Sipos & Sharkey
[2022] FedCFamC1F 11
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Sipos & Sharkey [2022] FedCFamC1F 11
File number(s): MLC 1647 of 2016 Judgment of: MCGUIRE J Date of judgment: 10 February 2022 Catchwords: FAMILY LAW – CHILDREN – application by father for child to live with him and spend time with the mother – allegations of sexual abuse – allegation that mother is hyper vigilant and preoccupied with child’s safety in the father’s care to the extent that she presents as a risk of emotional and psychological harm for the child – orders that child live in a week about arrangement with the parents – order that parents have equal shared parental responsibility for the child
FAMILY LAW – CHILD SUPPORT – application by father to set aside a Binding Child Support Agreement entered into by the parties on 17 January 2017 – application dismissed
Legislation: Child Support (Assessment) Act 1989 (Cth) s 136(1),(2),(d)
Family Law Act 1975 (Cth) ss 44(3), 60CC and 65DAA
Cases cited: Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue (2009) 239 CLR
Baker v The Queen (2004) 223 CLR 513
Gavin v Garden (2011) 45 Fam LR 444
H & H (2003) FLC 93–168
Keane & Keane and Ors (2014) 50 Fam LR 120
Masters & Cheyne [2016] FamCAFC 255
Project Blue Sky Inc v Australian Broadcasting Authority (1998) 1994 CLR 355
R v Kelly (Edward) [2000] QB 198, at page 208
Simpson v Hamlin (1984) FLC 91-576
Whitford & Whitford (1979) FLC 90-612
Division: Division 1 First Instance Number of paragraphs: 184 Date of hearing: 27, 28 and 29 October 2021 and 5 November 2021 Place: Hobart and Launceston Counsel for the Applicant: Ms Renwick Solicitor for the Applicant: Lander and Rogers Counsel for the Respondent: Mr Combes Solicitor for the Respondent: Bowlen Dunstan and Associates Pty Counsel for the Independent Children's Lawyer: Ms O’Connell Solicitor for the Independent Children's Lawyer: Taft Lawyers ORDERS
MLC 1647 of 2016 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MR SIPOS
Applicant
AND: MS SHARKEY
Respondent
INDEPENDENT CHILDREN'S LAWYER
ORDER MADE BY:
MCGUIRE J
DATE OF ORDER:
10 FEBRUARY 2022
THE COURT ORDERS THAT:
1.That all previous parenting orders in relation to the child X (‘X’) born 2014 be discharged.
2.That the father, Mr Sipos, and the mother, Ms Sharkey, have equal shared parental responsibility for X.
3.That during school term X live with the father and mother on a week about basis from the conclusion of school or 3.30pm on Friday until the following Friday at the commencement of school or 9.00am.
4.That the week about arrangements set out in order 3 herein continue during school holidays or at such other times as agreed between the parties in writing.
5.That X spend such further time or variations of the above times, including special occasions, with each of her parents as may be agreed between the parents from time to time in writing.
6.That the appointment of the Independent Children’s Lawyer be discharged.
7.That pursuant to s 62B of the Family Law Act 1975 (Cth) information about counselling services, family dispute resolution services and other courses, programs and services available, is set out in the Fact Sheet attached hereto.
8.That pursuant to section 65DA(2) of the Family Law Act 1975 (Cth) the particulars of the consequences that may follow if a person contravenes these Orders and details of who can assist the parties adjust to and comply with an Order are set out in the Fact Sheet attached hereto and these particulars are included in these Orders.
9.The amended initiating application filed by the father on the 16 April 2021 to set aside the Binding Child Support Agreement entered into by the parties on the 17 January 2017 be dismissed.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under a pseudonym of Sipos & Sharkey has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
McGuire J
APPLICATION
These are parenting proceedings brought on the father's application in respect of the parties’ one child namely X born in 2014 (aged seven years) (‘X’).
The father, Mr Sipos, at the commencement of the trial proposed that X live with him and spend time with the mother on alternative weekends in a block of three nights from Friday at the conclusion of school until Monday the commencement of school. In his case summary the father did not propose any change in this arrangement for school holidays but by the time of the final addresses his position is that X spend half of the each school holiday with each parent, and apparently influenced by the evidence, the father now proposes a continuation of the interim arrangements during school terms where X spend nine nights per fortnight with him and five nights with the mother.
The father argues that he should have sole parental responsibility for X but on a consulting and notifying condition.
The mother, Ms Sharkey, proposes that the parents have equal shared parental responsibility for X. In her case summary filed the 8 June 2021 the mother sought that X spend time with the father for a total of four nights over a fortnightly regime being in week one from Wednesday afternoon until the commencement of school on Thursday and in week two from after school on Friday until the commencement of school on Monday. She provides no specifics as to school holiday time although asking for an order that “either party may take X out of Australia for holidays and other short periods of time…”.
By the commencement of the trial, however, the mother's position was and remains that X should live in an equal time arrangement between her parents.
The Court has the benefit of an Independent Children's Lawyer (‘ICL’). At the commencement of the trial the ICL's preliminary position was that the father have sole parental responsibility save and except that the parents have equal shared parental responsibility in respect of:
(a) religious and cultural upbringing; and
(b)any proposed changes to the child's living arrangements that might be significantly more difficult for the child to live with or spend time with the other parent.
The ICL proposed that X live with the father and spend time with the mother five nights per fortnight being in week one from the conclusion of school on Wednesday until the commencement of school on Thursday, and in week two from the conclusion of school on Thursday until the commencement of school on Monday. The ICL suggests shared time between the parents for X during school holidays.
By the time of final submissions the ICL's position was effectively a mirror of the father’s minute of order save for two minor issues.
The father’s case
The father says that these parents have been in litigation in respect of X virtually since her birth with this being the third application brought to these Courts. He says that the mother has a propensity for over holding X from spending time with him due to spurious allegations against him of sexual impropriety in respect of X none of which have been substantiated. He says that the mother is hyper-vigilant and preoccupied with X’s safety in his care to the extent that she presents as a risk of emotional and psychological harm for X.
The father also argues that the mother has been less than diligent in respect of X’s schooling where X manifests some academic difficulties.
The father says that the parties do not communicate other than by formal messages and, in the circumstances set out above, he should have sole parental responsibility for X.
The father argues that, as a consequence of the orders he seeks, a Binding Child Support Agreement entered into by the parents on 24 January 2017 be set aside due to exceptional circumstances and that he will suffer hardship if the Agreement is not set aside.
The father was generally a good witness. He gave his responses in a considered and informed way. He was, however, focused on the past and the behaviour of the mother and was not necessarily child focused. He was reluctant to give any credit or acknowledgement to the mother either personally or in her parenting of X. There was an impression in his evidence that he pursued this application primarily on the basis of his perception of him of having been wrongly accused of sexual abuse of his daughter.
The mother’s case
The mother says that she is supportive of X having a full and meaningful relationship with each of her parents as evidenced by the orders she seeks.
The mother says that she has not acted inappropriately in respect of the statements made by X to her on three separate occasions which would objectively cause concerns to any reasonable parent that the child was in danger. She says that she has consulted the appropriate authorities on the first two of those occasions being Child Protection and Victoria Police. In essence she says that she has acted protectively in respect of her daughter, but only for so long as is necessary.
The mother says that she has been X's primary carer since birth (until November 2020) and that, despite her own difficult background and financial limitations, she has provided adequately for her child including her education. The mother argues impliedly that the father has been opportunistic in his application to this Court and in respect of practical issues such as denying her request for a computer for X to home–school during the COVID-19 lockdown.
The mother says that she has attempted to engage and communicate with the father but her approaches are not reciprocated.
The mother's says that she is now established in accommodation and employment where the parents live in close proximity and that X's best interests would be served by an equal time arrangement where she says she will continue to attempt to communicate with the father and that there have been some successes in this regard such that X's best interests are served by there being an order for equal shared parental responsibility.
The mother was a good and impressive witness. She presented as an “open book”. She presented as child focused but with the conundrum of dealing with what she saw as concerning revelations from her daughter as against her obligations to comply with court orders and to facilitate a relationship for X with the father. I gleaned, however, that she had reflected on this situation and her obligations whilst maintaining that her actions were at all times child focused and reactive to X’s statements to her. Generally, I found the mother to be an honest and candid witness. She was more optimistic and conciliatory than the father in respect of their future parenting, cooperation and communication.
BACKGROUND
The father is 49 years of age. The mother is 34 years old. The mother was born in the United Kingdom but has been resident in Australia for some time.
The parties apparently met at a Melbourne nightspot known as 'Venue R' where the mother was an employee and the father an attendee. They commenced cohabitation in November 2013 with X being born in 2014.
The parties married in 2015 and separated later the same year when the mother, together with X, took temporary accommodation in a women's refuge.
The father first commenced proceedings in the Federal Circuit Court on 26 February 2016 against a background of X not spending time with him.
On 7 March 2016 the father commenced spending time with X privately supervised by S Family Services. Supervision was later provided by the father's sister, Ms Sipos.
On 11 May 2016 the parties and X attended upon Ms C for interviews for a family report such being released on 20 May 2016.
On 21 June 2016 procedural orders were made listing the matter for trial and providing inter alia for unsupervised time between X and the father.
In November 2016 the parties successfully mediated both parenting and property matters resulting in orders by consent for X to live with the mother and spend time increasing to four nights per fortnight with the father.
On 10 September 2017 the mother says that she was contacted by the father's partner or perhaps former partner, advising the mother that X was at risk of sexual abuse in the care of the father. The mother says that she took legal advice and was advised to permit time between X and the father to continue. Neither party adduced evidence from this person.
In late 2017 the father re-partnered with his current partner, Ms D.
In late 2017 the mother says that she suggested family therapy by Mr E, psychologist, but the father refused to take part.
In May 2018 the mother reports X as disclosing inappropriate touching by the father saying words to the effect of the father “kissing my bum bum". The mother says that X also made reference to her “small hole”. X was subsequently interviewed by the Department of Health and Human Services (‘DHHS’) on 15 and 28 May 2018 and on 19 June 2018. The mother stopped time-with for X and the father. The father filed a contravention application and a fresh initiating application.
On 22 June 2018 interim orders were made by consent inter alia for X to attend upon a child psychologist and for time to resume for X with the father such to be professionally supervised. An order was made for the appointment of an ICL together with an updated family report.
On 23 July 2018 DHHS advised that they would not have continuing involvement with the family.
On 4 August 2018 X commenced counselling with Dr F of B Health Services such being reportable counselling.
On 27 August 2018 the parties and X attended upon Dr G, psychologist, for a family report.
On 7 September 2018 interim orders were made by consent restoring the force and effect of the 2016 final parenting orders with the matter otherwise to be listed for trial.
In 2019 a daughter, Y, was born to the father and Ms D.
On 29 October 2019 final orders were made by consent providing inter alia for X to live with mother and spend time with the father each second weekend from Friday until Monday morning and overnight on Wednesdays in the off–week.
On 15 January 2020 X commenced attending upon Ms H at B Health Services. The mother says that the father revoked his consent for counselling with Ms H on 4 March 2020.
In late March 2020, with the advent of COVID-19, the mother unilaterally withdrew X from her school and travelled firstly to T Town and then to U Town in her caravan with X and failing to make X available for time with the father in accordance with the 2019 final orders.
On 20 April 2020 the mother alleges that X made a further disclosure, in the presence of the mother's friend, Ms J, that her father had taken a photograph of her genital region. The mother says that she attempted unsuccessfully to discuss this matter with the father on 23 April 2020. Ms J gave evidence here for the mother.
On 23 April 2020 X was interviewed by SOCIT (Victoria Police) repeating a statement that the father had taken a photograph of her genital region.
On 24 April 2020 Victoria Police executed a search warrant for the father's home seizing devices. The father was not charged. Victoria Police did obtain an Interim Violence Order (‘IVO’) on behalf of X. The mother suspended the father's time with X.
X was again interviewed by SOCIT on 13 May 2020.
On 4 June 2020 the IVO was withdrawn by Victoria Police. The mother continued to withhold X from time with the father.
On 24 June 2020 X was examined by a psychologist following a referral by L School via the Education Department.
On 30 June 2020 the father filed a contravention application and a fresh initiating application.
On 3 July 2020 the mother advised her consent to reinstatement of the father's time with X pursuant to the 2019 final orders.
On 7 July 2020 orders were made for a further family report and for the 2019 final orders to remain in full force and effect in the interim.
On 30 September 2020 the parents and X attended upon Dr M for interviews for a family report which was released 22 October 2020.
On 1 October 2020 X was interviewed by DHHS via Zoom and on the 27 October 2020 a Section 67Z Report was released to the Court from DHHS stating that they did not intend to intervene in the proceedings or take further action.
On 4 November 2020 Senior Judicial Registrar Hoult made contested interim orders providing for X to live primarily with the father and spend five nights per fortnight with the mother.
In January 2021 X commenced at K School.
The mother has since herself moved to the Suburb N area and the parents now live in close proximity.
THE RELEVANT LAW
The orders that I am asked to make are parenting orders and I am therefore to have X's best interests as my paramount consideration pursuant to s 60CA of the Family Law Act 1975 (Cth) (‘the Act’).
The process of consideration for the Court is a mandatory one of referencing the proposals of the parties and the ICL together with the probative evidence to the many factors set out in s 60CC(2) and (3) of the Act against the background of the Objects and Principles of the legislation set out in s 60B as follows:
(1)The objects of this Part are to ensure that the best interests of children are met by:
(a) ensuring that children have the benefit of both of their parents having a meaningful involvement in their lives, to the maximum extent consistent with the best interests of the child; and
(b) protecting children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence; and
(c) ensuring that children receive adequate and proper parenting to help them achieve their full potential; and
(d) ensuring that parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of their children.
(2)The principles underlying these objects are that (except when it is or would be contrary to a child’s best interests):
(a) children have the right to know and be cared for by both their parents, regardless of whether their parents are married, separated, have never married or have never lived together; and
(b) children have a right to spend time on a regular basis with, and communicate on a regular basis with, both their parents and other people significant to their care, welfare and development (such as grandparents and other relatives); and
(c) parents jointly share duties and responsibilities concerning the care, welfare and development of their children; and
(d) parents should agree about the future parenting of their children; and
(e) children have a right to enjoy their culture (including the right to enjoy that culture with other people who share that culture).
Section 61DA of the Act offers a presumption that parents have equal shared parental responsibility for their children which is commonly defined as the rights and obligations that parents normally exercise for their children and usually manifested as long term and important decisions such as issues of education, medical procedures, religion and the like.
The presumption at s 61DA does not apply if the Court is satisfied there has been abuse of a child or family violence. Alternatively, the presumption may be rebutted by evidence satisfying the Court that it would not be in the child’s bests interests for the parents to exercise equal shared parental responsibility.
Should the presumption at s 61DA apply or the Court in its discretion make an order for equal shared parental responsibility then a course of mandatory statutory and intellectual considerations follows. Firstly, the Court must consider whether it is both in the child’s best interests and reasonably practicable for the child to live in an equal time regime between the parents. The mother here argues for such an arrangement. However, if either of the questions as to best interests or reasonable practicability are answered in the negative then the Court turns to consider whether the child living in an arrangement of “substantial and significant time” between the parents is both in the child’s best interests and reasonably practicable. This is the regime preferred by the father. “Substantial and significant time” is defined in the Act at s 65DAA(3) as time for a child with each parent on both week days, weekends and holidays and time for the child which allows mutual enjoyment of activities and occasions.
THE EVIDENCE
Ms D
The father's partner Ms D gave evidence and provided an affidavit of 16 April 2021. She was cross-examined briefly. She is supportive of the father's application and of his parenting of X.
Ms O
Ms O provided two affidavits in support of the mother being 11 May 2021 and 13 October 2021. She is a psychologist. She was cross-examined.
Ms O deposed to having a professional relationship with the mother from 31 July 2018. The basis of that relationship was that the mother had sought support for herself and assistance with how best to support X.
Ms O described some post-traumatic stress disorder symptoms in the mother following what she had described as an abusive and controlling three-year relationship with the father. Ms O described the mother’s anxiety as “explicable by her history and circumstances: the abusive and controlling relationship history as perceived by her, the dynamics of which continued post-separation, the ongoing conflictual relationship with [the father], the fear that her daughter may have been abused, the heavy handed management of her case by the police and the unfair treatment by the report writer, combined to enhance her anxiety”. Ms O saw the mother as exhibiting “low self-confidence”.
Ms O referenced the events of April 2020 when X revealed that the father had photographed her genital area. Significantly, in her first report Ms O identifies the conundrum experienced by the mother as follows:
[5]The new sexual abuse allegations, again spontaneously made by X in April 2020, caused [the mother] the most significant distress both because of the child's disclosure and because of past censure and fear of reporting it. She sought advice from me and consequently contacted the police or child protection.
[6]Her distress and anxiety again increased. [The mother] has reacted in ways consistent with a competent and caring mother wanting to both protect and support her child and ensure that she is following an appropriate course. X displayed disturbances, nightmares and emotional regression to which [the mother] has been able to appropriately respond.
[7]The reporting of sexual abuse by a child is one of the most challenging experiences for a parent, usually a mother. From a psychological perspective, the child must be supported and believed and only question gently using open questions. Rejection, disbelief and negation of the child reports, while allowing the child to remain in an abusive situation, can cause great harm to the child, can be long lasting and can at times be more distressing than the abuse. The questioning is best done by third-party professionals.
[8][The mother] reports of the child's disclosures and her follow up questions appear to have been conducted well. She did not overreact and asked X to tell her more and continued with non-direct questioning.
In cross-examination Ms O opined that the she considered the mother’s depression to be in remission but that any significant stressors could cause a recurrence.
Ms O confirmed that it was her advice to the mother to consult DHHS in April 2020. She emphasised that the mother's risk notifications are directly in respect to reports from the child with the implication being of no mala fides or more generalised alienating behaviour by the mother. Specifically she noted the changes in the mother’s attitude since the change of primary residence by reason of Senior Judicial Registrar Hoult’s orders in November 2020.
Ms O denied the proposition put to her by the ICL that the mother’s “fears” are “deep-seated and not diluted by counselling”.
Ms O’s second report is dated as recently as 9 October 2021. She confirms her view that the mother has made considerable progress and has “over time emerged from her depression”. Importantly, at [7] of that report appears the following:
Her accounts indicate that she has supported X’s relationship with her father and has attempted to ensure that the child remains contented in his care. I am of the opinion that [the mother] continues to be open and direct and able to both seek and receive advice and therapy. Her child's needs and best interests also continue to be her primary focus.
Whilst Ms O is a witness for the mother and where she is the mother’s therapist and has not seen the father, I still found her to be an impressive and objective witness. Her evidence was given from a professional perspective and objectively where I did not glean Ms O to be “wearing the mother’s case on her sleeve”.
Ms J
Ms J gave evidence for the mother and swore an affidavit on 13 May 2021.
Ms J is a close friend of the mother. She deposes to a FaceTime call with the mother on 20 April 2020 where X was laying next to her mother on a bed. In her affidavit she deposes:
[5]During the conversation [the mother] turned her head on the video chat and asked X what she was doing. X then said “mummy daddy has been taking pictures of my vagina”. [The mother] looked and couldn't see X on the screen. [The mother] just looked shocked. I remember saying “he did what”. [The mother] said she would call back, however [the mother] did not call me back.
[6]X’s disclosure came out of the blue and there was nothing that [the mother] and I were talking about which could have possibly lead to such a disclosure.
Ms J was cross-examined briefly and confirmed to the ICL that the mother maintained concerns as to her daughter's safety in the care of the father as recently as mid-2021 and that her concerns extended to the police investigation not being thorough.
Mr P
Mr P affirmed an affidavit on 12 May 2021.
Mr P is a member of a group “Group V” which he describes as a not-for-profit organisation trying to raise awareness for people inside abusive relationships to understand the red flags. It seems that the mother has sought support from Mr P and he has been willing to provide support consistent with his own views of domestic violence. Significantly, Mr P appears to have encouraged the mother’s notification to Child Protection Authorities and Victoria Police in respect of X’s revelations.
Mr P's evidence was of little assistance to me given that he presents here with generalised but entrenched opinions and preconceived views as to the background facts of this case. He does, however, confirm that the mother maintained her concerns in respect of the father as recently as mid-2021.
Dr G
Dr G provided a report and assessment in respect of these parties dated 27 August 2018 under cover of affidavit of 31 August. Dr G was not required for cross-examination and it is notable that his report is now somewhat aged. He did, however, have the advantage of interviewing both parents and observing each parent with X.
Dr G is a clinical psychologist experienced in assisting these Courts in parenting matters.
Relevantly Dr G notes that the mother was abandoned emotionally by her own mother and suffered physical abuse from her mother and was exposed to physical and emotional abuse from her father. He describes the mother as suffering from “emotional abandonment”. She was exposed to domestic violence between her parents. Dr G identified the mother as having significant personality difficulties accompanied by her vulnerability and borderline personality issues. He noted her to be highly emotional, irritable, anxious and somewhat depressed.
Dr G was, however, positive in respect of the relationship between the mother and X. He noted an established parent–child attachment and appropriate parental engagement. He says that ''warmth was good and present and there was good reciprocal interaction”. He concludes at page 22 of his report:
Overall, there is no significant difficulty with the mother's engagement with the child. Her parental skills in themselves, both verbal interactions and non–verbal interactions are sound, and parent child attachment is non–problematic. There was evidence of a good relationship between mother and child.
Dr G’s psychological evaluation of the father was unremarkable. At [75] Dr G reports of the father as follows:
Overall the father was not critical of the mother’s care of the child but he stated that the only central problem was the way the mother alienates him from X and he believes that the mother and daughter will have a strong relationship irrespective.
Dr G also observed the father and X together. He concludes at page 37:
Overall, parental child evaluation identified sound parental skills, sound parental–child interaction and relationship and well-established attachment.
In his conclusions Dr G identifies the source of difficulties between the parents as follows:
[102]The pattern of parenting difficulties present as directly related to difficulties associated with conflict between the parents. In this matter, there have been markedly discrepant accounts of the conflict which has occurred between the parents. The mother's account has been that the father has been verbally abusive and on occasion physically abusive, with the father's account effectively being much the same, with allegations that the mother has been inappropriately verbally abusive with him and on occasion physically abusive. There has been Family Court involvement over the last two years approximately. There has been increased time between the father and the child ordered by the Family Court, following on from a previous family report, and the child had moved to spending a proximally (sic) five nights in each fortnight with the father and nine with the mother.
[103]The pattern identified in this family evaluation has been a significant reluctance on the part of the mother to engage the child in time spent with the father, as the mother believes the father has significant psychological problems and has considered all (sic) presented the father as potentially abusive in relation to the daughter. This evaluation was not able to validate the claims made by the mother.
[104]The central difficulty as identified as a pattern post separation is the lack of cooperation in the parenting arrangement. Based on this evaluation, this presents as driven by the mother to a much more significant extent than the father. The fact that there have been escalating allegations from the mother, including allegations of aggression and violence, and culminating recently on allegations of sexual abuse, in the context of the father not cooperating about an issue of finances, raises concerns about a series of factors in terms of the parent’s ability to cooperate and also the vulnerability for this matter to become one involving exclusion or alienation of the father from the child.
The Family Consultant – Dr M
Dr M is a Consultant Forensic Psychologist and provided a family report in this matter dated 22 October 2020.
Dr M appears to have been given reports consistent with the affidavits of the parties filed in this Court where she describes the parents meeting at Venue R where the mother was employed and the father was a patron. She reports an unplanned pregnancy six weeks into the relationship at a time when the father was married to a previous partner. She describes a marriage and early separation in 2015. The family consultant at [9]–[10] reports the mother’s notifications of X’s revelations as follows:
[9]In May 2018, X reportedly disclosed sexual abuse by [the father] to [the mother] in the form inappropriate touching. X commenced psychological therapy with Dr F in July 2018. Between September 2018 and October 2019 [the mother] was reportedly compliant with the parenting orders. It appears that X engaged in therapy until February 2020 when [the father] no longer consented to X attending upon a therapist.
[10]In March 2020, [the mother] reportedly did not allow X to spend time with [the father] due to concerns about the COVID–19 Pandemic. Then, in late–April 2020, [the mother] sent a text message to [the father] informing him that X had disclosed that he had taken photographs of her genital area with a leg up and not wearing any underwear. [The mother] reported this to the police who interviewed X and [the father] and conducted an investigation. This investigation was later concluded in late–May 2020, with no offence detected and no charges laid. Further information about the police investigation is outlined in the collateral information section of this report (paragraphs 100–106 refer).
Dr M’s report pre-dates the interim hearing before Senior Judicial Registrar Hoult and it seems was influential in the making of orders by Senior Judicial Registrar on 4 November 2020, albeit without the author of the report being tested by cross-examination.
As of the date of the interviews for the report being 30 September 2020 the mother was “seeking professionally supervised contact for [the father] due to alleged risk of sexual abuse to X in his care”. It seems that the father was then seeking a live–with order for X.
At [39] of the report Dr M identifies the key issue as:
The main parenting issue in dispute pertains to the care arrangements, in essence which parent ought to have primary care of X. This is in the context of allegations of sexual abuse of X by [the father] and counter allegations that [the mother] is not able or willing to facilitate an ongoing meaningful relationship between X and [the father].
Importantly, at [41] Dr M reports:
The overarching theme of [the father’s] narrative was his concern that [the mother] was causing psychological harm to X through repeatedly fabricating allegations of sexual abuse against him. (Emphasis added) …
The above must be seen in the context of the evidence before this Court and particularly that of the father where before me he did not specifically claim that the mother had “fabricated” the child's statements. Rather, I understood his application to be that the mother has “overreacted” to X’s statements or, at its highest, that she may have acted opportunistically in respect of those statements. He did not, however, dispute that the child had made the statements attributed to her as indeed witnessed by Ms J. The father's assertion of “fabrication” was repeated at [45] and [49] of the family report.
Dr M states in respect of the mother:
[57][The mother’s] narrative focused on the theme of safety and of wanting to protect X from harm. According to [the mother], despite the conclusions of the Police and the DHHS, she believed that [the father] posed a risk to X in the context of the sexual abuse allegations. She was of the view that there was a reason X had made such disclosures, suggesting that the parties needed to “get to the bottom of it” through psychological therapy. [The mother] placed great emphasis on the importance and benefits of psychological therapy for both herself and X in a broader sense rather than solely in relation to the allegations of sexual abuse.
[58][The mother] denied that she had ever intentionally ceased [the father’s] time with X in the absence of genuine significant risk concerns. …
Dr M had the benefit of interviewing X and observing her with each of her parents. She describes her as a warm and vivacious child albeit somewhat immature for her age then being six years and six months. X reported a close relationship with her father's partner and her half sibling.
At [83] X reported witnessing her parents “arguing… yelling and swearing”.
X was observed to be excited to see her father and comfortable in his presence.
Similarly, X was observed to be relaxed and comfortable in her mother's presence. At [97] of the report appears the following:
It was noted that during the observation [the mother] asked X directly how it had gone speaking with the writer. X replied that she had forgotten some things, remarking: “I never forget things but I forgot lots of things”. [The mother] then asked if there was anything X would like to “get off your chest and speak from the heart to Ms D [report writer] while mummy’s here?” X did not respond and the writer intervened at this time to redirect the conversation.
At [126] in her evaluation Dr M says:
[The mother’s] concerns centred on a preoccupation (emphasis added) with X’s safety. It was her view that X was at risk of sexual harm in [the father’s] care, which has been a re-occurring (emphasis added) theme since 2017. [The mother] was unable to reconcile that [the father] did not pose a significant risk of sexual harm to X (as indicated by various professional opinions) given the child’s alleged disclosures to her. She evidenced a belief that there was no other alternative explanation for X making such statements even though it appears that X has predominantly only made disclosures to [the mother]. It is noted that X has not made any disclosures to professionals she has been engaged with such as her psychologist or school teachers and other supports.
Then at [128] Dr M opines:
Of concern [the mother] presents as lacking insight as to the detrimental emotional and developmental effects of repeated exposure of a child to such behaviour and the subsequent instability in a child's life. In addition, such exposure can have longer – term impacts on X’s sense of self and future relationships. …
At [132] Dr M concludes:
In contrast, [the mother] has not evidenced an attitude of equality or inclusion in terms of recognising [the father’s] position as X’s father. Whereas, [the father] presents as the parent best able to provide a stable routine for X and bring an end to the turbulent circumstances she has faced since birth. Further, he has maintained regular contact with X’s school and demonstrated his preparedness to address developmental issues and educational needs.
Dr M saw X as being a resilient child who would adapt to a change of living arrangements.
Dr M makes the following recommendations in her report:
[139]That in the absence of some substantiated risk of harm in [the father’s] care, X resides primarily in [the father’s] care and spend regular time with [the mother]. It is envisaged that at least initially the spend time would be limited and progressively increased over the six to twelve months to minimise potential disruption for X and allow the focus during the week to be on X's schooling. For example, commencing with day time each weekend and then one overnight on alternate weekends before building to alternate weekends from Friday to Sunday. Following a few months of this, the time could extend to encompass alternative weekends from Friday to Monday. It is envisaged that [the father] would also facilitate telephone contact with [the mother] when requested by X.
[140]That following the staged progression in spend time arrangements with [the mother] in conjunction with X presenting as settled at school and in the new routine, consideration could be given to implementing a dinner each week with [the mother] or overnight stay in the alternative week.
Dr M was cross-examined. The mother’s case for equal time was put to for her comment and to which she responded:
If my concerns from September 2020 raised in my report are repeated then I don't think equal time… But otherwise equal time then okay.
The concerns that Dr M alluded to were particularised as:
(i)Talking to the child about abuse;
(ii)Schooling (but that the mother now lives near the school);
(iii)The level of hypervigilance in continuing issues where the authorities say that the concerns are not warranted.
Dr M agreed that one of her major concerns was the mother's belief that the system had failed her and that she therefore may not be able to promote X’s relationship with the father.
Dr M was a professional, confident and candid witness. She exhibited a knowledge of the family law process and her report is thorough in its preparation. I do, however, maintain some concerns in respect of the intellectual process by Dr M leading to her conclusion. Firstly, her recommendations would provide “day time each weekend” only for X with the mother initially but where X’s experience of her mother has been as her primary carer until November 2020 and then for five nights each fortnight. Dr M does not rationalise such a dramatic change in regime and any impact on X. To be fair, however, Dr M in her evidence in court did at least consider the mother's proposal of an equal time arrangement as being workable and in X's best interests.
Secondly, Dr M's report and her evidence in Court focuses on the mother’s notifications of X’s two revelations of what the mother interprets as being possible sexual abuse. It is important to understand there are only two notifications they being made in 2018 and 2020. Again, I do not understand the father in his evidence to be disputing that the child made the statements attributed to her. Nevertheless, Dr M's report attributes to the father the notion of “fabrication” on no less than three occasions in her report. She also references the mother’s “preoccupation” with X’s safety. She references the term “… Repeated exposure of the child to such behaviour”. She references the child’s “… turbulent circumstances she has faced since birth” and with at least an implied criticism of the mother.
To her credit, however, in court, Dr M was, consistent with her professionalism, able to acknowledge the inferences that may be taken from the context of her report.
SECTION 60CC FACTORS
Section 60CC(2)(a) the benefit to the child of having a meaningful relationship with both of the child's parents;
The evidence of both parents and the family consultant confirms that X has an established and loving relationship with each of her parents. The father now proposes orders whereby X spend five nights per fortnight with the mother whereas the mother proposes an equal time arrangement. Either proposal will adequately cater for X’s continuing relationship with each of her parents. I have concerns that the recommendations of the family consultant, which she may now have resiled from, would not have catered for X’s relationship with her mother.
Section 60CC(2)(b) the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect of family violence
The amendments to the Act at s 60CC(2A) provide that this consideration is to be given “greater weight” in the balancing process for the Court with s 60CC(2)(a).
This consideration is at the crux of the applications before the Court. The father says that the mother is hypervigilant with a pre-occupation of the child’s safety in his care with a propensity to unjustifiably stop X’s time with him and a failure to accept the advice of DHHS and/or Victoria Police that her concerns are unsubstantiated.
The father says that the mother’s propensity is not acknowledged or addressed and, as such, she will carry such a propensity into the future with a strong likelihood that she will blindly accept otherwise innocuous statements from X and proceed to stop his time with X. The notion of “propensity” featured heavily in rhetoric for the father’s case and by counsel for the ICL.
The mother says that X has made two disclosures to her where she has acted reasonably in alerting the authorities to conduct a proper investigation and that she has then agreed to the recommencement of X’s time with the father albeit perhaps not immediately. As such, given these two isolated events, she denies a propensity or that she has acted unreasonably or overreacted. The mother says that objectively a parent has a responsibility to protect children and her actions demonstrate responses to particular statements and disclosures made by X rather than a propensity to overreact or to act by ulterior motive. In circumstances where the statements made by X are an indication of the father touching the child's “bum bum” and to “small hole'' and later “taking a photograph of her vagina”, the mother argues that her responses were proportionate and reasonable.
The mother says that she has been subjected to family violence of a physical, emotional and coercive/controlling type at the hands of the father. The father denies any form of family violence. The parties are now long separated and any family violence that did take place seems to have been situational and circumstantial upon their relationship and their separation. By reason of the orders sought by the mother and including an order for equal shared parental responsibility with father then it seems that the mother, perhaps by reason of the separation, has addressed these issues but noting the father's continued denials.
Suffice to say that there is not evidence before me allow for any finding that the father has sexually abused X or that he presents as an unacceptable risk to the child but where the mother does not urge me to make any such findings.
Section 60CC(3)(a) any views expressed by the child and any factors (such as the child's maturity and level of understanding) that the court thinks relevant to the weight which would be given to the child's views
X is just seven years of age. She is not of an age where she can realistically rationalise her own views and best interests as to her living and parenting arrangements. The evidence before the Court, however, suggests that X has an established, comfortable and easy relationship with each of her parents and would desire continuing and maximising those relationships.
Section 60CC(3)(b) the nature of the relationship of the child with:
(i) each of the child's parents; and
(ii) any other persons (including any grandparent or other relative of the child)
X has developed successful relationships with each of her parents despite their separation when she was an infant. From her parents’ separation in 2015 until November 2020 X understood her mother to be her primary carer but with regular and frequent time with the father albeit with some punctuations when X was retained by the mother. Since Senior Judicial Registrar’s interim decision of November 2020, X has lived nine nights per fortnight with the father and five nights with the mother. I expect that from X’s perspective this has entrenched an established and frequent relationship where she has been able to settle into each of her parent’s homes and parenting styles. Indeed, an interestingly, the majority of the relevant evidence put before me pre-dates mid-2020.
The father's application to this Court was that X’s time with the mother be reduced to three nights per fortnight. The family consultant’s recommendations would be even more challenging for this young child. This would represent a significant change for X and a substantial reduction of time with the mother impacting on her understanding of and the nature of that relationship. The father, by the time of final submissions, had moved and now seeks a continuation of the interim orders which would provide for X to have nine nights per fortnight with him and five nights with the mother during school term.
Section 60CC(3)(c) the extent to which each of the child's parents has taken, or failed to take, the opportunity;
(i) to participate in making decisions about major long–term issues risk in relation to the child; and
(ii) to spend time with the child; and
(iii) to communicate with the child; and
Section 60CC(3)(ca) the extent to which each of the child’s parents has fulfilled, or failed to fulfil the parent’s obligations to maintain the child
Each of the parents is critical to a degree of the other in this respect. The father says that the mother makes unjustified unilateral decisions to stop his time with X. He says that she has otherwise taken the child out of school causing a disruption of his time.
The mother complains that the father does not assist financially on occasions in respect of X’s education as for instance the provision of a laptop computer for remote learning during COVID-19 restrictions.
Section 60CC(3)(d) the likely effect of any changes in the child’s circumstances, including the likely effect on the child of any separation from:
(i) either of her parents; or
(ii) any other children, or person (including any grandparent or other relative of the child), with whom the child has been living
The father's application would constitute a significant change for X in circumstances where she has for most of her life understood her mother to be her primary parent. The father has now retreated from that position and proposes a regime of nine nights per fortnight with him and five nights with the mother. The mother now offers a proposal of equal shared time and presumably on a week about basis. She too has moved dramatically from her proposal to the family consultant as of September 2020. As such, the changes for X now contemplated by the various positions of the parties are discrete and unlikely to impact on X.
Section 60CC(3)(e) the practical difficulty and expense of the child spending time with and communicating with a parent and whether that difficulty or expense will substantially affect the child’s right to maintain personal relations and direct contact with both parents on a regular basis
Since the making of the interim orders in November 2020, the mother herself has relocated to the Suburb N area and in close proximity to the father. This provides the opportunity for X to move easily between her parents’ homes without the logistical difficulty of travel to and from school, extra-curricular activities, and the pursuit of the relationships and friendships she will make at school.
Section 60CC(3)(f) the capacity of each of:
(i) the child's parents; and
(ii) any other person (including any grandparent or other relative of the child);
to provide for the needs of the child, and including emotional and intellectual needs
The mother is criticised in this respect by the father and by the experts being Dr G and Dr M. The criticism rests on the mother's responses to statements made by X where it is claimed that the mother is over vigilant and keen to look for unjustified risk when X is with the father.
Dr G describes the mother presenting as “emotionally labile and fragile”. He says that she presents with a tendency towards processing emotional information in a black and white and rigid fashion. The father relies in part on Dr G's conclusion at [106] thus:
In contrast, the mother presented a picture of a person with significant personality vulnerabilities, with a tendency to black and white emotional processing, with the recent sexual abuse allegations presenting as part of a pattern of the mother attempting to exclude the influence of the father in the child's life.
Dr G was not called to be tested on his report, assessment and conclusions. Notably, however, the report is from August 2018 and any conclusions as to “patterns” or “courses of behaviour” must be seen in light of the time that has passed. It is also notable that the mother now asks for orders for equal time between X and the father with obvious conclusions as to what Ms O says have been significant improvements in the mother’s own self-confidence.
The father also challenges the mother's capacity in respect of attending to X’s education. It seems that X is below average academically and the father says that he presents as more capable and interested in X’s education than does the mother.
The father gave evidence, supported by his partner, Ms D, that together they will be able to facilitate X’s day-to-day needs including taking her to and from school.
Section 60CC(3)(g) the maturity, sex, lifestyle and background (including lifestyle culture and traditions) of the child and of either of the child's parents, and any other characteristics of the child that the court thinks are relevant
X is just seven years of age. She is not of an age where she can realistically self-protect and the statements that she has made to her mother must be viewed within this context. Similarly, however, the mother's background is a relevant consideration here for the Court. Dr G has described the mother as “emotionally labile and fragile”. To a degree, those observations accord with my own of the mother in court. Dr G perhaps best summarises the mother's own background at [32]-[33] of his report as follows:
Psychological evaluation revealed a relatively consistent pattern over the mother's life. She had extremely difficult family circumstances, with up to the age of 10 years, being exposed to emotional abuse, physical abuse and domestic violence between her parents and individually she was emotionally abused and abandoned by the major caregivers in her life including her mother and there was some physical abuse. In her teens, the circumstances did not improve. It would appear that she sought refuge by leaving and becoming independent. She has utilised her work as a means to an end but also has, as part of independence, and not wanting to be tied down. …
The mother presents as a person with views about her own intuitiveness but presents as emotionally labile and fragile. … The heart of her difficulties is likely to be significant attachment problems related to the fact that she was unable to rely on any of the major caregivers and so likely experienced reactive attachment difficulties early in her own life. For this reason, it is entirely reasonable because of those ongoing problems that she does not trust others. This issue is being played out in her relationship with the father and the allegations against the father are likely to be driven by a desire for independence. … It is likely that the mother's work has negatively contributed to her view of others and possibly in particular men and the… nature of the environment is likely to have negatively contributed also to her ability to establish sound relationships with others.
Dr G assesses the father as unremarkable in his emotional presentation and being of average range of intellectual abilities with some tendency towards positive impression management. At [105] Dr G states:
The evaluation identified a sound relationship between the child and the father. The individual evaluation of the father raised no concerns regarding psychological factors or negative factors associated with his approach to parenting. In contrast, he presented a benign attitude towards the mother and remains focused on the needs of the child.
Section 60CC(3)(h) if the child is an Aboriginal child or Torres Strait Islander child;
(i) the child’s right to enjoy her Aboriginal or Torres Strait Islander culture (including the right to enjoy that culture with other people who share that culture); and
(ii) the likely impact any proposed parenting order under this Part will have on that right
This is not a relevant consideration in these proceedings.
Section 60CC(3)(i) the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child’s parents
The father criticises the mother’s over reactive and justified attitude to ceasing his time with X.
The mother criticises the father's lack of financial support when requested in respect of the specific matters of X’s education.
Generally, however, as evidenced by the comments of Dr G and Dr M, each of these parents in their own ways demonstrate a committed and responsible attitude to X where there is a lack of there ever being any established relationship between the parents themselves and where acrimony and mistrust have dominated their relationship, they do not each respect the other’s commitment and capacity to care for their daughter.
Section 60CC(3)(j) and (k) any family violence involving the child or a member of the child's family and any family violence orders
These matters have been dealt with above.
Section 60CC(3)(l) whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation the child
As the father emphasises, there have been at least three separate proceedings in these Courts in respect of X who is now just seven years of age. He argues that the mother’s actions and her capacity to act unilaterally without justification have necessitated these applications. He argues that the mother’s demonstrated propensity leads to the likelihood of further applications where it is generally agreed that litigation in respect of children is contrary to their best interests where those interests are served by stability in their lives and stable relationships with both of their parents whether those parents be together or separated.
FINDINGS AND CONCLUSIONS
The issue for the Court is largely a consideration of the mother's previous withholdings of X from time with her father and whether such were reasonable in their action and continuance or whether there is a pattern of conduct and propensity in this mother that is likely to continue?
Matters of family violence raised by the mother including of the controlling and coercive type can be seen in the light of a short but dysfunctional relationship between two adults from different backgrounds brought together by pregnancy and hence circumstantial and situational and also within the context of the mother’s own background as articulated by Dr G. The parties now live in close proximity. They manage changeovers for X and the indications from Ms O suggest the mother to have grown in self–confidence. Consequently, matters of family violence do not now feature prominently within the current context.
On the evidence generally, I am satisfied that each of these parents can provide adequately for the physical needs of X. The father has significant financial benefits of his business. He is in a stable relationship with Ms D who was an impressive witness and a person who brings many benefits for X.
The mother is now in employment and stable accommodation. She is committed to living in close proximity to the father and for ease of transition for X.
The landscape in this matter has changed significantly during the course of this trial. At its commencement the father was seeking orders that X spend just three nights per fortnight with the mother being over one weekend. He was not proposing any block time for X with the mother during the school holidays and his evidence in the witness box when challenged in this regards was less than satisfactory in respect of his insight into the need for X to have a relationship with her mother. His responses in this respect also gave some corroboration to the mother’s evidence of a power imbalance in their previous relationship in that he suggested that there may be opportunity for X to spend some holiday time with the mother over and above the weekends but where the mother would need to make a request of him on a case–by–case basis. To his credit, however, at final submission his counsel articulated a proposal from the father whereby X spend five nights per fortnight with the mother during school terms. Importantly, the father now proposes that school holidays are shared for X between her parents on a week–about basis. This change of position says much for the father gaining some objective insight during the course of the evidence in this trial and perhaps now consistent with his statements to Dr G as long ago as 2018 where the father saw no difficulties with the mother’s day-to-day care for X with his complaints resting on the mother's cessation of his time with X.
The ICL seeks orders virtually identical to that of the father and indeed the minute of orders sought by the ICL handed to the Court to on the day of final submissions is identical in its wording to that provided by the father's counsel. The ICL’s aide-memoire also makes no mention of term school holidays.
The mother maintains a position of X living in a week about arrangement during school terms and for half of the term holidays between her parents. She also proposes that X spend half of the summer holidays with each parent but prefers a block of three weeks with each parent so as to accommodate trips away.
Consequently, the arguments before this Court, and particularly those posed by the father must now be viewed within the changes in the father's proposal during the course of the trial and the now discrete and limited differences between the parties which are effectively as to two nights per fortnight during school term where it must be that each party would need the same facilities, accommodation and commitment for the parenting of a seven year old child whether it be for five, seven or nine nights per fortnight.
The crux of the father's argument is the mother's propensity to overreact to what he says are innocuous, ambiguous, or innocent statements made by X and to stop his time with her. He relies on the reports of Dr G albeit from 2018 and Dr M’s family report. Terms such as “course of conduct”, “tendency”, “pattern of behaviour” and the like are attributed to the mother. Realistically, however, this mother has on two occasions only since separation in 2015 stopped the father's time with X because of statements or disclosures made by the child. The father does not deny that the statements were made. Significantly, in cross-examination, Dr M herself conceded that objectively it would not be unreasonable for a parent to show concerns to each of the statements attributed to X. I find it difficult, therefore, to infer any mala fides or ulterior motive to the mother’s actions on each of these two occasions. Similarly, the mother’s responses on two occasions in a period now of some six years are difficult to term as “pattern of conduct” or similar. She took advice from her psychologist in 2020 to make a notification. She was perhaps influenced to a degree in her “fear” by the exuberance of Mr P. It is not asserted in reality that she “fabricated” the child’s revelations. This mother’s reactions must be viewed in the context of her own tragic childhood and adolescence. Rather than a “fabrication”, a “propensity” or a “course of conduct” I see the mother’s reactions to her daughter’s revelations as understandable responses of a first time mother whose own relationship with the father was brief albeit perhaps in the realm of naivety and overreaction. Her unilateral removal of X from school in March 2020 is perhaps more culpable as an action which did not consider X’s important relationship with her father.
Secondly, the mother is criticised for being slow to accept the opinions of Police or DHHS that they could not substantiate abuse and hence to reinstate the time for X with the father immediately. This is a justifiable criticism but one perhaps explained by Dr G's own assessment of the mother including her history in which she is described as emotionally labile and where she herself was subjected to various types of abuse during her childhood. Similarly, this is not a situation where any long term relationship developed between the parents. They separated when X was an infant. There was no opportunity for trust and respect to develop. The mother had not experienced parenting previously. She became a sole parent of an infant child where the relationship between she and the father was short and acrimonious. She had received information, whether factual or not, from a previous partner of the father as to possible sexual abuse of X. She had disclosures from X which she, at least subjectively and honestly, perceived to be risks to her young daughter and acted accordingly.
Counsel for the father and the ICL alert the Court to evidence that the mother might still harbour suspicions that the child is at risk in the care of the father. Counsel cite the evidence of Mr P and of Ms O. Again, however, such evidence must be seen in light of the mother’s own personal history set out above and, importantly, where the mother has not since reacted as she did on the two previous occasions in 2018 and 2020.
Just as the father’s position changed during the course of this trial, my observations of the mother and her evidence generally suggests that this mother has also grown and matured in her parenting over the past years. In her evidence in court she said that she would be keen to talk to the father generally but significantly also in respect of any risk concerns that she may have. In this respect she was more objective and forthcoming than was the father himself who grounds his application for sole parental responsibility very much on the inability of the parents to communicate, but where he does not show the same positive inclinations as does the mother.
There is no evidence to support any finding of inappropriate sexual behaviour by the father or even of unacceptable risk. I also find on the balance of probabilities that this mother, whilst properly vigilant in respect of her young daughter, is now more objective and less prone to spontaneous response. Again, I do not accept the assertions of “pattern of behaviour” and “course of conduct” attributed to the mother.
This being the case it falls upon the Court to determine the parenting regime which attends to X’s best interests. The mother was the primary carer for X from 2015 until November 2020. Her day-to-day care of X suffers little criticism. Similarly, X has lived primarily with the father since November 2020 with nine nights per fortnight with the father and five nights per fortnight with the mother. A relative period of stability has come into X's life. The mother has shown a high degree of commitment to her daughter by moving to Suburb N and within close proximity to the father. She has the facilities to accommodate X as does the father. The father's onerous work commitments are mitigated by the assistance he has from his partner, Ms D. Dr G's report is extremely positive in respect of X’s relationship with each of her parents and is echoed in the report of Dr M. The mother, in particular, expresses a willingness to establish a more communicative and co-operative parenting model with the father. Against the background of her first seven years, it is perhaps important for X to grow up seeing both of her parents in a positive light and equally capable and committed to her parenting.
In all of those circumstances, and following the course of consideration set out in s 65DAA of the Act, I am of the view that X's best interest are now served by living in an equal time arrangement between her parents on a week about basis. In reality, the change for X would be negligible from the current arrangement. This would give each of the parents the ability to be involved in X’s schooling and extra-curricular activities where there are now no logistical limitations.
There remains a discrete dispute between the parties in respect of the summer school holidays. At this time, given the background and X’s relatively young age, I prefer the position of the father which would continue the week about arrangement during those holidays. Inevitably, I expect that each of the parents will in time desire some flexibility in respect of the holiday arrangements but I accept the mother’s optimism that they may now, hopefully having put their litigious tendencies behind them, be able to communicate and negotiate variations.
SHARED PARENTAL RESPONSIBILITY
The father and the ICL maintain that the Court should make orders for the father to have sole parental responsibility for X. The mother asked for an order for equal shared parental responsibility.
The parent’s relationship was short. They did not have the opportunities to establish a mutual respect in circumstances where they separated soon after X’s birth. They have different personalities and come from different backgrounds. The mother’s background brings with her some special considerations. Their relationship necessarily maintains a degree of mutual suspicion. Nevertheless, I am now making orders which will have X living equal time between her parents. They will both be involved in her schooling. They will both be involved in her extracurricular activities. They will both be involved in her life–decisions as she proceeds through her adolescence into adulthood.
The father and the ICL say that the father should have sole parental responsibility because the parents cannot communicate. It is fair to observe that their communication to date has been limited, suspicious and accusatory. Nevertheless, the mother professes a willingness to improve in this part of the relationship with a view to X's best interests. Unfortunately, the father does not share this inclination. Rather, he seems to rest simply on past failures in their communication. Communication has long been recognised as a primary requirement in shared parenting regimes and equal shared parental responsibility.[1]
[1] H & H (2003) FLC 93–168 per Ryan FM.
Section 61B of the Act defines parental responsibility thus:
In this Part, parental responsibility, in relation to a child, means all the duties, powers, responsibilities and authority which, by law, parents have in relation to children.
By necessity and given my orders, these two parents will now need to cooperate in the day to day issues for X as indeed they must have in the more recent arrangements of the child living with one parent for nine nights per fortnight and the other parent for five nights. The issues of parental responsibility relate to more long-term decisions such that are more rarely activated. Frankly, common sense suggests that if the parents are required to corporate on a daily basis then they can do so in respect of important decisions. I find it disingenuous for one parent to come to this Court and claim parental responsibility simply by reason of “we can't communicate”. The mother says that she will attempt to improve communication. It is incumbent upon the father to embrace the same sentiment and attitude.
By reason of s 61DA(1) giving legislative intent of presumptive value to equal shared parental responsibility then the rebuttal of the presumption should not be made lightly without strong and probative evidence.
I am as a view that X's best interests are served by her parents exercising equal shared parental responsibility for her.
Both the father and the ICL seek specific orders in respect of the mother restraining her from engaging X with any health practitioner or allied health professional otherwise than as agreed between the parties in writing. The same restriction is not sought in respect of the father. Secondly, both asked for an order that the mother be restrained from raising any concern in respect of X’s welfare with the Police or Child Protective Authorities for a period of five years. The same restriction is not sought to in respect of the father.
I am not inclined to make those orders which I consider in many respects to be punitive. In any event, I will be making an order for equal shared parental responsibility. I have made findings and comments and my Reasons as to the mother’s maturity as a parent in respect of such issues and what I see to have been the reasonableness of her previous two notifications whilst rejecting the suggestion that she shows any form of improper “propensity”.
Similarly, the father and the ICL say I should make an order that the mother attend upon a psychologist for 12 months. The mother volunteers that she continues to see Ms O. In all of the circumstances I do not see the necessity to make such an order specific to the mother.
THE FATHER’S APPLICATION TO SET ASIDE A BINDING CHILD SUPPORT AGREEMENT
Contemporaneously with the parenting application, the father seeks to set aside a Binding Child Support Agreement (‘BCSA’) made between these parents on 17 January 2017.
Relevantly the parents had reached consensus as to their first set of parenting orders for X on 22 December 2016 whereupon and as recited in the relevant Child Support Agreement:
I.The parties have agreed to future parenting arrangements for X. X will live with [the mother] and spend time with [the father]. The time X spends with [the father] will increase on a gradual basis from one night per week to four nights per fortnight when X is four years of age.
There is no dispute as to the validity of the Child Support Agreement and that it was capable of registration and acceptance by the Child Support Registrar as a BSCA.
The application to set aside is opposed by the mother.
Section 136 of the Child Support (Assessment) Act 1989 (Cth) ('the Child Support Act') states:
Power of court to set aside child support agreements or termination agreements
(1)A party to either of the following agreements may apply to a court having jurisdiction under this Act for the court to set aside the agreement:
(a)a child support agreement that has been accepted by the Registrar under section 92 or 98U;
…
(2)If a party has applied under subsection (1), the court may set aside the agreement in accordance with the application if the court is satisfied:
…
(d)in the case of a binding child support agreement--that because of exceptional circumstances, relating to a party to the agreement or a child in respect of whom the agreement is made, that have arisen since the agreement was made, the applicant or the child will suffer hardship if the agreement is not set aside.
Counsel for the father argues exceptional circumstances in three limbs being:
(a)the exceptional length and cost that the Father had to go to have a relationship with his daughter, including enduring the cost of two further sets of legal proceedings against the Mother since executing the BCSA. The father has paid in excess of $255,000 in litigation costs against the Mother, including over $100,000 as part of the current proceeding;
(b)there has been a significant change in spend time arrangements, including to place the child in the primary care of the Father when, at the time of the BCSA was entered into, the child resided with the Mother and the parties have agreed to the Father's time increasing to four nights per fortnight; and
(c)the Father now has a child to a new relationship, which he is financially responsible for.[2]
[2] Footnotes omitted.
The recitals to the said Agreement further provide:
K.The parties acknowledge that their parenting arrangements may change from time to time but agree any such change shall have no effect on the child support obligations of each party pursuant to this Agreement.
…
O The parties intend for this Agreement to define [the father’s] obligations to pay child support to [the mother] for X. The parties have reached agreement between themselves as to the payment of child support for X in the manner and terms of this Agreement. The parties have determined that they wish to settle all matters of child support upon the execution of this Agreement.
…
Q Before executing this Agreement, [the father] and [the mother] have each had regard to the possibility that one or both of them might suffer serious injury, ill-health or death, that the existing assets and liabilities of each of them, or property, or resources subsequently retained by them pursuant to the Orders might be lost or stolen or destroyed and that the assets they have retained pursuant to the Orders below may increase or decrease in value, or vary greatly at many times due to changes in the economy.
The Operative part of the Agreement provides inter alia:
9.[The father] shall pay [the mother] periodic child support in the sum of $300 per week with such payment to be increased on 1 July each year in accordance with the All Group CPI Index.
10[The father] shall pay non-periodic child support from the date of this Agreement as follows:
(a)100% of X health insurance at the equivalent level of cover X enjoys as at the date of this Agreement; and
(b)100% of all properly incurred out-of-pocket gap medical and dental expenses up to a maximum of $5,000 per annum with such cap be increased on 1 July each year in accordance with the All Groups CPI Index ([the mother] is to pay any and all expenses over and above the amount of $5,000 per annum).
…
Duration
12[The father’s] obligations pursuant to this Agreement shall commence on the date on which this Agreement is duly executed by both parties and shall continue in accordance with the provisions of this Agreement until X attains the age of 18 or completes secondary schooling, whichever is later
The onus sits with the party seeking to set aside the Agreement to prove both exceptional circumstances arising since the making of the Agreement and hardship to the applicant or a child if the Agreement is not set aside.
It is clear also from the wording of s 136(2)(d) of the Child Support Act that the Court retains a discretion to set aside the Agreement by reason of the word “may”.
The Explanatory Memorandum to the most recent relevant amendment to the Child Support Act[3] and confirmed by authority is consistent with the intent that parents be able to reach agreement outside of the assessment process is that “it is not intended that a binding agreement should be set aside lightly”. Similarly, the parents have available to them less stringent forms of agreement at s 80E in “limited child support agreements” or s 80G in “termination of the agreement”. The parties here, however, have entered into a binding financial agreement pursuant to s 80C which, pursuant to s 80CA, is not capable of variation. Consequently, and as noted by Aldridge J in Masters & Cheyne[4] at:
[121]… Therefore a person entering into a binding child support agreement is at a considerable risk of continuing to be bound by the agreement notwithstanding that there has been a significant, but not exceptional, change in circumstances. (Emphasis added)
[122]The parties may, of course, wish to take that risk. Such agreements may be made in the context of other financial arrangements between the parties and may be an integral part of an overall settlement: see, for example, Bass & Bassand Anor [2016] FamCAFC 64 at [20].
[123]Further, the words of Murphy J in Hoult v Hoult (2012) 48 Fam LR 507 at 513 as to binding financial agreements under the Family Law Act 1975 (Cth) (“the FLA”) remain apt in this respect. His Honour said:
31.By way of (stark) contrast, the regime contemplated by Part VIIIA sees parties having the freedom to enter binding agreements without reference to what might be “just and equitable” within the meaning of s 79 of the Act. That is, binding agreements might be informed by the parties idiosyncratic notions or perceptions of what is, or is not, just and equitable or otherwise appropriate for them. Vitiating elements aside, the parties are perfectly free to make “a bad bargain” (in s 79 terms). Importantly, any such agreement can be “binding” within the meaning of s 90G and, by reason of so being, can exclude Part VIII of the Act without reference to a court and without reference to what a court might consider is a “just and equitable” settlement within the meaning of s 79.
[3] No.82 of 2007 Schedule 1 Part 4 item 177.
[4] [2016] FamCAFC 255.
Exceptional circumstances
Watts J in Keane & Keane and Ors[5] gives a helpful contextual basis to the consideration at [40] thus:
40. When considering whether or not “exceptional circumstances” exist:
40.1.the whole circumstances have to be taken into account;
40.2.it may be that one circumstance alone cannot be described as exceptional but the whole of the circumstances, when looked at cumulatively, might be described as exceptional (see Gallup & Gallup [2009] FMCAfam 839);
40.3.within a particular context whether something is exceptional is a matter of “fact and degree” (see Simpson & Hamlin (1984) FLC 91-576);
40.4.care must be taken to avoid placing any “gloss” on the word “exceptional” as used in legislation (see Garning & Director-General, Department of Communities, Child Safety and Disability Services & Anor [2013] FamCAFC 28);
40.5.the words “that have arisen since the agreement was made” in s 136(2)(d) CSAA direct the Court’s attention to the circumstances that existed at the date the agreement was made and towards an inquiry as to what exceptional circumstances have arisen since the date of the agreement which would result in the applicant or the child suffering hardship if the agreement was not set aside.
[5] (2014) 50 Fam LR 120.
The Courts across various jurisdictions have helpfully assisted in attempting to define or provide synonyms for the word “exceptional”. The starting point being that the proper art of statutory jurisdiction is to construe relevant provisions so that they be consistent with the language and purpose of all of the provisions of the statute.[6] The High Court in Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue[7] similarly stated the principal as:
… the task of statutory construction must begin with a consideration of the text itself. Historical considerations and extrinsic materials cannot be relied on to displace the clear meaning of the text. The language… of legislation is the surest guide to legislative intention. (footnotes omitted)
[6] Project Blue Sky Inc v Australian Broadcasting Authority (1998) 1994 CLR 355.
[7] (2009) 239 CLR 27, at 47.
In Baker v The Queen[8] at [173] Callinan J referred with approval to Lord Bingham of Cornhill CJ in R v Kelly (Edward)[9]where his Honour stated:
We must construe 'exceptional' as an ordinary, familiar English adjective, and not as a term of art. It describes a circumstance which is such as to form an exception, which is out of the ordinary course, or unusual, or special, or uncommon. To be exceptional a circumstance need not be unique, or unprecedented, or very rare; but it cannot be one that is regularly, or routinely, or normally encountered."
[8] (2004) 223 CLR 513.
[9] [2000] QB 198, at page 208.
I am of the view that the word “exceptional” in the context of this section is best understood by the Explanatory Memorandum to the section being “it is not intended that binding agreements should be set aside lightly”. There must therefore be something “unusual”; “out of the ordinary” or “contrary to the rule” or, in a more practical sense and this has been, “something other than the normal vicissitudes of life”.[10] The bar is set high and the test is a “tough” one as evidenced by the adjective “significant” not being read as synonymous with “exceptional” but something lesser; or “not contemplated in the usual course”.
[10] Gavin v Garden (2011) 45 Fam LR 444, per Mushin J.
Counsel for the father in this matter helpfully referred me to the Full Court decision of Simpson v Hamlin[11] as authority for the proposition that “a change of residence for a child would meet the threshold of exceptional circumstances”. However, a closer reading of their Honours Reasons and as articulated by Aldridge J in Masters & Cheyne (supra) at [154] discloses that Simpson v Hamlin may well have been limited to its owner particular facts where a change of primary residence for the children occurred within two weeks of the final property settlement making the circumstances “exceptional”. Their Honours agreed with the judge at first instance in observing at page 79,657–79,658:
So far as the first point is concerned, his Honour quite rightly, in our view, concluded that:
“The occurrence of a change in the responsibility for the daily care and control of children of a marriage, after the making of a property order under sec. 79 of the Family Law Act could not be held of itself to be an unusual circumstances. The ordinary vicissitudes of life coupled with the difficulties that parties to a marriage often experience in the task of restructuring their lives following the dissolution of their marriage and the division of their assets and their obligations to the support of each other and the support, care and control of their children, frequently creates situations in which it is desirable having regard to the children's welfare that such a change occurs”.
The question therefore was whether the change which occurred in this case was such as to 'take it out of and beyond the ordinary circumstances in which such change might be reasonably expected to occur”. He saw that feature in the present case in “the fact that the change occurred unexpectedly and so quickly after the making of the property order”. …
His honour in our view stated correctly the law applicable on this point. What amounts to “exceptional circumstances” is very much a question of fact and degrees”. …
[11] (1984) FLC 91-576.
I am not persuaded that the applicant here has discharged his onus to show “exceptional circumstances”. Again, it is available to the parties to enter into a binding financial or child support agreement without the necessity of satisfying the Court objectively as to justice and equity and hence potentially for their own ends and means. It follows, as a matter of policy, that a court will not lightly set aside such a binding agreement. This Agreement was entered into as long ago as January 2017. The Agreement itself recites a clause that “the parties acknowledge that their parenting arrangements may change from time to time but agree any such change shall have no effect on the child support obligations of each party pursuant to this Agreement”. It is well-established that a change of residence per se does not constitute an “exceptional” circumstance as distinct from “material”, “significant” or “special” being adjectives appearing otherwise in the legislation. In the matter now before me, and to be distinguished from Simpson v Hamlin (supra), the change in X’s living arrangements is relatively discrete following my findings and consequent orders above and takes place some years after the Agreement.
Counsel for the father further argues that the father has spent in excess of $255,000 in litigation costs against the mother including $100,000 as part of the current proceedings. Firstly, I observe that the father is the applicant in the parenting application and was not, in fact, successful in that application. He, of course, exercised his own discretion to bring that application. Secondly, repeat litigation between parents in this jurisdiction is not unusual and therefore certainly not “exceptional”. Thirdly, the evidence before me does not satisfy me that the father’s claimed expenditure has had any impact on his income which in this matter is the source of his instalment payments of child support but, still further, I am unable to find that such expenditure has impacted on his wealth to such an extent that it would constitute an “exceptional” circumstance but even if so then the father might be considered the author of that situation by reason of prosecuting an application which was ultimately not wholly successful.
Fourthly, the father says that his circumstances have changed and that he has entered into a new relationship. There is a child of that relationship for which the father and his current partner are both the financially responsible.
Given the “high bar” of the onus on the father and given the evidence as to his age and demographic, the introduction of a new child might better be categorised as “foreseeable” but certainly not as “exceptional”.
Similarly, and whilst I accept that the father has the responsibility for the care of the child, the entering into this BCSA inherently caters for the vicissitudes of life in both directions but specifically sets out the agreements and obligations of each of the parents in respect of X. I am not persuaded that the birth of Y is therefore an “exceptional” circumstance.
Hardship
The wording of s 136(2)(d) of the Child Support Act itself creates a nexus between “exceptional circumstances” and “hardship” by reason of the conjunctive “because”. Consequently, and having found no exceptional circumstance, it is not necessary for me to consider whether or not the father or X will suffer hardship if the Agreement is not set aside. Nevertheless, and by way of comment, the notion of “hardship” received detailed consideration by the Full Court in Whitford & Whitford[12] where their Honours dealing with an application for leave under s 44(3) of the Act but relevantly to the issues here observed at 78,144-78,145:
In our view the meaning of “hardship” … is akin to such concepts as hardness, severity, privation, that which is hard to bear or a substantial detriment …
… In cases where “any hardship” of one party and, “any hardship” of the other party is to be taken into consideration, or where the question is whether greater hardship would be caused by the making of an order or the refusal to make an order, it is appropriate to equate hardship to “any appreciable detriment financial, personal or otherwise”…
In ordinary parlance, hardship means something more burdensome than “any appreciable detriment”. We consider that in sub-section 44(4) the word should have its usual, though not necessarily its most stringent, connotations. It is impossible to lay down in advance what particular facts may or may not amount to hardship in the relevant sense. …
In an appropriate case, depending on the circumstances of the applicant or the children, hardship may be caused by the loss or deprivation of something which is of comparatively small money value. In some cases, it may be a great hardship to an applicant if he or she is unable to gain something worth $1,000 or even less, whilst in other cases something of that value may be considered trifling.
[12] (1979) FLC 90-612.
There can be no issue that X will suffer hardship if the BCSA is set aside.
The father himself claims financial hardship by reason of his obligation under the BCSA. He again references the payment of the $255,000 in family law legal costs which I have addressed above. He provides a sworn financial statement filed 16 April 2021 where he discloses a total income of $3,582 per week and total expenditure of $5,476 per week being a shortfall of $1,894 per week. Significantly, he had filed a financial statement on 22 December 2016 shortly before entering into the BSCA one month later. He in that document also disclosed a shortfall of expenditure over income. The father now discloses total liabilities of $4,442,087 but almost entirely secured by real estate and the business operated by a company of which he is the sole director being Q Pty Ltd. He is the manager of the business. He is the appointer of the family trust. It is not contested that the trust makes significant annual distributions to the father's own father and to the father’s sister although neither are employed in the business. It is conceded that the father's current partner drives a luxury motor vehicle owned by the business but where she is not employed in the business. The father has interests in a number of investment properties.
Should it be required, I am not persuaded that the father would suffer a hardship should the BCSA be set aside.
The Court’s discretion
Consequently, where I find that the father has not established exceptional circumstances and I find no hardship to the father on the evidence then I do not exercise my discretion to set aside the Binding Child Support Agreement and the father's application in this respect will be dismissed.
I certify that the preceding one hundred and eighty-four (184) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice McGuire. Associate:
Dated: 10 February 2022
0
7
0