Sony & Hansell (No. 2)
[2008] FamCA 810
•11 September 2008
FAMILY COURT OF AUSTRALIA
| SONY & HANSELL (NO. 2) | [2008] FamCA 810 |
| FAMILY LAW – CHILDREN - Best interests – allegation of sexual abuse – positive finding that no abuse took place – impact of allegations of abuse on child – consideration of Re David (1997) FLC 92-778 – with whom a child spends time and communicates - best interests of a child – consideration of the term ‘meaningful’ in the context of s60CC(2)(a) - change of principal place of residence. |
Family Law Act 1975 (Cth) ss 60B, 60CC, 61C, 61DA , 64B(2), 65DAA(1)
Evidence Act 1995 (Cth) s 140
Briginshaw v Briginshaw (1938) 60 CLR 336
Moose & Moose [2007] FamCA 714 (12 July 2007)
Goode & Goode (2006) FLC 93-286
Napier & Hepburn (2006) FLC 93-303
Re W (Sex Abuse: Standard of Proof) (2004) FLC 93-192
"Re David" (Edited) (1997) 22 Fam LR 489
B v B: Family Law Reform Act 1995 (1997) FLC 92-755
Hawe & Clifford [2007] Fam CA 106
C & B [2007] FMCAfam 539
G & C [2006] FamCA 994
| APPLICANT: | Ms Sony |
| RESPONDENT: | Mr Hansell |
| INDEPENDENT CHILDREN’S LAWYER: | Mr McGuire |
| FILE NUMBER: | LNC | 512 | of | 2007 |
| DATE DELIVERED: | 11 September 2008 |
| PLACE DELIVERED: | Hobart |
| PLACE HEARD: | Hobart |
| JUDGMENT OF: | Benjamin J |
| HEARING DATE: | 15, 16, 17 April 2008 23, 24 & 25 July 2008 |
REPRESENTATION
| COUNSEL FOR THE APPLICANT: | Applicant in person |
| COUNSEL FOR THE RESPONDENT: | Mr Bugg |
| SOLICITOR FOR THE RESPONDENT: | Dobson Mitchell & Allport |
| COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: | Mr McGuire |
| SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: | Mr McGuire |
Orders
The previous parenting orders in respect of … born … June 1998 (“the child”) be discharged.
The father and mother each have separate parental responsibility for the child subject to each party consulting with the other on all matters concerning the exercise of parental responsibility in relation to major long term issues concerning the child and when there is disagreement about the exercise of that power the parties will attend upon a Family Dispute Resolution practitioner or mediator to attempt to resolve the disagreement.
The child live with the father except as otherwise provided in these orders or as otherwise agreed in writing between the parties.
The child live with the mother as follows:-
(a)one half of the first and third Victorian gazetted mid year school holiday periods (being the first half of those holidays) and the whole of the second mid year Victorian gazetted school holiday periods;
(b)the first three weeks of the Victorian gazetted Christmas/New Year school holiday period in even numbered years and the last three weeks of such school holiday period in odd numbered years;
(c)two weekends per school term nominated by the mother at least twelve weeks in advance subject to the following:
i.such time shall occur in Tasmania;
ii.start and end times shall be subject to available flights but shall commence on a Friday (or Thursday, if Friday is a holiday) with the child to travel to Tasmania on the first reasonably available flight after school concludes and to conclude on the Sunday evening.
(d)two weekends per school term nominated by the mother at least twelve weeks in advance, such time in Melbourne from Friday afternoon with the mother to collect from school until Sunday afternoon with the mother to return to the father’s home by 5pm.
The father shall pay the child’s reasonable travel costs for the purposes of orders 4 (a), 4(b) and 4(c) subject to the following:
(a)the father shall provide to the mother copies of the child’s itineraries or tickets at least fourteen (14) days prior to the relevant travel period;
(b)should the father fail to comply with paragraph (a) herein the mother is entitled at her expense to pay for the child’s reasonable travel expenses for that travel period ;
(c)the mother shall be entitled to full reimbursement from the father of any costs incurred by her pursuant to order 5(b) herein within fourteen days of any request by her.
In terms of the child’s living with the mother for the two weekends during school term in Melbourne the mother shall be responsible for her travel to Melbourne.
The child communicate by telephone with the parent with whom he is not living each Sunday between 5.00pm and 6.00pm and Wednesday between 6.00pm and 7.00pm, with the parent with whom the child is not living to instigate such telephone communication with each parent to ensure that the other parent has reasonable telephone numbers to enable this telephone communication to occur.
The child communicate with each parent by email at such other reasonable times.
The parties will keep the other party informed of any and all of the child’s general treating practitioners, specialists, dentists, orthodontists, counsellors and the like. The parties to ensure that all health records note the other party as a person with whom any doctor or any other health care professional may liaise regarding the child.
The parties shall ensure that all school records shall note the other party is a person with whom the school authorities may liaise from time to time regarding the child.
Both parties be restrained from taking or using any illegal drugs or narcotics or being affected by any illegal drugs or narcotics whilst the child is in their care or supervision.
Both parties be restrained from abusing, belittling, intimidating or demeaning the other party or the child whilst the child is in their care or supervision.
The parties shall have reasonable communication by email or such other communication as they may agree in writing for the purpose of facilitating the terms of these orders and for that purpose shall keep each other informed of a relevant email address.
The mother is hereby restrained from causing or permitting the child to be examined within the meaning of section 102A of the Family Law Act without the prior written consent of
(a)the father; or
(b)a relevant child protection authority; or
(c)an independent children’s lawyer appointed in respect of the child.
The Independent Children’s Lawyer or his nominee will meet with the child as soon as practicable and explain the orders and the reasons upon which these orders are based to the child AND for this purpose the mother will make the child available and ensure that the child is brought to an appointment at a time and place reasonably nominated by the Independent Children’s Lawyer or his nominee and the mother must not be present during the meeting.
Upon completion of order 15 herein the appointment of the Independent Children’s Lawyer be discharged.
That pursuant to s.65DA(2) and s.62B, the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders and details of who can assist 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.
This matter be removed from this list of cases requiring determination.
All subpoenaed documents be returned to the persons or institutions from which they emanated and all exhibits are returned to the person or persons who tendered the same.
IT IS CERTIFIED
Pursuant to Rule 19.50 of the Family Law Rules 2004 it was reasonable to engage counsel to attend
IT IS NOTED that publication of this judgment under the pseudonym Sony & Hansell (no. 2) is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
| FAMILY COURT OF AUSTRALIA AT HOBART |
FILE NUMBER: LNC 512 of 2007
| MS SONY |
Applicant
And
| MR HANSELL |
Respondent
REASONS FOR JUDGMENT
INTRODUCTION
Ms Sony (“the mother”) and Mr Hansell (“the father”) are in dispute with regard to parenting arrangements for their son, (“the child’) born in June 1998 now aged ten years.
The parties have been in litigation with regard to the child since at least May 2000 (shortly before the child’s second birthday). In February 2004 there was a hearing before Hannon J of this Court and the parties managed to resolve issues, consent orders being made in February 2004. Those arrangements did not bring an end to the litigation and further proceedings were commenced in May 2005 which proceedings were heard by me over three days in February 2006.
On 9 March 2006 I made orders that the child’s parents have joint responsibility for the long term care, welfare and development of the child and further orders that the child live with his mother most of the time (she lives in northern Tasmania) and the child live with his father for significant periods of time over school holidays and weekend time. It was envisaged that the contact would take place primarily in Melbourne (where the father lives) and that for a period of about eighteen months of the time the child would spend with his father he have a member of his family present. This was specifically not supervised time.
On 22 July 2007 the child returned from spending time with his father in Melbourne and complained that he had woken up in his father’s bed and that he had a sore bottom.
The mother said she believed that the child had been sexually abused by the father in 2002 and 2004 and as a consequence of this disclosure she arranged to have the child examined by a general medical practitioner the following day (23 July 2007) and subsequently requested a specialist medical practitioner to examine the child on 28 August 2007 (one month later). Neither medical practitioner found any physical evidence of the alleged abuse. The child had not spent time with the father between 22 July 2007 and 28 August 2007.
On 13 August 2007 the mother commenced these proceedings; including an application for interim orders suspending the orders made by me the previous year, and she filed a Notice of Child Abuse or Family Violence. She now seeks orders that the orders made by me in March 2006 be vacated and that she has sole parental responsibility for the child and the child live most of the time with her. She seeks an order that the father spend supervised time with the child at a contact centre in Tasmania and such time be expanded as determined by her or by the court in the future.
The father has filed a response seeking orders that the child live with him in Melbourne and spend part of his school holidays and some mid term weekends with the mother in Tasmania (essentially a mirror reverse of the orders made by me in March 2006).
An updated expert report was obtained in November 2007 from Mr D (“the single expert”) who has had significant involvement with the child over the years. An independent children’s lawyer, Mr McGuire was re-appointed. He has likewise had much to do with the child over the years.
On 18 August 2008 an application in a case was filed by the mother, supported by two affidavits sworn by her and filed on 18 August 2008 and 21 August 2008, by which she sought the following orders:
a)That the Respondent provide a contact telephone number for the purpose of Court Order 10 in interim Orders made 24 July 2008 by Benjamin J;
b)That the Respondent ensure that the child travel on the first available flight being 5pm from Melbourne to Tasmania on 15 August 2008, 20 August 2008 and 19 September 2008 and in accordance with Court Order 5 on interim orders made 24 July by Benjamin J;
c)That the evidence given in my affidavit sworn 15 August 2008 be included in the evidence already before Benjamin J prior to His Honour’s final decision to be made in the near future;
d)That the matter be heard urgently.
The father filed a response on 28 August supported by an affidavit sworn by him on 27 August by which he sought to have the mother’s application dismissed.
I heard and determined that application 28 August 2008 and at that time made orders restoring the time the child spent with the father.
Any statement of fact in these reasons is to be treated as a finding of fact, unless the contrary is to be found in the context of the statement.
BACKGROUND
The father is aged fifty years and there is no issue about physical health. He lives in Melbourne. He has a relationship with Ms LB. They plan to marry in the near future.
The child’s parents have never lived together. The mother lives in northern Tasmania and the father lives in Victoria. The house in which the father lives is his mother’s home at S in Victoria (“the grandmother’s home”) in which he has lived for many years.
When the child visits Melbourne he stays with his father at the grandmother’s home; if the child is ordered to live with the father he will live at that home, for the short term at least. The father has the assistance and support of his family including Ms LB, the child’s paternal grandmother, the father’s brother and sister-in-law. The mother concedes that the child loves his extended family.
The mother resides in the north-west of Tasmania with the child and his sister E, now aged nineteen. E is a child of a relationship between the mother and another person. E has epilepsy and autism. She is mildly intellectually challenged. The mother is occupied in her role as carer for the child and E and undertakes some part time work in support services.
The issues in these proceedings relate to:-
(a)the question of whether, as a consequence of events which have occurred since February 2006, the child is at risk of sexual abuse in the care of the father;
(b)whether the father is verbally aggressive to the child;
(c)the nature of the relationship between the child and his parents;
(d)whether the father abuses drugs, in particular, cannabis, and whether such use (if it in fact occurs) impacts upon the father’s ability to parent the child;
(e)whether the mother’s fixed belief that the child is at risk in the care of the father is such as would warrant a change of primary residence.
Neither party sought to appeal the orders made by me in March 2006.
Since 9 March 2006 the law relating to parenting has changed with the amendments to the Family Law Act1975 (Cth) (“the Act”) which came into effect on 1 July 2006.
The trial commenced before me on 15 April 2008 and after hearing evidence from experts on 17 April 2008 I was concerned about the impact of these proceedings on the child with the limited options available to me at that time (that the child live with the mother and spend holiday time and other limited time with the father) or visa versa. As a consequence and after discussions with the parties, a consent arrangement was entered into in that the child would live with the father at the grandmother’s home for the following three to four months.
The mother asserted in subsequent affidavit material that she was not aware that it was going to be this long. A report was obtained from a family consultant as to the impact on the child of that three month period and the parties filed further affidavits. The hearing resumed on 23 July and concluded on 25 July 2008.
It is of value to set out the procedural and case history of these proceedings:-
2 May 2000
Father files application to have contact with the child including an interim application
18 May 2000
Interim orders that the father have contact with the child.
24 August 2000
Mother files application for orders
6 September 2000
Registrar’s order to transfer the proceedings to Hobart Registry and the father have contact with the child in Tasmania and then in Victoria
21 September 2000
Mother issues subpoena to Victoria Police
27 September 2000
Registrar Hay orders that the order of Registrar Harrold be stayed and that the father has contact with the child in Tasmania three days between specified times.
2 October 2000
Mother issues subpoena to New South Wales police
18 October 2000
Mushin J makes an order that the child have contact with the father and that the child be separately represented.
12 January 2001
Family report prepared by Ms H who suggested contact increase in gradual increments, eventually progressing to some contact in Melbourne. Recommending that father undertake drug test.
22 February 2001
Mother files amended form 3A Response.
30 March 2001
Father files application for contravention.
14 May 2001
A Federal Magistrate orders, by consent, that the father have contact in Tasmania for specific periods and for some time in Melbourne.
16 May 2001
An Order was made by Federal Magistrate Roberts – father’s contravention application filed 30 March 2001 adjourned sine die.
12 November 2001
Father files Form 3 application to cater for changes to airline schedules.
12 November 2001
Father files Form 49 application for contravention.
13 November 2001
Order made in Federal Magistrates Court varying orders in respect of contact.
28 November 2001
Mother files Response seeking transfer of proceedings.
28 November 2001
Frederico J found contravention of an Order by the mother and Ordered make-up contact.
10 December 2001
Order of Federal Magistrate Hartnett (by consent) to vary the commencement time and conclusion time of some periods of contact.
21 December 2001
Mother lodges appeal to Full Court seeking to overturn the orders of Frederico J.
22 April 2002
Mother’s appeal lodged 21 December 2001 deemed abandoned.
6 May 2002
Federal Magistrate Roberts ordered parties to attend mediation.
20 May 2002
Mother files application for interim orders seeking suspension of contact.
20 May 2002
Mother files notice of risk of abuse alleging the child abused by the father.
22 May 2002
Father files response to application and application for contravention.
6 June 2002
Federal Magistrate Roberts suspends existing contact orders and puts in place supervised contact.
25 June 2002
Application for report by psychologist Mr M.
25 June 2002
Federal Magistrate Roberts orders report.
21 August 2002
Mr M recommends continuation of contact visits between the child and the father.
7 November 2002
Federal Magistrate Roberts dismissed father’s contravention application filed 22 May 2002
13 December 2002
Federal Magistrate Roberts varies contact orders dated 14 May 2001 to allow for further contact.
7 January 2003
Form 49 contravention application filed by father.
22 January 2003
Federal Magistrate Roberts struck out father’s contravention application filed 7 January 2003.
6 February 2003
Mother makes application to suspend all contact and files notice of risk of child abuse.
3 March 2003
Child representative seeks interlocutory orders appointing Mr M to prepare a report.
4 March 2003
Federal Magistrate orders report.
8 April 2003
Report by Mr M recommends against unsupervised contact.
28 May 2003
Proceedings transferred to the Family Court Hobart.
25 June 2003
Father makes application for the mother to attend appointment with Dr S, Psychiatrist.
9 July 2003
Mother files Response seeking dismissal of the father’s application.
10 July 2003
Carter J dismisses father’s application filed 25 June 203.
4 August 2003
Trial notice
28 August 2003
Mother files amended response.
21 October 2003
Hannon J makes pre-trial directions.
2 December 2003
Pre-trial conference.
18 February 2004
Hannon J–consent orders made for residence and parental responsibility. Interim orders for interim contact leading to contact in Melbourne on third weekend of each month and half the school holidays by telephone. Special orders including orders that the child be responsible for his own toileting and bathing and sleeping in his own bed.
31 January 2005
Father files application in a case for make up contact and costs.
21 February 2005
Father files contravention application.
22 February 2005
Subpoena issued by mother to Ms V, Psychologist.
25 February 2005
Order Hannon J (by consent) for make up contact and other orders.
11 May 2005
Contravention application filed by father.
16 May 2005
Application by father that the child reside with him.
6 June 2005
Mushin J dismissed contravention application of father.
5 July 2005
Mother’s Response filed.
7 July 2005
Mother files application for contravention and application in a case suspending all contact between father and the child.
28 July 2005
Father files application for contravention.
18 August 2005
Applications for contravention adjourned.
24 August 2005
Mother files amended contravention application.
22 September 2005
Family report Mr D available recommending contact in Melbourne.
8 November 2005
Benjamin J dismissed mother’s Form 2 application and amended Form 18 application filed 18 August 2005 and dismissing father’s Form 18 application filed 28 July 2005.
13-15 February 2006
Trial before Benjamin J
9 March 2006
Judgment and order of Benjamin J. The parents to have joint long term responsibility for the child. The child lives with the mother most of the time and live with the father during part of the school holidays and sometimes during school term.
19 January 2007
Intervention order obtained by father against mother at Magistrates Court Victoria Broadmeadow.
14 August 2007
Mother files application and notice of child abuse.
3 September 2007
Benjamin J orders child be separately represented and restrained the parties from taking the child to medical advisers without the written consent of the Independent Children’s Lawyer or further order of this Court.
13 September 2007
Benjamin J dismissed mother’s application for interim orders filed 14 August 2007.
31 October 2007
Amended initiating application filed by mother.
15 November 2007
Single expert report of Mr D released.
21 December 2007
Application in a case by applicant mother filed.
21 January 2008
Benjamin J listed proceedings for trial to 2008
14 February 2008
Benjamin J gave leave to mother’s solicitor to provide copies of documents to Mr M.
15,16,17 April 2008
23, 24, 25 July 2008
18 August 2008These current proceedings heard
THE PARTIES’ PROPOSALS
The mother sought orders as set out in her amended initiating application filed 15 July 2008. In that application she sought some twenty five orders which provided that the parties retain equal shared parental responsibility for the child and that the child live with the mother most of the time. It provided that the child live with the father during some school holiday periods on weekends in Tasmania from time to time and some time in Victoria on bona fide familial celebrations and special occasions. It provided that the child have telephone communication with the father on Sundays and a series of other detailed orders.
I have not set out all of the orders in these reasons although they are clearly articulated in the amended application filed by the mother.
The father sought orders in an aid memoire which was tendered to me on the final day of the hearing. Those orders provided:-
1. The Order dated 9 March, 2006 be discharged;
2. [the child] live with the respondent father;
3. The respondent father have sole parental responsibility for making decisions about major long term issues concerning the child;
4. By way of declaration this is a matter to which the presumption under Section 61DA of the Act 1975 does not apply;
5. That the parent with whom the child is living at the particular time shall be responsible for his day to day care, welfare and development;
6. The child live with the applicant mother as follows:
(a) one half of each of the Victorian gazetted school holidays on the basis that it be the first half of those holidays in even numbered years and the second half of those holidays in odd numbered years;
(b) up to one weekend each month, from after school on Friday until 9.00 p.m. on Sunday or Monday if the weekend if a long weekend, such weekend to be nominated by the applicant mother to the respondent father in writing at least 28 days in advance and provided that such weekends not include the Father’s Day weekend and weekends which fall during those parts of the Victorian gazetted school holidays during which the child would otherwise live with the father pursuant to this Order.
7. The child communicate by telephone with the parent with whom he is not living at the time each Sunday between 5 p.m. and 6 p.m. and such other times as the parties may agree, with the parent with whom the child is not living to instigate such telephone contact and the parent with whom The child is living to ensure that the other parent has a telephone number to enable this telephone contact to occur and by email at other reasonable times, such email to be available to the parties to inspect;
8. The respondent father consult with the applicant mother on all matters concerning the exercise of his parental responsibility in relation to major long term issues concerning the child and where there is disagreement about the exercise of that discretion both parties will attend upon a Family Dispute Resolution Practitioner to attempt to resolve the disagreement;
9. The father will at all times keep the mother informed of any and all of the child’s treating general practitioners, specialists, dentist, orthodontists, counsellors and the like and the applicant mother will not allow the child to be treated by any other professionals unless she has the prior written consent of the respondent father or there is a medical emergency;
10. The father ensure that all health records note that the mother is a person with whom any doctor or other health care professional may liaise with regard to the child;
11. The father ensure all school records shall note the mother as a person with whom all school authorities may liaise from time to time regarding the child;
12. The father pay all reasonable travel costs for the child to travel to Tasmania for the purposes of paragraph 6 (a) of this Order;
13. The mother’s Initiating Application be dismissed.
I have included the orders sought by the father in these reasons as they are not otherwise contained in a document on the court record.
In final submissions the independent children’s lawyer submitted that I ought to make orders that the child live primarily with the father and have school holidays and other times with the mother as being the only viable option for the child.
When the matter came back before me in August 2008, the mother sought an order that, in the event the child remains in Melbourne, the child have telephone communication with his aunt in South Australia having regard to the time differences between that state and Victoria.
THE APPLICABLE LAW
The Full Court in Goode & Goode (2006) FAM CA 1346 set out the structure of the 2006 amendments (albeit in relation to interim hearings but the structure still applies in relation to final hearings) which provided as follows:
5.The Family Law Amendment (Shared Parental Responsibility) Act 2006 (“the amending Act”) came into effect on 1 July 2006 and was the law that governed his Honour’s decision. The amending Act builds upon the framework of the legislation as it was prior to 1 July 2006. Part VII of the Act applies to children. There are 16 Divisions to Part VII. The significant sections for present purposes follow.
6.Orders concerning parental responsibility, who the child is to live with and spend time with, and the communication a child is to have with another person or other persons are all parenting orders. Section 64B(2) provides that a parenting order may deal with one or more of the following:
(a) the person or persons with whom a child is to live;
(b) the time a child is to spend with another person or other persons;
(c) the allocation of parental responsibility for a child;
(d)if 2 or more persons are to share parental responsibility for a child – the form of consultations those persons are to have with one another about decisions to be made in the exercise of that responsibility;
(e) the communication a child is to have with another person or other persons;
(f) maintenance of a child;
(g)the steps to be taken before an application is made to a court for a variation of the order to take account of the changing needs or circumstances of:
(i) a child to whom the order relates; or
(ii) the parties to the proceedings in which the order is made;
(h)the process to be used for resolving disputes about the terms or operation of the order;
(i)any other aspect of the care, welfare or development of the child or any other aspect of parental responsibility for a child.
Section 64B(3) provides:
Without limiting paragraph (2)(c), the order may deal with the
allocation of responsibility for making decisions about major
long-term issues in relation to the child.
7. The objects and principles from which the provisions of Part VII are to be applied are set out in s 60B, which provides:
(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).
(3) For the purposes of subparagraph (2)(e), an Aboriginal child’s or Torres Strait Islander child’s right to enjoy his or her Aboriginal or Torres Strait Islander culture includes the right:
(a) to maintain a connection with that culture; and
(b) to have the support, opportunity and encouragement necessary:
(i)to explore the full extent of that culture, consistent with the child’s age and developmental level and the child’s views; and
(ii) to develop a positive appreciation of that culture.
8.Section 60CA deals with the best interests of the child and provides that:
In deciding whether to make a particular parenting order in relation to a child, a court must regard the best interests of the child as the paramount consideration.
This provision of the legislation was formerly s 65E and the wording of the section has not changed.
9.In determining what is in a child’s best interests, s 60CC provides that, other than in considering whether to make an order by consent, the Court must consider the following matters in determining what is in the child’s best interests:
Primary considerations
(2) The primary considerations are:
(a) the benefit to the child of having a meaningful relationship with both of the child’s parents; and
(b) the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.
Note: Making these considerations the primary ones is consistent with the objects of this Part set out in paragraphs 60B(1)(a) and (b).
Additional considerations
(3) Additional considerations are:
(a) any views expressed by the child and any factors (such as the child’s maturity or level of understanding) that the court thinks are relevant to the weight it should give to the child’s views;
(b)the nature of the relationship of the child with:
(i) each of the child’s parents; and
(ii) other persons (including any grandparent or other relative of the child);
(c) the willingness and ability of each of the child’s parents to facilitate, and encourage, a close and continuing relationship between the child and the other parent;
(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 his or her parents; or
(ii) any other child, or other person (including any grandparent or other relative of the child), with whom he or she has been living;
(e)the practical difficulty and expense of a 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;
(f) the capacity of:
(i) each of 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, including emotional and intellectual needs;
(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;
(h) if the child is an Aboriginal child or a Torres Strait Islander child:
(i)the child’s right to enjoy his or 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;
(i) the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child’s parents;
(j) any family violence involving the child or a member of the child’s family;
(k) any family violence order that applies to the child or a member of the child’s family, if:
(i) the order is a final order; or
(ii) the making of the order was contested by a person;
(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 to the child;
(m) any other fact or circumstance that the court thinks is relevant.
Section 60CC(4) provides:
Without limiting paragraphs (3)(c) and (i), the court must consider the extent to which each of the child’s parents has fulfilled, or failed to fulfil, his or her responsibilities as a parent and, in particular, the extent to which each of the child’s parents:
(a) has taken, or failed to take, the opportunity:
(i) to participate in making decisions about major long-term issues in relation to the child; and
(ii) to spend time with the child; and
(iii) to communicate with the child; and
(b) has facilitated, or failed to facilitate, the other parent:
(i) participating in making decisions about major long-term issues in relation to the child; and
(ii) spending time with the child; and
(iii) communicating with the child; and
(c)has fulfilled, or failed to fulfil, the parent’s obligation to maintain the child.
Section 60CC(4A) provides:
If the child’s parents have separated, the court must, in applying subsection (4), have regard, in particular, to events that have happened, and circumstances that have existed, since the separation occurred.
10.Thus, in deciding to make a particular parenting order, including an order for parental responsibility, the individual child’s best interests remain the paramount consideration (as they did prior to the amending Act – see B v B: Family Law Reform Act 1995 (1997) FLC ¶92-755 at paragraph 9.51) and the framework in which best interests are to be determined are the factors in ss 60CC(1), (2), (3), (4) and (4A). The objects and principles contained in s 60B provide the context in which the factors in s 60CC are to be examined, weighed and applied in the individual case.
The framework for determining parenting orders
11.Section 61DA of the Act provides:
Presumption of equal shared parental responsibility when making parenting orders
(1) When making a parenting order in relation to a child, the court must apply a presumption that it is in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child.
Note: The presumption provided for in this subsection is a presumption that relates solely to the allocation of parental responsibility for a child as defined in section 61B. It does not provide for a presumption about the amount of time the child spends with each of the parents (this issue is dealt with in section 65DAA).
(2) The presumption does not apply if there are reasonable grounds to believe that a parent of the child (or a person who lives with a parent of the child) has engaged in:
(a) abuse of the child or another child who, at the time, was a member of the parent’s family (or that other person’s family); or
(b) family violence.
(3)When the court is making an interim order, the presumption applies unless the court considers that it would not be appropriate in the circumstances for the presumption to be applied when making that order.
(4) The presumption may be rebutted by evidence that satisfies the court that it would not be in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child.
12.Section 61DB provides that:
Application of presumption of equal shared parental responsibility after interim parenting order made
If there is an interim parenting order in relation to a child, the court must, in making a final parenting order in relation to the child, disregard the allocation of parental responsibility made in the interim order.
13.The relevance of the presumption of shared parental responsibility, where it applies, is that it triggers the application of s 65DAA, which provides:
Court to consider child spending equal time or substantial and significant time with each parent in certain circumstances
Equal time
(1)If a parenting order provides (or is to provide) that a child’s parents are to have equal shared parental responsibility for the child, the court must:
(a) consider whether the child spending equal time with each of the parents would be in the best interests of the child; and
(b) consider whether the child spending equal time with each of the parents is reasonably practicable; and
(c) if it is, consider making an order to provide (or including a provision in the order) for the child to spend equal time with each of the parents.
Note 1: The effect of section 60CA is that in deciding whether to go on to make a parenting order for the child to spend equal time with each of the parents, the court will regard the best interests of the child as the paramount consideration.
Note 2: See subsection (5) for the factors the court takes into account in determining what is reasonably practicable.
Substantial and significant time
(2) If:
(a) a parenting order provides (or is to provide) that a child’s parents are to have equal shared parental responsibility for the child; and
(b) the court does not make an order (or include a provision in the order) for the child to spend equal time with each of the parents; and
the court must:
(c) consider whether the child spending substantial and significant time with each of the parents would be in the best interests of the child; and
(d) consider whether the child spending substantial and significant time with each of the parents is reasonably practicable; and
(e)if it is, consider making an order to provide (or including a provision in the order) for the child to spend substantial and significant time with each of the parents.
Note 1: The effect of section 60CA is that in deciding whether to go on to make a parenting order for the child to spend substantial time with each of the parents, the court will regard the best interests of the child as the paramount consideration.
Note 2: See subsection (5) for the factors the court takes into account in determining what is reasonably practicable.
(3) For the purposes of subsection (2), a child will be taken to spend substantial and significant time with a parent only if:
(a) the time the child spends with the parent includes both:
(i) days that fall on weekends and holidays; and
(ii) days that do not fall on weekends or holidays; and
(b) the time the child spends with the parent allows the parent to be involved in:
(i) the child’s daily routine; and
(ii) occasions and events that are of particular significance to the child; and
(c) the time the child spends with the parent allows the child to be involved in occasions and events that are of special significance to the parent.
(4) Subsection (3) does not limit the other matters to which a court can have regard in determining whether the time a child spends with a parent would be substantial and significant.
Reasonable practicality
(5) In determining for the purposes of subsections (1) and (2) whether it is reasonably practicable for a child to spend equal time, or substantial and significant time, with each of the child’s parents, the court must have regard to:
(a) how far apart the parents live from each other; and
(b)the parents’ current and future capacity to implement an arrangement for the child spending equal time, or substantial and significant time, with each of the parents; and
(c) the parents’ current and future capacity to communicate with each other and resolve difficulties that might arise in implementing an arrangement of that kind; and
(d) the impact that an arrangement of that kind would have on the child; and
(e)such other matters as the court considers relevant.
Note 1: Behaviour of a parent that is relevant for paragraph (c) may also be taken into account in determining what parenting order the court should make in the best interests of the child. Subsection 60CC(3) provides for considerations that are taken into account in determining what is in the best interests of the child. These include:
(a)the willingness and ability of each of the child’s parents to facilitate, and encourage, a close and continuing relationship between the child and the other parent (paragraph 60CC(3)(c));
(b) the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child’s parents (paragraph 60CC(3)(i)).
Note 2: Paragraph (c) reference to future capacity—the court has power under section 13C to make orders for parties to attend family counselling or family dispute resolution or participate in courses, programs or services.
As set out earlier in Goode (supra) in deciding to make a particular parenting order, including an order for parental responsibility, the individual child’s best interests remain the paramount consideration (as they did prior to the amending Act – see B v B: Family Law Reform Act 1995 (1997) FLC ¶92-755 at paragraph 9.51) and the framework in which best interests are to be determined are the factors in ss 60CC(1), (2), (3), (4) and (4A). The objects and principles contained in s60B provide the context in which the factors in s60CC are to be examined, weighed and applied in the individual case.
In terms of the question of risk of abuse to a child the underlying principles, as outlined in my earlier reasons, have not changed. The questions to which I have to address my mind are:-
i.whether there was in fact abuse by the father in relation to the child;
ii.whether the allegation is a false allegation made by or through the mother;
iii. if I make no finding in relation to (i) and (ii) above, whether the child is at an unacceptable risk of abuse in the care of the father;
iv. whether the allegations of abuse are such that they amount to an unacceptable risk of emotional abuse of the child by the mother.
EVIDENCE & DISCUSSION
This was a matter which was dealt with under Division 12A of Part VII of the Act. The independent children’s lawyer tendered a report of Dr AD, consultant
paediatrician for the North West Regional Hospital, dated 4 September 2007[1]. Dr AD was available for cross-examination.[1] Exhibit ICL3
The independent children’s lawyer filed in court an affidavit of Ms T, the Principal of the child’s school. Her evidence was the child was in Grade 4 in 2008. Her further evidence was:-
5.His [the child’s] behaviour both in and out of class is described as normal.
6.The child has no strong social peer group in 2008 but gets on well enough with his fellow students. He completes his work satisfactorily and presents no problem in class.
7.I am advised by the child’s teacher that he made no comments whatsoever about his father or any contact trips to Melbourne. In fact, the teacher has unable to presume as to whether, in fact, there had been any contact between the child and his father in Melbourne or otherwise.
8.In summary, the child is this year progressing well both personally and academically.
Her further evidence was that the child had only missed one day of school in 2008 calendar year. In the 2007 calendar year the child missed twenty nine full days, two afternoons, one morning and three other days during the course of the 2007 calendar year. The total absences in full days was 30.5 days (some six weeks of school). In terms of 2007 Ms T observed:
“[The child] exhibited severe behavioural problems in 2007 and that this related directly to his relationship with another child. [The child] and this other child were separated in 2008 and there has been a dramatic improvement in [the child’s] behaviour.”
In the mother’s affidavit filed 17 December 2007 she observed:-
24.[The child] has been constantly in trouble at school in the months surrounding the disclosure and prior to this, he has had not received any slips at school for misbehaviour nor had he been involved in any reckless or destructive behaviour. Around that time I was asked to collect [the child] earlier from school because he had climbed on top of, and stood on the school principal’s car. He had also been issued with a slip for unkind and bullying behaviour and I have caught him stealing at home.
An expert report was prepared by the single expert and is dated 15 November 2007[2] (“the expert’s report). At paragraph 40 of that report (page 8) the single expert said:-
[2] Exhibit ICL 2
40.Asked about [the child’s] acting out at school, [the mother] said that [the child] knew the orders would change (and the requirement for someone else to be present whilst he was in the father’s care would expire) when he turned nine and she seemed to infer that this acting out was in response to this fact.
The mother was cross-examined by Mr McGuire in relation to this evidence and she said that the issues at school related to his interaction with the other child. She said that any view of her evidence suggesting that the child’s misbehaviour at school related to the father was misinterpreted. I do not accept her evidence in that regard. I find that the mother was endeavouring to attribute the child’s difficulties at school in 2007 to the father and the time that the child spent with the father in Melbourne. I find that the mother prevaricated in terms of her evidence and cross-examination in this regard.
On the weekend of 21 and 22 July 2007 the child has expressed to the mother and a number of other people that he woke up in bed with his father (the father and the child sleep in different rooms at the grandmother’s home). The child says he does not know how he got into his father’s bed and that his father, whilst asleep, put an arm over the child. The child woke up and was scared, he said that he crept out of the bed and went back to his bed. He complained that he had a sore bottom.
The evidence of the mother was that she rang the child on Sunday 22 July 2007 and the child had told her that he had woken up with a sore bottom. Her evidence was[3]:-
[3] paragraph 11 of the mother’s affidavit
‘11.I asked if he had told [the father] about his sore bottom and he said that he had and that [the father] had said the usual “hold on and see how you feel later” ‘
The mother went on to say in her affidavit:-
12.When I collected [the child] from the airport he looked flushed and on the verge of tears as he walked across the airfield. I hugged him as usual and we walked to the car park. As soon as we were outside the terminal [the child] started to tell me that he had woken up in his father’s bed and did not know how he got there. He said that he started the night in his own bed and woke up in [the father’s] bed. He says that [the father] was on his side with his upper arm and body across him. He told me that he had to get out from under his father’s body and ran to his room. When [the child] told me this, he was distressed and had great difficulty talking.
The mother’s behaviour on the child’s return was such as encouraged complaint from the child about visits to his father. The mother’s evidence was that she had an appointment with a Dr B for E the following day and took the child along.
Dr B, a general practitioner who saw the child, said in his affidavit filed 5 September 2007as follows:
2.On 23 July 2007 [The child] attended my surgery with his mother. I was told [the mother] that [the child] had woken in the father’s bed.
3.On this date I examined [the child] and diagnosed a low grade infection in his backside around the crack area. Such infections are, more likely than not, the result of poor hygiene.
4.During the examination I found no evidence of sexual abuse. The child made no disclosure to me regarding allegation ensuing the consultation and he appeared to be a happy boy with no signs of distress.
5.Because the mother made an allegation of abuse I was obliged to refer [the child] to a paediatrician and report the allegation to Child Protection which I did.
6.During the consultation I was not advised that [the child’s] father was a person with whom I could liaise with in regard to [the child’s] health.
A notice of abuse was sent to the Tasmanian Department of Health and Human Services. A report was provided to the Department[4]. From that report I accept that notice of abuse was provided and that prior to 2007 there had been nine reports to the Department alleging abuse of the child. The Department reported that the child had been interviewed by Police and that there was insufficient evidence to substantiate sexual abuse.
[4] Exhibit ICL1
Child protection workers attended the child’s school and the report observed they did not observe any signs of anxiety. The child provided information to the Department that there were good and bad things about visiting his father, the good things being trips to the museum, zoo and visiting relatives. The not good things were about dad being angry and yelling.
The opinion of the child protection worker was:-
The allegation of sexual abuse has not been substantiated. However, it is of concern that [the child] has been the ongoing subject of continual allegations of abuse/neglect by either parent and that he demonstrates stress and related symptoms. [The child] is at risk of emotional abuse from the regularity of notifications to Child Protection Advice and Referral Service and the amount of ongoing assessment he is subject to as a result of these allegations. [The child] states he does not want to spend time with his father but the Child Protection Worker is unsure whether this is because he has more fun at his mother’s or he is simply trying to please his mother.[5]
[5] Exhibit ICL1, page 3
The child was interviewed by Tasmania Police on 26 July 2007.[6] The entire interview was recorded and was played during the hearing of this proceeding. The child made no disclosure of sexual abuse. He disclosed that he woke up in his father’s bed in circumstances far less dramatic than that asserted by the mother and in circumstances where he left the bed. He said he felt scared of being abused as he had a recollection of abuse from earlier times. I find that recollection of abuse arose by virtue of the mother’s discussions of those matters with him in the past.
[6] Exhibit M3
The child complained to the father that his bottom was hurting but his complaint was not that his father hurt his bottom but that his father did not take him to see a doctor.
At the end of the child’s interview he said:-
“That’s all I have to talk about.”
From this statement I am concerned that the child may have been either encouraged or coached to provide disclosure to the police.
The mother is fixed on her concerns about abuse of the child by the father. She was asked questions about why she required the child to have an anal examination the second time in late August 2007. She said this was on the advice of her solicitors. She did not have any insight into the impact of this continuing personal examination on the child. This must be seen in the circumstances where Dr B had examined the child on 23 July 2007 and found no evidence of abuse, between that time and late August 2007 the child had not seen the father but was required to undergo further anal examinations.
The mother complained, in November 2007, about the child having a sore bottom. In November 2007 the single expert asserts that the mother expressed concern about possible further sexual abuse[7]. The single expert sets out:-
[7] paragraph 42 (page 9) of the expert report
A further discussion with [the mother] took place by phone on 12 November 2007 in which [the mother] expressed concern about possible further sexual abuse by [the father]. She explained that [the child] had complained of a sore bottom after returning from Melbourne on Monday 5 November 2007. With his consent, she made a visual inspection of his anal area and saw an area of inflammation around his anus. In response to her question, [the child] reported no recollection of anything inappropriate having occurred, he could not recall when the soreness started.
The single expert went on to say:-
“[The mother] was reluctant to accept there was no unacceptable risk, saying this was the sixth occasion [the child] has returned from Melbourne with a sore bottom.”
The family consultant Ms N (“the family consultant”) observed that the mother would have again have consulted Dr B after visit of 5 November 2007 but was restrained from doing so only by court orders requiring permission from the independent children’s lawyer[8].
[8] paragraph 44 page 15
After the child moved to Melbourne in April 2008, the mother filed a further lengthy affidavit on 15 July 2008. The affidavit set out the impact on the change of living arrangements that she observed with regard to the child. It also set out the impact on E and the impact on the mother. In paragraphs 58 to 63 the mother set out the impact of the move on the child in relation to his life in Tasmania. I accept the mother’s evidence that the child is not as engaged in the community in Melbourne as he was in Tasmania. I think it is likely that if the child remained in Tasmania he would be far more engaged in such activities. The mother is at some levels more focused and insightful in terms of that aspect of the child’s life.
The mother’s affidavit sets out the telephone contact she had with the child which involved numerous calls which I accept there were some background involvement by the father and others in his household although I do not accept the mother’s inference that it was designed to interrupt the telephone calls. The mother had telephone calls of between half an hour and an hour with the child on a regular basis.
I accept the mother’s evidence that she facilitated letter writing and provided for the child’s needs in that regard in a way which the father did not. The mother had regular email communication with the child and those emails were tendered in evidence in part on behalf of the father and in balance on behalf of the mother.
The mother gave evidence of the birthday contact in June 2008 and the mother’s attendance at the child’s Melbourne school. In her affidavit the mother set out the difficulties in regard to child support. A letter was apparently sent to the mother by the father’s solicitors although the mother did not receive that letter. That letter was not put into evidence and its significance is of little impact in relation to the outcome of these proceedings. The mother commented on the family consultant’s report and set out some arrangements the mother proposed in respect to the child’s education at schools in Tasmania.
The mother was cross-examined on her second affidavit[9] and said she was reassured that the relationship between the child and the father was stronger and, understandably, she was quite distressed in terms of the child going to Melbourne but could see that it was necessary. She thought that it would be good to try something different.
[9] sworn 14 July 2008
The mother said that it was not an option for her to take E to Melbourne because of E’s autism and consequent resistance to change and also there was a financial issue. The mother said she could not afford regular trips to Melbourne.
She initially said that she was less concerned about the issues of the child’s sore bottom although when pressed by the independent children’s lawyer she said she still believes the child had been sexually abused by the father and still believes the father uses drugs.
The mother was cross-examined about the detail of her amended orders filed 15 July 2008 in particular orders 9 and 10 which seem to be in the nature of ‘controlling’ type orders.
The mother tendered in evidence a series of personal references[10]. These were admitted by consent subject to submissions as to weight.
[10] Exhibit M1
Most of the references appear to be of a “cheer squad” variety and none of the people who provided the material were cross-examined. It is of limited relevance to the issues to be determined. I give some but little weight to these references.
The mother tendered in evidence a report from a psychologist, Mr M, dated 6 April 2008.[11] The mother saw Mr M as a result of comments made by the single expert.
[11] Exhibit M2
Mr M had previously found favour of the mother and I refer to the findings in my reasons of 9 March 2006.[12]
[12] paragraph 128 of Reasons for Judgment in proceedings HBF 1781 of 2000 dated 9 March 2006
The mother says that the child reports that when he returns home he suffers from feeling sick, blurred vision, bumping into things and bad headaches.
I find the mother encourages the child to present with these symptoms. The mother says she is positive about the father. I do not accept her evidence in that regard.
I do not accept that it is mere coincidence that the first allegation of sexual abuse, which I find was facilitated by the mother, comes about six weeks after the requirement for someone to be present pursuant to the orders of March 2006 have come to an end.
The father had paid child support at a rate of about $21.00 per month. This is despite his income being in excess of $30,000.00 per year. The mother rightly complained about the father’s priorities in relation to child support. In addition, when the child spent three months in Melbourne, the father made immediate application to the Child Support Registrar for a change in his child support liability. I have had regard to this evidence in relation to child support in terms of the factors under s60CC(4) of the Act. I am concerned that the father has not taken his child support obligations seriously, particularly bearing in mind the financial circumstances of the mother. I have taken this into account in reaching my conclusions in these proceedings.
In his report Dr AD says that the mother asserted the father used drugs and alcohol. The mother denied this assertion. I prefer the evidence of Dr AD and I find the mother asserted to him that the father used drugs.
The evidence of drug use comes solely through observations allegedly made by the child and conveyed by him to the mother. That is set out in the mother’s affidavit. The father has provided a result of a urine test. The father underwent drug testing in the period between April 2008 and July 2008. Those tests were negative. The mother complained that there was no evidence that the tests were properly supervised. The mother initially required this approach but now requires “chain of custody” testing. The mother’s evidence is that the mother also relies upon the child’s views of the father in terms of his tiredness and mood swings and anger.
The mother initially said the child had no knowledge of drugs and how they were used although she later, under cross-examination, said that he knew a little bit about drug use by involvement in Clean up Australia and other educational information.
On the evidence provided I am not satisfied that the father uses marijuana and I prefer the evidence of the father to the mother in that respect.
However, bearing in mind the expressed opposition of both parties to the use of illegal drugs, I will be making an order that neither party be affected by or take illegal drugs whilst the child is in their care or under their supervision. This is not to be regarded as a finding of present drug use or drug risk. It puts into place a mechanism to address the concerns of the mother.
Evidence was given by the child’s maternal grandmother. She observed a number of conversations but she resides primarily in Adelaide. Her evidence does not advance the issues in any significant way.
A further affidavit of the maternal grandmother was filed on 15 July 2008. That affidavit dealt with the telephone calls between the child and the mother between April 2008 and July 2008. The affidavit also dealt with the impact of the child living in Melbourne had on E and on the broader family. The maternal grandmother was not cross-examined on her affidavit although her evidence must be seen in the context of her being the mother’s mother.
An affidavit of the maternal aunt was filed on 17 July 2008 and it dealt with the impact on the child of the change of residence on 17 April 2008. It also dealt with the time that the child spent with the mother during her visit to Melbourne. The maternal aunt was not cross-examined in relation to her affidavit. I give it some weight to her evidence, but again it must be seen in the context of her close relationship with the mother.
The mother keeps a journal in relation to matters relating to the time the child spends with his father. The journal, according to the mother, contains other broader matters.
I am satisfied on this evidence that the child knows of the journal and knows that it is used, at least in part, in relation to the time he spends with his father. The mother does not accept that her use of the journal impacts upon the relationship between the child and the father. This is evidence of the mother continuing to believe or express belief that the child is at risk of abuse from the father, and further has the capacity to entrench in the child’s mind the mother’s continuing concerns about the father.
I find that the mother continues to resist the time that the child spends with the father. Her approach in relation to her having someone present (as a supervisor after the reasons delivered in 2006) stands in stark contrast to what I provided in the orders and set out in my earlier reasons.
The mother prevaricated in evidence in relation to her views at the present time. I am satisfied that she continues in those strong views but is endeavouring to use Dr B, the police, officers of the Department of Health and Human Services, psychologists and other medical professionals to support and promote her views that the father sexually abuses the child.
Evidence was given by Mr M, the psychologist to whom the mother was referred to by the single expert. His evidence was in accordance with his report dated 6 April 2008[13] in terms of treatment provided to the mother. Mr M set out his opinion at pages 3 and 4 of his report. Since that time he saw the mother on 9 April 2008. His evidence was that the mother “has a determined view to get rid of overnight contact if she can”. He said the mother has a fixed view of the father and that she is alive to the possibility that this may lead to a change of residence. He said the mother told him that the child was a sleep walker at home. The evidence of the father was that he saw no sign of that when the child was in his care. Mr M was cross-examined by the independent children’s lawyer and he said his opinion of stubbornness ought to be distinguished from delusional. The mother had rationally come to a conclusion that the child should not spend overnight with the father. He said that she starts with an end that she wishes to achieve and does this in a deliberate and determined stubborn way and is quite sophisticated in doing so. By this he means that she delegates the responsibility of complaining to others.
[13] Exhibit M2
I accept the evidence of Mr M and that evidence is, in many ways, consistent with my view of the mother endeavouring to arrange for others to facilitate her complaints. I find that the mother is likely to continue with her views of the father and the mother will continue to diminish or end the relationship between the child and the father.
The father relied on his affidavits of 17 January 2008 and 11 September 2007. He lives about half the time with his girlfriend LB and half the time with his mother. The father tendered a schedule of times that the child has spent with him between December 2006 and 2007.[14] I accept that evidence.
[14] Exhibit F2
The relationship between the father and LB has existed for about ten years and the father is now proposing to marry LB once these proceedings are brought to an end. LB lives in a house owned by the father (near to the grandmother’s home – a few hundred metres apart). That house is in disrepair and as such the father does not take the child to that home. LB pays no rent on the home and the father’s evidence is that she spends reasonable amounts of time with the child.
The father presently pays $350.00 per month child support which was determined after an objection process. His income is likely to increase from about $30,000.00 in 2006/2007 to $40,000.00 in 2007/2008.
I accept, with some caution, the evidence that the father proposes to marry LB. The father’s evidence about that marriage has some sense of prevarication about it and he is not particularly impressive as a witness, in this respect or generally.
On the other hand the mother was a less impressive witness. She prevaricated and at some levels tailored her evidence to suit her desire that the child should not see the father, except in a supervised environment.
The father says he has only been late once collecting the child. On another occasion which was the subject of a complaint by the mother, he was on time but the arrival gate was changed and he did not know about such change. In any event the staff of Regional Express Airlines brought the child to him.
The father has a brother and sister-in-law who live in the area where he lives with their three children. The father spends half of his time at the grandmother’s home as he provides assistance to her in her declining years. He has a sister in the Melbourne area and another sibling who lives in the United States.
The child refers to LB as … and on the evidence the child has a good relationship with her, the father’s local brother and his wife. The father and LB have discussed arrangements if the child was to come into the father’s care. This discussion and consideration includes schools which the child would attend, arranging accommodation near his mother’s home and reducing any travel as that the father was otherwise undertaking for his work.
A further affidavit was filed on behalf of the father on 21 July 2008 and that affidavit was read into evidence. It set out the father’s evidence of what had occurred in Melbourne whilst the child was in his care. I had requested (not ordered) that the father’s partner, LB be available at the home whilst the child was living there. Whilst she was there from time to time she was unable to spend significant times there due to other commitments which I find were satisfactorily explained in the husband’s affidavit. The mother cross-examined the father initially in relation to some file notes which were tendered in evidence, however little was gained by this cross-examination. The mother cross-examined the father in relation to a time when the child had hit his head at school. The father’s response was appropriate although showed a different parenting style and some lack of insight in not informing the mother of this circumstance.
The father had said that he would accept the child’s views about where the child wishes to reside but the father does not think the views expressed by the child, at this time, are the child’s genuine views. The father said, tellingly, that the child “has a sense of responsibility to [E] and his mother and consequent duty to support his mother”. There is no doubt that the child would miss his mother and sister if not primarily living with them.
Evidence was given from staff of the child’s Melbourne school[15]. A teacher, Ms C, gave evidence, which evidence I accept, that the child had settled into the school reasonably well and had made friends. There was no indication of problems or issues and that the child gets on well with his class mates. Ms C confirmed the mother had attended at a parent teacher interview. Ms C did not realise that the child did not generally live with the father. There was no indication that the child was suffering from headaches or nausea. There had been three visits to the sick bay and as far as the teacher could recall none of them related to those issues. The teacher did not notice any change of demeanour in respect of days when the child was going to communicate with his mother or have communication. She did say that the child was excited about receiving calls from his mother and speaks well of Tasmania. She said she had the impression that the child was not interested in sport and football was not his thing.
[15] Exhibit F4
Ms C evidence was that she was comfortable that the child had made friends and on cross-examination from the independent children’s lawyer said the only matter of recent note was that the child had commented that he did not know whether he would be remaining at school in Melbourne for the following week.
Evidence was given by LB in accordance with her affidavit. I find that she is committed to assist the father in relation to the care of the child although she has serious concerns about the mother. She was very defensive in giving her evidence although she says, and I accept, that she had a good relationship with the child and enjoys one on one time with him. She is sensitive to his needs and I attach some weight to her evidence. She and the father have thought through the transition of the child to their care and I am satisfied that she will encourage a relationship between the child and the mother and the child and his sister.
The child’s paternal aunt gave evidence in accordance with her affidavit filed 16 January 2008. She is sensitive to the needs of the child and has taken steps to protect her children from concerns she has about the mother engaging her children in the allegations of improper behaviour. In doing so she has not diminished her relationship with the child nor does she see him any less. She was an impressive witness.
The evidence of Dr AD[16] was not challenged in cross-examination. Neither party sought to cross-examine him. In terms of that report a number of areas cause me concern in terms of this child. Dr AD is a consultant paediatrician at the North West General Hospital and his unchallenged observations were:-
[16] Exhibit ICL3
I had an impression that [the child] is a boy with chronic anxiety and probably mild depression and has had a multiple number of psychological counselling sessions in the past. Based on the statements made by [the child] his current anxiety certainly could be arising from his visits to Melbourne.
My second contact with [the child] was on 28 August [2007] when mum made an appointment to see me to organise a thorough physical examination of [the child] … during this session I performed a physical examination which was absolutely normal. There was no evidence of any bruises, scars, any signs of any external injuries. His genital examination was within normal limits without any evidence of redness, bruising, abrasions or lacerations in his genital region.
From history and clinical examination I came to the conclusion that [the child] is a boy who suffers from chronic anxiety and probably now depression. It would be really difficult to associate his anxiety with his visits to Melbourne but he has always suffered from anxiety and depression and although he did tell me he hated going to Melbourne, he never specified the reasons for his hate or anxiety in travelling to Melbourne. His mum though was quite clear about the reasons for his anxiety and has made allegations of sexual abuse. I think it should be taken with caution.
The father was cross-examined by the independent children’s lawyer as to the arrangements he had made for the child to remain in Melbourne should the father’s application be successful. The father has not thought it through as deeply as one might have considered. He as aware that the child says he does not want to go to Melbourne but the father’s evidence was that he was happy whilst in Melbourne. The evidence of the father was that the child shows no anxiety and he has not seen any indication of nausea or headaches.
The father says he would promote the relationship between the child and the mother and E. I have some concerns in respect of his evidence in this regard.
The father has not done a budget in terms of the child living with him although he says he will change his work practices so that he is not out of the State if the child is living with him.
The father gave evidence about a conversation with the child earlier in 2008 where the child had said to him that he had told lies to the single expert. I find the father’s evidence in that regard as unreliable. The father had not documented these allegations by affidavit nor had the father enquired from the child as to the nature of these lies.
I have some concerns about some of the father’s evidence in relation to the child in Melbourne and in relation to the statement made by the child that he was lying to the single expert.
The father tendered in evidence (without objection) two file notes from his solicitors[17].
[17] Exhibit F3
The Principal of the child’s school in Tasmania, Ms T, gave evidence in accordance with her affidavit sworn 10 April 2008. The child had a difficulty with school in 2007, due to interaction with another student. That interaction has been brought to an end. The Principal says that the child was going well at school in the early part of 2008 although he was absent from school during the week of the trial. It was conceded that the child was in Hobart with his mother during the course of the hearing.
Ms T was not shaken in cross-examination and I accept her evidence.
Dr B gave evidence in accordance with his affidavit. He was cross-examined by the mother. In that cross-examination he said that whilst he was not the only general practitioner for the child he was one of his practitioners having seen him on regular occasions since 2003. Dr B conceded that he did not make a report to the Child Protection Authorities and that his belief was the mother made that report. I otherwise accept his evidence.
A report from the Department of Health and Human Services was tendered in evidence[18]. The mother did not object to the report in so far as it recorded observations of the Departmental Officers except as is set out as follows. The mother raised an issue about an interview between the child and Child Protection workers where the child gave evidence about abuse in item (9) of that report. The report made observations and opinions. The expertise of those making those opinions was not tested in circumstances where the mother sought to have the testing. Having regard that the officer was not available for cross-examination, I give no weight to those parts of item 9 to which the mother complained.
[18] ICL1
The single expert gave evidence in accordance with his report dated 15 November 2007. He said that he had raised with the independent children’s lawyer the question of an interview with the child in Melbourne without the mother’s knowledge so that he could try and assess the child’s real feelings in relation to visiting Melbourne. It was felt that that would not provide procedural fairness to the mother and as such he did not go ahead with it.
The single expert confirmed his views of the mother set out in paragraph 45 (page 20) where he said:-
The writer’s view is that [the mother] is concerned without due cause in relation to the risk of appropriate sexualised behaviour by [the father]. That is to say the evidence does not support her beliefs. Her beliefs about [the father] is engaging in some inappropriate sexualised behaviour towards [the child] is so strongly held that it is approaching delusional intensity. …. It would be almost impossible for [the father] to strengthen his relationship with [the child] whilst [the mother] and [the child] continue to hold beliefs that [the father] has sexually abused [the child].
The single expert agrees that these views without cause of the mother could either be intentionally motivated or without intent. Either way it is difficult to treat.
He said that the child said he does not want to go on the visits and his view is, from interviewing the child in Tasmania, that the child expresses these views both verbally and by body language. He says the child is burdened by litigation and all responses are patterned and sophisticated and he uses adult language. He is detached from the alleged abuse and this is not typical. The child’s expressions are that of someone who repeats something he believes but of which he has no memory.
The single expert’s evidence was that with the status quo and with the mother’s consistent approach to the orders, significant psychological damage will be caused to the child and probably has already has occurred. It will impact on his tolerance, self perception, sexuality and self esteem. It will entrench the view that his father has been sexually abusive to him.
If there is a change of residence it would involve an enormous upheaval. The child is attached to his mother and there is great emotional depth to that attachment. The child is now aligned with the mother’s fears and he has expressed his concerns about a father who he believes has abused him, is a cannabis user and who yells at him.
At some levels there is some concern about this child’s state of mind if the child remains in Melbourne. However, on the evidence he appears to cope well when in Melbourne.
The single expert expressed a view that the child is defeated and has no “bounce”.
One of the options considered by me after the first three days of the trial was to try a time when the child spends a reasonable amount of time in Melbourne, say twelve weeks, in circumstances where he sees little of his mother, and then to have an assessment done by someone other than the single expert as to how he manages.
As a consequence of that suggestion the father and mother consented to adjourning the proceedings until July 2008 and putting place the following orders:-
UNTIL FURTHER ORDER
1.BY CONSENT these proceedings be adjourned part-heard for two days to the Family Court at Hobart commencing 23 July 2008.
2.A transcript of the evidence of Mr [D] be taken out and placed on the Court file.
3.A family consultant in late June early July 2008 interview [the child] born […] June 1998 and provide a family report as to the relationship between the child and his father and that the family reporter be provided with copies of the following documents:-
(a) reasons dated 9 March 2006;
(b) single expert report dated 15 November 2007;
(c) report of Mr [M] dated 6 April 2008;
(d) copy of DVD of Police Interview (Exhibit M3);
(e) transcript of the evidence of Mr D given 17 April 2008;
(f) affidavits of the mother filed 14 August 2007, 17 December 2007 and
21 December 2007, with the exception of annexure L which has already been provided to the family consultant;(g) affidavits of the father filed 16 January 2008 and 11 September 2007.
4.Leave be given to the parties to have the matter restored to the list before me on the giving of seven (7) days notice to the other party and the Independent Children’s Lawyer.
5.All extant interim parenting orders be discharged AND IT IS NOTED the orders made 9 March 2006 remain in place, subject to the following variation:-
(a) from 17 April 2008 to 23 July 2008 The child shall live with the father;
(b) The child live with the mother in Melbourne or such other places agreed in writing between the parties from:-
(i) 9.00am Sunday 1 June 2008 until 7.00pm Monday 2 June 2008;
(ii)9.00am Saturday 28 June 2008 until 6.00pm Monday 30 June 2008.
6.The child communicate with his mother and/or his sister [E] by telephone each Sunday between 5.00pm and 6.00pm and each Wednesday between 6.00pm and 7.00pm and by email at other reasonable times, such email to be available to all parties to inspect.
7.Orders 3, 4 and 5 dated 9 March 2006 be suspended.
8.The father undergo blood and/or urine tests in relation to drugs as is reasonably required by the Independent Children’s Lawyer, at least one test to be undertaken within the next four (4) weeks.
9.Pursuant to s.65DA(2) and s.62B, the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders and details of who can assist 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.
IT IS NOTED
10.The child will be bought to the Court today at approximately 3.30pm today to meet with me and the Independent Children’s Lawyer and that such meeting will be recorded.
IT IS DIRECTED
11.A transcript of the meeting referred to in order 10 above be taken out and placed on the Court file.
IT IS REQUESTED
12.[LB] reside at the home at which the child will be living during the course of this interim order.
The comments of the single expert in his report are of value[35]:
[35] Paragraph 45 of single expert report page 15-20
The writer’s view is that [the mother] is concerned without due cause of the risk of inappropriate sexual behaviour by [the father]. That is to say the evidence does not support her belief. Her belief that [the father] is engaging in some inappropriate sexualised behaviour towards [the child] is so strongly held that it is approaching delusional intensity. She prefers to retain these beliefs even in the face of [the child] having no recollection of any such behaviour or alternate explanations ….. If these beliefs and actions are not vexatious and intended to obstruct [the child]’s relationship with his father, then they are misguided. [The mother’s] actions in this regard are considered to be having a significant adverse effect on [the child] in terms of his self perception and perception of his father. [The child] now has a strongly held, probably erroneous belief, that he was probably sexually abused by his father in the course of recent visits to Melbourne. This belief is likely to adversely bias [the child]’s perception of his father’s behaviour in a significant way. It would be almost impossible for [the father] to strengthen his relationship with [the child] whilst [the mother] and [the child] continue to hold a belief that [the father] has sexually abused [the child].
I have concerns about the father, his anger, his different and less hands-on approach to parenting. However, of the two I believe he is more likely to encourage a relationship between the child and the mother and it is more likely to occur with the assistance of the father. The independent children’s lawyer asserted that if I adopted the recommendations of the family consultant and the child was left in the primary care of the mother then the parenting arrangements would again fail. I agree with that assessment.
The only option for a relationship with the father is that the child is primarily with him.
If the child is left primarily in the care of his mother his relationship with his father will inevitably diminish and the concerns raised by the single expert as to the psychological impact on the child are real possibilities.
The mother’s approach to the father has not changed after the trial in 2006, the evidence of her own witness Mr M, or the child living in Melbourne between April and July 2008. Her views did not change. It is apposite to carefully note that evidence.
The single expert said in his report[36]:
[36] paragraph 48 single expert report page 16 of 20
“The concluded opinion is that neither parent is adequately promoting the other parent, and neither parent is adequately protecting the child from the stress associated between them”.
I accept this to be the situation for this child.
Both parents have demonstrated an almost complete inability to communicate and interact for the purpose of parenting the child. That is unlikely to change. The mother’s views about sexual abuse are entrenched and I note the evidence of the single expert and Mr M in that regard. The father does not communicate well with the mother and it is unlikely that these parties will ever communicate in an effective way notwithstanding the damage they are causing to the child.
(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 his or her parents; or
(ii) any other child, or other person (including any grandparent or other relative of the child), with whom he or she has been living;
A change for the child would be significant bearing in mind his expressed antipathy towards his father and his deep relationship with his mother. I accept the views of the single expert when he says:-
The child is already suffering considerable stress and he has little capacity to cope with any further stress. Because he is aligned to his mother and estranged from his father, [the child] would find relocation to Melbourne and separation from his mother overwhelmingly difficult in the short term. A relocation of this nature would also entail separation from his sister and his existing peer support group and significant others such as school teachers. In the current circumstances, such an experience would probably be traumatic for him with enduring adverse affects. In contrast, [the child] would not find separation from his father difficult. Indeed, this is the preference that he has expressed. It is possible [the child] would in fact experience reduced stress if he was allowed to exercise his preference and not spend time with his father in Melbourne. However, in the long term he would probably retain considerable confusion and a negatively distorted perception of the father.
This view is somewhat modified by the evidence provided by the family consultant after the child’s time in Melbourne.
These orders will have a significant effect on the mother and a significant effect on E (as set out in the mother’s affidavit and that of the child’s maternal aunt and maternal grandmother).
However, either way there is significant damage to the child. If he remains with his mother with the belief that he has been sexually abused and that belief seems to have been pursued by the mother for many years, it will cause harm to this child. Separation from his mother will, as the single expert said in the short term, be traumatic. In Re David (1997) FLC 92 776 the Full Court said[37]:
[37] page 84574
“While it is a very serious step to alter a Residence Order in respect to a young child which has the effect of removing him from his principal carer, there are some situations, and we think that this is one of them, where the Court has no option but to do so”.
The Full Court went on to say:
“The second difficulty is to achieve a positive solution. In the present place there were exhaustive attempts to bring about a situation where a previously satisfactory contact regime could be resumed, all of which were thwarted by the mother …”
It seems to me that this case may fall into that which the principles set out in Re David had envisaged.
(e)the practical difficulty and expense of a 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;
The father has met the transportation of the child from Tasmania to Melbourne over the years. The father has not had the insight to travel to Tasmania himself (this reflects the conflict that exists between the parents which has not been able to be reduced over the years and has been reflected in a number of family court hearings). The father has said he will assist in terms of the time that the child spends with either parent irrespective of the outcome in either Melbourne or Tasmania. I propose to make orders that require the father to meet the cost of the child travelling to live with the father and the mother to meet the cost of the child travelling to live with her.
The mother has developed an earning capacity and I take judicial notice that there are competitive low cost airfares available between Tasmania and Melbourne.
(f) the capacity of:
(i) each of 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, including emotional and intellectual needs;
There is no issue as to the mother’s capacity to care for the child with the exception of her exposure of the child to her views that the father uses drugs and has sexually abused the child. The father is able to care for the child and has the help of a strong and supportive family. However, he is often defensive and angry in that care.
The single expert says of this[38]
[38] paragraph 50 page 16 of 20 single expert report
“Each parent is considered to have a good enough capacity to provide for the need for the child. [The mother’s] defensive over-concern about sexual abuse is a marked limitation alienating the child from his father. [The father’s] defensive and anger behaviour are further estranging the child.”
I accept this to be the case.
I have been referred to the concerns held by the Child Protection Authorities as to the repeated referrals of the child to them and the possible effect of that on the child. I note the single expert said in his report
Ideally, there should be no further need for investigation or evaluation. However, if the need for evaluation does arise, direct interview should be absolutely minimised. For this to occur, medical, child protection, school and Police authorities should be notified to ensure any assessment is coordinated and sensitive to the specific history of the matter. For this to occur, formal orders may be required restraining [the mother] from seeking medical treatment for [the child] without consulting an objective third person, such as the independent children’s lawyer.
I propose making an order to that effect.
In Hawe & Clifford [2007] Fam CA 106, Guest J had this to say in relation to family conflict at paragraph 12:
12. Recently, I had to consider the effects upon children of stress and tension demonstrably evident between their parents. It is worthwhile repeating here what I had to say in H v J & anor(2006) FamCA 1398:
“There is one further matter that I wish to raise and that is that the affidavits address issues that suggest, and I rather suspect that such is the fact, a high degree of tension within the household of the mother and the co-parent arising from the litigation. What I have to say now is addressed to all three parties to understand that issues of stress should be avoided in the best interests of D. The affidavits of the respondents reveal that their home environment was, as matters then stood, one affected by elements of stress to varying degrees. I emphasise that it can only be in D's best interests to ameliorate as much as possible this most undesirable situation.
Such a position was forcefully addressed by Dr Jennifer McIntosh in a paper "Enduring Conflict in Parental Separation: Pathways of Impact on Child Development", (Journal of Family Studies, Vol. 9, No. 1, April 2003), focussing upon the known impacts of entrenched parental conflict on the development of children. In the course of her paper, Dr McIntosh had this to say:“... unresolved, enduring parental (a term which is used in the paper in the traditional heterosexual families but which can apply equally to any family constellation) conflict can violate children's core developmental needs and threaten their psychological growth ... These findings provide a strong impetus to child focused practices in Family Law dispute resolution. They point to a need in the practitioner for an unapologetic mindfulness of the needs of children. The challenge that this research throws down to the practice front is real: to deal with this not as the ‘flavour of the month’, nor the latest itch in the Attorney-General's Department, but as a fundamental, evidence-based push for evolution in practice.” (Pages 63-4)
Later, under the heading "Through a Developmental Lens: Impact of Parental Conflict", Dr McIntosh went on to say:
“Secure family environments and emotionally responsive parenting, in all family constellations, provide the core foundation for the developmental needs of children. Certain developmental goals for children at different stages are more easily threatened by virtue of their age-related ability to understand nuances and implications of parental conflict.” (Page 65)
Later in the course of her paper, under the heading "Impacts of Parental Conflict on the Core Developmental Tasks", Dr McIntosh said:
“Enduring parental conflict disrupts the very organisation of emotional experience in any childhood. This type of disruption may have both escalating and cumulative developmental consequences. It interrupts vital attachment processes in infancy and toddlerhood, with high intensity conflict linked with the development of insecure and disorganised attachment styles ... In turn, this interrupts the development of emotional security, with children becoming more prone to negative emotional arousal and distress, less able to regulate their feelings, less optimistic about their ability to cope, and less able to cope.
Later:
“A child's ability to regulate their emotions and behaviours develops primarily in a family context. It is promoted by parental soothing, collaborative conflict resolution, discussion of emotions and the events that elicit them, and coaching of adaptive responses. When these normative parental functions are eroded by conflict, children's inability to regulate their own emotions and to adapt in a socially competent manner can be sorely compromised.” (p 66-67)I agree with these comments. I am concerned not only at the ongoing conflict between his parents that this child has lived with for probably all of his recollected life, but also I consider the effect of placing the child in the father’s household, where the evidence is that there is conflict between him and his own mother, or at least verbal aggression by the father directed at his mother. I find that the father acts in such a manner and that it is not beneficial for the child to experience this. I note the following comments by the family consultant in her report:
He said that when his dad gets tired, he “gets angry.” …[he] knows he is angry because he “clenches his fist” and “makes his voice aggressive.” [The child] said this has happened 2 or 3 times since he has been living in Melbourne and he has witnessed this, “I’m usually on the couch.” [He] said that his dad has also been angry with him a few times, “sometimes, for making mistakes.” He says his dad “just yells, nothing physical.” [He] said that his dad’s anger did not last long, “he gets better 20 to 30 minutes later.” However, it was “frightening” for him when his dad became angry.[39]
[39] Family Consultant’s report page 4
This report by the child does the father no credit. I take it into account along with all the other factors in making my determination.
(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;
The child is ten. It is very late in chronological time to consider a change of parenting. His life and background have been in Tasmania. His contact with the father has been far more limited. The effect of the order proposed by the father is to remove the child from his principal care-giver and from his much loved sister.
The child’s paternal family are of Lebanese origin. In her case summary document, filed 14 April, the mother alleges that the father makes no endeavours to expose the child to the Lebanese culture, traditions or language, and in fact inhibited her attempts to do so. Both parents have the right to educate the child as to his family cultural heritage as they think fit.
The mother also highlights the fact that given his age, the child is very much focussed on spending time with his peers, playing sport, and being involved in community activities. I find that the mother has encouraged such activities and involvement for the child to his benefit.
(h) if the child is an Aboriginal child or a Torres Strait Islander child:
(i)the child’s right to enjoy his or 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;
Not relevant.
(i)the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child’s parents;
I reflect on all of the evidence given in respect to this and the matters set out as in these reasons.
(j) any family violence involving the child or a member of the child’s family;
(k) any family violence order that applies to the child or a member of the child’s family, if:
(i) the order is a final order; or
(ii) the making of the order was contested by a person;
I have dealt with the allegations of abuse and alleged abuse of which there is no evidence since my reasons of March 2006. I make a positive finding that there is no abuse and I am satisfied that the mother has exaggerated her evidence in relation to the allegation of abuse. The mother asserts in her affidavit filed 17 December 2007[40] that:-
[40] paragraph 12
“He says that [the father] was on his side and had his upper arm and body across him”.
That is an incorrect statement and is not reflected in what the child had said to either the family consultant or to the police.
There is an intervention order made for the protection of the father against the mother on 25 August 2008 which is to expire on 19 January 2009. That order was made in the absence of the mother by the Magistrates Court of Broadmeadows in Victoria. That order was subsequently varied (but not extended), again in the absence of the mother, so that it now reads:
The Court ordered that the defendant be prohibited from
1. Approaching, telephoning or contacting the aggrieved family member/s except:-
(a) in the company of a police officer; or;
(b) to participate in counselling or to exercise child contact agreement with the aggrieved family member/s or pursuant to a court order, or by direction or order made by a court exercising jurisdiction under the Family Law Act 1975, or
(c) to participate in mediation by agreement with the aggrieved family member/s
2. Causing another person to engage in conduct prohibited by this order.
3. Further order that the defendant is prohibited from harassing the person protected by this order.
Bearing in mind paragraph 1(b) of that order I intend to make an order ensuring the parties have reasonable communication for the purpose of giving effect to these orders. The parties will need to communicate in relation to the child especially regarding firstly, the exercise of parental responsibility, and secondly, arranging the child’s travel between Victoria and Tasmania.
(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 to the child;
I am concerned that this child has been the subject of psychological assessment and investigation through most of his life. There needs to be an end to these proceedings.
This is one of the most difficult parts of this litigation. All of the outcomes so far have not stopped the litigation. The child has endured three trials and the impact of the constant investigation reports is highlighted in the single expert reports particularly in relation to his description of the child “lacking bounce”.
The single experts view is that[41]
[41] Single expert’s report paragraph 48 page 16
“neither parent is adequately promoting the other parent, and neither parent is adequately protecting [the child] from the strews associated with the dispute between them.”
The single expert went on to say in his evidence to the court
I think the whole issue is now so burdensome for him that it causes him enormous stress…there’s been a cumulative stress, actually, that he’s now so saturated with that he has very little bounce left at all. All of his body language doesn’t show somebody who has got a lot of bounce. He’s defeated, he feels burdened, I think, by this.
To make the orders sought by the mother in many ways reflects the consent orders made after the hearing before Hannon J in early 2004. Those orders were unsuccessful and perhaps the complexity of them and the nature of them contributed to further proceedings.
The orders made by me in March 2006 provided a temporary respite from litigation but again it recommenced in August 2007.
A consideration might be to leave the child in the care of his mother without seeing the father. However the evidence before me is that will have a significant adverse psychological impact on the child. It may bring an end to the litigation.
On the other hand moving the child to Melbourne offers some, but only some, hope of an end to the litigation. If the child settles and manages Melbourne it may be that the litigation stops. Alternatively it may be that the child’s strong views that he wishes to remain with his mother persist and an application is made to undo those orders.
(m) any other fact or circumstance that the court thinks is relevant.
The family consultant recommended the mother receive some psychological treatment in relation to her concerns about sexual abuse and harm concerning the child. The mother acted on this recommendation and sought treatment from Mr M. Mr M’s view is that no further treatment is warranted and would not assist
60CC(4) Without limiting paragraphs (3)(c) and (i), the court must consider the extent to which each of the child's parents has fulfilled, or failed to fulfil, his or her responsibilities as a parent and, in particular, the extent to which each of the child's parents:
(a) has taken, or failed to take, the opportunity:
(i)to participate in making decisions about major long‑term issues in relation to the child; and
(ii) to spend time with the child; and
(iii) to communicate with the child; and
(b) has facilitated, or failed to facilitate, the other parent:
(i)participating in making decisions about major long‑term issues in relation to the child; and
(ii) spending time with the child; and
(iii) communicating with the child; and
(c)has fulfilled, or failed to fulfil, the parent's obligation to maintain the child.
(4A)If the child's parents have separated, the court must, in applying subsection (4), have regard, in particular, to events that have happened, and circumstances that have existed, since the separation occurred.
I have had regard to the matters contained under s60CC(4) and note that the father has endeavoured to spend time with the child although he has declined to spend such time in Tasmania except in circumstances where he is forced to do so.
The mother has failed to facilitate a co-operative parenting arrangement for the child, the father has generally adopted a confrontational approach. His approach is somewhat softer than that of the mother and his participation in the child seeing his aunt in Melbourne in recent years is to his credit.
In recent times the father has fulfilled his obligations to maintain the child.
I have made an order that the father pay the costs of the child’s travel from Melbourne to Tasmania for the four school holiday periods and eight other trips per year making a total of twelve trips per year. In terms of making this order I have had regard to the father’s consent to an order that he pay four trips to and from Tasmania per year. I have also had regard to the level of child support he has been paying and the circumstances that his child support had, to the date of these orders, been at the lowest level when his income had been significantly greater.
CONCLUSION
In his closing submissions the independent children’s lawyer said:-
Your Honour, I want to make a couple of general comments about this case. I think it’s proper for me to say, as someone who has now acted for [the child] through three trials and the majority of his ten years, that this is probably the most difficult case I’ve ever been involved in. The fact is in my view, I shouldn’t be standing here today making further submissions at the end of the third trial for what I’ve come to learn and see as quite a wonderful ten year old boy. He’s quite a special boy.
My view unfortunately is that this ten year old boy is a victim. That’s a very strong word and I don’t use it lightly, but unfortunately it’s justified, I think. Generally, your Honour, I feel the need to say throughout these proceedings, but now have to be very critical of both parents. The fact is that childhood is a once only gift. You don’t get it back again. You don’t get it substituted. It should be a time of inhibition and freedom, of bonding with both parents.
But unfortunately – and I’ve looked back for I think eight of this child’s ten years on this earth, he has been the subject of litigation. It’s a travesty and it’s a very sad indictment, in my view, on both parents. Your Honour, I’m not a psychologist, as I often say, but I fear and from reading not only the reports in this matter that are in evidence, but, if I might say, from historically reading the various experts that have been involved, I fear and I think the court, probably with some justification, has to fear for [the child’s] future, whether he’s going to be able to adjust adequately and properly within society in his own relationships.
This child has been interviewed, examined, counselled, spoken to, for eight years almost consistently. There is a chronology attached to the father’s case summary. Whilst it’s very helpful to the court, it sets out what I’ve said is nothing more or less than a very sad indictment on these parents. The issues, your Honour, have to be against the framework of sections 60CC(2) and (3) of the Family Law Act. What I see to be the relevant issues, if I can summarise them are: (1) the court has to consider quite obviously the benefit for [the child] in having a meaningful relationship with both his parents. Secondly, there is an issue fairly and squarely on the table and following my cross-examination of [the mother] yesterday, the court needs to consider the protection of [the child] from any physical or psychological harm from being subjected to abuse. The court needs to consider the child’s views. I use that word advisedly…
Having regard to all of the evidence and having regard to the submissions of the parties I repeat what was said by the independent children’s lawyer. This is an extremely difficult case. The child was settled in the home with his mother and his sister. The mother is sensitive to the child’s needs and is able to interact with him at many levels. The mother’s views of the father are not soundly based and are unable to be changed. The impact of her imposition of those views has been to restrict the time the child has had with his father over almost the whole of the child’s life. It is sad to reflect on the extent of litigation between these parties.
The father has some issues which I have dealt with in these reasons but on balance I determine that it is better for the child to live more in Melbourne than in Tasmania and that he live primarily with the father. Accordingly I make the orders as set out earlier.
I have had regard to all the events and circumstances since 2000 in determining these reasons.
I certify that the preceding 251 paragraphs are a true copy of the reasons for judgment of the Honourable Justice Benjamin
Legal Associate:
Date: 11 September 2008
Key Legal Topics
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Family Law
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Civil Procedure
Legal Concepts
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Jurisdiction
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Costs
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Procedural Fairness
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Remedies
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4
0