Soulos & Sorbo
[2015] FamCA 196
•26 March 2015
FAMILY COURT OF AUSTRALIA
| SOULOS & SORBO | [2015] FamCA 196 |
| FAMILY LAW – CHILDREN – RELOCATION – where the mother seeks to relocate to Country N – child aged 3 at trial – where the father refuses to travel to Country N or Europe – where there was family violence – where the child has a developing relationship with the father – where the mother calls the child by another name – where the father has concerns for the child in the mother’s care – where the mother seeks sole parental responsibility – where competing residence applications – where the father seeks sole parental responsibility – where no unacceptable risk to the child in the father’s care – if the mother were to relocate the child would not have a relationship with the father – where the mother is not permitted to relocate – where child to remain in primary care of mother – where child’s time with father to develop gradually. FAMILY LAW – CHILDREN – CHILD’S NAME – where the mother commenced calling the child by a different first name – where at the child’s birth the father rejected calling the child by that name or as an additional first name – where the single expert was of the opinion to add the name as an additional first name – consideration of general principles - order made for the name to be added as an additional first name. | |
| Family Law Act 1975 (Cth) ss 4AB, 60B, 60CA, 60CC, 61DA, 65DAA | |
| AMS and AIF (1999) 199 CLR 160 B and B: Family Law Reform Act 1995 (1997) 21 Fam LR 676, (1997) FLC 92-755 Chapman & Palmer (1978) FLC 92-510 Elkin and Cheney [2008] FMCAfam 1361 Flanagan & Handcock [2000] FamCA 150 Johnson and Page [2007] FamCA 1235 Lansa & Clovelly [2010] FamCA 80 Malcolm & Monroe and Anor (2011) FLC 93-460 Mazorski v Albright[2007] FamCA 520 McCall & Clark (2009) FLC 93-405, (2009) 41 Fam LR 483 Morgan & Miles (2008) 38 Fam LR 275, (2007) FLC 93-343 Muldoon & Carlyle (2012) FLC 93-513 Sawant & Karanth [2014] FamCAFC 235 Sayer & Radcliffe and Anor (2013) 48 Fam LR 298 Starr & Duggan [2009] FamCAFC 115 Taylor & Barker (2007) 37 Fam LR 461 |
| APPLICANT: | Mr Soulos |
| RESPONDENT: | Ms Sorbo |
| INDEPENDENT CHILDREN’S LAWYER: | Robertson Solicitors |
| FILE NUMBER: | PAC | 5406 | of | 2012 |
| DATE DELIVERED: | 26 March 2015 |
| PLACE DELIVERED: | Parramatta |
| PLACE HEARD: | Parramatta |
| JUDGMENT OF: | Foster J |
| HEARING DATE: | 9, 10, 11, 12, 13 and 18 February 2015 |
REPRESENTATION
| COUNSEL FOR THE APPLICANT: | Mr Schonell SC |
| SOLICITOR FOR THE APPLICANT: | Thurlow Fisher Lawyers & Consultants |
| 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
Parental responsibility
That the mother and father have equal shared parental responsibility for the child B born on … 2011 (“the child”).
Live with
That the child live with the mother.
That the mother be restrained from relocating the residence of the child from the Greater Sydney Metropolitan area without the written consent of the father or court order.
Time with
That the child spend time with the father as agreed between the mother and father in writing with such writing to include SMS or email communication and in default of agreement as follows:
(a) That pending the child spending time with the father as provided for hereinafter the child shall spend time with the father as provided for in the present interim orders;
(b) For a period of three months from the date of facilitated changeovers as provided for hereinafter commencing each Saturday from 9:30am until 2:30pm with changeovers to be facilitated at the C Centre, with the father to pay all fees payable in relation to such changeovers;
(c) For a period of three months thereafter each Saturday from 9.30am until 4:30pm with changeovers to be facilitated at the C Centre with the father to pay all fees payable in relation to such changeovers;
(d) For a period of three months thereafter each alternate weekend from 9:30am to 4:30pm Saturday and 9:30am to 2:30pm Sunday with changeovers to be facilitated at the McDonalds Family Restaurant, E Street, Suburb D;
(e) For a period of three months thereafter each alternate weekend from 9:30am each Saturday until 11:00am Sunday with changeovers to be at the McDonalds Family Restaurant, E Street, Suburb D;
(f) Thereafter until the child commences school each alternate weekend from 9:30am each Saturday until 4:30pm Sunday with changeovers to be at the McDonalds Family Restaurant, E Street, Suburb D;
(g) On Father’s Day in each year from 9:30am to 4:30pm provided that the child’s time with the father shall be suspended on Mother’s Day with changeovers to be facilitated at C Centre, Suburb D with the father to pay all fees payable in relation to such changeovers in 2015 and thereafter changeovers to be at the McDonalds Family Restaurant, E Street, Suburb D;
(h) Upon the child commencing school and during school term:
(i) For the first two terms of child’s first year of school each alternate weekend commencing on the first weekend after the commencement of term from after school Friday to 11:00am Sunday and for the remainder of that year from after school Friday to 5:00pm Sunday with changeovers if not at school to be at the McDonalds Family Restaurant, E Street, Suburb D;
(ii) Thereafter each alternate weekend commencing on the first weekend after the commencement of term from after school Friday to before school Monday or if a pupil free day before school Tuesday;
(i) Upon the child commencing school and during school holidays:
(i) In the child’s first year of school in the middle weekend of the Term 1, 2 and 3 holidays from 6:00pm Thursday until 5:00pm Sunday and in the Term 4 Christmas holidays commencing on the first Thursday after Christmas Day and each alternate Thursday thereafter from 6:00pm Thursday to 5:00pm Sunday with changeovers to be at the McDonalds Family Restaurant, E Street, Suburb D;
(ii) Thereafter for the child’s second year of school in Term 1, 2 and 3 holidays from 10:00am on the first Saturday of such holiday period to 6:00pm Thursday and in the Term 4 Christmas holidays commencing on the first Saturday after Christmas Day and each alternate Saturday thereafter from 10:00am Saturday to 6:00pm Thursday with changeovers to be at the McDonalds Family Restaurant, E Street, Suburb D;
(iii) Thereafter in Term 1, 2 and 3 holidays from 10:00am on the first Saturday of such holiday period to 10:00am the next Saturday and in the Term 4 Christmas holidays commencing on the first Saturday after Christmas Day and each alternate Saturday thereafter from 10:00am Saturday to 10:00am the next Saturday with changeovers to be at the McDonalds Family Restaurant, E Street, Suburb D;
Communication with child
That the mother and father be at liberty to communicate with the child by telephone or Skype (or similar) at all reasonable times provided always that such times shall be no more than once each alternate day that the child is not in their respective care and the parent with whom the child is shall assist the child to receive the phone call or Internet communication and the other parent shall initiate such communication.
Changeovers
That for the purposes of changeovers such changeovers shall be as provided above or as agreed between the parties in writing such writing including SMS or email communication.
Specific Issues
That the mother and father keep the other informed of their current residential address, mobile and landline telephone numbers and any available email addresses and advise the other of any change thereto within 7 days of any change.
That the mother and father shall promptly notify the other when the child is ill or visits a medical practitioner or immediately notify the other when the child has a medical emergency, accident or hospital admission with such notification providing details of the medical practitioner, hospital or medical service to be attended or attended by the child.
That the mother and father make available to the other any medications prescribed for the child for the other to administer when the child is with the other and the mother and father shall authorise the child’s medical practitioner to fully discuss the child’s treatment with the other parent and for this purpose this order shall be sufficient authority for the practitioner to do so.
That the mother and father be permitted to liaise directly with the child’s preschool, school and sporting bodies to receive school notices, information, newsletters, school reports, school photographs and other necessary information about the child’s progress.
That upon the child commencing school the mother and father are at liberty to attend on such occasions and at such events significant to the child’s welfare, schooling, extracurricular activities, sport, health, religious instruction or events where the attendance of either or both parents is reasonably expected.
Child’s name
That the Mother Ms Sorbo be authorised to apply to the Registrar of Births Deaths and Marriages, New South Wales that the child registered as B Soulos born .. 2011 be now registered as B F Soulos.
That pursuant to section 28(5) of the Births Deaths and Marriages Registration Act 1995 (NSW), the Registrar register the Child’s name in the form specified in the previous Order.
That the Court forward a sealed copy of this Order to the Registrar of Births Deaths and Marriages, New South Wales.
That the mother and father be restrained from using any name other than B for the child on any official document or record including but not limited to matters pertaining to the child’s schooling, health, travel and religion.
Watch List
That until further order, or else subject to the authenticated consent of all parties required to provide consent by Part VII of the Family Law Act 1975 each party Ms Sorbo born … 1979 and Mr Soulos born … 1975 their servants and/or agents be and are hereby restrained from removing or attempting to remove or causing or permitting the removal of the said child B born … 2011 from the Commonwealth of Australia for a period of two years.
AND IT IS REQUESTED that the Australian Federal Police give effect to this order by placing the name of the said child on the Family Law Watchlist in force at all points of arrival and departure in the Commonwealth of Australia and maintain the child’s names on the Watchlist for the said period or until the Court orders its removal, or with consent of all parties.
Liberty to apply as to the extension of this Family Law Watch List order on 7 day’s notice.
Dental health
That the mother do all necessary things to facilitate the child attending upon the Paediatric Dentistry at Suburb G for consultation as to the child’s dental health and hygiene as soon as practicable and in any event no later than one month from the date of these orders.
That the mother inform the father as to the date and time of the child’s appointment so as to facilitate the father should he wish to attend such appointment.
That the mother and father do all things necessary and give all necessary consents so as to facilitate treatment for the child as recommended by the Paediatric Dentistry and that the father pay all fees for the treatment.
That in default of the mother making the appointment for the child’s attendance at the Paediatric Dentistry at Suburb G within one month from this date as ordered, the father shall be at liberty to make such appointment as soon as practicable thereafter and subsequent appointments for treatment as recommended and:
(a) The child shall spend time with the father on the day of such appointments made by him for the child from 9.30am to 2.30pm or such later time as will facilitate the child attending the said appointment but in any event no later than 4.30pm with changeovers to be facilitated at the C Centre, Suburb D with the father to pay all fees payable in relation to such changeovers and the father shall make appropriate arrangements with C Centre, Suburb D for changeovers; and
(b) That the father shall give to the mother not less than 14 days’ notice of any appointment for consultation or treatment made by him for the child with such notice to be in writing including SMS or email communication.
The Contact Centre
Each party must:
(a) Contact the C Centre (“the Contact Centre”) within 7 days and arrange an appointment for assessment for suitability for supervision of changeovers;
(b) Attend the assessment;
(c) Comply with any appointments made by the Contact Centre for supervised changeovers;
(d) Comply with all reasonable policies and rules of the Contact Centre; and
(e) Comply with all reasonable requests or directions of the staff of the Contact Centre.
If after the assessment intake procedure the Contact Centre is unable or unwilling to provide supervision as set out in Orders 4(b) and (c) then each party and the Independent Children’s Lawyer has leave to restore the matter to the list on 7 days written notice to the other party and to the Court.
If after assessment the parties are accepted by the Contact Centre as suitable for supervised changeovers, the Father is to have contact with the child each in accordance with Orders 4(b) and (c) herein and such contact is to be implemented by the Father collecting the child from the Contact Centre at the start time and returning the child to the same place at the end time.
The Mother must deliver the child to and collect the child from the Contact Centre at the times specified by the Contact Centre and on each occasion promptly leave the building and the vicinity.
In the event that the Contact Centre offers supervised changeovers only at times which are less regular than specified in Orders 4(b) and (c), then contact shall occur at the times that are offered by the Contact Centre.
The parties or either of them are to attend and undertake any course of therapy, counselling or intervention as is reasonably directed by the Manager or Director of the Contact Centre which could include referrals to other service providers.
The Father must not attend the Contact Centre or its vicinity before the time with the child is to start and must promptly leave the Contact Centre and the vicinity at the time the time with the child is to end.
If the Contact Centre during the currency of these orders declines or is unable to continue to provide its services, or the Director of the Contact Centre recommends in writing to the parties a variation of these orders, then either party may on 7 days written notice to the other party and the Court restore the matter to the list.
The period of contact provided in these orders may vary by reason of the closure of the Contact Centre’s services during school and public holiday periods, and in such event, contact shall occur at times when the services can be provided by the Contact Centre.
The Independent Children’s Lawyer
That the Independent Children’s Lawyer be discharged.
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).
| FAMILY COURT OF AUSTRALIA AT PARRAMATTA |
FILE NUMBER: PAC 5406 of 2012
| Mr Soulos |
Applicant
And
| Ms Sorbo |
Respondent
REASONS FOR JUDGMENT
An Internet dating site provided the mother in these proceedings with a husband. It also provided the father in these proceedings with a wife.
The child subject to these proceedings, B, was born in 2011. The child has the same forename as the paternal grandfather.
The mother and father separated in late November 2012 when the child was just 13 months of age. At trial the child was just over 3 years of age.
The litigation
Following separation of the parties, the mother and child commenced to reside in refuge accommodation. As the circumstances of the mother and child were not known to the father subsequent to him commencing these proceedings a location order was made by the then Federal Magistrates Court on 11 March 2013.
On 30 May 2013 both parties were represented before the Court and the Court made orders appointing an Independent Children’s Lawyer for the child, injuncting both parties from removing or attempting to remove the child from the Commonwealth of Australia and placing the child’s name on the airport watch list for a period of two years.
On 12 July 2013 interim parenting orders were made in summary:
a)That the mother and father have equal shared parental responsibility for the child;
b)That the child live with the mother;
c)That the child spend time with the father in a supervised setting either at the Suburb H Centre or by other professional supervisors paid for by the father as notified to the Independent Children’s Lawyer and the solicitors for the mother;
d)That the father spend time with the child at the contact service on the dates and times nominated by the convener of that service to be not less than two hours per fortnight and more regularly if possible;
e)That the parties on or before 19 July 2013 make contact with the contact service and obtain the earliest available appointments for intake interviews and do all things necessary to allow that service to provide supervision;
f)That in addition to the periods of time at the contact service the father shall spend up to a further two three hour periods per week with the child supervised by a professional.
On 22 July 2013 it was further ordered:
a)That when the father’s time was not being supervised at the Suburb H Centre it shall be supervised by a person employed or contracted by I Org, with changeovers to occur at Suburb J railway station;
b)That such supervised time shall be each Saturday between 2:00pm and 5:00pm and each alternate Sunday between 2:00pm and 5:00pm and commencing on the weekend of 3 August 2013;
c)That such supervised time take place at K Street, Suburb L with the only persons present being the father, the supervisor and the child;
d)That the father’s time with the child supervised by the Suburb H Centre shall occur on each alternate Friday between 12 noon and 2:00pm unless otherwise nominated by the convener of the service;
e)That the proceedings be transferred to the Family Court of Australia.
On 26 August 2013 proceedings were listed before a Registrar and the parties were ordered to attend a meeting with a Family Consultant on 12 November 2013.
On 17 February 2014 an order was made for the preparation of a Family Report and trial directions were made. It was further ordered that the father’s supervised time with the child no longer be restricted to his home at Suburb H and could be in the immediate suburban environment of his home, with extended paternal family being able to attend.
Proceedings were initially listed for hearing for four days commencing 23 June 2014. Those hearing dates were vacated on 17 June 2014 and an order was made that Dr M be appointed as single expert in the matter. In anticipation of Dr M’s report being available without undue delay further trial directions were made.
By 11 September 2014 it was apparent to the parties that Dr M’s report would not be available in time for the allocated trial dates commencing 24 November 2014. Those dates were vacated.
On 15 September 2014 orders as to the child’s time with the father were changed in that the father’s time with the child from that date would be each Saturday and Sunday between the hours of 10:00am and 1:00pm with such time to be under the supervision of I Org.
On 9 December 2014 the single expert report of Dr M was released to the parties.
The final hearing commenced on 9 February 2015 for four days with final submissions completed on 18 February 2015.
The context of the relationship
The father at trial was 39 years of age and the mother was 35 years of age.
The child is the only child of their relationship.
The mother at the commencement of the parties’ relationship was a Country N citizen. The mother was an officer in the Country N Gendarmerie, a military division of the Country N Police Force. The mother did not resign her position from that force until November 2010.
The parties, both interested in marriage, first met on an Internet dating site on 1 June 2009 and married in 2010. The father flew to Country N to meet the mother in person for the first time on 3 August 2009. At that meeting, he says, that he proposed to her.
In late November 2009 the mother arrived in Australia and stayed with the father at his home in Suburb L for about three months.
The mother returned to live permanently in Australia in May 2010 and the parties commenced to reside together in the father’s home at Suburb L.
On 10 July 2010 the mother and father married in a civil ceremony. In late January 2011 the mother and father participated in a religious ceremony of marriage.
It is common ground that the mother’s immigration status in Australia prevented her from obtaining employment in Australia until such time as she obtained a permanent residency or citizenship. The father was thus the primary income earner during their short relationship. The mother informed the father in October 2012 that she had received permanent residency some two months earlier.
Two days after the birth of the child on 30 October 2011, the maternal grandmother travelled to Australia to assist with the new baby. She remained living in the father’s home with the parties for about two months.
Following the birth of the child he was more commonly called “B”.
The mother to the father’s observation became very protective of the child with the mother sleeping in the same bed as the child in the guest room. The father acknowledges that the mother was the primary carer of the child since birth. He provided assistance with the child’s care when given the opportunity by the mother, changing his nappies, feeding him, bathing and clothing him and playing with him and taking the child out.
The father alleges that in about June 2012 the mother said to him “if it wasn’t for [B] I would have gone to [Country N]” and then later “in my country I am somebody and here I am nobody”.
The father further alleges that at about the same time the mother said to him “I was at home all day and I was contemplating suicide, the responsibility of looking after [B] is stressing me out”. The mother denies she did so.
In the few months before separation the mother, to the father’s observation, became more protective of the child, refusing to allow the father to feed the child and turning the child’s high chair away from the father so the father could not interact with the child. The mother would never let the child out of her sight, for example, taking the child into the bathroom with her and locking the door.
The mother makes various complaints arising out of her relationship with the father. She complains that he kept her in a state of financial dependence, a strange complaint in circumstances where she was unable to work in Australia until such time as she obtained a permanent residency only shortly before separation. She complains that the father actively discouraged her having communication with friends and relatives in Country N and did not permit her to take adequate steps to improve her English.
The mother further complains that the father discouraged her from continuing her religious observance at the Country N Orthodox Church although she continued to attend the Country N Orthodox Church at Suburb O during the relationship.
The mother asserts that during the latter part of her relationship with the father, she went on a number of occasions to see Father P at the father’s Orthodox Church, complaining to him of the father’s violence and emotional abuse. She says that when the father found out she had done so he threatened her.
Father P concedes that he spoke to the mother about issues in her relationship with the father and that she met with him on three to four occasions. He recalls speaking of issues about her attending his church and family dinner issues. He concedes that he could have spoken to the mother about steps she could take to end the marriage, acknowledging that he referred her to a solicitor. He has no recollection as to any allegations of violence until after separation when he spoke to the father’s family and later to the mother. He says he did not get the impression of physical violence as the mother referred to “rows” with the father. Yet after separation Father P provided a letter to the mother to assist her request for public housing. He acknowledged that he had declined a request from the mother’s solicitor to provide an affidavit on her behalf.
Father P is well known to the father, the father having known him since his childhood. The father is a member of the board of the school attached to Father P’s church.
His oral evidence was unconvincing and avoidant of the issues as to family violence put to him. His evidence is to be treated with some circumspection. On this issue the mother’s evidence is to be preferred.
The mother further complains about the father’s behaviour that made her fearful and made her feel demeaned. The mother complains that the father was a different personality in public but in private he was insulting, authoritative and physically abusive. The father conceded in his oral evidence that the mother had expressed dissatisfaction about living with him on occasions during their relationship.
Particular incidents
November 2011
In November 2011 when the child was about two months of age, the mother complains of the father holding the child upright and appearing to be trying to make the child walk. The mother rebuked the father saying “you might injure him”. The father continued and the mother again rebuked him, taking the child from him and holding the child in her arms.
The father then said “you don’t tell me how to behave with my son”. With that the father grabbed the mother by the hair and began to pull her hair hard. The mother attempted to push the father away and accidentally scratched his face. Whilst the father still had hold of the mother’s hair the maternal grandmother entered the room.
The maternal grandmother who was staying with the parties at this time observed part of this incident and saw the father grab the mother by her hair, pulling the hair hard whilst the mother had the child in her arms.
The father admits being rebuked about his handling of the child but denies the remainder of the incident although conceding that his face was indeed scratched saying that he received the injury from work a few days earlier. The father asserts that his brother had seen the work injury. The brother was not called to give evidence.
December 2011
In December 2011 when the child was about three months of age the father complained to the mother about her singing to the child in Country N. The father lunged at her and grabbed her around the neck with both hands, pushing her violently to the wall and squeezing her neck hard. The father said to her “as long as you live under my roof, you are never allowed to speak Country N to my son” and with that he released the mother and walked away.
The father denies such conduct, saying he has never touched the mother in an aggressive fashion.
June 2012
In June 2012 the mother proposed to go shopping, taking the baby with her. The father told the mother to drop the child off at his mother’s for her to look after him while the mother went shopping. The mother repeated her intentions. The father walked towards the mother quickly and aggressively, she ran towards the bedroom. The father grabbed the mother by the hair from behind pulling her to the ground causing her to lose her balance and fall. The father sat on top of her directly on her breasts. He leaned forward and grabbed her around the throat with both hands and squeezed hard and then spat in her face. The father then got off her without saying anything.
The mother subsequently attended upon Dr Q. The mother took photographs of her injuries.
Dr Q first saw the mother at her practice in December 2011. She recalls on one occasion the mother attended at her practice and showed the doctor a bruise on her breast. She recalls the mother saying “my husband did that to me”. On 12 June 2012 the mother attended upon Dr Q. The mother was wearing a low-cut short-sleeved top. The doctor initially observed bruising to the mother’s left cheek, upper arm and neck. On inquiry the mother showed her additional bruising on her left buttock, right thigh and back. The observations of Dr Q are confirmed in her clinical notes. The mother said “my husband assaulted me around three days ago”. Subsequently on another occasion the doctor observed bruising on the mother. On 12 November 2012 Dr Q formed the view that the mother was at some potential risk of suicide. A risk assessment guide was prepared by the doctor.
The father denies the incident in June 2012 as alleged by the mother and contends that his only recollection of the event was that the mother had told him that she was contemplating suicide. The father could offer no explanation as to the injuries suffered by the mother, even though he had observed bruises on her.
August 2012
In August 2012 the father complained to the mother about the phone bill, telling her not to phone Country N. The father shouted at the mother grabbed at her dress and ripped it. The mother took a photo of the torn dress some months later. The father denies the incident.
November 2012
On Monday 19 November 2012 the father returned home from work at about 4:30pm. The mother was in the kitchen preparing the child’s evening meal. There was a conversation between the parties as to going to the paternal grandmother’s home for dinner on the Wednesday evening. The mother was not prepared to go. The father grabbed the mother’s hair from behind, pulling her to the ground. He dragged her down the single step into the lounge room. The father stood over her preventing her from getting up; he grabbed her hair and shook her head by the hair. He spat in her face saying “ungrateful bitch, who the fuck do you think you are”. The child was screaming.
The mother was able to reach the telephone but the father pulled the cord from the wall socket. The father then moved to the kitchen and threw the prepared baby food into the sink. The father continued to yell at the mother calling her obscene names. The mother was able to pick up the child and she walked to the front door and opened it. The father then walked to the door pushing the mother violently out of the door and slamming the door in her face. The mother went across the road and sheltered on a neighbour’s porch for about 20 minutes, comforting the child and then returned to the home through the garage to the back door. The mother sent an SMS message to her marriage counsellor who replied telling her to report the father to the police.
The father, for his part, denies any physical incident between himself and the mother.
He maintained his denial of such conduct to the Family Report writer and to the single expert Dr M.
Yet to Dr M he acknowledged “becoming emotional during their fights and retreating to the backyard”. This is reflective of the mother’s evidence of his sudden withdrawals from her after abuse and the maternal grandparents’ report to the single expert of their observation of him “crying at the tree at the back of the house…not a healthy cry, a sick cry.”
To the single expert the father was dismissive of the photographic evidence of the mother’s bruising: “that could be from anything”. He further denied knowledge of any bruising, despite cohabiting with the mother. Yet in his oral evidence he conceded he did see bruising but “thought nothing of it.”
The mother complains that the specific instances referred to above represent a sample only of the occasions on which the father was violent to her. She says that he would frequently get annoyed with her, grab her by the shoulders, shaking her violently, pushing against the wall and scream insults and obscenities at her.
The maternal grandmother who visited Australia for the parties’ religious wedding observed that the father argued a lot with the mother. Later when she visited at the time of the birth of the child she observed on three or four occasions physical altercations between the father and the mother, with the father shouting at the mother on most days. The father’s anger and aggression towards the mother was also observed by the mother’s sister, Ms R when she visited to attend their religious wedding.
Notwithstanding what the father described as happy family occasions over the next few weeks he returned from work on 27 November 2012 to find that the mother and child were not present and all of their possessions were missing. The father contacted Suburb L Police only to be advised that the mother had contacted the police herself and that the police held no concerns for her welfare or the child’s welfare.
After separation
On 4 December 2012 the father was served with an application for an Apprehended Violence Order (AVO) for the protection of the mother. He was also handed a Court Attendance Notice setting out charges of assault, assault occasioning actual bodily harm and “stalk and intimidate” under s 13 of the Crimes (Domestic and Personal Violence) Act 2007 (NSW).
The father denies ever having hurt the mother physically or emotionally or verbally abused her.
On 11 March 2013 the police matters were listed for hearing. The father pleaded guilty to the facts before the court that included allegations of making past verbal threats of harm to the mother. The plea accepted that his conduct was with the intention of causing the mother to fear physical or mental harm. The court without proceeding to a conviction placed the father on a good behaviour bond, to be of good behaviour for two years in relation to the charge of stalk and intimidate. The assault charges were dismissed by agreement between the father and the prosecution, over the mother’s objection.
A final AVO was made for a period of two years for the protection of the mother. The father did not oppose the making of the order and in so doing it is to be inferred acknowledged that the mother had reasonable grounds to fear and in fact feared the commission of a “personal violence offence” by the father or intimidation or stalking by him. The order provided that the father was not to assault, molest, harass, threaten or otherwise interfere with the mother, not engage in conduct that intimidates the mother and not stalk the mother. The order was subject to additional conditions that the father must not enter premises at which the mother may be from time to time residing or working and he was not to approach or contact the mother by any means except through the mother’s legal representatives or as authorised by a current parenting order under the Family Law Act 1975 (Cth) (“the Act”).
The mother had attended the police station on 28 November 2012 and provided to the police a written statement. In that statement the mother repeats in substance the evidence referred to above, although the incident in June 2012 appears to be incorrectly referred to as July 2012.
On 12 December 2012 the mother was provided with a referral by Dr Q to the S Suicide Prevention Service. Referral details included “anxiety, depression, domestic violence, concern for baby son. No family support. Recent domestic violence episode results in the police attendance and relocation to women’s refuge in Suburb T and AVO.”
On 5 January 2013 the Service provided a report to Dr Q. The report noted “client pleased with her decision to leave an abusive marriage”.
The father was concerned that the mother might seek to travel to Country N with the child as she had on numerous occasions prior to separation expressed to him her desire to return there and her dissatisfaction with her life in Australia.
Subsequent to separation, the father had no contact with his son until August 2013 and members of his family were not able to see the child until March 2014.
The mother at first accommodated in a women’s shelter at Suburb U and then from 7 January 2013 in a transitional house run by the women’s shelter at Suburb T. In early May 2013, the mother and child moved into a house at Suburb V which was run by W Inc. Her intake notes (Exh Y) repeat her assertions as to the father’s conduct of physical and emotional abuse.
On 15 June 2013 the mother moved into private rental premises at X Street, Suburb Y. She receives a rental subsidy.
The mother refused requests from the father for contact with the child, even though the later request suggested supervision by the paternal grandmother.
Subsequent to the commencement of supervised time the child’s relationship with the father has continued to develop and the child has also become familiar with the paternal grandmother. The father estimates that the costs of private supervision up until April 2014 had been approximately $22,000. He has incurred significantly more expense since that time. He is unable to afford meeting these expenses on an ongoing basis. The father has continued to have regular supervised time as provided for in orders from time to time, save for a few interruptions.
The mother was an inpatient at the Z Centre in late October 2013. The mother’s admission notes refer to “history of abuse, significant stressors” and “no evidence of depressed or… mood”. The mother’s postnatal risk questionnaire revealed a positive response to previous physical abuse although the mother’s screening for domestic violence questionnaire revealed no such abuse in the last 12 months and no present fear of her ex-partner. She had by this time been separated for nearly 12 months.
The mother’s clinical notes reveal that on interview on 22 October 2013 the mother related that she was “divorcing her husband primarily due to domestic violence”. The clinical impression as to the mother includes the following assessment:
…logical thought, normal speech, engaged expressive and insightful. Nil suicidal ideation. No evidence of depressed or anxious mood. No parenting concerns. The mother who has migrated from Country N provides evidence of being confident in her mothering skills and of being capable of working through the present challenges.
On discharge the mother’s management plan was to continue seeing her social worker and consider a mental health plan, if needed.
On 3 March 2014 the mother met with the paternal grandfather. She proposed a discussion in relation to him spending time with the child. The mother concedes that the paternal grandfather offered to assist her, assistance that she rejected. The mother offered to meet the paternal grandfather at Suburb Y in order that he might spend time with the child in her presence. The paternal grandfather provided the mother with his solicitor’s details and suggested that she contact him in relation to a proposal. There has been no other contact between the paternal grandparents and the mother since.
In about March 2014 the father noticed that the mother was referring to the child as “F” in correspondence and in his dealings with I Org.
In June 2014 the father requested through his solicitors that he be able to have unsupervised time with his son. The mother did not agree. At the same time the father requested that the mother refrain from referring to the child as “ F”. The father perceives the mother’s conduct as an attempt to distance him from the child.
The mother contends that there were discussions at about the time of the birth of the child, as to him also having the additional forename “F”. She asserts that the father refused. It is not in issue between the parties that the child’s registered forename is B. However, the mother for her part says that from shortly after the birth of the child she and her parents, without the father’s knowledge, referred to the child as “F” when speaking to him.
The father continues to express a fear for the child’s safety in the mother’s care. It is his further concern that as a consequence of the mother’s police connections in Country N, through her former employment as a police officer in that country, that should the mother be able to travel to Europe she might disappear and he will be unable to find the child.
The child’s health issues
After separation the father has had some concerns in relation to the child’s health.
On 16 March 2014 the father noticed a small swelling around the child’s anus. The father pointed this out to the supervisor at the Suburb H Centre and on 22 March 2014 took the child to see his doctor. The doctor examined the child and recommended the use of a haemorrhoid cream. The doctor informed the father that it was a common occurrence with toddlers with a low fluid or fibre diet. The father passed this information onto the mother through the I Org supervisor who also provided to the mother the medication that had been prescribed by the doctor.
The mother asserts that she was distressed that the father had taken the child to a doctor without her consent. She immediately attended a medical centre with the child. She thereafter attended at the Emergency Department of the AA Hospital with the child. The discharge referral note from the hospital reveals that the mother informed the hospital staff of the history of domestic violence between the father and herself. Examination of the child was uneventful, save that the child had a low grade fever. The notes record “Periannaly – normal appearance, no evidence of haemorrhoids or fissures”.
Of further concern to the father is the state of the child’s teeth. The father took the child to a dentist for examination. The child has significant decay in his top canine and incisor teeth. The father has drawn this to the mother’s attention and there has been considerable correspondence in relation to the issue. It is clear that the child needs rehabilitative dental work undertaken. The father has private health cover for the child and has proposed that the dental work be undertaken at his cost.
The mother for her part has procrastinated and delayed any such rehabilitative work and the child it is to be inferred is still significantly inconvenienced by the state of his teeth.
The father’s proposals
Should the mother be permitted to relocate the father is adamant that he would not go to Country N to see the child. He asserted that he was fearful of travelling to Country N or indeed nearby Europe as a consequence of the mother’s former employment as a police officer. He has concerns for his general safety, the expense of such contact and the lack of contact with the extended paternal family.
Generally the father expressed significant concerns as to the prospect of him having any relationship with the child should the mother relocate, in particular having regard to the age of the child.
The father proposes that the child live with him in his home at K Street, Suburb L. The home is a three-bedroom fibro home with the usual amenities. The child would have his own room and no other person at first would occupy the property with the father.
The father’s proposals are supported by the extended paternal family.
The father is presently in a relationship with his fiancée. His fiancée has a son born in 2004 who at the time of trial was 11 years of age.
The father proposed initially that the child’s time with him be gradually increased until such time as the child spends time with the father each week from after school Thursday to before school the next Tuesday and half the school holidays.
He now seeks an order that the child reside primarily with him and spend time with the mother, with the child spending increasing transition time with him. He proposes that initially he would take two days off work per week to facilitate the child settling in. He would live with the paternal grandparents until such time as he and his fiancée commenced to live together.
The father’s fiancée has discussed with the father the issues before the court. She does not work and would be available to look after the child if required. She acknowledges that a change of residence for the child would require patience, love and understanding. She further acknowledged that the child would likely be “a little upset” but would be assisted by his good attachment and bonding with her resulting from her weekend contact with the child.
The father proposes that the mother, should she return to her home country, have electronic communication with the child had least two times per week and she could visit with the child in Australia as many times as she likes. The father asserts that he would help with those arrangements. Otherwise should the mother remain in Australia, the father proposes that the child would be with him five nights per week and with the mother two nights per week.
The father appropriately acknowledges the child’s Country N heritage and is also conscious of his own heritage that he proposes be part of the child’s upbringing.
The father proposes that the child attend an Orthodox College at Suburb L that is a Kindergarten to Year 12 school where the father is on the Board of Directors. The father proposes that he would be responsible for meeting the costs of the child’s education. The father otherwise proposes that the child be raised in the Orthodox Church, having been baptised in that church when he was six months old.
The father is presently self employed as a swimming pool excavator and is engaged in a business with his father and brother. The father has been in the business since he was 10 years old. Otherwise the father holds a Bachelor degree, having graduated with that degree in May 2003.
In December 2003 the father was diagnosed with acromegaly due to a growth hormone secreting pituitary tumour. The father was referred for surgery and the tumour was removed in May 2004. Subsequently there has been no evidence of any recurrence of the tumour. The surgery for the removal of the tumour did not involve the brain. The father’s pituitary gland has continued to function normally since the operation. The father’s medical practitioner is of the opinion that there has not been nor would it be expected that in the future there would be any impact from the surgery on the father’s behaviour or brain functioning.
The mother’s proposals
At trial the mother sought amended orders in terms of Exhibit J that in summary provided:
a)That all previous orders in relation to the child be discharged;
b)That the child live with the mother;
c)That upon the mother serving on the father and the Independent Children’s Lawyer documentary proof that she has obtained from a Country N court advance recognition or a declaration of enforceability of orders or registration in a Country N court of these orders and filing such documentary proof together with proof of service of such documentary proof on the father and the Independent Children’s Lawyer she be entitled to remove the child from Australia at the expiration of 7 days and relocate with the child on a permanent basis to Country N;
d)That the mother have sole parental responsibility for the child;
e)That the mother be permitted to call the child “F” at all times and to change the child’s name on all official documents to “F”;
f)That the child not spend any time with the father;
g)In the alternative the child spend time with the father at the conclusion of the Country N school year in 2015 and each alternate year thereafter until the child attains eight years of age from 8:00am until 6:00pm each day for a period of three weeks with such time increasing upon the child attaining the age of eight years to continuous contact including overnight contact for such three-week period, with such contact to be exercised within a 50km radius of City BB;
h)Such contact including the travel and accommodation expenses of the father to be at the sole expense of the father;
i)That the father surrender any passport that he may hold to the mother at the commencement of such contact and collected from the mother at the conclusion of such contact or alternatively;
j)That upon the father serving on the mother and the Independent Children’s Lawyer documentary proof that he has obtained from an Country CC court advance recognition or a declaration of enforceability in Country CC of these orders, or registration in an Country CC court of these orders and filing in this court documentary proof, together with proof of service of such documentary proof on the mother and the Independent Children’s Lawyer the contact provided for above take place within 50km radius of City DD provided that the mother will at her own expense take the child to and from City DD for the purposes of such contact;
k)At the conclusion of the Country N school year in 2016 and each alternate year thereafter (but provided that the father in the preceding year had spent the time with the child as provided) for a period of three continuous weeks (including overnight contact), such contact to be exercised within a 50km radius of the father’s home at Sydney with the mother at her own expense bring the child to and from Sydney for the purposes of such contact;
l)The child have contact with the father by telephone, Webcam or Skype communication at least once per week for a period of not less than one hour at a time agreed between the parties or in default of agreement at 8:00am Country N time on Sunday each week;
m)That neither party remove the child from Country N or any country where the child may be from time to time as authorised by these orders except in accordance with these orders or the written consent of the other party first being obtained.
The mother asserts that she does not feel safe in Australia. She has an underlying fear that the father will do something to her and she is wary when out in public. She further complains that she feels devalued as a human being and isolated as a single mother in a foreign country.
She worries that the father will hurt the child. She worries what will happen to the child if she gets sick and cannot look after him. She says that her spirits are always low and will remain that way if she cannot go home to Country N with the child. Whilst her parents have been able to come to Australia for periods since the mother settled here they have to return to Country N. The mother proposes that she be able to relocate to her native country with the child.
The mother proposes that should she return to her native country she will live in her apartment in City BB, which is unencumbered. The apartment is a large one bedroom apartment with parking for one car. It is on the third floor of an eight floor block. The mother proposes to renovate the apartment by creating a second bedroom during which time she will reside with her parents. The apartment is in the university area, a short walk from a large park. The apartment is about 20 minutes’ drive from her parents’ home and about 30 minutes’ drive from her former place of employment. The mother proposes to enrol the child in a kindergarten close to her apartment that is open from 8:30am to 4:00pm and specialises in teaching English.
It is the mother’s hope that the child will develop proficient language skills in both English and Country N.
Upon the child commencing formal schooling at the age of seven he would attend the local general school which is about half a kilometre from the mother’s apartment.
The mother is hopeful of being able to be reappointed to her former position in the police force. Such employment would pay a salary of AU$1,300 per month plus a clothing and uniform allowance and free medical care for herself and the child. The mother estimates that her basic expenses per month would be approximately AU$900. Should she be able to obtain employment, the maternal grandmother proposes to assist her with child care as required.
The mother asserts that her present circumstances see her isolated in the community. She says she has not been able to make close friends in Sydney. Her assertions in this regard are supported by the observations of the maternal grandfather who had been living with the mother since mid-2014.
At present the mother is in receipt of a single parent benefit from Centrelink and receives rental assistance in relation to her present accommodation.
Should she be required to remain in Australia, she proposes to seek entry into an Australian university to re-qualify for a professional role in this country. Until such time as the mother obtains Australian citizenship she would not be eligible for employment with the Australian Federal Police. However the mother is presently eligible to make application for Australian citizenship but has not done so.
As a permanent resident she may apply for a position with the New South Wales Police Service. She says that her language skills would not be sufficient to pass the literacy test, this notwithstanding that she has completed a Certificate IV in English for Academic Purposes at TAFE, where she studied full time for six months. She further asserts a difficulty in being able to attend the EE Town Police Academy for the six-month residential period required.
At present the mother does not work at all. The child attends preschool Monday and Wednesday each week.
The mother proposes that should she be permitted to relocate, she would ensure the father and members of the paternal family had ongoing contact with the child by telephone or Skype communication. Should the father and/or members of his family be in Country N, the mother says they could have contact with the child or subject to cost she would be prepared to travel with the child to Australia from time to time to see members of the paternal family.
In late September 2014 the mother commenced to attend upon Dr FF for assistance in relation to her present circumstances. No evidence has been adduced from Dr FF but his view that the mother “is likely to remain unhappy should she be required to remain in Australia” was referred to by the single expert.
The mother’s oral evidence
The mother’s oral evidence in cross examination was disturbing and at times melodramatic. She contended that there was an ongoing risk to the child should the father have time with the child unsupervised in that the father would kill the child. This, notwithstanding the amended orders sought by her during the trial. The mother asserts that she has had this fear since separation. Further she holds a fear for her own safety, in that the father might kill her.
Yet the mother conceded that since the commencement of supervised time there was no occasion that the father had caused harm to the child.
The mother further conceded that during their cohabitation she left the child alone with the father in an attempt to develop the bond between the father and child. She contended somewhat ingenuously that there was a fine line between creating a bond between the child and the father, and her fear that the father would kill the child.
The mother contended that her fear in relation to the child arose from the father’s failure to control his own violence towards her and his ongoing denials of his actions. Yet the mother made no mention of such fears in her detailed police statement given on 28 November 2012.
The mother, having had the opportunity of seeing the supervised contact reports, acknowledged that the child appeared to be enjoying time with the father but rejected the proposition that the child loves his father, saying that the child shows no attachment to the father. She conceded that she said to the single expert, Dr M, that she did not perceive the child’s contact with the father as being beneficial in circumstances where there was significant travel involved in supervised contact arrangements for the child but acknowledged at trial there was some benefit to the child of the relationship with the father.
The mother further conceded in her oral evidence that her preferred position was that the child spend no time with the father, yet she contended that the child’s relationship with the father was important to her and clarified that her position was that the child’s time with the father should always be supervised if she remained in Australia. The mother was unable to explain the logical inconsistency between her position, that the father have unsupervised time overseas with the child and her requirement for supervised time in Australia.
The mother maintained her contention that she was socially isolated and depressed. She had seen Dr FF on five occasions since 25 September 2014. She conceded that Dr FF had prescribed no medication for her nor indeed had she ever been prescribed medication for depression.
The mother is engaged with the child’s preschool being active in relation to the parents committee at the preschool and in organising events and fundraising. The mother also acknowledged that she was engaged in a children’s playgroup at the Suburb Y Church each Tuesday and Thursday with the child and a playgroup at the Suburb Y Plaza also during the week. She acknowledged that she knows some of the mothers through those various activities.
The mother further acknowledged that she attends the Orthodox Church at Suburb GG each Sunday and attends Holy Communion twice a month at the church. It is her proposal that when the child is available to her on Sundays that she take the child to church with her. The child presently attends the church playgroup each Thursday morning.
Should there be an order that the child live with the father, the mother’s clear position is that she will remain in Australia.
Family violence
Family violence is defined in the Act at s 4AB to mean violent, threatening or other behaviour by a person that coerces or controls a member of the person’s family or causes the family member to be fearful. Various examples of behaviour that may constitute family violence are set out in s 4AB(2).
Section 4AB(3) provides that a child is exposed to family violence if the child sees or hears family violence or otherwise experiences the effects of family violence and examples of such situations are provided in s 4AB(4).
The issue of family violence and findings in regard thereto was considered by the Full Court in Sawant & Karanth [2014] FamCAFC 235 where the court said:
37. In Amador itself this Court referred to the fact that the trial Federal Magistrate had held that she was “… unable to make a finding that the father perpetrated the specific acts of violence alleged by the mother upon her …”. Their Honours considered at some length what was said by the High Court in M v M (1988) 166 CLR 69 (a case involving serious allegations of a different type – child sexual abuse) and, having done so, said:
87. The above passage from the High Court is sometimes quoted to support an argument that it is unnecessary for a trial judge to make positive findings in relation to allegations, inter partes, of assault and other serious matters of domestic violence. Consequently the Court is urged not to allow any exploration of any such allegation. A close reading of the decision makes it apparent that is not what fell from the High Court.
88. It is clear from the decision of the Full Court in A v A (1998) FLC 92-800 that, in appropriate cases, it may be important to make findings of this nature if they are available and necessary to determine what is in the best interests of the child. It is important to note that A v A was not a case where allegations of abuse of children was made. The allegation was that the father had attempted to murder the mother. The Full Court said in A v A:
3.22 We consider that his Honour's approach was inappropriate. Whilst it is correct to say that the Family Court is not a criminal court, and that its primary task is not to determine guilt or innocence, that is entirely different from an approach which declines to examine that issue at all. The whole emphasis of the decision of the High Court in M and M is its identification of the essential issue in cases of this sort as being whether the evidence establishes “an unacceptable risk”.
(Emphasis added)
…
Later the Full Court said:
44. … the High Court said in the following passage in M v M (above, at 76) noting that what was there said about allegations of child sexual abuse have been held by this Court to apply equally to allegations of violence (Amador, above; A v A, above). The resolution of the mother’s allegations of family violence were:
… 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.
The court has had the opportunity to hear the mother and father give extensive oral evidence. Whilst the mother’s evidence at times could be described as emotional and her ongoing complaints as to the father’s conduct and her fear of him to a degree histrionic, the corroboration of aspects of her evidence by others and by objective documentary evidence leads to the firm conclusion that the substance of her evidence as to the father’s conduct in the relationship is to be preferred to that of the father. The father was abusive and controlling. The father’s conduct demonstrated little emotional restraint. The father perpetrated physical violence on the mother in the specific circumstances alleged by her.
However the evidence is such that it does not support the mother’s contention as to an ongoing fear that the father would kill the child if left alone with him. Nor did the evidence support the mother’s ongoing assertion that the father might kill her. Such fears, illogically expressed, can be seen in the circumstances as an attempt by the mother to support her position as to relocation.
The Family Report
The Family Reporter in the Family Report (13 May 2014) (Exh C) said:
54. [Ms Sorbo] made serious allegations regarding family violence against [Mr Soulos] and further alleged that he had been violent towards her in front of [B] and towards [B] (by shaking him). She also alleged serious emotional abuse by [Mr Soulos] and reported that she had been, and continued to be, in fear of her and [B]’s safety. It was noted that [Mr Soulos] denied all family violence and it is a matter for the Court to determine the veracity of the allegations.
55. If the Court accepted [Ms Sorbo] account (refer to Children and Parents Issues Assessment, dated 26 November 2013), this would be considered coercive and controlling violence, which “is a pattern of coercion, control and domination… who induces varying degrees of fear, intimidation and submission in the partner… These include verbal and emotional abuse, attacks on self-esteem, insistence on sole authority” .
56. [Ms Sorbo] further alleged that [B] was subjected to violence himself, as well as witnessing it. If the Court finds veracity to these allegations, this may mean that [B] would not benefit from having a relationship with [Mr Soulos] and may be at unacceptable risk of harm in doing so. If the Court finds that [Ms Sorbo] has been untruthful regarding the allegations of violence, this may indicate that she has sought to prioritise her own interests above [B]’s and therefore has a limited capacity to support a relationship between [B] and [Mr Soulos].
57. A change of residence for [B] would likely have significant negative impact upon him, as he has a developed and close relationship with [Ms Sorbo] and has a developing one with [Mr Soulos]. It is not recommended that [B] live with [Mr Soulos], unless the Court finds that he is at unacceptable risk of harm in living with [Ms Sorbo]. [Ms Sorbo] claimed that she has always complied with Court Orders, and if this is the case, it is probable that she will continue to do so regarding spends time arrangements.
58. [Ms Sorbo] alleged that [Mr Soulos’] medical condition may have had some impact on his behaviour. It was noted that [Mr Soulos] denied that he had any ongoing issues in this regard. This is a matter for the Court’s determination, however, it would be of significant concern if [Mr Soulos] and the paternal family sought to minimise the effect of [Mr Soulos’] medical condition on his behaviour, as if his condition does have the potential to negatively affect his behaviour and parenting, minimising it could unnecessarily place [B] at risk.
59. It appeared that, whether or not there is veracity to the allegations regarding family violence, the parties did not communicate with each other at all. [Mr Soulos] claimed that [Ms Sorbo] was not forthcoming with [B]’s medical information and [Ms Sorbo] indicated that she supplied information immediately after she was Ordered to do so (although [Mr Soulos] denied this claim). Prior to that, she expressed concerns for her and [B]’s safety if she shared identifying information with [Mr Soulos]. This is likely to be an ongoing issue between the parties and decisions will likely continue to be increasingly difficult, one example being [B]’s schooling. It appeared unlikely that they would be able to effectively co-parent [B] and make joint decisions throughout his life and the Court may need to consider an Order of sole parental responsibility to the parent with whom [B] lives.
60. With regards to [Ms Sorbo’s] proposal to return to [Country N] with [B], this is matter for the judicial determination. [Ms Sorbo] stated that she would be willing to facilitate a relationship with [B] and the paternal family (including [Mr Soulos]), in [Country N] and she would, in addition, return to Australia regularly. It was noted that [Mr Soulos] said that he would not visit [Country N] and it is unlikely that yearly visits to Australia by [Ms Sorbo] would be sufficient for [B] to continue developing a relationship with [Mr Soulos] and the paternal family. If [B] is permitted to move to [Country N] with [Ms Sorbo], it appeared unlikely that [B] would spend enough time with [Mr Soulos] and the paternal family to continue a meaningful relationship with them.
61. From the observation sessions, it appeared that [Ms Sorbo] had a warm and established relationship with [B]. She appeared responsive to him and able to engage with him in play. Similarly, [B] appeared to be familiar and comfortable with the maternal grandfather. No concerns were raised regarding the maternal relationships during the observation sessions.
62. In the observation session with [Mr Soulos], [B] appeared to be more comfortable than he had been during the observation session during the previous assessment. It cannot be ruled out that [B]’s reaction to [Mr Soulos] during the previous assessment was due to trauma and/or anxiety, but could also be for other reasons, such as being in unfamiliar surroundings, being tired, or numerous other possibilities. It was noted that, at the Family Report interviews, [B] still showed mild signs of distress at separation, which is not unusual for a child of his age, however, [Mr Soulos] was able to calm him down quickly on this occasion. He appeared somewhat unsure around the extended paternal family, and this may be an issue of unfamiliarity which would likely improve over time.
63. It was noted that [Mr Soulos] and the paternal grandparents raised concerns about [Ms Sorbo’s] mental health and unusual parenting behaviours with [B]. It did not appear that [Ms Sorbo] had been diagnosed with any mental health condition and it is unknown whether or not this is a factor which requires further assessment. If the Court holds concerns regarding [Ms Sorbo’s] mental health and its impact on her parenting, a Chapter 15 report from a child and family psychiatrist may be of assistance.
64. With regards to [B]’s name, it appeared that he was known as “[F]” by the maternal family and “[B]” by the paternal family. It is likely to cause him some confusion to be known by two different names and he may, particularly as he grows, make further unknown meaning of this. It is recommended that he be known by one name, whether that be [B], the child, or [F].
The Family Report writer was not required for cross examination.
The Single Expert
Dr M, Child Family and Adult Psychiatrist, provided a report dated 4 December 2014.
As to the mother and father he opined:
…. Given these circumstances, I would not regard the father as having a Psychological or Psychiatric Disorder. If, however, the mother’s account is held by the Court to be factual, he would be regarded as having exposed his child to family violence which should be regarded as an impairment of his parenting capacity.
98. The mother presented as a highly competent individual. Although she had reportedly experienced some symptoms of an Adjustment Disorder with Depressed and Anxious Mood secondary to family violence perpetrated by the father, this was not evident on mental state examination. Her affect was reactive to the events explored. Following her disclosure of family violence, she had received appropriate support from domestic violence services and a psychiatrist, [Dr FF]. I would not regard her as having a Psychiatric Disorder that had impacted upon her parenting capacity.
As to the parties’ allegations one against the other Dr M observes:
105. The mother alleged that the child had been exposed to family violence. Should this be held to be factual, this would be regarded as a form of emotional abuse with a profound impact upon his psychological development. This would have served to amplify his sense of insecurity and difficulty in separating from his mother. He had not otherwise been identified to have been exposed to any other form of ill treatment, including physical, psychological or sexual abuse. Although the father alleged that the mother had been neglectful in addressing the child’s health problems, including issues related to his dental hygiene, I did not find evidence to support this. It was not my view that the child was likely to be at risk in the care of either parent.
The likely effect on the child of a change in his circumstances was considered as follows:
107. Given the close and highly attuned connection between mother and child, the child would be likely to experience enduring emotional distress and vulnerability should he be separated for long periods from his primary care giver. That said, he would have the capacity to cope with regular and increasing short periods of separation from her provided she was able to continue to provide him with a secure base.
Parental capacity to promote the child’s relationship with the other parent was considered thus:
113. The mother demonstrated highly developed parenting skills in attending to the child’s developmental needs. It was evident that she prioritised these needs and was highly motivated to remain his primary carer. It was, however, likely that she would be unwilling to maintain an active communication with the father unless required by the Court.
114. The father was seen to be highly motivated to provide for the needs of the child. Although this was not observed during the assessment, he expressed strong values regarding his commitment to his child’s welfare and had the support from his current partner and extended family. He was in a committed relationship and had the stable influence and support of his extended family. During the assessment, he expressed strong support for the child’s relationship with the mother and extended family. Although he had made an Application for sole custody and had been critical of her management of the child’s health needs this appeared to be a response to her excluding him from the child’s life.
As to the impact of family violence, the single expert said:
…If it is held by the Court that the mother’s account is factual then the child would be regarded …as being at risk of exposure to further family violence should he be placed in the same residential circumstance (emphasis added). Given that there was no indication that the parents were likely to reunite, this would be unlikely to be the case. I thus did not identify any ongoing risk of the child being exposed to family violence. There was no indication that the father was currently a perpetrator of family violence in his current relationship. This does not however exclude that such a pattern of behaviour could recur.
The issue of the child’s forename was significant to both parties. Dr M considered the issue as follows:
…The mother was seen to be highly anxious and distressed whenever the name [B] was used to refer to her son. I did not share her concern. 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 use of the name [B] 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.
Dr M concluded:
125. Given the age and communication difficulties of the child, no views were expressed by him during the course of the assessment. He did, however, clearly indicate his primary attachment to his mother and secondary attachment to the maternal grandparents. This was unsurprising given the close nature of these relationships and the limited and supervised nature of his contact with his father and the paternal extended family. The extensive contact records identified the positive nature of the interactions between the child and the father in the context of the establishment of stable supervised contact. Under these circumstances, the child was seen to enjoy and benefit from the nature of his contact with the father, despite that not being in evidence during the assessment process. This was regarded as being a normal response to such circumstances.
…
129. I would respectfully recommend to the Court that, should the mother’s allegations be held to be factual, she be permitted to relocate with the child to [Country N] with Orders to support regular contact with the father (albeit acknowledging the limitations in such an arrangement).
130. If not, I would recommend that joint parental custody be maintained with the child remaining in the mother’s primary care with regular and gradually increasing unsupervised contact with the father and paternal extended family. The contact should be initially day only. Once this has been established over six months, I would recommend that this be extended to alternate weekend overnight visits with more extended periods of holiday contact.
The Single Expert’s oral evidence
In discussion as to the child’s name Dr M said in response:
.. I think that there will be the ongoing use of the different names at home. Clearly, if - if the child remained in Australia then that would be likely to be the case. If the child returned to - well, if - if - if the family relocated to [Country N] I have no doubt that the mother would change the name formally to [F] and - and act to exclude the father. And that would be an aspect of that exclusion. And so I think that if there is ongoing connection with both households then that - there will be a kind of context for that name and context for that relationship and - and it would be difficult to - to order that in a home situation a particular name or nickname could or couldn't be used. However, with regard to the name at school and the - and registering for further official placements then I think it is a relevant issue.
His Honour: Well, I suppose an order could be made that the child be registered in accordance with his registered birth names? Yes.
His Honour: Whether I add a Christian name as [F] or otherwise. He could be registered with the school or anywhere, Medicare, whatever, as the child [F] as his two Christian names? Yes.
Dr M expressed concerns over the mother’s inaction over the child’s dental health.
As to the mother’s allegations as to the father’s conduct, the following exchange took place with counsel for the Independent Children’s Lawyer:
If even - let's just go back a little bit to the allegations of violence, and I've certainly got - thank you - your description of the mother's presentation of those - if, in fact, the evidence before his Honour shows that there is, let's say, inconsistencies in the stories that she gives to various people, then certainly that would tend to support a contention that the mother will do and say what it is to achieve her own ends. You would agree? Yes.
And those matters would also go to a real concern in relation to the ability of the mother to be anything but determined and single minded? Yes.
Does that tend to lead to any concerns that you might have in relation to some personality traits? The issue of the assessment of personality is a very important issue. It's a very key issue with regard to approaches to parenting. If it is held that the mother has essentially been lying about her experience and if that had been extensive and changing and ongoing, then that would be very concerning. And, you know, the common term "pathological lying" is used in this context. And certainly it would speak to there being an underlying personality disorder…
The mother’s allegations as to family violence have been sustained; therefore Dr M’s evidence based on the premise she was lying falls away.
However, Dr M expressed some reservations in response to counsel for the Independent Children’s Lawyer:
And, Doctor, following on from being all a show, if it be the case that the mother says if she has to remain living in Australia there should be no time other than supervised time because if the father is in the room with the child on his own for one second he will kill him and if she's allowed to go to [Country N], her own end goal, the father could actually spend in both Country N or in [Europe] a three week block period of unsupervised time with the child, that again shows that the mother will do and say anything to get her own end result? Yes.
And that also would tend to give you a concern on two bases. One is the mother's ability to put the needs of this child first? Yes.
And, secondly, also go to maybe an underlying concern, whether it be a personality disorder or the mother's inability to do anything other than what it is she wants to do? Yes.
And that, of course, would give a concern in relation to this little boy's opportunity to have a real relationship with both of his parents? Yes.
If she were allowed to go [Country N], and in light of the matters that you've canvassed so far, certainly it would appear that this little boy would have absolutely no opportunity of an ongoing relationship with both of his parents? Yes.
In the event that the mother remained in Australia as primary carer for the child Dr M considered what arrangements would be appropriate in the following terms:
I think that certainly, if it was possible, more extended contact would be beneficial. The challenge, of course, is that there is no communication. There's a lack of trust. There's a lack of goodwill. There's a lack of mutual respect. And so shared care arrangements generally require, you know, good communication and respectful communication between - between the parties. And it would be challenging for that to be implemented. Certainly I would recommend if that was happening that an experienced therapist in - who was experienced in such circumstances would be involved in meeting with the family, with both parents separately and together and with the child to help to facilitate such arrangements. And certainly there would need to be some arrangements made to enable communication regarding the child's needs and arrangements. And certainly there was no indication at present that there was the capacity for these parents to do so…
I think the arrangement of picking up and delivering from school would be of significant assistance for a couple of reasons. First of all, as has been put, it would enable the - each parent to have communication with the school and a presence at the school. And, importantly, there would be a - a changeover arrangement which didn't involve the child going between one parent to the other parent in an atmosphere of mistrust and hostility. And clearly if the child can be protected from that that would be of great assistance…
Prior to the child starting school changeovers could be facilitated at a contact centre that facilitates changeovers? Yes. And - and I think certainly where there have been concerns raised regarding the issue of safety then that would address, you know, such concerns be they real or not.
The proposals contended for by the Independent Children’s Lawyer are notable in that they initially see a three year old child being returned to the mother at 9:00pm at night, provide for the mother to have no weekend time with the child in circumstances where her failure to obtain employment is seen as a criticism, require the father to make some alternate care arrangements for the child, presumably with his mother and that these arrangements would continue until the commencement of the child’s schooling in January 2017.
The additional considerations
The child’s views and any factors (such as the child’s maturity or level of understanding) the court thinks are relevant to the weight to be given to such views
The child is of tender years and this consideration has little relevance, save to note that the evidence is supportive of the child having a primary attachment to the mother.
The nature of the child’s relationship with each parent and any other persons (including any grandparent or brother or other relative of the child)
There is no issue that the child is primarily attached to the mother as she has been his primary carer since birth.
The child has, as a consequence of the circumstances following separation, a continuing and developing relationship with his father and the extended paternal family where that relationship has developed not in the closed circumstances of a contact centre but within the father’s family home and community environment.
The child has established relationships with the maternal grandparents, particularly the maternal grandfather who has been present in Australia for an extended time as part of the mother’s household. The maternal grandparents have used rental monies available to them from the mother’s unit in City BB to fund their travel to and from Australia and the inference is that should those funds continue to be available, they will be able to maintain their relationship with the child by travel to Australia and otherwise by electronic means.
The extent to which each of the child’s parents has taken, or failed to take, the opportunity to participate in making decisions about the major long-term issues in relation to the child, to spend time with the child and to communicate with the child
The parties separated when the child was very young and the nature and context of the father’s relationship with the child thereafter has been considered in detail above.
The father’s concerns as to particular aspects of the child’s health are considered above. The mother’s disregard for the father’s expressed concerns in relation to the child’s health is obvious. It is to be inferred that this flows from her “proprietary” regard for the child and her attitude to the father as a consequence of his conduct during their relationship.
It is clear that orders will need to be made that provide for the engagement of both parents in long-term decisions in relation to the child.
The extent to which each of the child’s parents has fulfilled or failed to fulfil the parents obligations to maintain the child
The father in these proceedings has paid child support as assessed in relation to the child. No doubt the future financial relationship between the parties in respect of their obligations to maintain the child will be determined by the Child Support Agency.
Little turns on this consideration.
The likely effect of any changes in the child’s circumstances including the likely effect on the child of any separation from either of his or her parents or any other child or other person (including any grandparent or other relative of the child) with whom he or she has been living
The significant issue arising are the consequences of the prospective effect of the mother’s proposed relocation to Country N.
There is little issue on the evidence that should the mother relocate to Country N that will most likely be the end of the child’s relationship with his father. The mother has an unwillingness to promote the child’s relationship with the father and there is a strong inference arising from the evidence that should she be able to relocate she will do nothing to further that relationship and indeed may actively seek to end the relationship notwithstanding orders that would facilitate communication by the father with the child and time with the child either in Europe or in Australia.
The child presently is of very tender years and the ultimate effect of the separation and cessation of his relationship with his father, should the mother relocate, can only be a matter of conjecture.
At present the child enjoys a good relationship with the father and the extended paternal family. Clearly since the observations with the single expert and as evidenced by the supervisory reports the child is settled in his growing relationship with the paternal family.
The impact on the child of the prospective end of his relationship with his father in the event of relocation may only be known some years into the future.
The child whilst in Australia has the benefit of being exposed to his mother’s Country N culture and language, to the father’s culture and language and to the overarching Australian culture. In the event of the child relocating the child will prospectively lose any identity with his paternal family and their culture of origin.
The practical difficulty and expense of a child spending time with and communicating with a parent and whether that difficulty or expense will substantially affect the child’s right to maintain personal relations and direct contact with both parents on a regular basis
The consequences of the mother’s proposed relocation have been considered above. Should the mother relocate the prospects of the child in some meaningful way at his age and into the immediate future being able to properly communicate with the father in Australia by electronic means is at best problematic. The mother clearly is reluctant to facilitate the child having a relationship with the father.
The father has expressed an unwillingness to travel to the mother’s home country or countries nearby for the purposes of spending time with the child. The genuineness or otherwise of the mother’s proposal in this regard must be subject to considerable reservation.
The child’s relocation would substantially affect his right to maintain his personal relations and direct contact with his father on a regular basis. In reality, the Family Reporter is of the opinion that relocation would sound the end of the child’s relationship with the father.
In the event that the child is not permitted to relocate to Country N the mother has firmly stated that it is her proposal to remain in Australia. Should the child remain in the primary care of the mother then orders can be fashioned that address her concerns in relation to the father, with a view to providing some confidence to her in relation to her expressed fears of the father’s behaviour.
Both parties reside in the Sydney metropolitan area and there are no practical difficulties in implementing time for the child with either parent.
Should the child live primarily with the father, as sought by him, then orders also can be fashioned to ensure the ability of the child to spend time with and communicate with the mother.
The capacity of each of the child’s parents and any other person (including any grandparent or other relative of the child) to provide for the needs of the child including emotional and intellectual needs
The question of the mother’s capacity has been referred to above. It is the opinion of the single expert that notwithstanding the mother’s emotional responses and to some extent her histrionics that the mother is a high functioning and intelligent individual. As observed by the single expert:
…she certainly presented as being a highly competent and resourceful individual, that even though her case - and I really did feel that she was really promoting this view, was that she could only function if she returned to [Country N], I think that that would be unlikely.
and then:
..but one of the inconsistencies was with regard to her capacity to care for her child was that she presented a very glowing picture of - of the child's development and care and engagement in preschool and - and, you know, he came, you know, very well groomed and she presented herself as being highly competent.
There is no doubt that there is an aspect to the mother’s behaviour and her expressed fears and concerns that she perceives are of assistance to her application to relocate. In the event that her assertions as to family violence were not substantiated by the evidence then her behaviour in raising the allegations and maintaining them would have caused significant reservations as to the appropriateness of the child remaining in her primary care.
The mother raises concerns as to matters that she perceives may impact on her parenting capacity into the future should she be required to remain in Australia. She makes reference to “social isolation”. The evidence as a whole is not supportive of that contention. She has engaged with various organisations and individuals and has the support of her church at Suburb GG. She has the support of her parents, albeit mostly at a distance. She asserts an inability to obtain employment yet gives no evidence, notwithstanding the age of the child, of any attempt to obtain part-time or any employment whatsoever.
The mother has established housing in the southern suburbs of Sydney and by reason of her present financial circumstances her rental expense is subsidised.
The mother as assessed by the single expert is a high functioning and intelligent person. This is reflected in her capacity to attend a full-time course honing her English skills for the purposes of further tertiary education in Australia. She has professed an intention to study Law.
In circumstances where the mother’s assertions as to family violence in the relationship have been substantiated but where there is a limited relationship with the father and where her expressed ongoing fears cannot objectively be substantiated then should she remain in Australia she will have appropriate capacity to meet the child’s needs as contemplated by this consideration.
A significant concern is that should the child reside primarily with the father then he will use that circumstance as a tool against the mother, asserting again his dominance in the context of their relationship.
The father’s capacity in this regard requires him to acknowledge his conduct in the relationship, to respect the mother’s role as primary carer and accept that he will need to win the mother’s confidence. Should he not do so this would undermine his capacity to meet the child’s needs as contemplated.
The maturity, sex, lifestyle and background bracket including lifestyle, culture and traditions bracket of the child and of either of the child’s parents and any other characteristics of the child that the court thinks are relevant
Some aspects of this consideration have been considered above.
The child is young. He has significant time to develop in appropriate circumstances a relationship with his father who can hopefully present to the child as an appropriate male role model into the future.
If the child is an aboriginal child or a Torres Strait Islander child
This is not a relevant consideration.
The attitude to the child and to the responsibilities of parenthood demonstrated by each of the child’s parents
Many of the matters considered above touch upon this consideration. As observed by the single expert there is an underlying flavour of cultural conflict between the mother and father in this matter.
In circumstances arising out of the nature of the relationship with the father, the mother has developed a sense of propriety in relation to the child and is to be inferred that to a significant extent in her mind this reflects her protective concerns. The mother has developed an emotional and, as observed above, to an extent histrionic response to the father’s conduct in their relationship particularly in the context of her desire to relocate.
Regrettably this has reflected itself in circumstances whereby the mother has placed her own desire to relocate with the child over the child’s interests in having a meaningful relationship with his father. The mother’s response has unfortunately fashioned the nature of the orders sought by her.
The mother has in this regard demonstrated a less than satisfactory attitude to the child and her responsibility of parenthood.
The father for his part as a perpetrator of family violence in circumstances where the child has been present and exposed to such violence has shown little insight into a proper attitude to the child and his responsibilities as a parent.
His denials of his conduct were maintained at hearing and he made no concessions. His proposal that he be the primary carer of the child in such circumstances is ill founded. As such a careful and progressive expansion of his time with the child is indicated so as to engender in the mother some confidence that the father will never again be a perpetrator of family violence in their relationship or towards the child.
Any family violence involving the child or a member of the child’s family
This consideration has been dealt with above in detail. For the reasons given the evidence of the mother is to be preferred to that of the father. The father has perpetrated family violence on the mother and to a lesser extent on the child.
Otherwise since separation he has conducted himself appropriately in relation to the mother and the child. The father’s unilateral conduct in having the child firstly medically examined and then dentally examined, it appears exacerbated the mother’s perception of the father’s controlling conduct. As a consequence she failed to respond adequately to the concerns of the father as to those aspects of the child’s health.
The significance of family violence in the context of this relationship cannot be understated. It has formulated the mother’s views in relation to her perception as to appropriate time, if any, between the child and the father. It has formulated her views in relation to her ability to have contact with and communicate with the father and has underpinned her ongoing fears as to the risk to the child and herself at the hands of the father.
The existence of family violence itself is not an absolute disentitling factor in determining whether the child should spend time with the father and on what conditions such time should be spent.
It is settled authority (see Johnson and Page [2007] FamCA 1235) that the decisive issue is and always remains the best interests of the child. The nature of the risk is often referred to as “unacceptable risk”. In coming to a determination as to unacceptable risk the court should consider all of the evidence on the balance of probabilities.
The father has since separation had no unsupervised time with the child, the child at the time of separation was only 13 months of age, and at trial the child was aged just three. The father’s conduct in the context of his relationship with the mother is now historical. The father has repartnered, although not living with his new partner and no concerns arise as to the nature of that relationship. Although the single expert opines:
There was no indication that the father was currently a perpetrator of family violence in his current relationship. This does not however exclude that such a pattern of behaviour could recur.
Where there is no ongoing complaint by the mother as to any aspect of the father’s behaviour, be it in communication or contact with her or in her perceptions as to the father’s time with the child under supervision, then on balance the court is not satisfied of “unacceptable risk” to the child in having time with the father.
If a family violence order applies
After separation there was an order made, not opposed by the father, for the protection of the mother for a period of two years as detailed above.
Whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to the child
In the context of this matter the child’s relationship with the father is constrained by the present requirement for supervision. The development of that relationship has, save for supervised time, been on hold now for an extended period. How the relationship develops and matures is problematic. How the father manages his necessary relationship with the mother is a matter of conjecture in the light of his ongoing denials of family violence.
The mother’s response to an order that precludes her relocation with the child is not known. There may be circumstances that arise that will lead to further court intervention.
Any other fact or circumstances that the court thinks is relevant
Having regard to the matters considered above this is not a relevant consideration.
The primary considerations: section 60CC(2)
The primary considerations are:
a)The benefit to the child of having a meaningful relationship with both of the child's parents; and
b)The need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.
Section 60CC(2)(a): “meaningful” relationship
In Mazorski v Albright[2007] FamCA 520 Brown J considered ordinary definitions of the term “meaningful” and observed at [26]:
What these definitions convey is that “meaningful”, when used in the context of “meaningful relationship”, is synonymous with “significant” which, in turn, is generally used as a synonym for “important” or “of consequence”. I proceed on the basis that when considering the primary considerations and the application of the object and principles, a meaningful relationship or a meaningful involvement is one which is important, significant and valuable to the child. It is a qualitative adjective, not a strictly quantitive (sic) one. Quantitive (sic) concepts may be addressed as part of the process of considering the consequences of the application of the presumption of equally shared parental responsibility and the requirement for time with children to be, where possible and in their best interests, substantial and significant.
In McCall & Clark (2009) FLC 93-405, (2009) 41 Fam LR 483, the Full Court accepted as appropriate this interpretation by Brown J of “meaningful relationship”.
The child at present has an important and significant relationship with the mother as his primary carer. The mother has adopted a protective and proprietary view of her relationship with the child that arises from the nature of the father’s conduct during cohabitation.
The considerations referred to above clearly indicate a circumstance where for this young child a continuation of the mother’s role as his primary carer is imperative but that the child should enjoy a growing relationship with the father. As such the mother’s relocation of the child’s residence to Country N is contraindicated.
The mother’s primary role represents a valuable sense of stability in circumstances where the child maintains and develops a relationship with his father. Otherwise the child’s primary relationship with the mother will facilitate the child becoming cognisant of his Country N heritage whilst time with the father will involve the child in aspects of his heritage.
Whilst the mother may have reservations in relation to the child’s time with the father, it is her position that she will abide by court orders and facilitate such time. She has complied with orders to date. It is to be inferred that she will into the future. Should she not then the father has his remedies.
The child’s relationship with the father at present can be described as established but developing. It is not contended that an appropriate development of the child’s relationship with the father would not be in the child’s best interests.
This consideration is also indicative of the child remaining in Australia.
Section 60CC(2)(b): need to protect
This primary consideration is given a further emphasis by reason of the provisions of s 60CC(2A) that provides that this consideration is to be given the greater weight of the primary considerations.
The need to proceed cautiously in relation to the child’s time with the father has been discussed at length above. Where the court is not satisfied that there is an “unacceptable risk” to the child posed by the father’s time with the child, it is appropriate to move carefully and gradually having regard to the child’s young age.
The other benefit of such an approach is to hopefully give to the mother some confidence in the father’s behaviour in unsupervised time with the child and address her own concerns.
Parental responsibility
Section 61DA of the Act provides that when making a parenting order, 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.
The mother seeks an order that she have sole parental responsibility for the child. The father’s position is that he have sole parental responsibility.
The Independent Children’s Lawyer in the context of seeking an order that the child reside with the father supports the father having sole parental responsibility.
In the circumstances of this matter it is clear having regard to the court’s findings as to family violence that the presumption should not apply. The question then falls to be determined by reference to the best interest considerations discussed above.
General principles relating to parental responsibility were discussed by Murphy J in Lansa & Clovelly [2010] FamCA 80.
The single expert in the following exchange said:
Does that, Doctor, lead you to the conclusion that for the benefit of - and tell me if you need to break these down - (a) the child, and (b) a degree of harmony in the parental relationship moving forward, that one parent should have parental responsibility? I think - I think it is - it's difficult in that ideally one would always like both parents to have parental responsibility because it enables them to fulfil their responsibilities of parenthood and - and to be actively involved in the provision of the children's needs. In this particular situation there are concerns with regard to joint parental responsibility in that there has been a lack of communication, there has been a lack of coordination with regard to the child' care. There have been medical and dental issues that have come up. The mother has by her actions very clearly indicated that she is not respectful of concerns raised by the father and - and, you know, it would appear that there has been some legitimacy to his concerns, at least with regard to the dental care, and so joint parental responsibility will be challenging in that context. Nonetheless, I think that it would be ideal if both parents remain involved in that - in that manner.
HIS HONOUR: And I suppose, Doctor, when one is talking about joint parental responsibility it relates to major long terms issues? Yes.
Which are really education, religion and culture, health, name and a change of living circumstances? Yes.
So it would be, would you think, probably in the child's interests that at least at the outset the parties were required to at least consult and try and agree? That's correct.
I suppose any specific issue they can't agree on can be resolved by the court in any event later on? Whilst that's correct, clearly one would hope that that would not be necessary because, clearly, that's kind of very problematic. But that would certainly be the case.
But certainly sole PR could really be seen to be arming one or other of the parties with a tool they could use against the other? Yes.
Notwithstanding that the child may reside primarily with one parent or the other the risk of vesting the other with sole parental responsibility is that the mother may on the one hand at least initially see that as a furtherance of her perceived absolute control over the child and the father may use it as a coercive tool against the mother.
The present impasse as to the child’s dental health can be resolved by specific orders.
Otherwise the child’s name issue although significant to both parties was to a great degree minimised by the single expert in the following exchange with the court:
… And so I think that if there is ongoing connection with both households then that - there will be a kind of context for that name and context for that relationship and - and it would be difficult to - to order that in a home situation a particular name or nickname could or couldn't be used. However, with regard to the name at school and the - and registering for further official placements then I think it is a relevant issue.
Well, I suppose an order could be made that the child be registered in accordance with his registered birth names? Yes.
Whether I add a Christian name as [F] or otherwise. He could be registered with the school or anywhere, Medicare, whatever, as the child [B F] as his two Christian names? Yes.
It's not unusual, I would expect, for a child that's not overly enamoured with either a first or second name to choose which of the Christian names he would like to be called in a particular context? Yes.
The name issue can be resolved by a specific order.
Other aspects of parental responsibility including schooling and religion may await the fullness of time.
In the circumstances it is in the child’s best interest that the parties have equal shared parental responsibility.
Section 65DAA: equal or substantial and significant time
The best interest considerations discussed above clearly indicate that equal time and substantial and significant time at present are not in the child’s best interests. However the father’s time should progress in a meaningful way.
Accordingly the court need not determine whether such concepts of time are in the circumstances practicable.
Discussion
The orders to be made in relation to the child fall to be determined by a consideration of the best interest factors referred to above.
The best interest considerations are strongly indicative of the child remaining here in Australia in his present circumstances. The best interest considerations are a clear indication that the mother should remain the child’s primary carer and that the child’s time with the father, absent a finding of “unacceptable risk”, should be expanded carefully and gradually.
Changeovers should as far as possible be at a neutral venue and avoid if possible direct contact between the parties.
For the reasons set out there will be an order for equal shared parental responsibility.
The child’s name
As to the child’s forename, in Flanagan & Handcock [2000] FamCA 150 the majority (Kay and Holden JJ) set out a useful summary of cases which have considered the question of a child’s name and the principles to be applied in determining such an application.
The Full Court in Chapman & Palmer (1978) FLC 92-510 set out relevant factors as:
a)The short and long-term effects of any change in the child’s name;
b)Any embarrassment likely to be experienced by the child if its name is different from that of the parent with custody or care and control;
c)Any confusion of identity which may arise for the child if his or her name is changed or not changed;
d)The effect which any change in surname may have on the relationship between the child and the parent whose name the child bore during the marriage;
e)The effect of frequent or random changes of name.
Other factors that have been identified are:
a)The contact that the non-custodial parent has had and is likely to have in the future with the child;
b)The degree of identification that the child has with their non-custodial parent; and
c)The degree of identification which the child has with the parent with whom they live.
It is apposite to note the observations by Brown FM (as his Honour then was) in Elkin and Cheney [2008] FMCAfam 1361 where his Honour observed:
The most problematic aspect of the child’s life, at present, is the ongoing and endemic conflict between his parents. The dispute about his name is emblematic of this conflict. Both the father and mother are strong-minded personalities, who have little if any respect or regard for the other or his or her point of view. As such, in my estimation there exists a very real possibility that neither the father nor the mother will take any notice of the order of this court, regarding the child’s name, if he or she does not think it suits his or her cause or personal preference.
Names, particularly nicknames grow organically. It is a common phenomenon that individuals bear names which are not recorded on their birth certificate or otherwise legally recorded. Through a process of usage or the individual appeal of a name, it sticks to the person concerned and becomes his or her own.
It is a common phenomenon within Australia that a person will use his second given name in preference to his or her first name. The reasons for this are manifold, perhaps to avoid confusion with another relative who bears the same name or out of individual preference.
Again, individuals have different names, which they use in different circumstances. Within the intimacy of a family, he or she may have a particular family name. That individual may use another name again at school and another again for formal purposes.
The use of a particular name will not affect the essential quality of the person concerned or his or her relationship with any other particular person. A name is just a name.
As to the child’s name, the evidence of the single expert is persuasive.
There is little that can be done to prohibit the use of the alternate forename by the mother where she is wedded to its use. Otherwise the child is familiar with and responds to both used forenames. One reflects the child’s father’s heritage and the other a connection to the mother’s Country N heritage.
The child should retain his primary registered forename and the mother should be permitted to register and use a second forename of “F” in relation to the child.
All formal documents should describe the child as “B”.
Orders will be made accordingly.
I certify that the preceding two hundred and fifty one (251) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Foster delivered on 26 March 2015.
Legal Associate: Natasha Heathcote
Date: 26 March 2015
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