via email.
Restraint
The mother seeks a restraint against the father pursuant to section 118 of the Family Law Act 1975. I am not prepared to issue such a restraint at this time however, having had a contested hearing for 5 days I can indicate that any further application made by the father will need to meet the legal threshold as referred to in Rice & Asplund. I have also made observations and findings in this judgment which will no doubt be raised in the event the father seeks to re-litigate the matter.
I will also Order that the mother has leave to provide a copy of the Orders to X’s school and day care, or any medical or other specialists or counsellors, police or other persons or institutions whose involvement with X touches upon the issues dealt with in these Orders.
I certify that the preceding four hundred and ninety-six (496) paragraphs are a true copy of the reasons for judgment of Judge Willis
Date: 12 August 2013
[107] Transcript18 March 2013, page 46 lines 30 – 45.
Key Legal Topics
Areas of Law
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Family Law
Legal Concepts
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Jurisdiction
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Injunction
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Procedural Fairness
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