SOULOS & SORBO
[2018] FamCA 1121
•21 December 2018
FAMILY COURT OF AUSTRALIA
| SOULOS & SORBO | [2018] FamCA 1121 |
| FAMILY LAW – CHILDREN – Parenting – Where the father has perpetrated family violence against the mother – where there is a high level of conflict between the parents – where the mother seeks to relocate to Country N – where the parties use different names for the child – where the father has concerns that the child’s medical and dental health is not appropriately attended to by the mother – where the mother alleges that the father physically assaulted the child – where if the child relocates to Country N the child would not have a relationship with the father- where no unacceptable risk in the father’s care – where the mother be allowed to relocate to Country N with the child – where the mother have sole parental responsibility for the child. |
| Family Law Act 1975 (Cth)ss 60B, 60CA, 60CC, 61C, 61DA, 65DAA, 69ZR Evidence Act 1995 (Cth) s140 |
| Adamson & Adamson [2014] FamCAFC 232,(2014) FLC 93-622,(2014) 51 Fam LR 626 Amador & Amador [2009] FamCAFC 196 Carlson & Fluvium [2012] FamCA 32 G & C [2006] FamCA 994 Goode & Goode (2006) FLC 93-286, M v M (1988) 166 CLR 69; [1988] HCA 68 Mazorski v Albright[2007] FamCA 520 McCall & Clark (2009) FLC 93-405 |
| APPLICANT: | Mr Soulos |
| RESPONDENT: | Ms Sorbo |
| INDEPENDENT CHILDREN’S LAWYER: | Robertson Solicitors |
| FILE NUMBER: | PAC | 5406 | of | 2012 |
| DATE DELIVERED: | 21 December 2018 |
| PLACE DELIVERED: | Parramatta |
| PLACE HEARD: | Parramatta |
| JUDGMENT OF: | Hannam J |
| HEARING DATE: | 16 - 20 April 2018, 8 June 2018, 9 – 13 July 2018, 3 August 2018 & 19 December 2018 |
REPRESENTATION
| COUNSEL FOR THE APPLICANT: | Mr Schonell SC |
| SOLICITOR FOR THE APPLICANT: | Thurlows Family Lawyers |
| COUNSEL FOR THE RESPONDENT: | Mr Levet |
| SOLICITOR FOR THE RESPONDENT: | Spectrum Legal Group |
| COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: | Ms De Vere |
| SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: | Robertson Solicitors |
Orders
That the mother have sole parental responsibility for the child B F Soulos, born … 2011 (“the child”).
That the child live with the mother.
That the mother be allowed to relocate to Country N.
That the Australian Federal Police give effect to the preceding Order by removing the child’s name from the Family Law Watch list.
That within 14 days of the making of these Orders the father do all things required by the mother to procure for the child an Australian and a Country N Passport.
That in the event that the father fails, refuses, or neglects, to comply with the preceding Order, that the Registrar of the Family Court of Australia, Parramatta Registry, sign all documents necessary to give effect to such Order, AND FOR THAT PURPOSE the signature of the Registrar of the Family Court of Australia, Parramatta Registry, be deemed to be that of the father.
Note: The form of the order is subject to the entry of the order in the Court’s records.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Soulos & Sorbo has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).
| FAMILY COURT OF AUSTRALIA AT PARRAMATTA |
FILE NUMBER: PAC 5406 of 2012
| Mr Soulos |
Applicant
And
| Ms Sorbo |
Respondent
REASONS FOR JUDGMENT
Introduction
These proceedings concern the parenting of a little boy aged seven (“the child”). The parents’ dispute is so entrenched that they cannot even agree about the child’s name. The mother calls him F while in his father’s home he is known as B or the diminutive of that name, BA.
The mother who came from Country N to marry the father feels lonely, isolated and depressed about living in Australia and wishes to return to live in her home country with the child. She proposes orders that would see the child’s relationship with the father maintained by electronic communication, physical contact in her home country and in future years in Australia during school holiday periods.
It is the father’s case that the mother has done everything within her means to undermine his relationship with the child and fears that if the mother returns to Country N with the child his relationship with the child will come to an end. He also has concerns about the mother’s capacity to care for the child and proposes orders that would have the child live with him and spend defined time with the mother.
The Independent Children’s Lawyer (“ICL”) proposes orders that would see the child continue to live with the mother and spend defined time with the father but require the mother to remain in Australia and not permit her to change the child’s residence.
The question for me to determine is whether it is in the child’s best interest to live with his mother in Country N or Australia or to live with his father.
Background
The father who is 42 is of Country HH heritage and was born and raised in Australia. He met the mother who is 39 and was born raised and working in Country N on an international dating website in about June 2009.
The parents formed a relationship quickly, within three months of having met online. The father flew to Country N to meet the mother and the parties immediately became engaged.
The mother spent three months in Sydney staying with the father and his family at their home in late 2009 and then returned to live in Australia permanently with the father in May 2010.
In 2010 the parties married in a civil ceremony. They had a religious ceremony and reception in 2011.
The parties’ only child was born in 2011.
The parties appear to agree that the relationship between them was reasonably harmonious initially though the mother contends that the relationship was always characterised by controlling behaviour by the father towards her. The father denies that he behaved in this manner and also denies that he was later physically violent towards the mother as she alleges. This is a significant matter in dispute between the parties to which I will return.
On a number of occasions the child’s maternal grandparents or one of them has travelled to Australia staying for many months on each occasion.
In November 2012 the mother made complaints about the father’s violence and police issued a provisional apprehended domestic violence order (“ADVO”) against him for her protection. The parties then separated and the mother moved into a women’s refuge with the child while the father remained living in the family home.
The father was charged by police in November 2012 with assault and also for intimidating the mother in an earlier incident in mid-2012. The father pleaded guilty to intimidating the mother in mid-2012 and a final ADVO was made against him for the protection of the mother which remained in place until March 2015.
Following separation the father commenced parenting proceedings seeking orders that he spend time with the child.
In July 2013 orders were made for the father to spend time with the child beginning with three hours supervised by a professional supervision service at his home.
In August 2013 the father spent supervised time with the child for the first time since the parents’ separation in November 2012.
The mother met with the paternal grandfather in March 2014 in an effort to reach agreement for the paternal grandparents to spend time with the child. Such agreement was not reached.
In March 2014 the parties also met with a family consultant for the purpose of the preparation of a Family Report.
Over time the orders with respect to the father’s time with the child have varied. In September 2014 orders were varied by agreement of the parties to provide for the child to spend time with the father each Saturday and Sunday for three hours, but the time remained supervised.
In November 2014 the parties attended upon a child and adult psychiatrist (“the expert”) for the purposes of preparation of an expert report.
The first final hearing (“the first proceedings”) took place before His Honour Justice Foster in February 2015. The final orders made in March 2015, (“the March 2015 orders”) provided that the child live with the mother (in Australia ) and spend time with the father and included specific orders in relation to the child’s name and future dental treatment and changeover at a children’s contact service.
Both parties appealed against the March 2015 orders and the appeals were allowed.
The March 2015 orders continued and were not stayed upon appeal. At around the same time as filing his appeal the father began spending unsupervised time with the child.
In September 2015 the mother was granted Australian Citizenship.
In early January 2016 the father and his partner (“the father’s partner”), began living together and in the same year, 2016, their child, another son (“the father’s other son”) was born.
On 20 January 2016 the mother’s solicitors advised the father that the mother was not comfortable with the child spending overnight time with him.
On 16 February 2016 I made orders for the child to be delivered to Child Dispute Services at the court for changeover and reminded the mother to make the child available to spend time with the child each alternate Friday from 9:30am until 11am Saturday, in accordance with the March 2015 orders.
In June 2016 the mother who had been a public servant overseas attempted the New South Wales service entrance exam but was unsuccessful.
The mother moved homes in September 2016 to a suburb some distance from her previous home, but she failed to inform the father of the move until 30 January 2017.
The child began attending at a new school which had been chosen by the mother alone in January 2017.
On 3 February 2017 the father attended upon the child’s school to collect the child for his weekend time but the mother had made arrangements for the maternal grandmother to collect the child and changeover into the father’s care did not occur. The mother then proposed through her lawyer that changeover occur at a fast food outlet on a Friday evening rather than at school.
The father first became aware in February 2017 that the mother may have been contravening the March 2015 orders in relation to the child’s name. The issue of the child’s name was a live matter in both proceedings and it is a matter to which I will return.
In the first six months of 2017 the mother completed a number or courses which are prerequisites for attempting to gain admission to the New South Wales public service. To date she has not gained admission to service in Australia.
In June 2017 the expert saw the family for the second time and prepared a second report a short time later.
The final proceedings
The first few days of the second final hearing took place during the Easter school holidays (April 2018) when the child should have been spending time with the father in accordance with the March 2015 orders. When it became apparent in the course of the hearing that the mother had not made the child available to the father in accordance with the orders I made an order that the child spend some time with the father during that holiday period.
The final hearing which was to be completed in April 2018 was beset by a number of difficulties including the unavailability of an interpreter on some of the days the hearing had been listed. This necessitated the proceedings being adjourned part-heard and it was expected that they would be completed over five days commencing 9 July 2018.
On the weekend commencing Friday 18 May 2018 the child spent time with his father in accordance with the March 2015 orders and the father returned the child to school on 21 May 2018. When the mother collected the child from school that day she claims to have observed swelling and bruising around the child’s eyes. The mother says that as a result of having a conversation with the child’s teacher and the teacher asking the child some questions about his weekend time with his father she took the child to a children’s hospital where he was seen by medical staff but was not admitted. The mother claims that the child made complaints to hospital staff to the effect that he had been struck in the face by his father and that she also became aware in a conversation with the child that the father and child had been involved in a car accident on the previous Friday when the child was collected from school.
On 22 May 2018 both parents attended with the child for a dental appointment but the alleged incidents over the previous weekend were not discussed.
On the 22 May the mother’s lawyer wrote to the father’s lawyer and the ICL in relation to the alleged incident. In that letter the mother’s lawyer asserted that the child had indicated to a doctor and officer of Community Services at the hospital that the father had struck him on the face with his hand.
On 23 May 2018 the mother accompanied the child to a police station in relation to the alleged assault.
In a further letter dated 30 May 2018 the mother’s lawyer alleged that the mother held serious concerns about the child arising from the father’s “punch to the child that resulted in the child’s black eye” and other matters.
On 1 June 2018 the mother did not make the child available to the father for his weekend time which was to commence on that date.
The ICL then relisted the proceedings before me on 8 June 2018 to seek leave to issue further subpoena in relation to the mother’s withholding of the child and associated events.
At the court event on 8 June 2018 the father also sought to proceed with an Application in a Case seeking to vary the orders with respect to the child’s time with him. Given that the final proceedings were part heard and due to resume and be determined finally one month later the father withdrew his Application in a Case and sought instead to rely on evidence in relation to this issue in the final parenting proceedings.
The mother continued to withhold the child from the father during the period of the adjournment.
The trial resumed on 9 July 2018. The mother was given leave to rely upon a further affidavit in relation to the events commencing on 21 May 2018 which had resulted in her withholding the child from further time with the father. Since becoming aware of the alleged assault, car accident and other matters related to the father’s care of the child the mother adopted the position that in order to protect the child against any abuse that may be perpetrated by the father the father’s time with the child should be supervised.
When the proceedings resumed in July 2018 this was once again during the school holiday period. The mother conceded under cross-examination that although the child should have been spending time with his father in accordance with the March 2015 orders that was not occurring. She at that time maintained the position the child had been abused by the father when spending time with him during the last weekend in May and that she was justified in withholding the child from the father since that alleged event.
As the cross-examination of the mother in relation to the alleged incident in May 2018 and her response in not making the child available consumed a great deal of time I was concerned about becoming part heard once again in already protracted proceedings. I accordingly raised with the parties the possibility of determining as a discrete issue pursuant to section 69ZR of the Family Law Act 1975 (Cth) (“the Act”) whether the events alleged to have occurred on the weekend of 18 to 20 May 2018 (“the May 2018 incident) of themselves gave rise to an unacceptable risk that the father may abuse the child which required that the child’s time with the father be supervised. Each of the parties agreed that it was in the best interests of the child for the court to determine this discrete issue in accordance with section 69ZR of the Act.
After hearing from each of the parties I made a finding that there was no unacceptable risk that the father would abuse the child arising from the evidence in relation to the May 2018 incident alone (as contended by the mother) and I ordered that the child’s time with the father be resumed in accordance with the March 2015 orders. I also indicated that I would include my reasons for this finding and order in my final judgment and accordingly they will be dealt with later in these Reasons.
As I understand it the mother made the child available to the father on 12 July 2018 and there is no evidence to suggest that she has not complied with the March 2015 orders in relation to the father’s time with the child since that date.
The Areas of Dispute
Is the father a perpetrator of family violence?
It has been the mother’s case from the outset that the father is a perpetrator of serious family violence. She deposes that from the time they were married the father controlled the finances for the household and questioned and limited her expenditure, took steps to prevent her from continuing her religious observance, verbally insulted and demeaned her. Of particular significance she contends that he was physically abusive towards her.
The father has always denied that he has engaged in any conduct which would fall within the definition of family violence in relation to the mother.
At the completion of the evidence it was submitted on behalf of the father that it is not necessary for the court to make any findings in relation to the allegations of family violence. In this regard he relies in particular on the Full Court decision of Adamson & Adamson [1] (“Adamson”).
[1] [2014] FamCAFC 232,(2014) FLC 93-622,(2014) 51 Fam LR 626
In Adamson the Full Court held that a judge of the Federal Circuit Court erred in making adverse credit findings against a mother, in particular in relation to her allegations of family violence against a father. It was held that a trial judge should refrain from making adverse credit findings in a parenting case, unless it is necessary to determine the real issues in dispute and where this cannot be legitimately achieved otherwise. In particular, the Full Court approved the observations of Kent J in Carlson & Fluvium[2] holding at [90]
…in parenting proceedings an adverse credit finding against a parent should not only be necessary to determine the real issues joined between the parties but should be soundly based, with due allowance for the limitations referred to [in Carlson at 165-169].
[2] [2012] FamCA 32
The main thrust of the challenge to the trial judge’s credit findings in Adamson which the Full Court accepted was that the trial judge’s reasoning process was “infected with errors made concerning the adverse credit findings against the mother and inconsistent findings”.
Counsel for the ICL supports the father’s submission that the court does not need to make findings in relation to the allegations of family violence in these proceedings on the basis that this matter is ancillary to the court’s determination in relation to the child’s best interests. The ICL relies on a number of passages from the High Court decision in M v M[3] in this regard including the following:
The resolution of an allegation of sexual abuse against a parent is subservient and ancillary to the court's determination of what is in the best interests of the child. The Family Court's consideration of the paramount issue which it is enjoined to decide cannot be diverted by the supposed need to arrive at a definitive conclusion on the allegation of sexual abuse. The Family Court's wide ranging discretion to decide what is in the child's best interests cannot be qualified by requiring the court to try the case as if it were no more than a contest between the parents to be decided solely by reference to the acceptance or rejection of the allegation of sexual abuse on the balance of probabilities.[4]
[3] (1998) 166 CLR 69
[4] (1998) 166 CLR 69 at [21]
It is submitted on behalf of the mother that family violence is the central issue in these proceedings and that it is necessary to make findings about these allegations in order to determine the best interests of the child. Counsel for the mother submitted that the entirety of the mother’s conduct would be explicable if findings of family violence are made in accordance with her contentions and in particular such findings explain the reluctance of the mother to facilitate a relationship between the child and the father.
The Full Court held in Amador & Amador[5] (“Amador”) that the High Court’s decision in M v M should not be used to support an argument that it is unnecessary for a trial judge to make positive findings in relation to abuse or violence between the parties. Indeed in Amador the Full Court affirmed that a trial judge should make findings if “they are available and necessary to determine what is in the best interests of the child”.[6] The Full Court went on:
It is important, in our view, not to confuse what has been said by the High Court and the Full Court as to the obligations on a trial judge to make positive findings of fact in relation to allegations of abuse and sexual abuse against a child where parenting orders are sought and where the test to be applied is “unacceptable risk”, with the circumstance in a parenting case where allegations have been made of domestic violence and/or assault by one party upon another. In the latter case it will be necessary for the Court to make findings where the evidence enables that to be done.[7]
[5] [2009] FamCAFC 196
[6] [2009] FamCAFC 196 at [88]
[7] [2009] FamCAFC 196 at [96]
In these proceedings there are a number of specific contentions about matters relating to the child’s best interests that depend upon findings as to the family violence.
In addition to the provisions of sections 60CC(2)(b), 60CC (3)(f)(i)(j) and (m) which are referred to in Amador (supra) as matters which may be significantly impacted by findings that a party has assaulted another party[8] in these proceedings there are a number of specific contentions about matters relating to the child’s best interests that depend upon findings as to family violence.
[8] [2009] FACAFC at 94
First, it is the father’s contention that the mother has been non-compliant with orders requiring her to facilitate the child spending time with him and has deliberately frustrated his involvement in the child’s remedial dental work. It is the father’s contention that the only way to ensure that the child will receive the benefit of a relationship with him is for orders to be made in terms of his proposal. The expert’s opinion however is that if the court were to find that the mother was a victim of family violence then all of her behaviour following separation, in relation to the father is explicable.
The second issue relates to parental responsibility. The father seeks an order for equal shared parental responsibility and the mother seeks sole parental responsibility for the child. S61DA of the Act which is the starting point for a consideration of parental responsibility provides that 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. This presumption does not apply however if the court believes on reasonable grounds that a parent has engaged in family violence. In order to form such a belief it is necessary to weigh the evidence in relation to the mother’s allegations of family violence.
As to the issue of parental responsibility and the father’s application that the child move to live with him the expert opined:
If there is a finding that the family violence has been perpetrated by the father as alleged by the mother, then it would be inappropriate to consider joint parental responsibility, it would be inappropriate for there to be any consideration of transfer of primary residence to the father, and even the requirement that the – that the mother should ensure that the child have significant and substantive contact with the father under – under such circumstances…
and so the – as I – as I identified in my previous evidence, it [family violence] is a significant factor.
In other words a finding in relation to the mother’s allegations about family violence is of central importance to the issues of parental responsibility for the child and where the child is to live. For these reasons it is in my view necessary to make findings in relation to family violence.
According to the mother’s affidavit the father’s acts of physical violence towards her commenced when she was pregnant. She deposes generally to the father hitting her, punching her in the back and pushing her from behind during her pregnancy. She also deposes to a particular event during the fourth month of her pregnancy when the husband pushed her up against a wall in the course of an argument. The father does not give a version of any incident between he and the wife during her pregnancy, and this allegation was not challenged under cross-examination.
The next specific incident of physical violence set out in the mother’s affidavit [approximately October 2011] allegedly occurred when the child was about two weeks old and the maternal grandmother was staying with the parties. The mother deposes that the father was playing with the child in the hallway of their home holding him upright and appeared to be trying to make him walk on the floor. The mother said she told the father not to do that as it might injure the child but he ignored her and continued to do so. The mother deposes to taking the child from the father and holding him in her arms and says that the father jumped towards her, went red in the face and aggressively told her that she was not to tell him how to behave with his son.
According to the mother’s affidavit the father grabbed her by the hair and began to pull it hard. She deposes to being scared for the child and with her free hand pushing the father away but says that he would not let go. She says that as she pushed him away her [finger] nail accidentally scratched his face. At this stage the mother deposes that the maternal grandmother came into the room and started to cry.
Although the father denies all allegations of violence raised by the mother he does not set out a version of this incident in his affidavit.
Under cross-examination the father agreed that there was an occasion when he was playing with the child about two weeks after birth and holding him upright and that the mother told him not to do that or he may injure the child, that he ignored her and she took the child and held him in her arms. The father agreed that he jumped towards the mother and said words to the effect of “you don’t tell me how to behave with my son”.
Under cross-examination the father denied grabbing the mother by her hair and that she pushed him away and in doing so her nail scratched his face. He also denied that the maternal grandmother cried during the incident and that both the mother and maternal grandmother were crying after the incident.
The next specific incident deposed to by the mother allegedly occurred a couple of months later, in December 2011 when the child was about two months old. She says the child was lying on the bed and she was standing next to him and singing to him in her native language to which the father objected in a loud voice. The mother deposes to the father lunging at her and grabbing her around the neck with both hands. She says he pushed her violently to the wall and squeezed her neck hard. The mother deposes she was scared and screamed to the father to let go. She says that the father said aggressively “as long as you live under my roof you are never allowed to speak [Country N language] to my son” and that after a few seconds of squeezing her neck he walked away. The mother says that throughout this incident the child was lying on the bed next to them and that when the father grabbed her neck the child started screaming and did not stop until well after the father had left the room.
The father gives no version of this incident in his affidavit. When initially asked about it under cross-examination he said that there was nothing to remember. He then conceded that he could recall the mother singing to the child in her mother tongue but denied telling her not to do that and said he sang along with her. He denied lunging at the mother or dragging her, pushing her against the wall and squeezing her neck hard or that the mother screamed or asked him to let go. The father claimed to have a recording of the incident which was called for and produced but was not tendered by either party.
The mother also alleges that there was an incident in June 2012 when she and the father were in the kitchen of their home and she was planning to go shopping and take the child with her. The parties had an argument as the father wanted the mother to drop the child off to the paternal grandmother. The mother says that she saw an aggressive look come over the father’s face and that he walked towards her quickly and aggressively. She deposes to becoming scared and running towards the bedroom to escape from him. The mother says the father caught up with her and grabbed her hair from behind and pulled her head to the ground causing her to lose her balance and fall. She says that she landed on the ground facing upwards and that the father immediately sat on top of her directly on her breasts and leaned forward with an aggressive look on his face. She alleges that he grabbed her around the throat with both hands, squeezing hard while pinning her body between his legs. She deposes that the father shouted at her “ungrateful bitch. I saved you from poverty” and then spat in her face.
The mother deposes that she was still breastfeeding at the time and her breasts were sore and she complained about this and asked the father to get off her. She says she complained that she couldn’t breathe and that the father was squashing her. The mother deposes that the father got off her without saying anything and she just lay there for her for a while. She says that as a result of the incident she was covered in bruises and was very sore. She deposes that later that day she went to a doctor who recorded her injuries and that a day or two later she took photographs of her injuries some of which are annexed to her affidavit.
Although the father was later charged and pleaded guilty to an offence which was said to have occurred in July 2012 (according to the statement of facts tendered in the Local Court when he was sentenced) he does not depose in his affidavit to account of his conduct related to this charge.
The charge to which the father pleaded guilty is that he intimidated the mother with intent to cause her fear of physical or mental harm and the court records indicate that he was legally represented in those proceedings. Under cross-examination the father agreed that he had made verbal threats to harm the mother but could not remember the threatening words he used. He also agreed that he had intimidated her on this occasion but denied that he that he did so with intent to cause her to fear the infliction of physical or mental harm. He also agreed that the statement of facts formed the basis of his guilty plea.
The father was also asked about an ADVO issued for the protection of the mother on the same day that he pleaded guilty to the July (sic) 2012 offence. The application for the ADVO particularised a history of a number of incidents of serious violence consistent with the mother’s allegations. When it was suggested to the father that the matter to which he pleaded guilty was not the only instance of violence perpetrated by him towards the mother he said that he only “accepted” that they had arguments.
The mother also deposes to an incident in August 2012 when she says that the father shouted at her about an expensive phone bill and threatened that if she did not stop talking to her family overseas he would “cut the phone for good”. The mother deposes that the father grabbed at her dress and ripped it, that the child began to scream and neighbours on the balcony in clear sight were looking in her direction. The mother says that she continued to hold the child and with her other hand held up her dress so as not to expose herself and then went inside. The mother retained the damaged dress and some months later took photographs of it in its ripped condition one of which is attached to her affidavit.
The father does not refer to any incident between the parties at around this time in his affidavit.
The mother deposes to a further incident on 19 November 2012 when she says the parties engaged in an argument about attending the paternal grandparent’s home for a family meal. The mother deposes that she told the father she would not be going to the dinner as she was tired but that he could take the child with him to the meal. She says that the father’s face went red and that he jumped up and pulled her hair and pulled her onto the ground from behind. She says that the father dragged her down a step by her hair, that she fell on the ground between chairs and tried to stand but that the father stood over her and prevented her from getting up. She deposes that he grabbed her hair and shook her head by her hair and spat in her face yelling “ungrateful bitch who the fuck do you think you are”.
According to the mother throughout this entire incident the child was in his chair watching and screaming. The mother says that she told the father to stop, that the child was scared and that she would call police and that while still on the floor she managed to reach and get hold of the telephone which was nearby on the coffee table. She deposes that the father got up, pulled the lead of the phone from the power point and walked to the stove and tipped the child’s food into the sink and turned on the tap. The mother deposes that the father continued yelling at her and calling her names in a tone that was aggressive and obscene.
The mother deposes to getting up from the ground, taking the child from his seat walking to the front door and opening it. She says that she tried to say calming words to the father while standing just inside the open front door holding the child in her arms but the father came towards her and with one hand to her upper arm pushed her violently out the front door and told her “take your shit and get out of my house”. She says that the father slammed the front door shut in her face with his other hand and that she heard the door lock and was left standing outside the front door with the child in her arms. The mother deposes that it was raining lightly that she and the child were lightly dressed and were barefoot and that she did not have her mobile phone wallet or keys with her. She says that after attempting to obtain assistance from a neighbour about 20 minutes later she let herself into the home through the garage to the back door. She deposes to deciding to report the father to the police at the suggestion of a counsellor.
The father gives no account of any incident between himself and the mother at around this time.
The mother deposes to attending at a police station about a week later on 27 November 2012 and making a report about the father’s violence towards her. She says that at that stage she did not ask for police to obtain an ADVO on her behalf or charge the father but was seeking advice about a women’s refuge and wanted to ensure that there was a record of what had occurred. The mother deposes that on the same day she and the child left the father’s home and went to a women’s refuge.
The mother deposes that the following day she was contacted by a police domestic violence officer who requested that she make a formal complaint and provide a statement and advised her that the father had contacted police claiming that he was a victim. The mother then attended a police station that day and made a statement. She deposes that at the same time police made a provisional ADVO and the father was charged with one count of assault occasioning actual bodily harm, one count of assault and one count of stalking or intimidating her with intent to cause her fear of physical or mental harm.
Under the heading “Allegations of Violence” in his affidavit the father deposes to being served with the provisional ADVO on about 4 December 2012 and attending court in relation to it two days later. The father deposes to being shocked about receiving the application for ADVO and generally deposes that the mother’s departure from the family home was sudden and unexpected and followed a happy weekend as a family. Although the father deposes to being charged with an unspecified number of assault charges and intimidating the mother he does not set out any account of the events that he says related to those charges. He does not even identify the date of the incidents to which the charges related. The totality of his evidence in relation to the ADVO and the criminal charges relates to the court proceedings rather than his version of the events. His entire account of the allegations which form the basis of the three charges is as follows:
On 11 March 2013, both the Apprehended Violence Order and the assault charges were listed for final hearing. The matter was heard and I consented to a portion of facts of the Stalk and Intimidating on one occasion. The Magistrate made an order for a good behaviour bond for 2 years and a Final Apprehended Violence Order was made to be in place for 2 years and my son was removed from the AVO. There was no conviction recorded for the Stalk and Intimidation charge and the assault charges were dismissed and no conviction recorded. (sic)
It is far from clear in the father’s evidence how the charges relate to the allegations made by the mother. The matter is complicated by the respective Court Attendance Notices for the criminal charges each referring to offences on 27 November 2012 while the statement of facts in relation to the intimidation charge particularises that the offence occurred in July 2012. The court records confirm the father’s evidence that the intimidation charge was the only criminal charge that proceeded to finality. The other two charges of assault occasioning actual bodily harm and assault were withdrawn when the plea to the intimidation charge was entered.
It is apparent from the ADVO application that the mother reported to police a long history of violence consistent with her general and specific allegations in these proceedings including specific allegations that the father assaulted her in December 2011, in July 2012 causing her injury and on 19 November 2012. The application also makes clear, consistent with the mother’s evidence that none of these incidents were reported to police until 27 November 2012 which is the date appearing on each of the Court Attendance Notices.
Taking into account the contents of the statement of facts tendered to the Local Court, the grounds of the ADVO application, the mother’s police statement and the form of each of the charges brought against the father I am satisfied that the offence to which he entered a plea of guilty and was dealt with related to conduct which was particularised by police as having occurred in July 2012. I am unable however to determine positively whether the charges of assault occasioning actual bodily harm and assault (which were withdrawn) related to the father’s alleged conduct in December 2011, July 2012 or 19 November 2012. I am satisfied however, that although the respective court attendance notices for these offences each particularise the dates of those offences as 29 November 2012 this is an error on the face of those documents.
Discussion and findings
I am satisfied on the balance of probabilities taking into account the matters set out in section 140(2)(a)(c) of the Evidence Act 1995 (Cth) that the father assaulted the mother as she alleges in during her pregnancy in 2011, around October 2011, December 2011, June 2012, August 2012 and on 19 November 2012 for the following reasons.
It is worth noting at this stage that I do not make a general credit finding in relation to the parties and then accept or reject each party’s case on this basis. Rather, I approach the making of findings by looking to matters such as consistency of a particular version with undisputed facts, corroboration by other evidence that is independent and/or likely to be reliable, concessions made under cross-examination and internal consistency with each party’s case.
In this regard I note first that some allegations such as the assault upon the mother when she was pregnant were not specifically disputed in the father’s affidavit and were not challenged under cross-examination.
Next, some aspects of most of the specific incidents alleged by the mother are consistent with matters conceded by the father under cross-examination. These concessions themselves also include matters inconsistent with the father’s general position that nothing at all occurred between the parties on each occasion the mother alleges that he was violent.
For example, the second specific incident of physical violence is that the father grabbed the mother by the hair after an argument in relation to the manner in which he was playing with the two week old child. Although the father does not refer in his affidavit to this incident, it became apparent under cross-examination that he did have some recollection of an event along the lines of the mother’s allegation, while at all times maintaining his denial of having assaulted her.
Further, there is corroboration for the mother’s account of some incidents. Her version of the second incident is corroborated by the maternal grandmother who deposes also to an event occurring about two weeks after the birth of the child. The maternal grandmother deposes on this occasion to being in the bedroom and hearing the father screaming outside and that she went into the child’s room where she saw the mother with the child in her arms. It is the maternal grandmother’s evidence that as the father was screaming he was gesticulating with his arm and hand in a pointing motion and that the mother was shaking. She says that she observed the father grab the mother by the hair and pull it hard while the mother had the child in her arms and that he looked in her direction, appeared to see her and then let go of the mother. The maternal grandmother deposes that for the remainder of the evening the mother cried and she attempted to comfort her.
Under cross-examination it was put to the maternal grandmother that on no occasion did she see the father grab the mother’s hair and pull it hard but the maternal grandmother maintained that she had seen that. The maternal grandmother was not challenged under cross-examination otherwise in relation to this alleged incident.
It is submitted on behalf of the father that the maternal grandmother is an unreliable witness but this contention is based entirely upon inconsistencies in her evidence in relation to her capacity to speak English. The submissions did not address her specific evidence in relation to this incident.
I do not make a general finding that the maternal grandmother is an unreliable witness and I do attach some weight to her account concerning this incident as it is consistent not only with the mother’s evidence but some aspects of the father’s evidence in relation to the events that preceded the alleged assault.
Finally in relation to this incident I attach weight to the fact that the father’s counsel did not put to the mother under cross-examination any alternate version of events or challenge her version of events. Submissions made by the father’s counsel in relation to specific incidents of assault do not refer to this incident at all.
The father does not depose to any version of the occasion on which the mother alleges she was assaulted in December 2011. The mother deposes that the father lunged towards her, grabbed her around the neck, pushing her violently towards the wall and squeezing her neck hard in the presence of the child. As noted earlier when initially asked about this incident under cross-examination the father said that there was “nothing” to remember. He then conceded that he could recall the mother singing to the child in Country N which the mother deposed was the genesis of this incident.
Although the father denied all aspects of the December 2011 assault he claimed to have a recording of the incident and appeared to suggest that this recording was consistent with his version of this event. This recording was not played in the proceedings. I take from the father’s reference to this recording and his concessions under cross-examination that he does have a recollection of this incident. In circumstances where it has always been alleged by the mother that the father perpetrated a serious assault upon her in the course this incident it is in my view of significance that he did not set out a version of it in his affidavit and it was put to the mother under cross-examination only that the incident did not happen at all.
Under cross-examination the mother remained firm as to all aspects of the December 2011 alleged assault. She said that she was “more than sure” that there was bruising on her neck as a result.
In assessing the veracity of the mother’s account concerning this incident it is submitted on behalf of the father that it is relevant that she did not report the matters contemporaneously to a doctor or police and that she took no photos of injuries following the alleged assaults.
In my view no weight should be attached to the failure of the mother to have reported the incident to a doctor or police or to have taken photographs. As noted by the Full Court in Amador (supra) “the victims of domestic violence do not have to complain to the authorities or subject themselves to medical examinations, which may provide corroborative evidence of some fact, to have their evidence of assault accepted”. Further, it is not the case that the mother did not report this incident to police at all. One of the grounds in support of the application for the ADVO (made in November 2012) was that there was a history of violence in the relationship including this incident in December 2011. The details set out in the grounds for the ADVO application are in very similar terms to the mother’s affidavit. A witness statement given to police on 28 November 2012 in relation to this incident is also in consistent terms to the mother’s affidavit.
The next specific incident of violence according to the mother’s affidavit occurred in June 2012. Although the mother was challenged about the precise date she was not challenged about her assertion that an event occurred in June 2012. The mother was clear that it happened in June but could not remember precisely the date. She agreed that in the previous proceedings she had given evidence to the effect that the assault had occurred on 12 June 2012 but subsequently said this was not correct and that she may have agreed to that suggestion in the first proceedings due to her poor English at the time she gave evidence. There is no dispute that the mother was not assisted by an interpreter in the first proceedings and that this was one of the grounds in her successful appeal against the orders made in those proceedings.
Questions were asked of the mother about a statement in her affidavit that she went to see a doctor on the same day as the assault. She confirmed that it was possible that she had gone to the doctor on the same day but to her recollection she had seen the doctor three days after the assault. The mother was then cross-examined about her police statement (dated 28 November 2012) which referred to the incident as having occurred in July 2012. The mother said she told police that it occurred in June 2012 but as she did not have an interpreter the police were under the impression that she had said July.
Although the statement of facts tendered to the court upon the father’s sentence in respect of this offence is heavily redacted the only available inference is that it relates to the conduct alleged as having occurred in the course of the June 2012 assault.
It is in my view a matter of some significance that the father who was legally represented in the criminal proceedings pleaded guilty to intimidating the mother in this incident and in entering the plea of guilty must have accepted that there was evidence to the criminal standard of each of the elements of this offence. However, under cross-examination the father denied that he intimidated the mother with intent to cause her to fear physical or mental harm which is an element of the relevant offence. I am of the view that he is attempting in this court to minimise the seriousness of his conduct which formed the basis of his guilty plea that was accepted in another court.
It is also difficult to accept that even though this is the only criminal offence to which the father pleaded guilty and he agreed that the statement of facts in the Local Court accurately reflected that he had made verbal threats to harm the mother which had not been reported to police at the time (that they were made) he claims to be unable to remember the words used towards the mother when threatening her. It is also significant in my view that in proceedings where the issue of family violence has always been of central importance, the father does not depose in his affidavit to any account of his conduct which must as a matter of logic consist at least of intimidating the mother by walking towards her causing her to become scared and run away in accordance with the facts in the criminal proceedings. It is also noted that the Local Court facts are consistent with the mother’s allegation as to part of the incident and inconsistent with the father’s general denial of family violence.
So far as this event is concerned I am of the view that the mother’s detailed version which has been generally consistent when repeated on various occasions is more reliable than the vague and shifting version of events put forward by the father which is inconsistent with the account of the event which he accepted when dealt with by the Local Court.
Further, as the grounds set out in the ADVO application refer to allegations made by the mother consistent with her affidavit that she was assaulted by the father in December 2011, in July (sic) 2012 and on 19 November 2012 it is possible that the two other charges which were withdrawn related to these events. The father does not depose to any version of incidents on these dates. Although no further positive findings as to his conduct may be made from the fact that he was charged it seems unlikely in my view that he was charged with further offences in the absence of any evidence.
I also note and attach some weight to the fact that the additional charges were withdrawn at the same time that the father pleaded guilty to the single charge of intimidation rather than being dismissed as a result of any hearing on their merits. It is the mother’s unchallenged evidence that she was unhappy with the decision made by prosecutors to withdraw further charges upon the father’s plea of guilty and the making of an ADVO, and that she made a complaint to the police Local Area Commander about this decision.
So far as the details of the June 2012 incident are concerned, under cross-examination it was put to the mother that the father did not grab her hair and pull her to the ground, sit on her breasts, grab her around the throat, pin her body between his legs or spit on her. The mother remained firm that the father perpetrated all of these actions.
I attach significant weight in assessing the veracity of the mother’s allegation to the evidence of the general practitioner to whom the mother reported this alleged assault. This doctor deposes that on 12 June 2012 the mother attended at her practice and that she initially observed bruising to the mother’s cheek, upper arm and neck. When she asked the mother about it she was then shown additional bruising on her left buttock, right thigh and back which appeared to be fading. The doctor said that when she asked the mother how it had occurred the mother reported “my husband assaulted me around three days ago” or words to that effect.
The doctor’s notes record the following in respect to this attendance -
9/6/12 Assault – bruise L cheek, bruise R upper arm, bruise L buttock, R thigh [illegible] ? Ref Police, legal aid ref [Dr II]
The doctor also deposes to another occasion sometime between June to December 2012 when she observed bruising upon the mother. She deposes to forming the view on 12 November 2012 that the mother may be at some potential risk of suicide and prepared a risk assessment guide in relation to potential suicide which she annexes her affidavit. On 12 December the doctor referred the mother to a suicide prevention service for assessment and psychological counselling and annexed a copy of her referral. She also annexed a report from that service provider.
The doctor was subsequently shown a number of photographs and confirmed that each bruise or mark shown on the photographs is consistent with the injuries she observed on the mother at the time of her consultation on 12 June 2012.
It is submitted on behalf of the father that the doctor’s oral evidence amounts to a rejection of the matters contained in her affidavit as the effect of her oral testimony is that she had no independent recollection of the mother consulting with her, does not know the identity of the person in the photographs annexed to her affidavit and only assumed that the person who had assaulted the mother was the father.
I do not accept this summary of the effect of the doctor’s concessions under cross-examination. A careful examination of the transcript of her oral evidence reveals that although she initially agreed to having no independent recollection of a patient and could only rely upon her clinical notes she subsequently gave evidence of a number of matters that she specifically recalled about the mother’s presentation on 12 June 2012 which are not contained in her notes. She also said that the notes she made on that day recorded what she had been told and what she had observed and that the mother had nominated her husband (the father) as the person who had assaulted her.
In assessing the mother’s account of this event it is submitted on the father’s behalf that a record of injury to the mother’s neck is a significant absence from the doctor’s clinical notes. However the doctor did depose to seeing bruising on the mother’s neck in her affidavit. There were other specific matters that the doctor could recall about this consultation which were also not contained in her notes.
It is also submitted on behalf of the father that there is considerable uncertainty about the photographs which the mother took following this alleged assault which were later shown to the doctor. Weight is attached in this regard to the doctor’s concession that she could not identify the person depicted in the photographs which she was shown many months after the consultation with the mother. However, although the photographs annexed to the doctor’s affidavit are very poor copies it is apparent that they are the same photographs as those annexed to the mother’s affidavit which she deposes to taking a day or two after seeing the doctor.
Although the mother was cross-examined at length about the issue and did appear somewhat confused about the exact date upon which she took the photographs there was no doubt in the mother’s mind that these photographs depicted the injuries she says that she occasioned in this assault. It was not suggested to her that any person other than herself is depicted in the photographs or that they were taken at another time entirely. The photographs annexed to the mother’s affidavit show what appears to be bruising around her cheek, eye, forearm and other parts of her body which cannot clearly be identified. It was not suggested to the mother that the bruising shown in the photographs was unrelated to this incident.
In these circumstances I am satisfied that the photographs annexed to the mother’s affidavit which depict bruises on various parts of her body were taken shortly after she says she was assaulted and are the same photographs as shown to the doctor many months after the event.
Submissions made on behalf of the father in relation to this alleged incident also note that in the police statement made by the mother on 28 November 2012 she did not state that the father spat at her in the course of the incident and suggests that this omission is of significance.
The mother says in her affidavit and confirmed under cross-examination that the day she attended upon police they were trying to get the statement “too fast” and for that reason this detail was omitted.
While it is correct that there is no reference in the mother’s police statement to the father having spat at her on this occasion the balance of her police statement is very consistent with her version of events in these proceedings and consistent with that part of her version that the father accepted when he entered a plea of guilty to the intimidation charge arising from it. In these circumstances I am not of the view that the absence of one detail of that assault in her police statement of itself is a particularly weighty factor when considering the veracity of the totality of the mother’s account.
The next specific incident was alleged by the mother to have occurred in August 2012 when she deposes that the father grabbed at her dress and ripped it in the course of an argument about an expensive phone bill. The father does not refer to any incident between the parties at around this time in his affidavit and there was extremely limited cross-examination concerning it in which it was suggested only to the mother that the father did not rip her dress as alleged.
The next incident in which the mother alleges that the father was violent towards her allegedly occurred on 19 November 2012. The father does not give an account of any incident at about this time in his affidavit. It was put to the mother under cross-examination that the father did not pull her hair, pull her to the ground, drag her along the ground, grab her by the hair, shake her head by the hair and spit in her face but the mother remained firm that he had done these things. It was also suggested that the father did not push her out the front door but the mother confirmed that had happened. It was also generally put to the mother that nothing at all had happened on this occasion as she had suggested.
The mother’s account of this incident in her police statement of 28 November 2012 is broadly consistent with her affidavit though the affidavit is more detailed and includes some additional matters including that the father dragged her along the ground and spat in her face and swore at her.
According to the mother when she attended at a police station about a week after this last incident on 27 November 2012 she was not seeking that the police obtain an ADVO on her behalf or that the father be charged but was seeking advice about a women’s refuge and wanted to ensure that there was a record of the incident. She also deposes that the following day she was contacted by a domestic violence officer who requested that she make a formal complaint and provide a statement and also advised the mother that the father had contacted police and claimed that he was the victim. Documents produced on subpoena by the police which in my view are likely to be reliable are consistent with the mother’s evidence about the purpose for her attendance at police on 27 November 2012. It is also noted that in the mother’s first account to police on 27 November 2012 when she sought advice she alleged that in the recent event the father had dragged her across the floor by her hair.
In my view the mother’s doctor also provides evidence which corroborates the mother’s allegations of a further incident of violence at this time. As discussed earlier the mother’s doctor records that the mother consulted with her on 12 December 2012 and she formed the opinion that the mother was at risk of suicide and referred her to a local service. The referral details include the following:
Recent domestic violence episode results in police attendance and relocation to women’s refuge and AVO.
In making submissions as to the unreliability of the mother’s claims as to family violence the father’s counsel attaches significant weight to notes contained in the records of a parenting support program which the mother attended in October 2013 to obtain assistance in settling and weaning the child. In a “screening for domestic violence” document completed by a registered nurse a box designated “no” is ticked in answer to the following questions:
Q1. Within the last year have you been hit, slapped or hurt in other ways by your partner or ex-partner?
Q2. Are you frightened of your partner or ex-partner?
It is contended on behalf of the father that this information given in relation to family violence is inconsistent with the mother’s allegation that the final incident of violence occurred within the previous 12 month period, and for that reason casts doubt on all of her allegations as to family violence.
In my view very little weight should be attached to this record in determining the veracity of the mother’s account in relation to family violence. The date of the admission to the parenting service was around 11 months after the last of the violent incidents, and the document in question was completed by a person other than the mother. There is no indication that an interpreter was used. Further, there are other documents produced by the same service which indicate that the mother had presented as a victim of violence. In a “carer summary” document in relation to the admission generally directed to her general practitioner a “history of abuse” is identified on a psychosocial assessment, and in a postnatal risk questionnaire “yes” is indicated to the question “have you ever been abused sexually or physically”.
In summary, in making findings as to family violence I attach weight to the mother’s consistent accounts concerning a number of serious physical assaults upon her in October 2011, December 2011, June 2012 and November 2012 which she has maintained since first seeking assistance from police in November 2012. Although there are some inconsistencies between her account to police and her affidavit and some inconsistencies particularly as to dates which were revealed under cross-examination in general the accounts have remained very consistent. It is also significant in my view and a matter to which I attach weight that her accounts of each of the incidents are rich in detail whereas the father provides no version at all of any of the alleged incidents including an occasion which resulted in him pleading guilty to an offence. This event clearly related to the mother’s allegations of an instance of serious violence in June 2012. It became apparent under cross-examination that the father did have some memory of each of the incidents and according to his memory he did nothing untoward or in the case of the last incident in November 2012 even may have put himself forward to police as a victim. In these circumstances where he provides no explanation for his failure to provide an account of each event in his affidavit I consider that the more reliable account is that given by the mother, to which she has remained firm in all its rich details after testing in two proceedings. I also attach weight to corroboration by the maternal grandmother of the mother’s version of the incident in about October 2011 and the mother’s contemporaneous complaints of assault by the father to a doctor who observed bruising to various parts of her body in June 2012. The doctor also recorded that the mother consulted her in December 2012 and reported a further recent incident of domestic violence which had led to police intervention and the mother relocating to a refuge consistent with her account and police records. For the reasons given I attach little weight in making these findings to the factors identified as relevant in submissions made on behalf of the father such as a general credit finding, the records of the parenting support program, alleged deficiencies in the evidence of the mother’s doctor and inconsistencies said to be of significance in the mother’s account.
For the foregoing reasons I am satisfied that the father committed assaults upon the mother as she alleges in 2011 when she was pregnant, October 2011, December 2011, June 2012, August 2012 and November 2012.
Has the mother neglected the child’s medical and dental care?
It is the father’s case that the mother’s conduct in relation to the child’s dental health amounts to neglect and for this reason he proposes that he have sole parental responsibility in regards to the child’s dental health. Counsel for the ICL also submits that the court should have little confidence in the mother’s capacity to attend to the child’s dental health and as such proposes that the parties share parental responsibility.
The parties have a history of dispute surrounding the child’s dental treatment and to a lesser degree medical treatment. At least from the time that the family were seen by a family consultant in March 2014 the father had expressed concerns about the mother’s capacity to ensure that the child’s medical needs and dental needs were appropriately met. He spoke to the family consultant in particular about the child having tooth decay at that stage when the child was then two and a half.
In March 2014 during a supervised visit with the child the father deposes to noticing a small pimple-like bump near the child’s anus. Upon taking the child to a doctor in the course of his time with the child the father was given a script for a haemorrhoid cream which he provided to the mother together with a note from the doctor giving instructions on how to apply it. The mother then took the child to a different GP who examined the child and said that he did not have a bump near his anus and was otherwise well apart from a slightly raised temperature.
When seen by the family consultant a short time later the father described the child as suffering from an “abscess on his anus” which he claimed had also been observed by the supervisor. The father told the family consultant at this stage however that he had no other health concerns for the child.
In August 2014 the father noticed that one of the child’s teeth was broken and that it was decaying. He informed the mother of this through her solicitors. In September 2014 the mother took the child to a paediatric dentist (“the paediatric dentist”) who recorded that the child had multiple decayed primary teeth with a range of decay from moderate to large carious lesions. There is no evidence however to suggest the cause for this decay or that the existence of it indicates neglect by the mother or anything else adverse against her in this regard. The paediatric dentist recommended that treatment would require restorations and some extractions to be undertaken under general anaesthetic.
Letters from the paediatric dentist, other dentist’s records and correspondence interchanged between the lawyers indicate that the mother postponed the treatment under general anaesthetic and questioned the advisability of the same. Some of the letters from the mother’s solicitor at this time also indicate that the mother was concerned about the general anaesthetic for the child “in circumstances where the dental treatment relates to first teeth which will fall out of their own accord in any event”.
Although it appears that the mother subsequently agreed to the treatment being carried out on the child under general anaesthetic this had not occurred prior to the first proceedings and the issue of the child’s dental treatment was a live one in those proceedings also.
During the period when the trial judge’s Judgment in the first proceedings was reserved the mother took the child to see a dentist (“the mother’s chosen dentist”) on five occasions.
I expect that the trial judge in the first proceedings had hoped that the issue of the child’s dental treatment had been resolved by the March 2015 orders, one of which required the mother to attend on a specified practice (at which the paediatric dentist worked) no later than one month from the date of the orders and that the father be notified of the same so that he could attend if necessary.
Records of the practice that the mother was required to utilise under the March 2015 orders indicate that on 17 April 2015 she requested an appointment for the child and that the earliest available appointment being 11 May 2015 was booked. The mother then presented in person at the surgery on 20 April and informed a person who appears to have been the practice manager that the child required a review within a 30 day timeframe ending on 26 April 2015 “as requested by the court” but the practice was unable to accommodate an appointment any earlier than 11 May 2015.
The mother also took the child to see the mother’s chosen dentist on a number of occasions from April to early May 2015 (after the March 2015 orders were made).
Records of the paediatric dentist (nominated in the March 2015 orders) indicate that on 11 May 2015 the child attended with his mother and father with request by his father to assess the state of the child’s dentition. This dentist was informed that the child had undergone dental treatment by the mother’s chosen dentist “on the chair” (that is without a general anaesthetic). The records indicate that following a quick look in the child’s mouth the paediatric dentist noticed that several restorations had been carried out including stainless steel crowns. This dentist sought a report from the treating dentist in relation to this treatment.
The mother continued to take the child to her chosen dentist for further treatment which was completed on 29 May 2015. When the paediatric dentist saw the child again on 6 June 2015 he was of the view that all treatments had been completed.
The mother continued however to take the child to her chosen dentist. At around this time the child also was experiencing difficulties with his adenoids and the father asserted that the child had bad breath. In this context the mother requested that her chosen dentist remove crowns which had been placed on two of the child’s primary molars to rule out the possibility of these crowns being the cause of the bad breath which was then being investigated.
The parties and the child attended upon the paediatric dentist again in August 2015 and that dentist observed that the two crowns had been removed.
The paediatric dentist recommended in September 2015 that these crowns be replaced as a matter of urgency but was unwilling to treat the child himself under local anaesthetic as the mother’s chosen dentist had done. The paediatric dentist wrote in this regard in a letter dated 8 September 2015:
I will need to arrange a short general anaesthetic (GA) in a day surgery setting for this. [The mother] is very worried and concerned about putting her child under GA which is one of the reasons for her view to seek treatment for her son with [the mother’s chosen dentist].
I do respect and empathise with her views on this and am currently in no position to say that one [mode of treatment] is better than the other (emphasis added)
Of significance the paediatric dentist also recommended that these treatments be completed without any further delay so that the child “be spared of these frequent visits to dental clinics” in order to “ensure that he will have good memories of his dental treatments and will prevent him from coming a dental phobic in the years to come”.
An appointment was made for the child to undergo the required dental procedure, to be performed under general anaesthetic. The mother confirmed during cross-examination that at this stage she still did not want the procedure to be performed under general anaesthetic and wanted it to be delayed until the child was old enough to have it under local anaesthetic instead.
On 13 November 2015 the parties and the child attended upon a paediatrician who assessed the child and made a recommendation that given that he had been diagnosed with adenoidal hypertrophy a general anaesthetic (for the dental procedure) could pose an increased risk.
It appears to be common ground that the child’s dental procedure was scheduled to be performed on 19 November 2015. The father alleges that he and a nurse witnessed the mother giving the child water while in the waiting room despite the parents being instructed not to give the child solid food or liquids in the lead up to the procedure. The father deposes that when the paediatric dentist asked the mother whether she had given the child water, she said that she hadn’t, she had only been wetting his lips. The procedure was not performed on that day.
There is no report from the paediatric dentist or elsewhere to support the father’s claims about the reason that the surgery was not performed when scheduled. However the mother informed the expert when she saw him on the second occasion that she had provided the child with water (on the operation day). There are also hospital documents in which the date of admission is recorded as 19 November 2015 and other documents which indicate that the procedure was ultimately performed in December 2015. Accordingly I am satisfied that the surgery was postponed for the reason contended for by the father.
The father also contends that the mother failed on occasions to attend appropriately to the child’s medical needs, that she has consistently failed to inform him about advice and treatment given for medical issues and that her conduct at various medical appointments has been inappropriate and unhelpful to the child. His affidavit and annexures contain a long history of correspondence between the parent’s respective lawyers and notes in the communication book that passed between the parents reflecting these complaints from around the time that the father first started spending regular time with the child. The father’s affidavit is replete with extensive assertions concerning a range of health conditions from which the child allegedly suffered and numerous appointments with a range of doctors.
Although the father does not raise any matters of concern after January 2016 relating to the mother’s conduct in relation to medical matters in his affidavit he continued to raise health concerns with the expert when he attended upon him for a second time in 2017. In this regard the expert observed:
[The father] could not accept that the child was receiving adequate care by the mother. This was identified as a psychological reaction to her rejection of him and exclusion from involvement in the child’s life. This was also a function of his [Country HH] culture/heritage, with overprotective attitudes to child health commonplace. That said, his excessive focus on such matters was not within the normal range (emphasis added) and created problems for the child’s care.
Although on some occasions over the many years that the child has spent time with the father the mother has not made the child available due to illness it is generally her position that there are no particular concerns about the child’s health and those that he has experienced she has appropriately managed.
There is no expert or medical evidence to suggest that the child has suffered from any particular serious medical condition or has any regular problems with ill health or that the mother has not adequately obtained appropriate treatment for him. There is however a great deal of evidence that the child has been presented to a number of doctors and some dentists over the last four years particularly by the father and a great deal of correspondence between the parties is concerned with the father’s complaints about the mother’s conduct in relation to the child’s health care. It is also apparent that the parents have a great deal of difficulty communicating with one another directly about these issues and prefer to use their legal representatives for the many disputes between them concerning dental and medical matters. Both parents also appear generally to attend together at medical and dental appointments and both of them are on occasions accompanied by other family members.
Discussion and findings
For the following reasons I am not satisfied that the mother has demonstrated a general pattern of neglect of the child’s dental and medical health since separation or failed to arrange for the child to receive appropriate dental care.
First, there is no expert evidence concerning the cause of dental caries from mid-2014 or to suggest it was due to neglect on the mother’s part even though this decay is described as quite significant. Further, although the mother’s attitude toward treatment initially raises concern (such as the letter from her lawyer stating that it was the mother’s view that as the decay was in primary teeth they would simply fall out over time and did not require treatment) from at least early 2015 she had agreed to the child receiving treatment for the decay.
I am satisfied that when the mother took the child for treatment “on the chair” or under local rather than general anaesthetic in February to March 2015 she was aware that this was not the father’s preferred mode of treatment for the child. However, having the treatment performed by a dentist of her choosing was not contrary to the orders of March 2015 as they had not at that stage been delivered. There is also no suggestion that the treatment itself was inadequate or substandard and the paediatric dentist confirmed that expert opinion varies in this regard.
Although the mother was required pursuant to the March 2015 orders to make an appointment at a nominated paediatric dental practice within a month of the date of delivery of those orders this was unable to be accommodated by that dental practice. I am satisfied that she was reasonably prompt in attempting to arrange this appointment and did inform the practice of the requirement under the orders.
In these circumstances in my view it was somewhat unreasonable and probably in contravention of the March 2015 orders for the mother to have continued to obtain further treatment for the child from her chosen dentist rather than wait for an appointment to become available at the paediatric dentist practice nominated in the orders. I am satisfied that she did so in an attempt to ensure that the child received the treatment under local anaesthetic rather that general anaesthetic which was her preferred option. This action does not however amount to neglect or a failure to obtain appropriate treatment for the child.
I am satisfied that in requesting her chosen dentist remove two of the crowns that he had affixed to the child’s molars shortly before the mother was attempting to determine whether the child had received some reaction from these crowns. There is no evidence to suggest that it was unreasonable for her to have done so especially in circumstances where the father himself was questioning the appropriateness of these crowns having been affixed and had raised the issue of the child’s bad breath.
I am also unable to find that the mother’s general resistance to the child receiving treatment under general anaesthetic indicates neglect or inappropriate treatment. The parents consulted with a specialist paediatrician in relation to the child’s adenoids in November 2015 and the paediatrician supported the mother’s view that there were increased risks associated with a general anaesthetic for a child with enlarged adenoids and that there was no reason why the dental treatment could not be completed under local anaesthetic.
The expert did not agree with the underlying contention of the father that the mother had deliberately set about to undermine the relationship between the child and the father. The expert was rather firmly of the view that if the court found her allegations with respect to violence to be proven that this would provide an explanation for all of her subsequent behaviour and attitude towards the father.
The expert did not accept the proposition that the mother had coped well within the structure of the March 2015 orders and agreed that her behaviour in relation to the May 2018 incident was a continued example of her not coping. He did accept that alternatively the mother’s conduct in relation to this incident may possibly have been an example of her seizing upon a proposition that she thought might be advantageous to her case. When asked about the way in which the mother had interpreted the evidence of matters observed by others such as police officers and having agreed that one explanation would be that the mother is lying the expert also suggested that the other possibility is that the mother was in a heightened state of arousal and was experiencing distress which may manifest itself in a poor recollection of what was said due to “that abnormal mental state”.
The mother’s treating psychiatrist provided a report in the proceedings in which he expresses the opinion that the mother has major depression which in his opinion was caused by the father’s conduct during the marriage. In the expert’s opinion the condition has continued since separation because the mother has been obliged to remain living in Australia and has continued to feel intimidated and frightened of the father and is fearful of the father and of the effect of his various behaviours on the child. He describes her as continuing to feel “fearful, alone, isolated and overwhelmed”. In relation to treatment the mother’s psychiatrist says that the mother’s condition improves when the maternal grandmother or grandfather come to visit from Country N but their presence has not improved her depression. He is of the view that the only effective treatment would be relocation with the child to a place where she has ongoing support of family and friends, the opportunity to work, appropriate care for her child and the absence of any threat of violence from the father. The expert is of the opinion that the only place that this could occur is Country N.
The mother’s psychiatrist also expresses the view that the mother’s prognosis will depend on whether she is able to relocate. He opines in his report that if the mother and child are required to remain living in Australia that her prognosis is very poor and in the event that the maternal grandparents are obliged to return to Country N she is likely to become more depressed which may require admission to hospital. As previously noted there is no reliable evidence about the likelihood that the maternal grandparents will be permitted to remain in Australia for lengthy periods in the future as has occurred in the past.
Under cross-examination the mother’s psychiatrist remained firm in his diagnosis that the mother had a depressed mood though he conceded that at times she was less depressed. He said that the only time he could confidently say that she was not depressed was when her entire family were visiting from overseas.
The expert agreed with the opinion of the mother’s treating psychiatrist that the mother has experienced chronic symptoms of depression in the context of her being forced to remain in Australia with her child though as previously indicated he did not agree with the assessment of the mother’s psychiatrist that she may become suicidal if forced further to remain in Australia. Although he did concede under extensive cross-examination that some features of the mother’s depression and her mental state generally were not typical in the presentation he could not and did not dispute the actual diagnosis.
Maturity, sex, lifestyle and background (including culture and traditions) of the child and either parent
As set out earlier in this judgment the mother grew up in Country N and the father is of Country HH heritage but grew up on Australia. The parties met online and formed a relationship and subsequently married within a very short time.
Both parents describe an idealised and in my view somewhat immature view of their relationship, marriage and expected future when the relationship began.
The parties’ only child was born early in their marriage relationship and difficulties were experienced including cultural differences relating to expectations within a family.
Following separation for some time the child lived exclusively with his mother and spent little time with his father. The mother ensured the child’s connection to his Country N heritage through speaking exclusively in the Country N language with him and through extensive and regular contact with her extended maternal family. The culture and traditions of the child’s Country HH heritage which were denied to the child initially following separation have been developed in the course of his time with his father and extended paternal family.
The mother is Country N Orthodox and the traditions of that faith are practised by her and the child when he is with her. The father is Country HH Orthodox. There is no evidence before the court about any relevant differences between these Orthodox Christian traditions and the father told the family consultant when interviewed for the family report that there were no clashes in ideology or religious occasions.
Having regard to these factors considering the respective proposals of the parents it can be observed that if orders were made as proposed by the mother the child would lose those aspects of his Country HH culture and traditions other than the Orthodox Christian traditions which appear to be reasonably similar to the Country N Orthodox traditions.
The orders proposed by either the father or the ICL have the advantage of ensuring that the child will continue to receive the benefit of the culture and traditions of both of his parents. In addition as acknowledged in particular by the mother the child has received the benefit of Australia traditions and culture which would also be lost in the event that the orders were made as sought by her but would be maintained if the child were to continue to live in Australia.
Attitude to the child and responsibilities of parenthood demonstrated by each parent
Subject to the some specific issues to which I return I accept and agree with the observation of the expert that both parents express a loving and committed attitude to the child and to the responsibilities of parenthood. In many regards each parent has prioritised the child’s needs and he is generally progressing well despite his challenging family circumstances.
The most significant exception to the father’s otherwise impressive attitude toward the responsibilities of parenthood relates to his perpetration of family violence. It is difficult to imagine a more serious abrogation of parental responsibility than perpetrating appalling family violence against the mother of one’s child and exposing that child to such violence in his own home.
I also accept the opinion of the expert that the mother’s attitude towards the responsibilities of parenthood (that she support the child’s relationship with the father) has been challenging for her given her exposure to family violence. I also note however that the father agreed in the course of the proceedings that in a general sense the mother has complied with the court orders with respect to his time and there is no doubt that the child has developed an excellent relationship with him and the extended paternal family.
Significant emphasis is placed by the ICL and the father in their respective submissions upon the mother’s attitude toward the child maintaining a meaningful relationship with his father.
The ICL approached this matter in written submissions by reference to 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) a matter which has not been a mandatory consideration for many years. I approach this issue as one of the attitude to the responsibilities of parenthood and as a relevant fact or circumstance under s 60CC(3)(m). Although the ICL does not go so far as to propose orders that would see the child move to live with the father to ensure that such a relationship be maintained the ICL submits that the court could make such orders on this basis. The father seeks orders that the child move to live with him on this basis.
In my view given the mother’s experience with family violence she has done reasonably well to cope with orders that see the child spend regular time with and develop a good relationship with her former husband who harmed her in such a serious manner. I accept the evidence of the expert that all of her behaviour is explicable on the basis that she has been the victim of such serious family violence perpetrated by the father and for this reason do not attach such significant weight to this matter in these circumstances as sought by the ICL and the father.
In my view the mother’s steadfast intention of remaining in Australia if orders are made as proposed by the father (even though she is likely to decompensate and find such a situation intolerable) manifests an impressive attitude towards both the child and the responsibilities of parenthood. This is to be contrasted, with the attitude of the father and the way in which he approached the proceedings with a firm stance that he would not exercise time with the child in any country other than Australia should the mother be permitted to relocate overseas.
Family violence
Family violence is a matter of central significance in these proceedings and has been dealt with at length in this judgment.
The only relevant family violence order that was made relation to the parties expired in 2015.
The father all but ignores family violence in his affidavit and submissions made on his behalf were to the effect that the court need not make any findings in relation to this issue. This is matter of some significance in my view given that the tenor of each of the expert’s reports is to the effect that family violence is a significant matter and he firmly opined that if found proved explains the mother’s behaviour and her attitude towards the father and the ongoing relationship between he and the child.
In this context it is also of concern in my view that at least one member of the extended paternal family, (the paternal grandfather) demonstrated a concerning attitude towards family violence alleged against the father in these proceedings. The paternal grandfather when cross-examined could not countenance the possibility that his son had perpetrated family violence against the mother and was not aware and did not seem concerned that the father had pleaded guilty to an offence of family violence and had been charged with two other counts of assaulting the mother. He could only offer the suggestion that the mother was motivated by revenge in making false allegations of family violence.
If the mother were to remain in Australia she would be required to contend in effect with the paternal extended family, one member of which (at least) holds the attitude of blaming her as the victim for falsely reporting violence and has no insight into the father’s conduct and the impact it has had on the mother and the child who was exposed to it. This in my view is a heavy burden that the mother would be required to bear for many years if orders were made as sought by the ICL and the father. It is also not to the child’s benefit for the harm he has experienced not to be acknowledged, and raises the risk to him as future violence may not be recognised in the paternal family if it were to occur.
Whether it would be preferable to make an order least likely to lead to the institution of further proceedings in relation to the child
In my view both the proposal of the ICL and the father would be more likely to lead to the institution of further proceedings in relation to the child than the proposal of the mother. It is likely, in my view, given the evidence of the expert and the mother’s treating psychiatrist that the mother would completely emotionally decompensate if the child were moved to live with the father and she would also likely struggle if she were required to remain living in Australia even if the child were with her. It is likely in this context that she will be challenged in making the child available to the father from time to time due to her perception about the child’s safety in the father’s care which may lead to contravention proceedings.
Although it would be most unfortunate for the child to be deprived of the opportunity of an ongoing relationship with his father under the mother’s proposed orders it is common ground between the parties and the ICL that if such orders are made this relationship will come to an end. It is unlikely in my view if he mother does not comply with any of the orders she proposes in relation to the father’s time that contravention proceedings will be brought. Under the ICL’s proposal (if the mother were permitted to relocate) there would be no further orders made and thus no possibility for contravention proceedings.
Given that the dispute in relation to the child’s parenting arrangements has been ongoing for most of the child’s life some weight must be attached to this factor.
Any other relevant fact or circumstance
As previously noted there has been a perpetual and ongoing dispute between the parties in relation to the child’s name which I have dealt with earlier in this judgment. I have found that the child was generally referred to as BA by both parents and extended family members up until the first proceedings and at some point thereafter he was regularly known as F in the mother’s household and B by the paternal family.
Having made these findings I now have regard to the opinion of the expert in relation to the use of the child’s name in each household. In his first report the expert expressed the following view in relation to the child being known by a different name in each household:
While it would be beneficial for the child to be referred to in a consistent manner by a single name, it would be possible for him to be generally known by either name and still referred to by his nickname in a family context. Thus should it be held by the court that the mother maintain primary care of the child, I would support her continued use of the name [F], given her strong conviction regarding this. I do not regard the father’s [then] use of the name [BA] to be problematic. While it could be argued that it would be in the child’s best interests to be consistently referred to by a single name the position taken by the parents may not allow this to occur.
When seen by the expert for the purposes of the second report the child informed the expert that his name was F and when asked if he had another name he identified Soulos and denied that he had any other names.
The expert did not express any further opinion in relation to the use of different names for the child in each of the parent’s households as he had done in his first report.
Although there was much cross-examination in relation to the parent’s respective positions about the child’s name and what this indicated in relation to each of them and their attitude to the other, the expert was not challenged about the opinion expressed in his first report.
As this evidence was not challenged and for the reasons previously given in relation to the expert’s evidence generally, I accept the expert’s opinion and do not regard it as a particularly weighty factor in relation to the child’s best interests that he is known by different names by each parent.
Conclusion – Final Orders
Parental responsibility
Unless the Court makes an order changing the statutory conferral of joint parental responsibility, s 61C(1) of the Act provides that each of the parents of a child has parental responsibility for the child.
Section 61B defines “parental responsibility” as “all the duties, powers, responsibilities and authority which, by law parents have in relation to children”.
In Goode & Goode[14] the Full Court held that there is a difference between parental responsibility which exists as a result of s 61C of the Act and an order for shared parental responsibility, which has the effect set out in s 65DAC of the Act. The Court held that in the former, as there is no Court order in effect, the parties will exercise the responsibility either independently or jointly. On the other hand, once the Court has made an order allocating parental responsibility between two or more people, including an order for equal shared responsibility, the major decisions for long-term care and welfare of children must be made jointly, unless the Court provides otherwise.
[14] (2006) FLC 93-286
Where the Court is to determine parental responsibility, the starting point is s61DA. This section provides that 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. The presumption does not apply if there are reasonable grounds to believe that a parent or person who lives with a parent has engaged in abuse of the child, or another child, or family violence (subsection 61DA(2)), or may be rebutted by evidence satisfying the Court that it would not be in the child’s best interest for the parents to have equal shared parental responsibility for them (subsection 61DA(4)).
Although having found that the father engaged in family violence the presumption does not apply, the father seeks and the ICL supports an order for equal shared parental responsibility. Accordingly I must considered whether such an order would be in the best interests of the child.
The mother seeks an order for sole parental responsibility for the child. The expression “sole parental responsibility” is not defined in the Act. Having regard to the definition of parental responsibility in s 61B, the order sought by the mother must mean that she would have all the duties, powers, responsibilities and authority which, by law parents have in relation to their child and that the father would have none of the duties, powers, responsibilities and authority with respect to the child.
When considering parental responsibility I attach particular weight to the history of the parents exercising joint equal shared parental responsibility since the March 2015 orders. This arrangement has been particularly problematic as it has operated in relation to decisions concerning the child’s health and dental care and in my view not in the best interests of the child. The father submits that for this reason he should have sole parental responsibility for these matters and the ICL for the same reason promotes a continuation of equal shared parental responsibility. The expert on the basis of the evidence concerning the same matter is firmly of the view that the mother should exercise sole parental responsibility in relation to all matters.
As I propose making an order that the child live with the mother and that she be permitted to relocate to Country N with the child an order of sole parental responsibility is the only order that is appropriate and in the child’s best interest.
Relocation to Country N
The mother’s proposal that she be permitted to return with the child to Country N is clearly a profoundly significant proposal for the child. As a result of matters for which both parents are responsible such an arrangement will bring about an end to the child’s relationship with his father. The past attitude and actions of the mother make it clear that she has real challenges in promoting the child’s relationship with his father and in circumstances where the child will not experience the day to day care and continuance of the relationship with his father, over time that relationship will undoubtedly becoming attenuated.
As neither party adduced any evidence in relation to whether Country N has an enacted domestic law for the registration or enforcement of foreign orders under the Child Protection Convention any orders that I make with respect to communication between the child and the father and the child spending time with the father must be regarded for all practical purposes as unenforceable.
Given that the father has taken the firm position that he will not take up the opportunity to spend any time with the child in the future in Country N the only opportunity for the child to spend time with the father under the orders proposed by the mother will be for an unknown period in Australia each alternate year. As she also does not seek orders that would provide for a mechanism to implement the orders for the father’s time with the child in Australia there can be no expectation that it will occur. Given the difficulties that have been experienced by the father maintaining communication with the child by electronic means in Australia for which there was ultimately no explanation there can also be no realistic expectation that such communication between the child living in Country N and his father in Australia will occur in the future notwithstanding any order that may be made in this regard.
A central contention put forth by the father and the ICL which I have not accepted is that the mother’s challenges in facilitating the child’s relationship with the father have been deliberate and display an unwillingness to support the relationship. I do not find that the mother’s conduct necessarily demonstrates such an unwillingness and prefer the evidence of the expert to the effect that her conduct and attitude is entirely explicable having regard to her experience of violence at the hands of the father.
As is clear from the foregoing discussion I regard the father’s violence against the mother as a matter of great significance in determining the parenting arrangement that is in the best interests of this child. For the reasons given I am of the view that the child has experienced psychological harm from being exposed to family violence perpetrated by the father which also amounts to emotional abuse of the child. There is some risk that the child may be exposed to violence in the father’s care in the future and there is a need to protect the child from harm on this basis. Further the child’s exposure to violence as an infant is likely to have affected the nature of his attachment to his mother which is described as “insecure”.
The mother does lack the capacity to support the child’s relationship with his father and is over protective. Her anxiety and depressed mood has impacted upon her capacity to provide a secure environment for the child who has experienced anxiety in relation to his mother’s experience. These aspects of the mother’s capacity to provide for the child’s needs have developed in the context of violence perpetrated by the father against her to which the child was exposed.
The other matter to which I attach particular significance is the nature of the child’s relationship with his mother and the impact upon him if orders are made as proposed by the father or ICL. While it is the position of the ICL that for this reason the child should remain living with the mother the ICL also proposes that the mother not be permitted to relocate the child’s residence to Country N.
The ICL and father place weight on the significant benefit the child receives from his relationship with his father and the loss he would experience if that relationship were brought to an end. While the expert did not recommend a parenting arrangement that would result in the relationship between the child and his father coming to an end he is of the view that a very important aspect of the child’s response to any future parenting arrangement is dependent upon the mother’s mental state. It is the expert’s view to which I attach weight that the findings of family violence consistent with the mother’s account means that not only sharing parental responsibility with the father is problematic but there would be real difficulty for the mother in managing her stress if the child were to spend significant time with the father.
Even though there is no doubt in my view that the child will experience a real loss with the cessation of his important relationships with his father and entire paternal family including his only sibling the benefits to the child in remaining in Australia are outweighed in my assessment by the risks to the child in such an arrangement.
Taking all of the foregoing into account I am of the view that the mother should be permitted to relocate with the child to Country N and an order be made that she hold sole parental responsibility for the child and that the child live with her.
As previously discussed at some length there are many difficulties involved with the mother’s proposal for the child’s relationship with the father to be fostered through orders when they move to Country N. There is no evidence about holidays or enforceability of the orders in Country N. I have found that when the mother relocates the father’s relationship with the child will come to an end.
In these circumstances where the child’s habitual residence will change to Country N the ICL submits that it would be appropriate that I make no further orders.
Neither the father nor the mother responded to the ICL’s submission that here be no further orders in these circumstances. Given that the father accepts that upon relocation he will have no relationship with the child and he approached the proceedings on this basis. I am satisfied that it would be in the child’s best interests for no further orders to be made.
For the foregoing reasons I make the orders set out in the forefront of this judgment.
I certify that the preceding three hundred and eighty-four (384) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Hannam delivered on 21 December 2018.
Associate:
Date: 21 December 2018
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