SPANOS & HALLETT

[2015] FamCA 458

FAMILY COURT OF AUSTRALIA

SPANOS & HALLETT [2015] FamCA 458

FAMILY LAW – CHILDREN – With whom a child lives – Abuse and family violence  – Where Court does not accept the evidence of either party except to the extent that it is independently corroborated – Where parties have an entirely toxic relationship involving excessive use of alcohol which has led to intermittent violence, on occasion in front of the child – Where relationship in all probability is not yet over – Where Court considered the risk of harm to the child in the parties’ respective care – Where Court satisfied both parties present a risk the subject child’s safety and emotional health – Where Court noted its task of determining which parties’ proposal presents the least risk of harm to the child – Where parties agree that the child should live with the mother – Where child has lived primarily with the mother since separation – Where child appears to be mentally, physically and socially flourishing – Where Court satisfied it is in the best interests of the child for the child to continue to live with the mother.

FAMILY LAW – CHILDREN – With whom a child lives – Relocation – Best interests of the child – Where mother sought to relocate interstate with the child – Where Court not satisfied relocation was in the child’s best interests – Where likely the father would follow – Where Court could not discern any real benefit to the mother or the child from relocation – Where child would likely lose all but intermittent contact with the paternal family and lose sibling contact.

FAMILY LAW – CHILDREN – With whom a child spends time – Best interests of the child – Where Court not satisfied that the parties could effectively co-parent the child – Where Court satisfied that orders should be made providing for the child to spend overnight time with the father in terms of those proposed by the Independent Children’s Lawyer.

FAMILY LAW – CHILDREN – Parental responsibility – Best interests of the child – Where abuse and family violence – Where presumption does not apply – Where Court determined parental responsibility will need to rest with whom the child lives –Where Court satisfied it is in the best interests of the child for the child to continue to live with the mother – Where orders made providing that the mother have sole parental responsibility for the child.

Family Law Act 1975 (Cth) ss 60CA, 60CC, 61DA, 64D, 65DAA, 65DAC, 68L.

Evidence Act 1999 (Cth) s 140

M v M (1988) 166 CLR 69
Mauldera & Orbel (2014) FLC 93-602
N & S & The Separate Representative (1996) FLC 92-655
Neat Holdings Pty Ltd v Karajan & Holdings Pty Ltd (1992) 67 ALJR 170
Wacando v The Commonwealth (1981) 148 CLR 1

APPLICANT: Mr Spanos

RESPONDENT: Ms Hallett

INDEPENDENT CHILDREN’S LAWYER: Ms Reaston

FILE NUMBER: CSC 507 of 2013

DATE DELIVERED: 23 April 2015

PLACE DELIVERED: Cairns

PLACE HEARD: Cairns

JUDGMENT OF: Tree J

HEARING DATE: 9, 10, 11, 12 and 13 February 2015

REPRESENTATION

THE APPLICANT: In person

COUNSEL FOR THE RESPONDENT: Mr Jacobs

SOLICITORS FOR THE RESPONDENT: Cuthbertson & Co Lawyers

COUNSEL FOR THE INDEPENDENT CHILDREN'S LAWYER: Ms Wilson

SOLICITORS FOR THE INDEPENDENT CHILDREN'S LAWYER: O’Reilly Stevens Lawyers

Orders

1. All previous parenting orders are discharged.

2. The mother have sole parental responsibility for the child, N Spanos, born … 2012 (“the child”).

3. The child live with the mother.

4. Neither party is permitted to relocate the child from the district of Cairns.

5. The child spend time with the father as follows:

   (a)until 23 April 2016 on each alternate weekend (being the weekends when the father has his son V staying with him) from 9:00 am on Saturday morning until 3:00 pm on Sunday afternoon;

   (b)thereafter until the child commences year one (not the prep year) in January 2018, on each alternate weekend (being the weekends when the father has his son V staying with him) from 3:00 pm on Friday afternoon until 3:00 pm on Sunday afternoon;

   (c)Upon the child commencing year one (not the prep year) in January 2018:

   (i)     on each alternate weekend (being the weekends when the father has his son V staying with him) from the conclusion of school on Friday afternoon until the commencement of school on Monday morning;

   (ii)    on each Wednesday from the conclusion of school until the commencement of school on Thursday morning;

   (iii)     for the first half of all school holidays in even numbered years, and the second half of all school holidays in odd numbered years.  The father’s time shall include Easter Sunday and Christmas Day in 2018 and each alternate year thereafter.

   (d)On the following special days:

   (i)     during the Easter period in 2016 and 2017 from 9:00 am Good Friday until 3:00 pm on Easter Sunday (thereafter above applies);

   (ii)    during the Christmas period in 2015 and 2017, from 9:00 am Christmas Eve until 3:00 pm Christmas Day and in the year 2016, from 3:00 pm Christmas Day until 3:00 pm Boxing Day (thereafter 5(c)(iii) above applies);

   (iii)     on the child’s birthday … from 12:00 pm until 5:00 pm in 2015, 2016 and 2017 and all years thereafter when the child’s birthday falls on a day that is not a school day or at a time when the child is otherwise spending time with the father.  Should the child’s birthday fall on a school day that is not otherwise time with the father in accordance with these Orders, the child shall spend time with the father from the conclusion of school until 5:00pm.

6. For the purposes of order 5 above, handover of the child will occur as nominated by the mother, either at the X Contact Centre, or the child’s day care provider, or by a private nanny service, except for changeovers which occur at the commencement or conclusion of a school, in which case, handovers will occur at the child’s school.

7. The father will be responsible for paying the costs associated with changeovers.

8. Within twenty-one (21) days the mother and father are directed to attend upon an Alcohol and Drug Service for treatment and counselling in relation to their substance abuse issues and they are each required to meaningfully engage with such service or provider as directed, including compliance with any direction to submit to random alcohol or drug testing and to engage in counselling.

9. The mother and the father are required to provide progress reports of all drug and alcohol counselling every three (3) months to the Independent Children's Lawyer.

10. The mother is directed to:

    (a)attend upon and engage in treatment with a mental health professional as recommended in relation to her substance abuse issues, her enmeshed relationship with the father and issues of domestic violence arising from her relationship with the father and her anxieties / unresolved issues arising from the breakdown of her relationship with the father and to attend upon such professional for the period as recommended by that professional.

    (b)provide to any treating professional/s engaged by her for the purpose of this order the psychiatric report of Dr K and each of the Family Report prepared by Ms E and any other material as determined relevant by the Independent Children's Lawyer, including a copy of the orders of this court together with the Reasons for Judgment.  Any such treatment of the mother shall be reportable to this court and the Independent Children's Lawyer is at liberty to communicate with and request progress reports from the mother’s treating professionals. 

11. The father is directed to:

    (a)attend upon and engage in treatment with a mental health professional as recommended in relation to his substance abuse issues, trust issues, his entrenched view that he has acquired a sexually transmitted disease from the mother and his enmeshed relationship with the mother.  The father is to attend upon such professional for the period as recommended by that professional.

    (b)Provide to any treating professional/s engaged by him for the purpose of this order the psychiatric report of Dr K and the Family Report prepared by Mr E and any other material as determined relevant by the Independent Children's Lawyer, including a copy of the orders of this court together with the Reasons for Judgment.  Any such treatment of the father shall be reportable to this court and the Independent Children's Lawyer is at liberty to communicate with and request progress reports from the father’s treating professionals.

RESTRAINTS AND PERSONAL PROTECTIONS

1. The mother and father are restrained from having a blood alcohol concentration in excess of .05% whilst the child is in their care.

2. The father is restrained from taking the child to hospitals and/or doctors or medical treatment of any kind unless it is an emergency or he has obtained the prior express written permission of the mother.

3. In the case of an emergency relating to the child whilst she is in the father’s care, he must advise the mother of the relevant matter at the first available opportunity.

4. Each of the parties be and are restrained by injunction from discussing these proceedings or the contents of any documents filed in or intended for use in these proceedings, with the child.

5. Each of the parties are restrained by injunction from denigrating the other party, the other party’s partner or family members, in the presence or hearing of the child, and from permitting any other person in their presence to do so.

6. Each of the parties are restrained by injunction from questioning the child about the personal life of the other parent, and from permitting any other person in their presence to do so.

OTHER

1. That pursuant to s 65L of the Family Law Act, the parties’ compliance with these orders be supervised by a family consultant until 30 June 2016.

2. The Independent Children's Lawyer generally has liberty to apply.

3. The Independent Children's Lawyer be discharged on 30 June 2016, or such other date as may be ordered.

4. That pursuant to s 64D of the Family Law Act until 30 June 2016, these orders may only be varied by a subsequent order of the court, and not by a parenting plan.

5. Otherwise all extant Applications be dismissed and the matter is removed from the list of active pending cases. 

IT IS NOTED that publication of this judgment by this Court under the pseudonym Spanos & Hallett 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 CAIRNS

FILE NUMBER: CSC507/2013

Mr Spanos

Applicant

And

Ms Hallett

Respondent

REASONS FOR JUDGMENT

INTRODUCTION 

1. This is an unusual case.  I do not accept the evidence of either party, except to the extent that it is independently corroborated.  I am satisfied both parties present a risk to the subject child’s safety and emotional health, and whilst each is eager to point out the failings of the other in that regard, neither appreciates the risks which attach to themselves. 

2. The problem essentially stems from the fact that the parties had – or still have – an entirely toxic relationship involving excessive use of alcohol, and perhaps other substances, which has led to intermittent, albeit at times extreme, violence, on occasion in front of the child.  However the fundamental problem is that their relationship is in all probability not yet over.  They remain enmeshed.  Neither party appears to want to actually end the relationship.  The court proceedings before me were merely but an iteration of it.

3. The most recent example of this was as late as 22 November 2014 (ie about 10 weeks prior to trial).  On that evening the mother – who in these proceedings alleges, in substance, that the father is a terribly violent man and an abusive alcoholic – at the request of the father, voluntarily went to his house with the child the subject of this litigation, where both parties proceeded to consume alcohol.  I am satisfied that it was both the father and mother’s intention that they should spend the night together in the same bed.  As had often happened before, the evening was a disaster and ended up with the police being called.

THE PARTIES’ PROPOSALS

1. These proceedings relate to parenting orders for N Spanos (“the child”) born in 2012, and hence presently approaching three years of age.  Mr Spanos (“the father”) seeks orders that the parties have equal shared parental responsibility for the child, who should live with the mother.  He also seeks orders that the child should spend alternate weekends with him, together with time on Wednesday extending overnight to Thursday morning.  He also seeks that the child spend one half of all school holidays with him, alternate Christmas days, and that she be made available on two weeks’ notice if there are planned family events, totalling no more than seven days per year.

2. Ms Hallett (“the mother”) seeks orders that she have sole parental responsibility for the child, who should live with her.  She also seeks orders permitting her to relocate to New South Wales.  The time that she contemplates the child will spend with the father depends upon whether she is permitted to relocate.  In the event that she in not permitted to relocate, then she seeks orders that the child spend time with the father during the days of both Saturday and Sunday for the first three weekends of each calendar month between 9:00 am and 5:00 pm until she turns four years of age, at which time it would move to 9:00 am Saturday to 5:00 pm Sunday (ie overnight).  Then upon the child commencing school, it would move to alternate weekend time from 3:00 pm Friday until 9:00 am Monday, and half school holidays.

3. In the event that she is permitted to relocate to New South Wales, then she contemplates the father spending block time with the child not exceeding seven consecutive days on each occasion, but totalling not less than four weeks in each calendar year.  Upon the child turning six the mother contemplates that time would then become half of all school holiday periods, the entire half being in one block. 

4. Whether she be permitted to relocate or not, the mother seeks that the father’s time be supervised by a family member and that when the child is spending overnight or block time with the father, she is to reside with the paternal grandmother.

5. In the event that the mother is not permitted to relocate to New South Wales, but I am persuaded that the father is “considered to be a risk to the child” then the mother proposes the time that the father spends with the child be supervised by an agreed person, or failing agreement, at the Cairns Contact Centre.

6. The Independent Children's Lawyer ultimately opposed the mother being permitted to relocate with the child to New South Wales and sought orders restraining both parties from removing the child from the Cairns district.  She sought orders that the mother have sole parental responsibility for the child who should live with her.

7. As to the time that the child spends with the father, the Independent Children’s Lawyer sought orders that initially the child spend one overnight visit with the father each alternate weekend to coincide with the father’s time with his son to another relationship. After 12 months that would progress to two overnights in the weekend. All changeovers would take place at the X Contact Centre. She also sought an order under s 64D that the parenting orders can only be varied by a subsequent order of the court, and not by a parenting plan. In addition she sought a period of s 65L supervision for 12 months, and a suite of therapeutic orders requiring both the mother and father to attend alcohol and drug treatment, with three monthly progress reports, and orders requiring both parties to engage with a mental health professional.

8. Although the Independent Children’s Lawyer initially sought injunctions restraining the parties from harassing, molesting or stalking each other (amongst other things) these were expressly abandoned in final address because it was said that, in truth, neither person really wanted that protection.  There were, however, further orders sought restraining the parties from being under the influence of alcohol whilst the child is in their care, restraining the father from communicating with the child and mother other than to arrange hand overs or in emergencies, and restraining the father from taking the child to hospitals or doctors, unless an emergency has occurred or with the prior express written permission of the mother.

9. The Independent Children’s Lawyer also sought orders prohibiting the parties denigrating each other or questioning the child and the like, and orders that the Independent Children's Lawyer be discharged at the expiration of twelve months from the date of orders.

THE FACTS

The father

1. The father was born in 1967 and hence is presently 48 years of age.  He is the father to four children to his first wife, who are aged 26, 23, 18 and 15.  He also has another child, a son V, who is presently six years of age, born to a subsequent relationship.  It was after that relationship failed that he met the mother.  He was then aged 44 years.

The mother

1. The mother was born in 1975 and hence is presently 40 years of age.  She has a daughter from a previous relationship, being B, who is 11 years of age.  When she met the father she was about to turn 36 years of age.

The relationship

1. The parties met in late March 2011 through an internet dating site.  They began living together in August 2011 and were married in late 2011.  The child was born in 2012.  Both parties assert that they finally separated on 7 April 2013. 

2. Even before the parties commenced living together the mother obtained a domestic violence order against the father.  That arose out of an incident on 25 May 2011 when the father broke into the mother’s home, and went onto her computer and saw a photograph of the mother, which he inferred was evidence that she was being unfaithful to him.  He then proceeded to leave a message on the computer accusing the mother of that, dismembered a number of teddy bear toys of hers, and generally ransacked her room, before urinating throughout it.  Notwithstanding that behaviour and the domestic violence order which ensued, the parties commenced living together less than two months later.  It has set the scene for the complete chaos which thereafter ensued, and which continues to this day.

3. Another feature of this event, which continues to this day, is that attending upon it were vicious and aggressive text messages exchanged between the parties.  For instance the father commenced the particular line of communications in relation to this episode with “fuck off you low life lieing cheating SLUT !!! Whore!!”

4. On 29 May 2011 the father again attended the mother’s property.  The mother says he was intoxicated and was peering through the windows.  On this occasion I am prepared to believe her evidence because there is a contemporaneous police record supporting it, which shows that after the mother contacted police, they intercepted and breathalysed the father, who returned a blood alcohol concentration of .119.

5. On 2 June 2011 a Magistrate made a domestic violence order by consent without admissions which was to last until 1 June 2013.  The mother was the person protected by the order and the father was the respondent.  The order precluded the father from having any contact with the mother.  In breach of that order, later that month the father contacted the mother asking her to remove the “no contact” clause in that order.  In support of that campaign, on 27 June 2011 the father sent the mother a series of emails with the subject “Flying High!! Can We Do – It? YES WE CAN!!!!!!”  As part of the introductory sales pitch in that email the father said “Just so you know I have never in my life reacted like that before, sitin (sic – Satan) truly took over my body & mind when I thought you were with another man & I just didn’t think it I believed it & the searing pain exploding in my mind & the feeling of having the blood drained from my body & the pain of a sword being driven through my heart.”  Later in that email he said “It would be a crime against god (sic) for us not to pursue a life of happiness together…”  He concluded the email with “ps will ring QLD mental health first thing tomorrow.”

1. Shortly thereafter the parties agreed for the “no contact” clause to be removed from the DVO, and not long after resumed their relationship.

2. Apparently things then proceeded relatively uneventfully for a while, with the parties marrying in late 2011 and the child being born in mid 2012.  However on the first anniversary of their wedding the parties went to South East Asia for a holiday.  The child accompanied them.  It appears as though the parties agreed to undertake a massage together.  Certainly the father brought alleged massage therapists back to the room during the course of an evening.  When the father and the two therapists arrived the mother was in bed, probably naked under a sheet.  One of the therapists commenced to give the mother a massage, but in doing so the mother says that she touched her inappropriately and that woke her up from her alleged sleep.  At the time the father was outside on the balcony of the apartment with the other therapist, who it transpired was a “lady boy”.  The mother claims that in fact both of the therapists were prostitutes.  The father denies this.  In any event, the mother demanded that not only the two therapists leave, but also “kicked [the father] out of our room and locked him out for the rest of our holiday, for the safety of [the child] and me.”

3. Exhibit AH7 to the mother’s affidavit of 17 December 2014 is an alleged email from the father to the mother during the period that he was excluded from the room.  He denied sending it and denied that he had the capacity in South East Asia to send such an email.  He suggests that the mother has falsely created this email in an effort to make him look bad.  Nothing turns on whether the email was sent or not and I decline to resolve conflict between their evidence when there is no objective material which would assist me.  That is because merely although I may think one of their stories is more plausible or less plausible than the other, I would not be persuaded on the balance of probabilities that the events occurred based upon either witness’s testimony alone.

4. On 26 January 2013 the father and mother booked into a hotel for a “weekend away”.  It is not altogether clear what they were getting away from, given that they lived only about a 10 minute drive away.  They went out to dinner and consumed liquor.  They had an argument.  The father returned to the hotel room and the mother went out to a night club.  She asserts that a bouncer at the night club assaulted her and she passed out.  Whatever be the truth, the police attended.  She was arrested.  She claims “my leg accidently connected with a police woman.”  The mother spent the night in a padded cell in the watch house.  The cell appears designed to house methamphetamine affected people.  The police records leave no room for doubt that the mother’s behaviour in the watch house was extremely aggressive and nigh uncontrollable.  She was charged with being drunk in a public place and assaulting police.  She pleaded guilty.  She says she did so because she was advised that she would not have a conviction recorded.  Indeed she did not have a conviction recorded, although she was subject to a six month good behaviour bond.  She claims that police in the watch house assaulted her.  I do not believe her, and indeed no one has ever been charged in relation to that.

5. It is noteworthy that in this incident, the ingredients of alcohol, disagreement between the mother and father, violence and police involvement, all feature.

6. The next relevant event occurred on 7 April 2013.  The parties cannot agree as to the events of that day, and there is little objective material to assist me in resolving the conflict.

7. The mother says that when she returned from work at about 3:00 pm the father was drinking at home.  He was sitting outside.  At 7:00 pm she went outside and asked him what he was doing.  He said “I am inviting the world to Splendour in the Grass on Facebook.”  She concedes that shortly thereafter she grabbed his phone and called his brother which enraged the father.  The father then went inside and took the child V, apparently with the intention of leaving with him.  She says that an altercation ensued in which she was knocked out.  The father then drove away with V.  This is the occasion on which the parties claim that they finally separated.

8. The mother later gave a statement to police.  Paragraph 10 of that statement says:

   They left and I just went to bed.  I didn’t call police because I didn’t have much faith in police at that point in time…

9. Although she did receive two text messages at 11:00 pm that night from the father, she didn’t hear from him again until 12 April when he sent her some abusive text messages.

10. The following day the mother says that his occurred:

    On Saturday at about 5:00am on 13 April 2013 [the father] turned up at my address and climbed into bed with me.  The front door was locked but [the father] let himself in… I let [the father] stay because I wasn’t in the mood to fight and when he’s drunk he becomes aggressive.

11. The father then stayed for that weekend.  During an occasion when he was asleep, the mother’s police statement says that she went through his car.  She found what she believed was a girl’s key ring, and a statement which she thought was part of a plot against her.  She confronted the father.  He left, and according to the mother, took her house keys and car keys with him.  He thereafter denied he had them.  The police were called.

12. On 17 April 2013 the father sent the mother a text accusing her of sleeping with her ex-boyfriend.  In it he said that he had seen that person’s car leaving the mother’s home.

13. On 19 April the father sent the mother a text message which the mother interpreted as further evidence that the father was keeping her under observation.  On 20 April she went to a park at the beach with the children and saw the father driving past.  She sent him a text telling him to stop stalking her and her family.

14. The parties continued to communicate extensively by text and email.  On 24 April the mother was texting the father asking him to take care of the child.  She explained that she wanted that to occur so she could stay up late to do a job application, and then sleep in the following morning.  Notwithstanding the fact that the father said that he was already in bed because he was too drunk, at 12:30 am he turned up “really drunk.”  The mother’s police statement then continues “[the father] got naked and climbed into my bed and passed out.  I was up until about 2:00am completing my job application and went to my bed and slept until 7:00am…”  Although the mother attempts to argue that at the time the parties’ relationship had concluded, the evidence would plainly suggest otherwise.

15. Next on 27 April 2013 the parties went on an outing with the child.  They went to some local markets about 90 minutes’ drive from where they lived, and then had a picnic at a lake.  They decided that they would spend the night at a couples retreat in the local town.  They checked in at about 5:00 pm.  They had consumed wine during the day and continued to drink into the evening.  The mother intercepted the father’s phone again.  She read a message which she says was advice from the father’s son’s girlfriend about how to stop the mother from getting anything from the father financially.  They argued about the texts.  The mother formed the belief that the father’s attempts to reconcile were not genuine and “that he was playing a game with me.”

16. The father then consumed more liquor.  The parties are in heated disagreement as to how much they each consumed.  There is no objective material on the issue and I am not prepared to believe either of them about how much they each drank.  Certainly the father left the unit and went to a nearby hotel.  The mother could not sleep and was worried the father had taken the car, hence effectively stranding her and the child.  She walked up to the hotel.  She spoke to the father who told her that he was going to go to the toilet.  He did not return.  The mother began to feel suspicious so walked back to the unit.  The father was inside and had locked her out.  She asserts that she could see the father who “looked crazy”.  They had some form of conversation in which the mother says that the father said to her “how does it feel” over and over again. 

17. What followed was truly extraordinary.  I accept it occurred because equally remarkably, the father has a video recording of it which he took during the event.  The mother, clearly enraged, commenced to kick the lower panels of the door into the unit.  She was swearing and calling the father names such as “dog” and “cunt”.  There was a lot of noise both from the mother’s kicking and her shouting.  It obviously woke the child because at the end of the father’s recording, she can be heard crying.

18. The father’s reason for videoing the mother attacking the door (albeit from the inside) is that he wanted to, in effect, get evidence of her doing it.  He did not think to call the police or try and calm the mother in any way.  He collected evidence instead.

19. Eventually the mother succeeded in kicking out the panels of the door and was able to get inside the room.  The video recording stops at about that point.  She then says that as she was crawling through the gap in the bottom of the door into the room “[the father] charged at me and king hit me three times with full force, once to my left eye which split open my left eyebrow, once to my right temple which caused another split and once to my mouth which fractured my left front tooth.”  The father denies that he hit the mother or applied any force to her at all.  He says (although not consistently) that the mother probably sustained those injuries when she was entering the room through the narrow aperture from the destroyed panel.  Further injuries may have been sustained when she stumbled over a wooden coffee table which, by the end of the episode, was certainly on its side.

20. There is no objective evidence to support the mother’s version of events other than her injuries.  They are equally consistent with the father having struck her as with the mechanism ultimately contended for by the father.

21. Inevitably the parties accuse the other of being drunk at the time.  Each denies that they were the one who was drunk.  In my view the mother’s voice which can be heard on the video is consistent with her being heavily affected by liquor.  The father had been drinking during the day and in the evening and at the hotel and I am persuaded that he was likely drunk as well.

22. The mother did not lose consciousness.  She saw that the father had taken the child out of the cot where she had been asleep, and was trying to leave the unit.  She stood up and took the child from his arms.  She refused to let her go.  The child rode on the mother’s chest in the ambulance to the hospital where she subsequently spent three days.  Inevitably the police were called.  Regrettably they did not secure the scene and allowed the father back into the unit.  He concedes that he “cleaned up” by removing some empty wine bottles and cans.

23. The mother’s affidavit contains a number of photographs of her injuries.  They are horrific.  They show blood all over her face, a chipped tooth, and horrible swelling around her eyes.

24. It seems as though the father spent the night in the local hotel.  He stayed there for the following day.  The relevant police records note that when police attempted to interview him on the following day, “he stated that he was heavily intoxicated and therefore could not participate in a ROI…”

25. The police determined not to prosecute either party.  However they did advise the mother to make an application for a domestic violence order with a “no contact” clause in it.  They said that they could not bring that application themselves because of the inconsistent versions of events of the night in question.  She did not make any such application.  Rather a further protection order was made in the mother’s favour requiring the father to be merely of good behaviour towards her and not commit domestic violence.

26. Notwithstanding the events of 27 April 2013, the parties apparently remained in regular email and text communication.  The mother’s affidavit filed 17 December 2014 annexes text messages received from the father on 10 June 2013 and between the evening of 17 June and 18 June 2013.  On 10 June alone there were 21 text messages.  They variously avowed the father’s love for the mother, referred to numerous infidelities on his part, but then asserted that he will wait for the mother and that he knows that she loves him.  Finally he suggests that the mother must have a new boyfriend and asserts that the mother has broken him.  Those of 17 to 18 June are in the same alternating terms.  Both bursts of communication introduced a new concept, namely that the father was asserting that the mother had infected him with syphilis.  This was attributed by the father to the mother being unfaithful to him during their relationship.

27. Although from time to time there is advertence to the child in the emails or texts, the reality is that they are all about the parties.

28. The father’s messages caused the mother to continue to involve the police from time to time, although there does not seem to have been much action on their part, other than intermittently taking statements from her.

29. The father’s concerns in relation to syphilis began to assume some significance.  Pursuant to court orders made 18 October 2013, on 10 November 2013 the father was due to spend his first full day with the child between 9:00 am and 5:00 pm.  He failed to return the child to the mother’s care at that time.  In fact he took the child to the Hospital for some syphilis tests.

30. It is plain that in consequence one of the medical staff made a notification to the Department of Child Safety.  The record of the notification was in evidence.  The father agreed with everything in it except a part in which he is recorded (in quotation marks, and hence suggestive of a direct quote) that he believes the mother has “purposefully given [the child] syphilis to win the Family Law Court custody battle.”  The father denied he said that, but otherwise accepts the information on the DoCS record is correct.  I reject his denial that he said what I have quoted above, and I am persuaded that he did indeed do so.  The notification report continues that the notifier stated that the father presented as “a little unhinged.”

31. The plain fact is that on the very first full day that the father had with the child, he used the child in part of his litigious war with the mother. 

32. The father’s obsession with the mother having been unfaithful to him, and proving this by syphilis infections, continued even before me.  He still insisted, notwithstanding the plain documentary evidence to the contrary, that the mother suffers from syphilis.  She does not.  Only the father has syphilis.  The mother has, at least in recent times, never suffered from the disease.  The fact that in the face of such material the father holds such strong beliefs is concerning.

33. On 27 December 2013 the mother was due to collect the child from spending time with the father.  Contrary to the then orders, she did not get out of her car to effect the changeover.  The father did not allow the child to go to the mother’s car and after about a minute’s wait, the mother left without the child.

34. The father remained at the changeover location awaiting the mother’s return.  Some text messages were exchanged, but the mother did not return.

35. The father contacted the police for advice.  They advised him to return to his home with the child.  He put her to bed.  He advised the mother that he would make the child available at 9:00 am the next morning.  At 8:21 pm the mother attended the father’s residence.  She was yelling out and bashing on his door.  When that did not work, she started doing the same to a neighbouring property, being a restaurant.  The father called police.  When they arrived, they breath-tested the mother.  She registered a blood alcohol concentration of 0.07, and in consequence was arrested.  In due course she pleaded guilty to drink driving.

36. On 2 March 2014 at a changeover the father again believed that the mother was under the influence of alcohol whilst driving with the child, and called police.  The mother apparently did not register above the legal limit.

37. During 2014 the father became obsessed with the idea that the child had a golden staph infection.  Nothing came of that but it generated a great deal of angst between the parties.  The father used it as an opportunity to regularly communicate with the mother about his concerns and to try and encourage her to do something in relation to them.

38. On 2 November 2014 at about 4:30 am the mother was awoken by the sound of crashing glass.  When she checked, the father was climbing in through her kitchen window.  Although she told him to “get out” he was already inside and she says that she was “then too scared to call the police.”  The father reeked of alcohol and had apparently earlier that day been at some races and a restaurant.  He slept the night in her house.  Later in the morning, both parties agreed that the contact visit for the following day should be cancelled, although they disagree as to the precise reasons for, and mechanism of how it came to be cancelled.  Nothing turns on that.  Ultimately the mother dropped the father and the child off at the father’s car at about 11:30am.  She claims he was then sober.  One would have to have real doubt about that.

39. Then in November 2014 the father sent the mother some odd emails in relation to her own relationship with her mother, and her mother’s habit of buying her handbags.  He suggested that she “throw the handbag your mother brought you over a cliff and into the ocean…”  On any view it is very odd behaviour.

40. Most recently on 22 November 2014 (which was a day when the child spent time with her father), about an hour after the mother had collected the child, the father called her to see if she had any fold-up chairs he could use for V’s forthcoming birthday party.  Ultimately he arrived at her home and invited her over to his place for a bath, as he was aware that the mother then had no hot water.  The mother agreed and the father drove her and the child to his house.  The child was put to bed in the spare room at the father’s home.  The parties then commenced to drink.  They disagree as to the amount that each of them had to drink; indeed they disagree about most of the events of the evening.  However what is plain is that the mother went to the father’s house voluntarily, and allowed herself to become sufficiently intoxicated that she could not have driven home (and indeed did not have a car there anyway).  The father expected that the mother and child would stay over that night.  I am satisfied that the mother was expecting to stay over as well.  When one considers the history of these parties, and allegations that each makes against the other, their behaviour is nearly beyond comprehension. 

41. Inevitably there was confrontation.  Somehow or other the mother’s mobile phone was thrown off a balcony into a swimming pool.  The mother says the father threw it in there.  The father says the mother threw it in there herself, mistaking it for his phone.  I am not prepared to believe either of them.

42. It seems tolerably clear that at some stage the father went to bed.  The mother did not, but rather attracted the attention of some people entering the unit complex.  She asked them to call the police.  Why the mother did not simply ask the persons entering the unit complex to call a cab, and take the child and herself back home, is difficult to fathom.  The police arrived.  According to the police records, the father was passed out in bed, which is of course at great variance with his evidence that he was not drunk.  The police records state that the mother was also “highly intoxicated”.  I am satisfied that, notwithstanding their denials, both parties were drunk.  No charges were laid. 

1. The mother’s explanation for acceding to the father’s invitation to take a bath at his house was that she was alone and lonely.  Even if she was, the fact that she was prepared to again put herself into a situation with the father, alcohol and the prospect of violent or angry confrontation, with the nigh inevitable consequence that police would attend, is of great concern.

2. In the trial before me, both parties professed that they now realise that the relationship is finally over.  I am not persuaded by those assertions.  Neither party has re-partnered, and indeed they still remain married to each other.

RELEVANT STATUTORY PROVISIONS AND LEGAL PRINCIPLES

The statutory regime

1. Part VII of the Family Law Act contains the relevant statutory provisions dealing with children.  Section 60B specifies the objects of Part VII, and the principles underlying those objects in the following terms:

   (1) The objects of this Part are to ensure that the best interests of children are met by:

   (a) ensuring that children have the benefit of both of their parents having a meaningful involvement in their lives, to the maximum extent consistent with the best interests of the child; and

   (b)protecting children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence; and

   (c) ensuring that children receive adequate and proper parenting to help them achieve their full potential; and

   (d) ensuring that parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of their children.

   (2) The principles underlying these objects are that (except when it is or would be contrary to a child’s best interests):

   (a) children have the right to know and be cared for by both their parents, regardless of whether their parents are married, separated, have never married or have never lived together; and

   (b) children have a right to spend time on a regular basis with, and communicate on a regular basis with, both their parents and other people significant to their care, welfare and development (such as grandparents and other relatives); and

   (c) parents jointly share duties and responsibilities concerning the care, welfare and development of their children; and

   (d) parents should agree about the future parenting of their children; and

   (e) children have a right to enjoy their culture (including the right to enjoy that culture with other people who share that culture).

2. Section 61DA(1) of the Family Law Act provides that the court must apply a presumption that it is in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child. In the event that, either because that presumption applies, or because it is otherwise in the child’s best interests that there be an order providing for equal shared parental responsibility, the court is obliged pursuant to s 65DAA(1) to then consider certain matters, including whether the child should spend equal time with each of the parents, or substantial and significant time.

3. However s 61DA(2) provides that the presumption does not apply if there are reasonable grounds to believe that a parent of the child (or a person who lives with a parent of the child) has engaged in either abuse of the child or another child who, at the time, was a member of the parent’s family (or that other person’s family) or family violence. Further, subsection 61DA(4) provides that the presumption may be rebutted by evidence that satisfies the court that it would not be in the best interests of the child for its parents to have equal shared parental responsibility.

4. In this context it is convenient to also advert to s 65DAC, which sets out the effect of a parenting order that provides for shared parental responsibility. By subsection (3) such an order is taken to require each of the persons subject to it to consult with the other person in relation to the decision to be made about any major long-term issue in relation to the child, and make a genuine effort to come to a joint decision about that issue. It can therefore be seen that the obligations which an order effecting equal shared parental responsibility imposes are potentially onerous.

5. Finally s 60CA provides that in deciding whether to make a particular parenting order, the court must regard the best interests of the child as the paramount consideration. The matters which a court must have regard to in determining the best interests of a child are set out in s 60CC.

6. In Mauldera & Orbel (2014) FLC 93-602 the Full Court had occasion to consider the interrelationship between s 60B and ss 60CC. At [72] the Court applied the principles enunciated in Wacando v The Commonwealth (1981) 148 CLR 1 in concluding that objects clauses, such as those contained within s 60B(1) can be used as an aid to the construction of words of legislation, but cannot be used to cut down the plain and unambiguous meaning of a provision if that meaning in its textual and contextual surroundings is clear (quoting from S v Australian Crime Commission (2005) 144 FCR 431 at [22] per Mansfield J). At [79] the Court concluded that the primary Judge could not attach greater weight to the factors referred to in s 60B than to the outcome of her s 60CC deliberations, and in doing so, her Honour had erred.

The standard of satisfaction required

1. Section 140 of the Evidence Act 1999 (Cth) provides as follows:

   140(1) In a civil proceeding, the Court must find the case of a party proved if it is satisfied that the case has been proved on the balance of probabilities.

   (2) Without limiting the matters that the Court may take into account in deciding whether it is so satisfied, it is to take into account:

   (a)      the nature of the cause of action or defence;

   (b)      the nature of the subject-matter of the proceedings;

   (c)      the gravity of the matters alleged.

2. In Neat Holdings Pty Ltd v Karajan & Holdings Pty Ltd (1992) 67 ALJR 170 at 170-171 the majority of the High Court stated:

   The ordinary standard of proof required of a party who bears the onus in civil litigation in this country is proof on the balance of probabilities.  That remains so even where the matter to be proved involves criminal conduct or fraud.  On the other hand the strength of the evidence necessary to establish a fact or fact on the balance of probabilities may vary according to the nature of what it is sought to prove.  Thus, authoritative statements have often been made to the effect that clear or cogent or strict proof is necessary “where so serious a matter as fraud is to be found”.  Statements to that effect should not, however, be understood as directed to the standard of proof.  Rather, they should be understood as merely reflecting a conventional perception that members of our society do not ordinarily engage in fraudulent or criminal conduct and a judicial approach that a Court should not likely make a finding that, on the balance of probabilities, a party to civil litigation has been guilty of such conduct.

3. Therefore consistent with s 140(2), in taking into account the gravity of the  parties’ allegations against each other, I propose to carefully evaluate the evidence relied upon in support of such a contended finding and be particularly vigilant to identify and place reduced weight upon “inexact proofs, indefinite testimony or indirect inferences.”[1] 

   [1] See K v R (1997) 22 FamLR 592 and Re W (sex abuse – standard of proof) [2004] FamCA 768 at [15].

The notion of unacceptable risk

1. It is useful to consider the authorities which give some guidance as to what is an unacceptable risk, and particularly the relationship of any such risk with the orders that the Court is contemplating.  A useful starting point is the decision of the Full Court in N & S & The Separate Representative (1996) FLC 92-655, where in the well-known passage at 82,713-4, Fogarty J said:

   Thus, the essential importance of the unacceptable risk question as I see it is in its direction to Judges to give real and substantial consideration to the facts of the case, and to decide whether or not, and why or why not, those facts could be said to raise an unacceptable risk of harm to the child.  Thus, the value of the expression is not in a magical provision of an appropriate standard, but in its direction to Judges to consider deeply where the facts of a particular case fall, and explain adequately their findings in this regard.

2. In M v M (1988) 166 CLR 69, the High Court had occasion to consider the approach in Family Court proceedings where there are allegations of sexual abuse of a child. At [20]-[25] the Court said as follows:

   20. But it is a mistake to think that the Family Court is under the same duty to resolve in a definitive way the disputed allegation of sexual abuse as a court exercising criminal jurisdiction would be if it were trying the party for a criminal offence. Proceedings for custody or access are not disputes inter parties in the ordinary sense of that expression: Reynolds v Reynolds (1973) 47 ALJR 499; 1 ALR 318; McKee v McKee (1951) AC 352, at pp 364-365. In proceedings of that kind the court is not enforcing a parental right of custody or right to access. The court is concerned to make such an order for custody or access which will in the opinion of the court best promote and protect the interests of the child. In deciding what order it should make the court will give very great weight to the importance of maintaining parental ties, not so much because parents have a right to custody or access, but because it is prima facie in a child's interests to maintain the filial relationship with both parents: cf. J. v Lieschke [1987] HCA 4; (1987) 162 CLR 447, at pp 450, 458, 462, 463-464.

   21. Viewed in this setting, the resolution of an allegation of sexual abuse against a parent is subservient and ancillary to the court's determination of what is in the best interests of the child. The Family Court's consideration of the paramount issue which it is enjoined to decide cannot be diverted by the supposed need to arrive at a definitive conclusion on the allegation of sexual abuse. The Family Court's wide-ranging discretion to decide what is in the child's best interests cannot be qualified by requiring the court to try the case as if it were no more than a contest between the parents to be decided solely by reference to the acceptance or rejection of the allegation of sexual abuse on the balance of probabilities.

   22. In considering an allegation of sexual abuse, the court should not make a positive finding that the allegation is true unless the court is so satisfied according to the civil standard of proof, with due regard to the factors mentioned in Briginshaw v Briginshaw [1938] HCA 34; (1938) 60 CLR 336, at p 362. There Dixon J. said:

   "The seriousness of an allegation made, the inherent unlikelihood of an occurrence of a given description, or the gravity of the consequences flowing from a particular finding are considerations which must affect the answer to the question whether the issue has been proved to the reasonable satisfaction of the tribunal. In such matters 'reasonable satisfaction' should not be produced by inexact proofs, indefinite testimony,
   or indirect inferences."

   His Honour's remarks have a direct application to an allegation that a parent has sexually abused a child, an allegation which is often easy to make, but difficult to refute. It does not follow that if an allegation of sexual abuse has not been made out, according to the civil onus as stated in Briginshaw, that conclusion determines the wider issue which confronts the court when it is called upon to decide what is in the best interests of the child.

   23. No doubt there will be some cases in which the court is able to come to a positive finding that the allegation is well-founded. In all but the most extraordinary cases, that finding will have a decisive impact on the order to be made respecting custody and access. There will be cases also in which the court has no hesitation in rejecting the allegation as groundless. Again, in the nature of things there will be very many cases, such as the present case, in which the court cannot confidently make a finding that sexual abuse has taken place. And there are strong practical family reasons why the court should refrain from making a positive finding that sexual abuse has actually taken place unless it is impelled by the particular circumstances of the case to do so.

   24. In resolving the wider issue the court must determine whether on the evidence there is a risk of sexual abuse occurring if custody or access be granted and assessing the magnitude of that risk. After all, in deciding what is in the best interests of a child, the Family Court is frequently called upon to assess and evaluate the likelihood or possibility of events or occurrences which, if they come about, will have a detrimental impact on the child's welfare. The existence and magnitude of the risk of sexual abuse, as with other risks of harm to the welfare of a child, is a fundamental matter to be taken into account in deciding issues of custody and access. In access cases, the magnitude of the risk may be less if the order in contemplation is supervised access. Even in such a case, however, there may be a risk of disturbance to a child who is compulsorily brought into contact with a parent who has sexually abused her or whom the child believes to have sexually abused her. But that is not the issue in this case.

   25. Efforts to define with greater precision the magnitude of the risk which will justify a court in denying a parent access to a child have resulted in a variety of formulations. The degree of risk has been described as a "risk of serious harm" (A v A [1976] VicRp 24; (1976) VR 298, at p 300), "an element of risk" or "an appreciable risk" (Marriage of M (1987) 11 Fam LR 765, at p 770 and p 771 respectively), "a real possibility" (B. v. B. (Access) (1986) FLC 91-758, at p 75,545), a "real risk" (Leveque v Leveque (1983) 54 B CLR 164, at p 167), and an "unacceptable risk" (In re G. (a minor) (1987) 1 WLR 1461, at p 1469). This imposing array indicates that the courts are striving for a greater degree of definition than the subject is capable of yielding. In devising these tests the courts have endeavoured, in their efforts to protect the child's paramount interests, to achieve a balance between the risk of detriment to the child from sexual abuse and the possibility of benefit to the child from parental access. To achieve a proper balance, the test is best expressed by saying that a court will not grant custody or access to a parent if that custody or access would expose the child to an unacceptable risk of sexual abuse.

THE ISSUES

1. I identify the following as the major issues in this case in the sense that they are likely to substantially determine the outcome.  They are:

   ·The risk of harm to the child if in the father’s care;

   ·The risk of harm to the child if in the mother’s care;

   ·The benefits, if any, of relocation of the child to New South Wales.

2. I will discuss those issues in that order.

RISK OF HARM TO THE CHILD IF IN THE FATHER’S CARE

1. Dr K, a psychiatrist, examined the father in 2014.  In his report annexed to his affidavit filed 15 April 2014 he opined:

   I think that there enough evidence in the documentation to say that [the father] does have significant emotional behavioural problems.

   If there is any truth in what [the mother] says, then [the father] has at least morbid jealously and possibly delusional disorder.

   It would seem then, when these things are manifest in him, he may perhaps act aggressively when disremembered by alcohol.

   Morbid jealously will sometimes occur just in the one relationship and will not occur in other settings.  Sometimes delusional disorder, likewise, will do the same…

   …

   Considering all the documentation in the way he presents, I have to say that I do have serious reservations about him.  At this juncture I am of the view that he should have limited contact and I would like it to be in the company of somebody else – not necessarily the Contact Centre – and my view is that that contact should only be extended if he able to keep control of his rage and can conform precisely to the court orders.

   I would also like to see this man have a period of psychiatric treatment/management.

2. That opinion was not seriously challenged in cross-examination, although the recommendation for supervision of the father’s time with the child was not reflected in either the recommendations in the Family Report, or in the orders sought by the Independent Children’s Lawyer.

3. Ms E dealt with the risks posed by the father in her Family Report of 15 August 2014.  She noted Dr K’s opinions and expressed concerns in relation to the father’s behaviour.  She was particularly concerned if he were the aggressor in the 27 April 2013 incident.  Irrespective of the truth or otherwise of the parties versions in relation to that, at [77] she said “…certainly at the very least, the father is emotionally abusive and engages the mother provocatively with a desire to incite her anger, rather than act cooperatively, prioritising the child’s needs for peace at the time…He also needs to consider how alcohol has affected his judgment and placed his child (children) into situations which may not have been in their best interests.”

4. As has been seen, I am not prepared to accept either party’s version of the 27 April 2013 incident.

5. At [78] however she continued:

   From assessment, the father has many parenting skills and is able to care appropriately for the child.  Father and daughter share a close and loving bond.  He runs his own businesses and is on good terms with his ex-wife’s both of whom vouch for him as a parent.  He has excellent relationships with all his children, two of whom now live with him.  Now separated from the mother (finally), his life appears to be settling down.

6. I accept Ms E’s evidence.  Indeed it is the case that the father has successfully parented – in combination with his ex-wives – four other children.  One child still lives with him.  He regularly spends time with V.  It appears as though the problematic behaviours with the father has displayed from time to time are, if not uniquely, then predominantly, only displayed in relation to the mother.

7. I am not persuaded that the father presents an unacceptable risk of physical harm to the child.  The texts and emails that he has sent the mother from time to time referring to his odd seemingly delusional experiences and behaviours, are concerning.  However the father’s time with the child has never been ordered to be supervised to date, and there is no credible suggestion that the father has ever directly acted inappropriately towards the child (leaving aside his taking her to hospital for a ridiculous concern that she had syphilis).

8. The ways in which the father’s issues might play out are hard to predict.  However the one thing which I can confidently say is that they will continue to play out in terms of conflict and aggression if the father and mother continue to interrelate, and will be only worse if one or both of them are affected by liquor or drugs at the time.

9. I am therefore satisfied that the father presents some risk of harm to the child, which is difficult to further define.  It is however not one which, if the father were to spend unsupervised time with the child, currently presents an unacceptable risk to her.

RISK OF HARM TO THE CHILD IF IN THE MOTHER’S CARE

1. Dr K’s conclusion in relation to the mother was as follows:

   All I can say basically about her from a psychiatric point of view is that I certainly do not see her as having a psychiatric problem, a significant personality disorder or dysfunction or significant substance abuse.  Obviously she does sometimes drink more than she should and the incident where she was charged with assaulting police appears to have occurred when she had been drinking a fair amount but that is not enough to express any serious reservations about her in terms of parenting skills.

   …

   However, from the interview of her and the documentation I have read I am afraid I cannot see any significant psychiatric disturbance or personality disorder or dysfunction in her but clearly their relationship has been a problem and clearly others have got involved in it to some extent too, including his children.

1. I accept that opinion.

2. Ms E had a slightly different slant in relation to the mother’s problems.  Whilst noting that the mother raised her two children in a clean, neat and comfortable home, was obviously house-proud and provided a lovely home environment for the girls, deeper below the surface she had concerns.  Particularly they were:

   ·That the mother has a history of being aggressive, and at times so out of control that police had to intervene to contain her (paragraph 33);

   ·She was particularly concerned about the mother leaving the child alone in the unit on 27 April 2013 to go looking for the father, seemingly in a confrontational way (paragraph 35);

   ·Her behaviour on the night of 27 April 2013 was extremely concerning, particularly her violence in the presence of the child.  She believed that the mother’s anger issues resulted in poor parenting judgments and an inability to identify the child’s needs, particularly when she is behaving aggressively, either when drinking or taking drugs (paragraph 37);

   ·The mother admitted to her that she still cares for the father and is deeply saddened about the situation (paragraph 38).

3. Ms E’s ultimate conclusion was that the parties “have engaged in a volatile, enmeshed, co-dependent relationship since they met in early 2010” (paragraph 64).  She opined that the “parental relationship has been deeply destructive for all the children involved” (paragraph 66).  At paragraph 67, she said as follows:

   Even more concerning and pertinent to the current situation, is that the parents’ volatile personal relationship seems to be far from resolved.  It is now being acted out through litigation and the child has become the main feature…

4. Later at [paragraph 71] she continued:

   However .. the material suggests strongly that both parents have a pattern of repeated heavy drinking (denied by the mother), irresponsible behaviours and poor parental judgment which exposes the child to harmful situations.  In my opinion, under circumstances where both continue such lifestyles and drinking behaviours, then it is highly likely these destructive, high risk behaviours (placing the children at risk by exposure) will continue into the near future.

5. At paragraphs 80 to 86 she dealt with the mother’s mental health and fitness to parent.  In substance, she was of the view that mother has anger issues and on occasions behaves irresponsibly, and has not prioritised the child’s best interests.  She was concerned that the mother was a drug user and that there was “another more pernicious side to her personality and behaviour which belies her innocent presentation.”  She was firmly of the view that the mother has an alcohol problem which she has not ever acknowledged and therefore addressed.  Further, she was of the view that “if the mother truly believes that alcohol has not played a part in creating her present problems (so she states), then the level of the mother’s insight and denial is concerning and raises doubts about the accuracy of her self-report.” 

6. She concluded at paragraph 86 as follows:

   It also raises questions about the mother’s role as a parent and her capacity to make good decisions in the child’s best interests in the event that she is allowed to relocate.  Given the mother’s age, such a lack of insight means a very poor prognosis for change.  Without a cold hard look at her part in the situation, the mother can only expect more of the same, to the child’s detriment.

7. I accept all of that evidence.  Particularly, as was Ms E, I am by no means confident that the mother does not have either an historical (but post 2010) or current association with drugs.  That was specifically what the police were suspicious of in the January 2013 incident which led to her being charged with, and ultimately found guilty of, assaulting police.

8. Ms E specifically addressed questions of risk assessment.  At paragraphs 90 to 94 she identified those as follows (with original emphasis):

   90. As described above, in my opinion, this child is being directly exposed to her parents’ toxic relationship.  During 2013, she witnessed the violent incident at [Town Y].  She was subjected to intrusive medical examinations after the father alleged she was infected with syphilis.  She continues to witness the parental conflict at handovers which at times has involved police.  She continues to be questioned and photographed by both parents for the purposes of litigation.  This child is at risk of being emotionally abused by the very systems which are there to protect her.  Repeated questioning and examination creates confusion and instability in children.  This process needs to be resolved as soon as possible.  As well, the parents’ need to review their behaviours, actively keep as much distance as possible from each other and prioritise the child’s need for peace and stability.

   91. If nothing changes and the child’s direct involvement in the parental conflict continues, and as her understanding and awareness about the situation grows, it is inevitable her loving relationships with both her respective families (observed during the assessment) will become contaminated.  Under pressure, emotionally compromised and triangulated in the parental conflict, this child is at risk of having her psychological and emotional development undermined.  It is also highly likely she will become alienated from one of her parents in future as she is pressured to choose between them.

   92. If the court finds that the father has been violent to the degree alleged by the mother during the incident at [Town Y], then the father has already exposed the child to unacceptable levels of violence.  The effects of witnessing such trauma are well documented and the child is at risk of developing trauma symptoms resulting in developmental, behavioural and psychological disturbance.  There is also a serious risk the child will be physically harmed accidently during such an incident.

   93. So too, if the court finds the mother has exposed the child to her angry out of control behaviours as the father alleges, then she also has exposed the child to unacceptable levels of violence.  As described above, there is a serious risk the child will be harmed accidently during such incidents.

   94. If either parent continues to abuse alcohol and behave irresponsibly in front of the child, as they both have apparently done so in the past, they are offering the child very poor role models of adult behaviour.  At the very least, the child is at risk of repeating her parents’ behaviours.  She is also at risk of abusing alcohol and drugs or developing other dependency problems in her later relationships.

9. I accept that evidence.

10. What is most alarming however is that with that report having been made available to the parties in August 2014, the parties have, incredibly, continued to interact with each other in the ways that I have detailed earlier in these reasons.  They have not listened.  There is no reasonable basis to think that they will now, or ever, listen.

11. I therefore conclude that the child is at risk in the mother’s care in the ways identified by Ms E, particularly a risk of physical harm from an accidental involvement in one of the mother’s explosions, or a risk of psychological disturbance from witnessing such events, or a risk of alcohol abuse or other dependency problems by virtue of being exposed, from an early age, to her mother’s own substance abuse issues.

BENEFITS OF RELOCATION

1. Ms E dealt with this comprehensively at paragraphs 95 to 99 of her report.  It is appropriate to set that out in full:

   95. From the child’s perspective, there are benefits to the proposed relocation,

   ·The parents’ inability to end their toxic relationship would likely to be resolved geographically.  By placing some distance between the parents, the child would be relieved from exposure to their toxic relationship.

   ·The mother states she would have a support network in NSW.  Whilst the report writer has not examined any of those people, it is hoped that the extended family network can offer her strong support so badly needed for any single parent families.  She states she would feel happier and safer away from the threats of the father and therefore be a better parent if she lived in NSW.

   96. However there are also concerns about the proposed relocation of the child.

   ·The father’s relationship with the child will not flourish.  The mother has indicated she wants limited supervised visits in NSW.  She has no real plan to facilitate a face to face relationship other than supervised time at the contact centre and the father skyping the child at her home.

   ·Her relationship with her siblings in [Queensland] will not flourish.  Given the logistics, it is highly unlikely the child will see any of her siblings on her father’s side.

   ·There are also concerns that [B’s] relationship with [her father] Mr [C] will diminish.  Whilst the mother states she has Mr [C’s] permission, the father contradicts this, claiming she does not have permission.

   ·With the mother’s history of drinking, volatile relationships, combined with her lack of insight about alternatives, there are concerns the mother would once more become involved in a chaotic, violent relationship and the child will be exposed to risk of harm once more.  In my opinion, the mother has anger issues in the context of alcohol abuse.  If she fails to address these issues then the child is isolated without access to her father and unable to seek help or assistance from him.

   97. There are benefits to remaining in [Queensland].

   ·The child will maintain her contacts with her father and siblings.

   98. However, there would also be serious risks to the child by remaining in [Queensland].

   ·Most significantly, the parents would likely continue to act out their pernicious relationship through the child as she grows older.

   99. In my opinion, this last, is a particularly dangerous option.  The risks to the child of inheriting her parents; pathology will magnify as she grows older.  She will be at increased risk of blaming herself or becoming embroiled.  She may be forced to choose a parent.  This would not be in her best interest.

2. Unfortunately there are aspects of her opinion which I do not accept.  Particularly I am not at all persuaded that the move to New South Wales would end the parties’ relationship.  In his evidence, the father expressly adverted to the prospect that he would relocate as well. 

3. Further, I am not persuaded that Mr C’s permission to relocate is unconditional.  The mother’s evidence is that Mr C “is agreeable” to her and B relocating to New South Wales.  However it appears his consent is conditional, although upon what is unclear.  I say that because the text messages from Mr C which the mother annexed to her affidavit of 9 February 2015 says “I [Mr C] give u permission to relocate to Sydney or surrounding areas with [B] as long as u stick to our agreement.”

4. The Central Coast of New South Wales – which is where the mother wants to relocate to – is not Sydney or an area surrounding Sydney.  Further, I was not told what “our agreement” was.

5. Finally, there is one – concededly dubious – benefit of the mother and father residing in the same city, and that is that the father will be likely to monitor the safety of the child with a vigilance that other agencies may not achieve.  True is it that in doing so he may be motivated primarily by maintaining the enmeshed relationship with the mother, but at least there is a safety valve if the mother’s substance abuse again becomes out of control. 

6. Further, the evidence before me as to the mother’s plans in relation to relocation is light on, to say the least.  She intends to live in the New South Wales central coast to care for an aging relative.  She has no other family in the district.  She has a sister who lives in Sydney who gave evidence before me.  However the sister is an active, young professional woman with a small apartment.  It could not be seriously thought that the mother is going to derive much real support from her sister beyond that she can presently derive from her in Queensland. 

7. The mother also said that her own mother, who resides in the New South Wales Southern Highlands, would be a regular visitor to the central coast.  However notwithstanding criticism made of the mother for failing to have an affidavit from her own mother, she did not put one before me, or explain her failure to call her mother as a witness.  Her mother may have been an important witness.  She is said to be a dual qualified professional.  She apparently has some form of practice in the Southern Highlands of New South Wales.  It is perplexing why she was not called.

8. I cannot discern any real benefit to the mother, or the child, from relocation, particularly given the real prospect that the father would follow.  Moreover from the child’s perspective, she would likely lose all but intermittent contact with the paternal family generally, and more particularly lose sibling contact with V.

SECTION 60CC CONSIDERATIONS

Section 60CC(1)(a): The benefit to the child of having a meaningful relationship with both of the child's parents

1. I have addressed the risks which the parents pose to the child.  Other than that, it is plain that each parent would provide benefit to the child if she is able to have a meaningful relationship with them.  The father has clearly been a good parent to his other children and no real criticism is raised about the mother in relation to her daughter B.  The problem here is not in terms of the relationship between the child and the parent: the problem is with the relationship between the two parents.

Section 60CC(1)(b): The need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence

1. I have sufficiently addressed this in discussing the major issues above.

Section 60CC(3)(a): Any views expressed by the child and any factors (such as the child's maturity or level of understanding) that the court thinks are relevant to the weight it should give to the child's views

1. The child is too young to express views.

Section60CC(3)(b): The nature of the relationship of the child with:

(i)       each of the child's parents; and

(ii)      other persons (including any grandparent or other relative of the            child)       

1. The child has good sibling relationships both on the father’s side and the mother’s side.  The loss of the paternal family relationships would be a significant matter.  Unless the father was to relocate too, there is no real prospect of them continuing given the distance between the New South Wales central coast and northern Queensland.

Section 60CC(3)(c): The extent to which each of the child's parents has taken, or failed to take, the opportunity:

(i)to participate in making decisions about major long-term issues in relation to the child; and

(ii)      to spend time with the child; and

(iii)     to communicate with the child

1. This is not raised as a live issue in this case.

Section 60CC(3)(ca): The extent to which each of the child's parents has fulfilled, or failed to fulfil, the parent's obligations to maintain the child

1. This is not a live issue in this case.

Section 60CC(3)(d): The likely effect of any changes in the child's circumstances, including the likely effect on the child of any separation from:

(i)       either of his or her parents; or

(ii) any other child, or other person (including any grandparent or other relative of the child), with whom he or she has been living

1. This has been discussed earlier in the context of the benefits of relocation.  I accept Ms E’s evidence that the relocation to New South Wales would effect a substantial disruption not only in the relationship between the father and child (assuming he were not to relocate as well) but also the sibling relationships which the child has in Queensland.  I am not persuaded that the consent from B’s father for the mother to relocate with B is in fact unconditional.

Section 60CC(3)(e): The practical difficulty and expense of a child spending time with and communicating with a parent and whether that difficulty or expense will substantially affect the child's right to maintain personal relations and direct contact with both parents on a regular basis

1. This is a live issue here.  The father conducts a business in Queensland.  It is a long distance to the central coast of New South Wales with no direct flights.  That would inevitably occasion practical difficulty and expense in the father spending time with the child, and would likely see the destruction of the sibling relationships and relationships with other members of the father’s family.

Section 60CC(3)(f): The capacity of:

(i)       each of the child's parents; and  

(ii)any other person (including any grandparent or other relative of the child);

to provide for the needs of the child, including emotional and intellectual needs

1. This has been sufficiently addressed above.  The father is a demonstrated parent as indeed is the mother.  It is only in the context of their enmeshed relationship, together with alcohol, that the capacity of the parents to provide for the needs of the child is impaired.

Section 60CC(3)(g): The maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the child and of either of the child's parents, and any other characteristics of the child that the court thinks are relevant

1. This matter is not engaged.

Section 60CC(3)(h): If the child is an Aboriginal child or a Torres Strait Islander child:

(i) the child's right to enjoy his or her Aboriginal or Torres Strait Islander culture (including the right to enjoy that culture with other people who share that culture); and

(ii) the likely impact any proposed parenting order under this Part will have on that right

1. This is not engaged.

Section 60CC(3)(i): The attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child's parents

1. This has been sufficiently addressed above.

Section 60CC(3)(j) Any family violence involving the child or a member of the child’s family

1. Plainly family violence has occurred here but I am unable to determine how the mother’s injuries on 27 April 2013 were sustained.  Suffice to say that her kicking of the door was a violent act and reflected spectacularly poor judgment on her part.  Irrespective of how the mother sustained her injuries, the fact that she was bloodied with the child on her chest in the ambulance to hospital must have been distressing to the child, particularly after hearing the mother attempting to kick her way into the room.

Section 60CC(3)(k): If a family violence order applies, or has applied, to the child or a member of the child's family--any relevant inferences that can be drawn from the order, taking into account the following:

(i)       the nature of the order;

(ii)      the circumstances in which the order was made;

(iii)     any evidence admitted in proceedings for the order;

(iv)      any findings made by the court in, or in proceedings for, the order;

(v)       any other relevant matter

1. Family violence orders have applied, however because the fundamental facts which underpin them are unable to be resolved, absent independent objective evidence, the inferences which can be drawn are limited.  They extend to really nothing more than that the dynamic between these parties is one of volatility, conflict and hostility.

Section 60CC(3)(l): Whether it be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to the child

1. Plainly it would be desirable to put this litigation to an end, if only because it will close down one avenue of the parties’ continuing to interact with each other.  I distinctly formed the impression that the parties were continuing their relationship – albeit in a very odd way – by litigating in front of me.

Section 60CC(3)(m) Any other fact or circumstance that the Court thinks relevant

1. I can identify no additional relevant fact or circumstance.

PARENTAL RESPONSIBILITY

1. Plainly there has been family violence and the presumption therefore does not apply.  Even if it did apply, I could not possibly be satisfied that these parties could exercise joint parental responsibility.  It would only give them a further opportunity to continue to engage in hostility with each other, and the situation would rapidly become unworkable.  That cannot possibly be in the best interests of this child.  Parental responsibility will need to rest with whoever the child lives with.  The parties are agreed that the child should live with the mother, and as shall be seen, I am satisfied that such an order is in the child’s best interests.  The mother therefore shall have sole parental responsibility for the child.

WITH WHOM SHOULD THE CHILD LIVE?

1. The father is a capable parent but I accept Dr K’s real concerns in relation to his morbid jealously and delusional issues. 

2. On the other hand the mother has anger and substance abuse issues.  Nonetheless, to date in relation to her other daughter, she has been a satisfactory parent, it seems.

3. The child has lived primarily with the mother since separation.  Notwithstanding the turmoil in which she has been embroiled, it appears as though she is physically, mentally and socially flourishing.

4. Whilst I am suspicious that the mother sees as one of the advantages of having the child live with her that she will thereby exercise a degree of power in relation to the father, I would be more suspicious of that in relation to the father.  He appears to be more obsessed with the mother than vice versa, although I note the mother’s statements to the Family Report writer less than a year ago that she still has feelings for the father.

5. Weighing these matters in the balance I am of the view that the best interests of the child are met by the child continuing to live with the mother.

RELOCATION

1. There is no discernible benefit to the child in relocation.  To the extent that it might provide some physical separation between parties and hence reduce the prospect of further interaction between them, I am not satisfied that the father would not simply relocate as well.  Moreover, even if the father did not relocate, it necessarily would substantially impair the child’s relationship with him, and her siblings.

2. I am not satisfied that relocation to the central coast of New South Wales is in the child’s best interests.  I am satisfied that there should be orders that neither party be able to remove the child from the Cairns district.

WHAT TIME SHOULD THE CHILD SPEND WITH THE FATHER?

1. This is not a situation where the parties can possibly effect some species of co-parenting of the child.  There is no prospect that they will be able to, in a child focussed way, communicate about the respective regimes in their homes.  It cannot be of benefit to the child to be moving between two quite different worlds.  I am satisfied that the orders proposed by the Independent Children's Lawyer, which see the child initially spend one overnight with the father on alternate weekends, progressing to two nights in 12 months’ time, are appropriate.  Particularly I am satisfied that they should be on the weekends that the father has his son V.  Although not proposed by the Independent Children's Lawyer, I am satisfied that after she commences school, she should spend alternate weekends with the father from after school on Friday to the commencement of school on Monday.  I will hear the parties further as to whether that should commence from grade 1, or at a later time.

2. However the father should also be able to spend time with the child during the week, and I am satisfied his proposal of each Wednesday overnight is appropriate, save that (subject to hearing the parties further) it should only commence when the child attends school.  Also, subject to hearing from the parties, my provisional view is that from school age, she should spend one half of all school holidays with the father.

3. The mother wants to be able to take the child on holidays to New South Wales.  She sought a specific order permitting her so to do.  However there is no reason, prior to the child starting school, why she cannot holiday in the 13 days between the father’s overnight time, and once the child starts to attend school, utilise her half of the school holidays to so travel.

4. The father also sought the opportunity to have the child attend family functions if they fall outside his time with the child.  I am not satisfied such an order is desirable – it will only provide further opportunity for acrimonious communication and negotiation.  I decline to make such an order.

5. Special days (Christmas, Easter, Mother’s Day, Father’s Day and birthdays) are problematic, because I am not satisfied that it is in the best interests of the child to, in effect, require the parents to come into contact with each other to effect handovers.  I will hear the parties further as to whether there is any practical way of accommodating my concerns.

6. I am satisfied that changeovers need to take place in an environment where there is no prospect of the parents coming into contact with each other.

OTHER ORDERS

1. Subject to one exception discussed below, I am otherwise generally satisfied that the orders sought by the Independent Children's Lawyer are in the best interests of the child.  Particularly:

   ·I am satisfied that there is sufficient evidence that both parents have substance abuse issues as to require them to seek relevant professional assistance;

   ·I am satisfied that there is sufficient evidence that both parents have, in the father’s case psychological concerns, and in the mother’s case denial of substance abuse, to warrant to each being required to undertake appropriate mental health treatment;

   ·Plainly neither parent should be permitted to be under the influence of alcohol whilst the child is in their care;

   ·The father has acted ridiculously in taking the child to be tested for syphilis and seeking to have her tested for golden staph.  He cannot be trusted with responsibility in relation to the medical issues for the child;

   ·The Independent Children's Lawyer should remain involved so as to monitor the parties’ compliance with these orders, and have liberty to seek revision of the orders if they require modification or refinement. As shall be seen, I will order that a s 65L supervisor should also be appointed until 30 June 2016. The Independent Children’s Lawyer should remain involved until that time as well.

2. As to the s 65L order, although with some reluctance, I am persuaded that the scarce resources of the court should be deployed to supervise the parties’ compliance with these orders. Their own chaotic interaction seems incapable of improvement without external intervention. I am of the view that such assistance should extend to two months after the child commences to spend two consecutive overnights with the father, ie until the end of June 2016.

3. As to the s 64D order, I am satisfied that there are exceptional circumstances justifying any variation to these orders only being permissible by court order. The exceptional circumstances are firstly, the continuing enmeshment of the parties, secondly that in the past, either the mother has been willing to, at the father’s request, give away protections in Domestic Violence Orders, with disastrous consequences, or not take advice to seek proper protections by way of Domestic Violence Order, and thirdly the parties should not be under the impression that they can continue their toxic relationship ad infinitum by seeking to renegotiate the terms of parenting orders.

4. However such a restraint should not be indefinite. One can only hope that, with the benefit of the extensive supports and assistance these orders give the parties, they can achieve some capacity to act in a child focussed way in the future. I will make the s 64D order so that it also expires on 30 June 2016. If needs be, the Independent Children’s Lawyer can seek, pursuant to her general liberty to apply, an extension of the order before she is discharged.

5. The exception to my general adoption of the Independent Children's Lawyer’s proposed orders is as follows.  The Independent Children's Lawyer proposed that the father be restrained from communicating with the child or mother other than about changeovers, or in the event of an emergency.  I have thought long and hard about whether to make that order.  On one view, the parties should have no cause to speak about anything else; however upon reflection – and not without considerable hesitation – I have decided not to so order.  That is because there will inevitably be some form of additional communication required.  For instance the child may develop an allergy – the parties will need to communicate about that.  Or the father may fall ill, and need to cancel the child spending time with him.

6. Further, unless the restraint was mutual, the mother could seek to goad the father into breaching any such order by herself sending the father texts or emails about things other than changeovers. She certainly has acted in a provocative manner on many occasions in the past.

7. Therefore upon balance, I am not persuaded that the ban on communication is in the child’s best interests.  Frankly I also must say, given the thousands of texts and emails the parties have sent to each other during the course of their relationship – and continuing long after both of them claim it has ceased – I doubt that either party would adhere to such an order in any event.

CONCLUSION

1. There will therefore be orders substantially in terms as sought by the Independent Children's Lawyer; however I will hear the parties further as to their detail before finally pronouncing them.                        

I certify that the preceding one hundred and forty three (143) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Tree delivered on 23 April 2015.

Associate:

Date:  23 April 2015