Suarez and Turner
[2017] FamCA 935
•17 November 2017
FAMILY COURT OF AUSTRALIA
| SUAREZ & TURNER | [2017] FamCA 935 |
| FAMILY LAW – CHILDREN – Best Interests – Where there are allegations the father perpetrated family violence – Where the mother’s evidence is contradictory and she is not a reliable witness – Where it is not found that the father perpetrated family violence – Where there are concerns as to the mother’s mental health – Where there are concerns the mother’s mental health diminishes her parenting capacity – Where the mother is hypervigilant about the child’s health – Where the mother’s hypervigilance caused her to neglect the child’s education and schooling – Where there are concerns about the mother’s alcohol use – Where the mother’s capacity to meet the child’s needs is inconsistent and dependent on her own mental state – Where the child’s views have been influenced by the mother – Where in the opinion of the expert the mother has long standing vulnerabilities in her emotional and psychological health which impact upon the child’s wellbeing – Where the expert recommends that the child live with the father – Where it is in the child’s best interests that she live with the father and spend substantial and significant time with the mother – Orders made. |
| Evidence Act 1995 (Cth) s 140(2) Family Law Act 1975 (Cth) ss 60B, 60CA, 60CC, 61B, 61C, 61DA, 65D, 65DAA, 65DAC |
| G & C [2006] FamCA 994 Goode & Goode (2006) FLC 93-286 Mazorski & Albright (2007) Fam LR 518 McCall & Clark (2009) FLC 93-405; 41 Fam LR 483; [2009] FamCAFC 92 |
| APPLICANT: | Ms Suarez |
| RESPONDENT: | Mr Turner |
| INDEPENDENT CHILDREN’S LAWYER: | Legal Aid NSW |
| FILE NUMBER: | PAC | 1524 | of | 2014 |
| DATE DELIVERED: | 17 November 2017 |
| PLACE DELIVERED: | Parramatta |
| PLACE HEARD: | Parramatta |
| JUDGMENT OF: | Hannam J |
| HEARING DATE: | 7, 8 & 9 August 2017 |
REPRESENTATION
| COUNSEL FOR THE APPLICANT: | Mr Gardiner |
| SOLICITOR FOR THE APPLICANT: | Rafton Family Lawyers |
| COUNSEL FOR THE RESPONDENT: | Mr Battley |
| SOLICITOR FOR THE RESPONDENT: | Murray J Nott |
| SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: | Legal Aid NSW |
Orders
The child B born … 2009 (“the child”) shall live with the father.
The father shall have sole parental responsibility in relation to the child’s health and education. Otherwise, the parties shall have equal shared parental responsibility in relation to the child’s long term care, welfare and development.
Each party shall have responsibility for the child’s day to day care, welfare and development whenever the child is in their care.
The mother shall spend time with the child as follows:
During School Term
(a) Commencing on the first Friday of each term, from after school on Friday (or at 3pm if not a school day) until the commencement of school on Monday (or at 9am if not a school day) and thereafter in alternate weeks;
(b) In the alternate week to when the child is spending time with the mother under Order (4)(a) on Wednesday from after school (or from 3pm if not a school day) until 7.30pm;
During School Holidays
(c) Half of each NSW school holiday period;
(d) At such other times that may be agreed between the parties.
To facilitate Order (4)(c) the child shall spend time with the mother in the first half of the school holidays in even-numbered years and in the second half of the school holidays in odd-numbered years.
In the event that the child is not spending time with the mother on the weekend of Mother’s Day, she shall spend time with the mother from 6pm on the Saturday of that weekend until the commencement of school on Monday.
In the event that the child is spending time with the mother on the weekend of Father’s Day, the mother shall return the child to the father at 6pm on the Saturday of that weekend.
For the purposes of changeover the mother shall collect the child from the father at Suburb C Railway Station (other than on Wednesdays when the child shall be collected by the mother from her school) and the father shall collect the child from the mother’s care at the main entrance of the Suburb D Shopping precinct on Suburb D Street, Suburb D NSW.
The mother shall have telephone communication with the child on Tuesdays and on Thursdays from 6.30pm to 7.30pm and the father shall ensure that the child has appropriate privacy during such telephone calls.
Within seven days of these orders, the father shall sign the appropriate authority at the child’s school to authorise the school to provide the mother with copies of the child’s school reports, school notices and any other document provided to parents. The mother shall be at liberty to attend any school or extra-curricular events to which parents are invited.
The mother have leave to provide any psychiatrist, psychologist or social worker she may consult with a copy of the report of the expert dated 7 March 2017.
Within 7 days of these orders the father shall arrange and facilitate the child’s attendance upon an appropriate child and family therapist nominated by the Independent Children’s Lawyer for a period of at least six months.
The Independent Children’s Lawyer have leave to provide to the therapist a copy of the expert’s report and a copy of these orders.
The mother is restrained from consuming alcohol whilst the child is in her care and for a period of 12 hours beforehand.
Each party shall contact the other as soon as is practicable in the event of any medical or other emergency relating to the child.
Each party is restrained from:
(a) Denigrating the other party or any member of the other party’s family to or within the presence or hearing of the child or allowing any other person to do so;
(b) Discussing these proceedings with or within the presence or hearing of the child or allowing any other person to do so;
(c) Showing the child any document pertaining to the proceedings or allowing any other person to do so.
In the event that the mother is unable to care for the child personally at those times specified in these orders, she shall arrange for the child to be cared for by an appropriate adult.
These orders shall be explained to the child by the Independent Children’s Lawyer.
Note: The form of the order is subject to the entry of the order in the Court’s records.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Suarez & Turner has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).
| FAMILY COURT OF AUSTRALIA AT PARRAMATTA |
FILE NUMBER: PAC 1524 of 2014
| Ms Suarez |
Applicant
And
| Mr Turner |
Respondent
And
Independent Children’s Lawyer
REASONS FOR JUDGMENT
Introduction
The child B (“the child”) is a little girl of eight. Her Australian father, Mr Turner (“the father”) and South American mother Ms Suarez (“the mother”) met in South America and subsequently married and moved to Australia.
Following a tumultuous relationship the parents separated in August 2013.
The mother initiated these proceedings in September 2015 and seeks that she have sole parental responsibility for the child, that the child live with her and spend every second weekend and some defined holiday time with the father. Although she commenced the proceedings on the basis that there was an unacceptable risk to the child of sexual abuse in the father’s care she did not maintain that position at the final hearing.
The father had sought that he have sole parental responsibility for the child, that the child live with him and spend time with the mother as determined by the court. He has significant concerns about the mother’s capacity to care for the child due to her mental health vulnerabilities.
At the conclusion of the evidence the Independent Children’s Lawyer (“ICL”) proposed that the father have sole parental responsibility for the child’s health and education with the parties otherwise equally sharing parental responsibility, that the child live with the father and spend alternate weekends with the mother and various other specific orders. The father then adopted the orders as proposed by the ICL.
The mother consented to some of the specific orders as sought by the ICL but opposed the ICL’s orders as to parental responsibility, residence and time with the child.
The question for me to determine is whether the orders proposed by the ICL and adopted by the father or those proposed by the mother are in the best interests of the child.
Background
The father who is 36 was born and raised in Australia. The mother who is 35 was born and raised in South America.
The mother and father met in October or November 2007 in South America when the father was travelling in that country. At the time the parents met the mother had an older daughter, E (“the mother’s older daughter”) who was about nine years old.
In June 2008 the parties married in South America and three days later the father returned to the UK where he was then living.
In October 2008 the father returned to Australia to attend a friend’s funeral and then to remain living here. The parties began the process of applying for a visa for the mother to come to Australia.
The father travelled to South America in December 2008 to spend Christmas with the mother and her family. In January 2009 the parties came to Australia and the mother left her older daughter with family in South America.
While staying in Australia the mother became aware that she was pregnant but as she only had a short-term visa at the time she returned to South America in about April 2009. By this stage the parties had experienced some difficulties in their relationship but maintained contact by email and telephone.
The father travelled to South America at the end of August 2009 and was present when the child was born there in late 2009.
The father’s parents (“the paternal grandparents”) also travelled to South America, arriving to see their newborn granddaughter a day after her birth.
The parties decided to persist with their relationship and the father applied for visas for the mother her older daughter and the child to live in Australia.
The father returned to Australia in late November 2009 and the mother and her daughters arrived at the beginning of January 2010.
Initially the family lived with the paternal grandparents for a few weeks and then moved to another Sydney suburb where the mother’s older daughter was able to attend a local school with a particularly well resourced English as a Second Language program. The father returned to work in a family business and the mother cared for the child.
The parents continued to experience difficulties in their relationship and on some occasions police were called to the home.
There was an incident in March 2010 which resulted in the mother being questioned by police. Following this incident the mother was assisted through the “Brighter Futures” program.[1] The mother at this time also began seeing a psychiatrist and a psychologist.
[1]Brighter Futures is a program under the auspices of the Department of Family and Community Services that provides early intervention services to families with children who are at high risk of interacting with the child protection system because of vulnerabilities such as family violence, substance misuse, mental health or other parenting concerns.
On 25 April 2010 there was a further incident at the family home resulting in the father being arrested and charged with assaulting the mother and a provisional Apprehended Domestic Violence Order (“ADVO”) being issued against the father for the protection of the mother.
The parents separated following this incident when the child was about six months old. The father went to live with his parents and the mother remained in the family home with the child and the mother’s older daughter.
At a Local Court hearing on 26 August 2010 all charges against the father were dismissed. Earlier, by way of letter dated 21 May 2010 the mother had requested the police discontinue the charges against the father and revoke the interim ADVO.
The father continued to reside with his parents until late 2010 when the parties reconciled.
The parties resided together with the children until 13 August 2013 when the father left the family home following an incident in which the mother struck him in the face.
Around the time of separation the paternal grandmother made a number of reports to the Department of Family and Community Services (“the Department”) concerning the mental health of the mother.
On 28 March 2014 the parties entered into an agreement following mediation whereby they equally shared parental responsibility for the child and the child lived with the mother and spent time with the father from Friday afternoon to Sunday afternoon every weekend and on Wednesday afternoons each week. Orders in terms of the parties’ agreement were made by the Court on 3 April 2014.
The parties attended further mediation in December 2014. Subsequently with the consent of the parties on 15 January 2015 orders were made which provided for the parents to equally share parental responsibility for the child and for her to live with each parent in a “week about” arrangement. The child also spent time with the non-residential parent for a few hours once a week after school.
Following the commencement of the equal shared care arrangement the mother alleges the child would return from her father’s care with urinary tract infections, scratches, bruises and other ailments on a regular basis. The mother further alleges that the child on one occasion lay on top of her, tried to kiss the mother on the mouth and said “daddy kisses me on the mouth all the time” and on numerous occasions the child tried to lift her mother’s and sister’s skirts and said “I see daddy all the time without his clothes”. As I understand it the mother contended at that time there were risks of sexual harm posed by the father.
During this period the father became concerned about the child’s regular absences from school. He says he was informed by the school that medical certificates were provided for the child’s absences. The father proposed to the mother that there be a further mediation to discuss this issue and an increase in his time with the child.
On 28 September 2015 the mother initiated these proceedings and filed a Notice of Risk setting out the allegations detailed in paragraph [29] of these Reasons.
On 31 October 2015 there was an incident at the mother’s home which resulted in police attending. Following this incident the mother took the child to spend a few days with the father for the child’s safety.
On 3 November 2015 the proceedings were allocated to the Magellan Program[2] due to the mother’s allegations of possible sexual abuse and the ICL was appointed.
[2] The Magellan program is a fast–track Case Management program in the Family Court that deals with serious allegations of physical and sexual child abuse.
On 18 November 2015 the parties divorced.
On 24 November 2015 the father filed his Response to the mother’s Initiating Application with a Notice of Risk alleging concerns about the mother’s mental health and the child’s school attendance and hygiene when in the mother’s care.
On 2 December 2015 the child was interviewed at school by caseworkers from the Department. The child made no disclosures of sexual harm and indicated no safety concerns in either household.
There were two incidents in late 2015 when the mother drank excessively and required medical attention. In one incident the mother drank alcohol and took sleeping tablets when she was feeling emotional and distressed and became so unwell that her older daughter who was then about 17 had to ring an ambulance.
On 3 December 2015 the mother was interviewed by caseworkers from the Department. She indicated to Departmental officers that she had been the victim of domestic violence in her relationship with the father and expressed concerns that the child was exhibiting sexualised behaviour. The mother denied self-harming on more than one occasion and although she admitted to two episodes of drinking denied drinking to excess while her children were in her care.
On 11 December Departmental officers interviewed the father who reported he was a victim of domestic violence perpetrated by the mother and indicated he believed the allegations of sexualised behaviour by the child were false.
On 18 January 2016 both parties consented to an order restraining them from removing the child from Australia. The ICL was directed to monitor the child’s attendance at school.
On 4 February 2016 the mother attended the father’s home by taxi with the child. She informed the father she no longer wished to be involved in court proceedings and said that the child could in future live with him. She left the child in the father’s care. The father cared for the child overnight and took her to school the following day but the mother collected the child early from school without notice to the father.
On 5 March 2016 the mother was admitted to hospital in the early hours of the morning in the eastern suburbs of Sydney (a long distance from where she lives) having been found at a train station “intoxicated and unarousable”.
The father began a relationship with his current partner, Ms F (“the father’s partner”) in June 2016.
Orders were made by consent appointing Dr G, a child psychiatrist (“the expert”) as the Single Expert on 2 September 2016.
In late 2016 the mother arranged for the child to see a psychiatrist without the father’s knowledge. The mother also recommenced seeing the psychologist she had briefly seen in 2010.
From September 2016 the maternal grandmother came from South America to live with the mother and her daughters for a period of six months.
In February 2017 the father began living with his partner and her two children.
On 13 and 14 February 2017 the parties and the child and other family members were interviewed and observed by the expert.
The expert, in his report dated 7 March 2017 and released to the parties on 20 March 2017, recommended that the father hold sole parental responsibility for the child’s health and education and that there be a change of residence so that the child be placed in the father’s primary care. The expert also recommended that the child’s current school placement be maintained and that the child spend alternate weekends from after school Friday to before school on Monday with the mother.
At the conclusion of the final hearing in August 2017 the ICL produced a Minute of Orders proposing orders that the child live with the father, that the father have sole parental responsibility in relation to the child’s health and education and the parties have equal shared responsibility otherwise, that the mother spend time with the child on alternate weekends from after school Friday to before school Monday and on Wednesday afternoons in the intervening week and for half the school holidays.
Further specific orders were also proposed by the ICL including that the father arrange for the child to attend on a therapist, the expert report be provided to other professionals treating the mother or the child, restraints be placed on the mother’s consumption of alcohol, the parties contact one another in the event of a medical emergency, restraints be placed on the parties denigrating one another or discussing or involving the child in the proceedings, the mother arrange for an appropriate adult to care for the child in her absence and the final orders be explained to the child by the ICL
The mother did not consent to orders concerning parental responsibility, residence, time and communication with the child, therapy for the child or payment of the ICL’s costs but did consent to all other orders proposed by the ICL.
The father adopted the ICL’s Minute of Proposed Orders in its entirety and also sought specific orders as to changeover and holiday time.
The Matters In Dispute
Is the father a perpetrator of family violence?
It is central to the mother’s proposal that she have sole parental responsibility for the child and that the child live primarily with her, that the father has been the perpetrator of family violence against her. She also contends that her treatment at the hands of the father provides an explanation for her presentation and difficulties identified by the expert.
The father denies all allegations of violence made by the mother and contends that he was the victim of violence perpetrated by the mother. As I understand it, he contends that the mother’s behaviour which at times is violent is a manifestation of her personality dysfunction which affects her parenting capacity. For these reasons findings in relation to violence are significant to the orders he seeks with respect to parental responsibility and a change in the child’s residence.
Events in 2009
In her trial affidavit the mother deposes to the father pushing her in the course of arguments from the time she first came to Australia in the first few months of 2009.
The mother says that at this time the father “would dismiss me and slap me across the face to get me to let go of him and he threw me on the floor”. She further alleges that the father was financially controlling and would not provide her with money to return to South America.
The father deposes to the parties’ relationship being strained from at least March 2009 when the mother spent a few months with the paternal family in Sydney in the early stages of her pregnancy. The father does not give any examples of physical violence between the parties at this time and denies withholding money from the mother so that she could return to South America. He says that it was a condition of her visitor visa that she have a return ticket and that she could have returned to South America at any time she wished.
The mother also deposes to a specific incident that she says occurred in about April 2009 when she left the family home following an argument and walked down the street to the home of neighbours unknown to her who called an ambulance which took her to a hospital. According to the mother the police did not speak to her in relation to this incident.
Police records which form part of the records of the Department tendered in the proceedings indicate that an incident in very similar terms occurred on 23 March 2009. It is recorded that the people at the home attended by the mother called police who spoke to the mother about what had occurred and made the arrangements for her to be taken to the hospital via an ambulance.
The father’s version of this event is that following an argument the mother left the home and he went to bed as he “could not deal with her”. He says he was awoken by the police and had a discussion with them and later became aware that the mother had been taken by ambulance to the hospital but was not admitted.
Neither party alleges that the other was violent during the short time the parties lived together in South America following the child’s birth nor during the three weeks they lived with the paternal grandparents in early 2010.
Incident on 13 March 2010
In his affidavit the father describes the parties’ relationship in early 2010 as volatile. He sets out details of a violent incident on 13 March 2010 in a police statement which is annexed to his trial affidavit.
According to this statement at around 5am on that day the mother came into the parties’ apartment [apparently returning from having been out the previous night] and began to sing. The father said he asked the mother to be quiet as he wanted to sleep. He says that the following then occurred:
[The mother] came over to the bed and said that she was going to stick her finger up my backside. I told her to fuck off. She said “you know you like it”. I got up and went to sleep on the lounge. She came out looking for cigarettes and beer. She found the packed (sic) and went out on the balcony and smoked a cigarette.
She finished her cigarette and came into me and started with again wanting to stick her finger into my anus. I told her to fuck off its disgusting. She then pointed to her face and said “hit me, hit me.” I got up and went to the bedroom and she slept on the lounge.
The father says that a couple of hours later when everyone in the apartment was awake the parties again argued about the mother coming home waking him. He says that the mother threatened to harm herself and said that if he tried to take the children away from her she would kill herself and the children. The father says that the mother then followed him into the kitchen and grabbed a knife and “held it over head (sic) towards me pretending to stab me”. The father says that he left the apartment and went to his car to get away from the mother. He says that the following then occurred:
I looked up at the unit and saw her holding the baby over the balcony railing and she said something in Spanish “perro perro” which means dog and something in relation to our daughter insinuating that she was going to harm our daughter.
The father then got into the car and went fishing for the day. He says that he contacted the mother in the middle of the day to see if she had calmed down.
Under cross-examination the father confirmed that these events had occurred in the manner he deposed and agreed that he was “beside himself” when he saw the mother hold the child over the balcony and thought the mother would harm the child.
The father says that when he returned home after fishing he told the mother that he was going to stay at his parent’s home and play soccer the following day which caused the mother to become angry. He says the mother handed the child to him and said that she was going to the park. The father told the mother that he was taking the child to his parent’s home.
According to the father the mother then started to yell and abuse him, raised her fists, threatened to hit him and kicked him in the thigh. The father went to the bathroom and locked the door but the mother tried to come in and he pushed up against the door to keep her out. The father rang his brother asking him to call police.
The father says that when he heard that the mother was with her older daughter who was distressed he went to the kitchen and removed the knives and hid them. He says that he told the mother he had called police and she went to the lounge room and started to cry. The father says the police arrived a short time later and that he did not want the mother charged with assault but was seeking an ADVO as he believed this would help prevent the mother from hurting anyone in the family.
The father also says that he did not want the mother charged as he was concerned that she may be deported and he wanted to persevere and save the relationship.
Under cross-examination the father confirmed that all of the events on that day occurred as he deposed.
The mother deposes in her trial affidavit to a version of events that led to her arrest (though she says this occurred in May 2009). She does not set out any events that occurred in the morning on the day of the police intervention. According to the mother on the evening in question she and the father were having an argument in which the father insulted her. The mother says she told the father she was leaving and went into her room and began packing a suitcase for herself and her two daughters. She says that when she was giving the child a bottle the father’s older brother came to the house and they began talking amongst themselves although she could not hear them. There was then a knock on the door and ten police came into the house, took the child from her and arrested her.
The mother says that she first became aware at the police station that the father had alleged she had tried to kill the child, stab the father and sexually assault him. She deposes to spending five hours at the police station and being released without charge.
The mother deposes that she was so traumatised and scared by these events that she was unable to leave the father. She says she was afraid that if she left him he would make further false accusations and have her arrested.
Both parties agree that they remained living together until a further incident in late April 2010.
Incident on 25 April 2010
According to the mother as a result of the incident in March 2010 she moved out of the parties’ shared bedroom and tried to avoid the father. She deposes to this leading to arguments including one “in about late April 2010” which escalated into violence.
The mother deposes that on this occasion the father “grabbed me, pushed me to the bed and punched me repeatedly in the stomach and my thighs” and “tried to strangle me by putting his hands around my neck”. The mother says that her older daughter intervened, the father then stopped trying to strangle her and she took the children to a neighbour to ask for help. The mother deposes that the neighbour contacted police and the father was arrested and a provisional ADVO was made for her protection against him.
Under cross-examination the mother remained firm that these events occurred as she deposed. It was put to her that the father did not assault her as alleged but she maintained that he did.
According to the mother on the day following this violent assault and the father’s arrest she attended her general practitioner and made a complaint about the assault.
An extract of a document[3] (which was prepared for an unknown purpose) written by a Dr H is relied upon by the mother. In Exhibit 9 Dr H certifies that in his or her opinion the mother is the victim of family violence. In the section of the document that asks “what evidence is there that indicates to you that the alleged victim is the victim of relevant family violence?” Dr H has written:
[3] Exhibit 9
[the mother] saw my colleague [Dr J] on 26.4.10 in my absence regarding an alleged assault by husband on 25.4.10 He was told that her husband punched her head, buttocks, lower abdomen and grabbed her and she stated he assaulted [illegible] injuries are easily hidden, also previously [illegible] her left breast with keys. The finding [illegible] were
1. Swelling on the scalp which [illegible] tender
2. Scratch and [illegible] to neck
3. Old scratch across left breast
4. Tenderness lower abdomen
5. Tender [illegible] lower buttocks
6. [illegible] thigh
7. Tender swelling [illegible]
8. [illegible]
Dr H records the following as his conclusion:
Injuries were consistent with assault. I became aware of assault from her own words.
According to her affidavit the mother attended her general practitioner Dr … (presumably Dr H) and reported her injuries to that doctor who made observations about those injuries in his “notes” [document marked as Exhibit 9].
A “mental health care plan psychological report” annexed to the mother’s affidavit indicates that the mother consulted with a psychologist on 15 May 2010 and presented with anxiety and depression. It is also noted under the heading “presenting condition” that “[the mother] reported a long history of mood and temper problems, possibly linked to a genetical (sic) disposition from her mother”. This document makes no reference to the mother being a victim of family violence. Although it was tendered as part of Exhibit 9 there is no apparent connection between this document and the extract from the form completed by Dr H.
The father does not set out any version of this event except to say that he and the mother remained living together until 4 May 2010. He deposes that about that time he was arrested and charged with various offences on the basis of allegations made by the mother to police and after the arrest an interim ADVO was made against him for the protection of the mother.
Under cross-examination the father denied that there was an incident in which he was violent to the mother on 25 April 2010. He denied being questioned by police on that date but agreed that he was spoken to by police and charged with common assault and an ADVO was issued.
Police records contained within records from the Department (Exhibit 5) confirm that following an incident on 25 April 2010 in which the mother alleges she was assaulted by the father, the mother attended the home of a neighbour who contacted police. When the police attended the mother provided details of an assault by the father. The police then attended at the home and arrested the father who declined to be interviewed. The father was charged and an ADVO sought against him for the mother’s protection.
After the father was charged he returned to live with his parents in a suburb some distance from the mother.
Events after the parties first separation
On 21 May 2010 the mother wrote to the officer in charge at police with the assistance of a case worker from a community services organisation seeking to have the charge against the father and the application for ADVO withdrawn. In that letter the mother suggests she may have made the allegation that the father hit her because the incident brought up memories of her past where she was assaulted and raped. She wrote that “he is a good man and he only responded on that night the way he did because I physically attacked him”. The mother wrote that since the incident she had engaged with a psychiatrist and had been prescribed medication “to help me deal with my mental health issues and troubles in my life” and had also engaged with the Brighter Futures program with the Department.
The mother deposes that about one week prior to the final hearing for the ADVO (26 August 2010) the father attended at her home and apologised to her for what he had done. She says the father also told her that he knew he was going to gaol and if that occurred then his parents would take care of the child as the mother’s visa would be revoked and she would be deported to South America. The mother says that the father told her “you can change all of this”. “You have to go to court and tell them that you made it all up. Tell them I never touched you and that way you won’t get deported and [the child] gets to stay with you”.
The father denies visiting the mother in the lead up to the hearing and says it is not true that he said the words attributed to him. The father also denies that the mother did do as she says she was asked to do [go to court and say that she had made it up].
The mother says she did as the father asked and was so scared following this conversation that she went to court and “recanted about what had happened”.
There is no dispute that the father was found not guilty of the charge following a hearing and the application for ADVO was dismissed. There is no other evidence concerning the hearing.
According to his affidavit the father continued living at his parents’ home after the charge was dismissed and spent time with the child on weekends at his parents’ home. He says that his relationship with the mother resumed in late 2010 when he moved back to live with the mother, the child and the mother’s older daughter.
The mother deposes that after they left court [on 26 August 2010] the father “followed [me] to the apartment and moved back in” without consulting her. She says that she accepted there was nothing she could do to stop the father from moving back in with her.
The mother deposes that the father did not like living at the apartment and moved the family to a house in a nearby suburb. The mother claims that from this time she was isolated and regarded herself as living separated within the family home.
2010 to August 2013
The mother does not make any allegations that the father was physically violent to her when they resumed living together but claims that she was isolated and that the father would not provide her with any money to buy food or clothes. She deposes to covertly busking dressed as a clown to obtain money to buy food and clothing and that when at home she was like a single parent.
The mother also deposes that the father intercepted her mail and did not tell her that she had been granted permanent residency causing her to fear that she may be deported to South America if the father stopped supporting her. She says the father isolated her from her support network, withheld money and information from her about her immigration status and was “constantly verbally abusive”.
The mother alleges that from time to time during this period following arguments the father would leave the home for up to two days at a time leaving the family without food and she was required to go to a corner store and ask the owner for food on credit.
Under cross-examination when it was put to the mother that the father did not verbally abuse and insult her as alleged and that he did not ever leave her without money to pay for food she maintained this had occurred.
The mother claims that she contacted police and the domestic violence helpline on numerous occasions and the helpline offered her a place in a refuge but she declined as she believed that if she went to a refuge she would lose her children.
13 August 2013 - final separation
Both parties agree that they finally separated on 13 August 2013. Both parties also appear to agree that there had been another incident one to two weeks previously though the father provides no other account of any events between late 2010 and August 2013.
According to the mother the father continued to be verbally abusive towards her up until the incident on 13 August 2013. She deposes to the parties having a verbal argument on that day and the father throwing some of her clothes and shoes outside and the father pushing her against a railing on the outside steps causing her arms to be bruised. The mother deposes that the father tried to push her again and she thought he was going to seriously hurt her or go into the house to hurt one of the children so she punched him in the mouth with a closed fist causing it to bleed.
The mother deposes to contacting police following the incident who attended the home. She says that a police officer advised her that an ADVO could not be sought for her protection as she had also hit the father and she informed the police that she did not want the father to come back to the house.
Police records tendered in the proceedings are not consistent with the mother’s version of events. The records indicate that the mother contacted police following a verbal altercation between the parties in which the mother threw a glass of water towards the father and as she walked away she tripped over the father’s foot. It is recorded by police that “it appears the mother just wants assistance from Community Services” and that she was “adamant she did not want to go to court and did not want an AVO”.
The mother remained firm when cross-examined about this incident. She also agreed that she had sometimes hit the father though she maintained it was in response to him hitting her. She denied that the father had not ever hit her.
The father deposes in relation to the incident on 13 August 2013 that the mother “again became aggressive punching me in the mouth and making it bleed”. He adds that “I was very careful to control myself and not react”.
There is no dispute between the parties that this incident resulted in their final separation and the father returning to live with his parents.
Other allegations of family violence
Neither party alleges that the other has been violent since separation. However, the mother says that on about 14 May 2015 someone wrote on her front door “with graffiti” the word “puta” which means whore or slut in Spanish and slut in English. The mother says that she believes the father did this or arranged for someone to do it. The mother annexes to her affidavit a photograph which she contends depicts the graffiti on the door.
The father denies having anything to do with the graffiti and says he had the child in his care at this time.
Discussion and findings
I am not satisfied to the appropriate standard having regard to s140(2) of the Evidence Act 1995 (Cth) that the father assaulted the mother as she alleges on any occasion for the following reasons.
First, although I do not make a general finding that the evidence of the father is to be preferred to that of the mother in respect of every matter where they differ I have a number of considerable concerns about the mother’s account which suggest that it is unreliable. These concerns are as follows.
Generally the mother was extremely defensive in her affidavit and when giving oral evidence about criticism concerning her parenting capacity especially when it related to her own volatility and anger. She seemed unable to concede that any of these criticisms were valid. For example, the mother’s older child had told the expert that the mother would get angry and it was necessary for the older daughter to keep the child away from her mother and give her mother time out. The mother’s older daughter also told the expert that when the child did not want to get up and go to school she would stay at home if she wished. The mother would require the older daughter to talk to the child when the mother was “really angry” and this often resulted in the older daughter missing school or arriving late herself. Even though the older daughter was closely aligned with the mother generally, the mother did not accept her older daughter’s evidence and said that she was “a little bit mixed up” [when reporting these matters to the expert]. She would not concede that she had difficulties with her temper and minimised her problematic drinking even though these matters were well documented.
In my view the mother’s extreme defensiveness of her own position is likely to have caused her to minimise any responsibility for her own conduct and exaggerate the father’s culpability in her accounts of the father’s conduct.
The evidence concerning the mother’s temper including the expert’s opinion that the mother was highly reactive and volatile is also more consistent with the father’s evidence that the mother was the aggressor in these incidents.
Documents annexed to the mother’s own affidavit such as the mental health care plan psychological report dated 25 May 2010 state that her presenting condition includes that she “reported a long history of mood and temper problems”. Although this referral to a psychologist relates to a period soon after the April 2010 incident there is no reference to the mother being the victim of family violence. Further, in the mother’s letter of 21 May 2010 to police when she sought to have the application for the ADVO and criminal charge withdrawn, the mother made a connection between her distress about the incident bringing up past traumatic memories and her reporting that the father had assaulted her.
The mother has also given a different account of the violent events in question on different occasions and records made at about the time of the incidents in question are inconsistent with varying versions of those events since that time.
According to the mother’s affidavit police did not speak to her following the incident in which she alleges the father was violent in about March 2009. However, police records of that incident record that when police were called to the mother’s neighbour’s home to which she had fled, police spoke with her and called an ambulance for her due to her presentation.
According to the police record the genesis of this incident was ongoing tension between the parties and the mother accusing the father of looking at other women which caused her to become upset and emotional. There is no record of the mother reporting that the father had been violent to her. It is recorded that when the police later attended the hospital, the mother “stated that her husband did not hit her, just that she was jealous of the attention he was giving the family friend and not her”. This version of events is inconsistent with the mother’s affidavit and more consistent with the father’s version of that event.
So far as the incident on 25 April 2010 is concerned there are many differences between the information recorded by police when they were called by the mother’s neighbour on the night in question and the mother’s version in her affidavit. These differences include the mother’s account of the conversation immediately preceding the event and of particular significance the mother’s admission that she had instigated the physical interaction between the two. It is recorded by police that the mother reported the following had occurred:
[the father] said “shut up bitch. [the mother] said “don’t call me bitch, I’m not bitch”.
[the mother] then tapped the accused on the right side of his face. This appeared to agitate [the father] and he put his food on the floor. At this point [the mother] alleges that [the father] has pushed her with both hands to the chest area. [the father] said “I’m sick of you. Now you’re going to be scared of me”.
According to the police records the mother reported that she was lying on her back as a result of the push and the father jumped on her and commenced to elbow her in the stomach area twice and then pushed and punched her to the buttock area and upper and lower right leg causing pain. It is also recorded that the mother showed police “a small red mark on her upper chest throat area” and indicated that it was caused by the father pushing her. The description of the events leading up to the incident, the assault itself and the resulting injuries are somewhat different to both the mother’s affidavit and to matters recorded in Exhibit 9.
In submissions made on the mother’s behalf, significant weight is attached to the extract of a document prepared by Dr H dated 29 April 2010 (Exhibit 9). However, a number of features of that document are inconsistent with the mother’s version of events in her affidavit.
First, the mother deposes that the incident in which the father violently assaulted her occurred the day before she consulted with her general practitioner Dr H. She says that on that day Dr H made observations about the injuries he observed and deposes that (Exhibit 9) is a copy of that doctor’s notes dated 27 April 2010. (emphasis added) However, Exhibit 9 completed by Dr H refers to information given by the mother to a Dr J on 26 April 2010. Exhibit 9 itself was completed on 29 April 2010. This document as previously noted is an incomplete extract from a form completed by Dr H for some purpose apparently connected to the Migration Regulations. Exhibit 9 does not appear to be a record of a consultation kept by the general practitioner Dr J who saw the mother on 26 April 2010. The records of Dr J do not form part of the evidence before me.
According to the contents of Exhibit 9 written by Dr H, Dr J “was told” that the father punched the mother to her head, buttock and lower abdomen (and illegible) on 25 April 2010. The doctor also wrote “previously (indecipherable) her left breast with keys”. Dr H opines that this information and Dr J’s observations “were consistent with assault”. Dr H also adds that “I became aware of assault (sic) from her own words” but does not record what the mother reported to him about the assault.
In her affidavit the mother does not depose that the father punched her to the head or buttocks or that he had previously caused an injury to her breast with keys. Some of the mother’s affidavit account such as that the husband punched her in the stomach is consistent with the information that Dr H understands was given to Dr J. This also appears to be consistent with Dr H’s report of Dr J’s observation of tenderness to the mother’s lower abdomen. Of significance however, is that the mother does not appear to have reported to any doctor the most serious allegation that the father attempted to strangle her.
Exhibit 9 written by Dr H is not a document to which I attach any significant weight. Although it seems clear enough from Exhibit 9 that the mother did attend upon Dr J on 26 April 2010 and make allegations that the father had assaulted her the previous night and on a previous occasion there are a number of differences between that account and the observations made by the doctor and the mother’s account in her affidavit. It is also apparent from Exhibit 9 that the document was completed for some purposes associated with the Migration Regulations in which the author of that document certified that a person “is the victim of relevant family violence”. Although Dr H refers to the mother telling him on 29 April 2010 in “her own words” what had occurred he does not record what he was told. Moreover, the document itself is an extract and appears to have been made in circumstances which are inconsistent with the mother’s account.
The mother’s evidence about steps taken by her to resile from her allegations that the father assaulted her is also inconsistent with the document she prepared closer to the time of the events in question.
The letter written by the mother to police in May 2010 indicates that she was then seeking to explain the circumstances in which she had made the allegation including that the incident with the father brought up distressing memories of her own childhood trauma and that her command of English was not good. She says that in that letter “I found it difficult to comprehend the ramifications of what was happening at the time” and goes on to say “I regret the actions that have been taken against my husband” and that “he only responded on that night the way he did because I physically attacked him”. The inference from this letter is that the mother was at that stage seeking to resile from the version of events she had given, whereas her affidavit suggests that the first time she sought to “recant” was in August 2010 at the father’s suggestion. I also note that in this letter the mother says she physically attacked the father first which is more consistent with the version given to police at the time, albeit that she told police she “tapped” the father on his face.
According to the mother’s affidavit about one week before the ADVO was set down for final hearing [26 August 2010] the father approached her and directed her to tell the court that she had “made up” her allegation against him. She says that as a result she went to court and “recanted about what happened”.
Although there is no doubt that the father was acquitted at the hearing under cross-examination the father denies that the mother recanted at the hearing.
The court records and transcript in relation to the criminal proceedings were not tendered so I am unable to make a finding about whether the mother did ‘recant’ at the hearing.
For the foregoing reasons I am not satisfied to the requisite standard that the mother was the victim of the father’s violence with respect to the specific incidents she alleges in 2009 and April 2010.
The unreliability of the mother’s account with respect to these incidents also is relevant to her other allegations that the father was financially controlling and verbally abusive which the father denies. There is no other evidence concerning these allegations that support the mother’s account which is denied by the father and I am accordingly not satisfied that he otherwise behaved in a manner that would fall within the definition of family violence.
I also accept that the father’s version of events concerning the mother’s erratic and violent conduct in the incidents on 13 March 2010 and 13 August 2013 and find the events are more likely to have occurred as he alleges. His version of events as to the incident on 13 March 2010 is consistent with the complaint he made to police at the time. The mother’s version of that incident which includes that her violence towards the father was in response to him pushing her against a railing and her fear that he was going to seriously hurt her or one of the children is not consistent with the version of events she gave to police at the time. The father was also not challenged on his version that the mother was the aggressor on that occasion. For these reasons I accept the father’s version of events concerning the mother’s violent conduct towards him.
Does the mother have difficulties with her mental state and alcohol misuse which impact upon her care of the child?
The ICL (and the father in adopting the ICL’s final Minute of Order) attach significant weight to the expert’s opinion concerning the mother’s mental state and alcohol misuse.
The expert assessed family members over two days in February 2017 and his report dated 7 March 2017 was released a short time later.
In addition to considering a range of matters as requested that relate to the best interests of the child to which I will return, a particular focus for the expert was his identification of long-standing vulnerabilities in relation to the mother’s emotional and psychological health which in his view impact upon the child’s wellbeing.
For the reasons set out in his report and expanded upon under cross-examination the expert recommended that sole parental responsibility for health and education be given to the father, that the child live with the father and spend substantial and significant time with the mother.
Under cross-examination and having been provided with further documents filed by the parties in preparation for trial the expert did not change his opinion about the care arrangements that would meet the child’s best interests. The expert was not cross-examined by the father’s counsel but was cross-examined quite extensively on behalf of the mother.
In particular the expert was asked about his recommendations for the child’s future parenting arrangements if the court were to find that the father had subjected the mother to a serious attack in about late April 2010 as she describes in her affidavit and had lied about her conduct in the incident in March 2010. The expert remained firm in his recommendations and did not regard those alleged events in 2010 as the core issue at present in relation to the best interests of the child regarding residence and contact.
The expert regarded both the mother’s mental state and her alcohol misuse of significance in the formulation of his recommendations. He was of the opinion that the mother’s “unstable mental state, erratic behaviour, high level of reactivity and inability to prioritise the children’s developmental needs” had led to the child having a disrupted developmental path which is likely to continue if the child remains in the care of the mother. It was central to his opinion that the mother’s capacity to attend to the child’s needs is inconsistent and would fluctuate “depending on her mental state, alcohol use, emotional reactivity and availability”.
Although at the time he carried out his assessment ( February 2017) the expert detected no abnormalities in the mother’s current mental state he identified that she has “long standing vulnerabilities with regard to her emotional and psychological health” and had historically exhibited “volatile and erratic behaviour in response to psychosocial stressors”.
The expert formed his opinion concerning the mother’s mental health and misuse of alcohol on the basis of information provided to him by the parties and the examination of a wide range of documents recording relevant matters over many years. He noted that hospital records indicated the mother had presented to various hospitals in 2009 and 2010 reporting depression for many years as a result of being the victim of domestic abuse. She had attempted self harm on some occasions and after the incident in April 2010 which caused the parties to separate the first time the mother began seeing a psychiatrist who provided various treatments including medication.
The expert also had regard to the records related to the mother’s hospital admission in the early hours of the morning of 5 March 2016 when she was found at a train station intoxicated and unarousable.
It is recorded in the hospital notes produced on subpoena and tendered in the proceedings (Exhibit 1) that the mother mentioned some concerns in the Emergency Department during that admission about cameras and people following her, and says she remembers trying to get home but that some dark men followed her and she felt frightened. The following is also extracted from the records and was noted by the expert:
[The mother] was identified as at chronic risk of misadventure in the context of her unstable mood and mental state which was identified to be a function of her personality organisation. Her use of alcohol would place her in vulnerable positions. Her six-year-old child was identified to be at risk given her vulnerable mental state and behaviour.
The expert also attaches great weight to the mother’s developmental experience as related by her in forming his opinion concerning her mental state.
Although the mother does not address the circumstances of her childhood and experience in South America prior to meeting the father in her trial affidavit she did recount those personal circumstances to the expert. She told the expert that she had been abandoned by her mother in the care of her father’s family at the age of seven, that her mother had “done wrong things” to her and that she did not feel loved by her. The mother described being emotionally neglected by her mother and materially deprived and being responsible for the care of her younger brother. The mother told the expert that she had run away from her father’s care as he had tried to sexually assault her while drunk. The mother had resided intermittently with her maternal grandparents and aunty and these were her happiest times. She related that in 2006 when her maternal aunty was dying of cancer she felt overwhelmed with grief and experienced a period of deliberate self-harm. The mother also described that at the age of 16 she was sexually assaulted by three men at a party and had subsequently become pregnant with her older child. She had hidden the pregnancy due to fear of her mother’s reaction and had run away from home.
The mother’s older daughter was also interviewed by the expert as part of his assessment. This young woman expressed concerns to the expert about her mother’s mental state. She told the expert that she was particularly worried when her mother took the medication prescribed by the psychiatrist, describing her as different, not having any feelings and hardly communicating with the children. The older daughter also described incidents when the mother became “really emotional” but did not identify any recent episodes of this type. She recalled “a little incident” at the start of 2016 when her mother was emotional and distressed, drank wine and took sleeping tablets and became very sick and she had to call an ambulance.
The mother’s older daughter also told the expert that on occasions her mother would get angry and sometimes it was necessary to keep the child away from her mother. She also said that on occasions when her mother attended various appointments or when she was upset, the older daughter would pick up and drop off the child from school. She said that her mother would become “really angry” on a weekly basis and would call her to talk to her younger sister. The older daughter often missed school herself if the child was sick and all of them had to attend at the doctor. She described usually arriving late to school when she had arguments with the mother and sometimes feeling too upset to go to school and regularly not attending to avoid confrontations with particular teachers.
The older daughter’s primary concern about her mother related to her depression five years ago and she told the expert that she was worried that her mother would get sad again.
Under cross-examination the expert confirmed his opinions about the mother’s unstable mental state. When asked about the fact that he had not made a recommendation that the mother have any form of treatment the expert noted that a psychologist had initially seen the mother in November 2010 and that the mother had returned to this psychologist in December 2016 but the file was closed a few months later. He noted that the mother had previously been identified as having recurrent presentations with depression and further treatment may be appropriate in the future if that were again identified. The expert did not identify that there was any current need for any intervention for the mother in relation to depression. He added:
However, given her historical vulnerabilities to depression, intermittent alcohol use and self-harm, she may require further assistance in the future. And, again, that would most appropriately be addressed in a clinical setting with her treating psychologist and if required a psychiatrist, but in a clinical referral, not in a court-ordered manner.
Later in oral evidence the expert was asked about the mother’s ongoing contention that she is the victim of violence perpetrated by the father. The expert agreed that if the psychologist treating the mother framed that treatment on the basis that the mother was the victim of violence, this was problematic. He said of the psychologist that the mother had consulted in 2010 and 2016:
[I]f she is treating or dealing with what she has presented to her as primarily a domestic violence or family violence problem and the mother appears to her to have perhaps lessened or moved on or whatever, well then, she would say that [the treatment] has been successful.
The expert agreed that if the mother’s psychologist had not been aware of other matters such as the mother’s episodes of problematic drinking leading to unconsciousness then she may not be in a good position to judge the effectiveness of her treatment.
Under further cross-examination, the expert agreed that there was some improvement in the mother’s areas of emotional and behavioural vulnerability which he described as a stabilisation. He remained concerned however about some more recent developments. For example, it was drawn to the expert’s attention when giving evidence that the mother had informed her older daughter that if orders were made that the child was to reside primarily with the father then the mother might return to live in South America. The expert described this as “strongly suggestive of her underlying emotional vulnerability which is likely to be retriggered in the context of further psychosocial stress” and said the court ordering the child to live with the father would be an example of one such stress.
In summary, although the expert had commented on the mother’s current positive mental state he remained firmly of the view that her underlying vulnerability was a matter of significant concern.
The expert is a child and adolescent psychiatrist who holds an honours degree in Medicine, a Masters of Medicine (psychotherapy) and is a member of the Australian and New Zealand College of Psychiatrists. He has had over 25 years experience in child psychiatry and is currently engaged in teaching and examining psychiatry registrars for the purpose of their specialist training. He has written and presented at conferences and seminars to a wide range of audiences and is engaged in other professional activities. He is particularly experienced as an expert in medico-legal and family law matters. The expert had available to him a very wide range of documents produced under subpoena and interviewed each of the parties, together with various members of the respective extended families and observed the parents in their interactions with the child. The expert was cross-examined by the mother’s counsel and the ICL and remained largely unshaken in his opinions. Having regard to these matters I accept his evidence and attach particular weight to it.
Attaching particular weight to the opinion of the expert and in the absence of any evidence to the contrary I am satisfied that the mother does have personality vulnerabilities and an unstable mental state as a result of her developmental experience and on occasions has acted erratically including when she has significantly misused alcohol. On other occasions she has demonstrated a high level of reactivity and an inability to prioritise the child’s developmental needs. The limitations on the mother’s capacity to meet the child’s needs are also addressed at length elsewhere in this judgment.
The Law & Discussion
The objects of Part VII of the Act and the principles underlying it set out in s60B form the framework for the part of the Act dealing with parenting.
The objects 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.
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).
S65D of the Act provides that in proceedings for a parenting order the court may (subject to provisions dealing with the presumption of equal shared parental responsibility parenting plans and Division VII) make “such parenting order as it thinks proper”.
According to s 60CA of the Act, in deciding whether to make a particular parenting order in relation to a child, a Court must regard the best interests of a child as the paramount consideration.
Section 60CC sets out the primary considerations and additional considerations to be considered by a Court in determining what is in a child’s best interests.
Primary considerations: s 6OCC(2)
The primary considerations (under s 60CC(2)) 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.
I am required to give greater weight to the need to protect the child from harm than to the benefit to the child of having a meaningful relationship with both parents.
Benefit to the child in having a meaningful relationship with both parents
The meaning of the phrase “meaningful relationship” is not defined in the Act. The Full Court in McCall & Clark[4] has approved the interpretation of the phrase by Brown J in Mazorski & Albright[5] and has also agreed with the reasoning of Bennett J in G & C[6].
[4] (2009) FLC 93-405; 41 Fam LR 483; [2009] FamCAFC 92
[5] (2007) Fam LR 518
[6] [2006] FamCA 994
Brown J in Mazorski & Albright (supra) said at [26], after setting out the definition of “meaningful” and “meaning”:
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”.
The Full Court said in McCall & Clark (supra) at [117]:
Bennett J discussed the terminology in G & C [2006] FamCA 994 and said the enquiry was a “prospective” one which requires a court to evaluate the extent to which a meaningful or significant relationship with both parents is going to be of advantage a child (sic).
The father proposes orders which will see the parents share parental responsibility for the child in relation to at least some matters and each parent proposes that the child primarily live with one parent but spend substantial time with the other parent.
Each parent therefore recognises correctly in my view that there is a benefit to the child of having a meaningful relationship with both of her parents. The orders they propose will ensure that she will continue to have the benefit of such relationships in the future.
The need to protect the child from physical or psychological harm
This consideration relates to the need to protect the child from harm arising in particular ways, that is being subjected or exposed to abuse, neglect or family violence.
Neither parent contended at the final hearing, and there is no evidence to suggest, that the child has been harmed from being subjected to abuse in either household or that there is an unacceptable risk of harm to the child that may occur in the future under the respective parenting proposals.
It is a central plank in the mother’s position in these proceedings that she has been the victim of family violence at the hands of the father to which the child has been exposed and that the child will be better protected from the psychological harm associated with exposure to family violence if orders are made as she proposes.
For the reasons given I am not satisfied that the father has perpetrated family violence against the mother as she contends, nor is there any evidence to suggest that there is any unacceptable risk that he may expose the child to family violence in his care in the future.
The parents have however exposed the child to considerable conflict falling short of family violence and there are risks to the child associated with that conflict which is a matter considered later in these Reasons.
The father contends that the child has experienced some neglect in the care of the mother particularly in relation to school attendance. This matter will be considered as an aspect of the mother’s capacity to which I will return later in these Reasons.
Additional considerations: s 6OCC(3)
Section 60CC(3) then sets out additional matters the Court must consider when determining a child’s best interests and I will refer to those which are relevant in this case.
Views of the child
The child was seven when interviewed by the expert. He formed the view that the child was aware that she was seeing him in part for the purpose of expressing her views in the proceedings. She told the expert that she would prefer to live with her mother than her father.
Under cross-examination the expert confirmed that any child will be influenced in their views and experience by the context of recurrent discussions about the nature of their experience. In these proceedings the expert felt that the child’s repeated discussions with her mother about the future parenting arrangements not only served to validate the child’s view that it would be a good thing to spend less time with her father and more time with her mother but also went further. The expert observed that the child made complaints about other people in the father’s network and the child expressed to the expert concern about how her statements would be interpreted by her mother. The expert opined “[the child] was aware that her mother would be highly reactive if she prioritised her relationship with her father” and “was aware of her mother’s negative attitude towards the father’s partner and echoed her mother’s view that the partner was “not family”.”
The expert’s opinions concerning the influence of the mother over the views expressed by the child was not challenged.
I accept the opinion of the expert about the child’s views and do not attach weight to her expressed preference to live with her mother for those reasons.
Nature of the child’s relationships
Likely effect of a change in the child’s circumstances
The child was generally observed by the expert to have “a loving and connected relationship with both parents”. This is consistent with the level of care provided by each of the parents since the time of their separation when the child was three years of age. For a considerable period of time the parents have equally shared the care of the child and the child has otherwise spent at least substantial and significant time with the father.
The pattern of the child’s care and role played by other family members has resulted in the child having close and important relationships with both her maternal and paternal extended family.
The child spoke positively to the expert about her relationship with her maternal grandmother who had been living in the mother’s home for some months at the time of the expert’s assessment.
The expert also observed a positive relationship with the father’s partner and the child spoke enthusiastically to the expert about her relationship with the two daughters of the father’s partner. The expert also observed and was informed by the child of a close and positive relationship with the paternal grandparents.
According to the expert the child also has a particularly close connection with her older sister “who had played a significant caregiving role when her mother was unavailable”.
The expert expressed the following view concerning the likely effect of any change in the child’s circumstances, having regard to her relationships:
Should [the child] be primarily placed in her father’s care, she would miss her loving connection with both her mother and her older sister. Her mother’s volatility and the insecure attachment associated with her intense level of reactivity amplified this experience. [The mother’s older daughter] had played a significant parenting role for [the child] following the parental separation. Given [the child]’s strong identification with her older sister, separation from her would be a significant loss. She however, enjoyed residing with her father, his partner and connection with her two daughters, who were of a similar age. She spoke enthusiastically about participation in extra-curricular activities… and was disappointed that these were not consistently supported by her mother.
Although neither parent proposed to the expert or in these proceedings that there be an absolute separation of the child from either her mother and sister or her father, the expert expressed the view that any such absolute separations would be distressing for the child.
Under cross-examination this issue was further explored when the expert was informed that the mother had told her older daughter that if she was unsuccessful in these proceedings, one possible result may be that the mother would return to live in South America on a permanent basis. The expert was concerned about the detrimental effect such a comment would have upon the older child’s emotional vulnerability and insecurity and described such a threatened separation and loss as “very anxiety provoking” [in the older child]. So far as the child who is the subject of these proceedings is concerned the expert described the mother’s threatened possibility of returning to South America as “distressing and disorganising” to the child and that it would be experienced by her “as a significant loss in her life”.
Under cross-examination the expert confirmed and further developed his opinion that if orders were made as proposed by the father the child would initially experience distress at having less frequent contact with the mother which would be amplified if the mother expressed her emotional distress in a significant manner in her interactions with the child. He was concerned that it is likely in his view that the mother will not protect the child from her own sense of distress and loss (in a similar fashion to having had recent discussions about possibly returning to South America with her older daughter) but said the mother and the entire family could be assisted by family therapy.
Under cross-examination the expert said that although the child would experience grief and loss if she were to move to the primary care of the father, he was of the opinion that it would be mitigated by the child’s regular and ongoing contact with her mother and older sister. He also identified that there was a loving and attentive relationship between the father and the child.
The expert also confirmed and further developed his opinion under cross-examination that the child will receive many benefits from being placed in her father’s care, a matter to which I will return when considering the parents’ respective capacity to meet the needs of the child.
Extent to which each of the parents have taken or failed to take the opportunity to participate in long-term decision making regarding the child and to spend time and/or communicate with the child
Extent to which each parent has fulfilled or failed to fulfil their obligation to maintain the child
Each of the parents was involved in caring for the child when the relationship was intact and so far as I can determine both parents jointly made decisions about the child prior to final separation in August 2013.
Following separation the father began paying child support which he continued to pay at the assessed rate as at the date of final hearing.
The father also made some other contributions to assist the mother financially such as paying for the mother’s rent for a short period of time. Following separation the father paid for the child’s attendance at kindergarten two to three days per week. When the child began attending a private school in 2015 the father paid her school fees in full which was subsequently included as part of his child support. He has also paid for some of the child’s extra-curricular activities since separation. It appears that the mother otherwise financially maintains the child when she is in her care.
Following separation the parties agreed that the child would remain living with the mother and spend time with the father each alternate week from Friday afternoon to Sunday afternoon. This first occurred on an informal basis and then orders supporting this arrangement were made in April 2014.
Following a further mediation in December 2014 further orders were made by consent in January 2015 which provided for the parents to equally share parental responsibility and for the child to be cared for by both parents in an equal shared care arrangement.
From September 2015 the father proposed in a letter through his solicitor to the mother that there be an increase in the time that the child lives with him and that he have sole parental responsibility for the child’s health care and schooling and proposed that a mediation conference be held to discuss these proposals. Mediation had been foreshadowed when the orders were made in January 2015 and is referred to as a Notation in those orders.
After the father proposed mediation as had been previously anticipated, instead of agreeing with the proposal the mother filed an Initiating Application in September 2015. At that stage the mother alleged that the father posed an unacceptable risk of harm due to sexual abuse of the child. The mother has since resiled from such allegations and they did not form part of the final parenting dispute.
In February 2016 the mother unilaterally suspended the father’s midweek time with the child which was not reinstated until October 2016. From February 2017 the mother once again unilaterally suspended the child’s time with her father after school on Thursdays and also refused the father’s attempts at having telephone contact with the child during the week in accordance with the orders. She also unilaterally referred the child to a psychiatrist without discussing the matter with the father.
In my view the father has consistently attempted since separation to maintain and/or increase his involvement in the child’s life and there has been some resistance to this by the mother.
Practical difficulty or significant expense involved in spending time with and communicating with the other parent
Neither parent raises any particular practical difficulty or significant expense involved in spending time with and communicating with the other parent under the orders proposed by each of them.
Capacity of each parent and any other person to provide for the child’s needs including emotional and intellectual needs
In my view this is the most salient matter in these proceedings and the one to which I attach the greatest weight.
For the reasons given earlier I accept the expert’s opinion in these proceedings and attach significant weight to it.
The expert assessed and confirmed under cross-examination that the father had an adequate capacity to attend to the child’s psychological, emotional, educational, social and health needs. He described the father as well-supported in addressing the child’s needs by his partner and the paternal grandparents. In his opinion the father prioritised the child’s developmental needs by providing her with a “safe, secure and predictable environment”.
In oral evidence the expert confirmed his opinion that the father is committed to the child’s best interests and there is no evidence to suggest that he is likely to neglect or fail to attend to her developmental needs, including her emotional and psychological needs.
The expert is of the view that it is likely the child will experience developmental hurdles in the years to come in whatever household she is placed in. He said in oral evidence:
She has experienced challenging developmental circumstances to date. She has experienced and she has been exposed to quite traumatic scenes with regard to the exposure to family conflict, parental conflict with regard to the instability in her mother’s mental health and behaviour, which has been very concerning and distressing at times to both her and her older sister and the first base in being able to deal with emotional and psychological vulnerabilities, whether it be grief and loss related to a change in the families circumstances or alternatively the types of challenges that she has experienced to date, the first base is to be provided with a stable base, a safe and secure environment in which to deal with and to work through the challenging developmental experiences that are being dealt with. So the first and most important thing in terms of assisting [the child] is to provide stability with regard to home, with regard to school, with regard to other activities, to be protected from further experiences of family conflict. I did not identify that there was any evidence that the father’s current family home was likely to be a stressful or conflictual environment.
The expert described the mother’s capacity to attend to the child’s needs as inconsistent and that it would “fluctuate depending on her mental state, alcohol use, emotional reactivity and availability”. The expert expressed concerns that the mother’s preoccupation with the child being sick had limited the child’s regular attendance at school, extra-curricular activities, social activities and contact with the father. The mother also acknowledged to the expert that she was hypervigilant and over protective given her exposure to neglect, abuse and sexual assault. The expert opined that this limited her capacity to address the child’s needs in a stable and consistent fashion despite intensive intervention some years ago with the Brighter Futures Program.
As identified by the expert, the mother’s emotional volatility is a matter which affects her capacity to provide for the child’s needs. Although the mother has historically in these proceedings blamed the conflictual relationship with the father for her emotional volatility, I am not satisfied that this is the case. I accept the expert’s opinion that the mother’s volatility and emotional reactivity are part of her personality and are matters for which the mother has not fully acknowledged responsibility and have not yet been satisfactorily addressed.
It is not suggested by the expert, nor do I find that the shortcomings in the mother’s parental capacity are such that she should spend very limited or supervised time with the child. The expert is of the opinion which I accept that if the child lives with the father and spends regular time with the mother she will be provided with a safe and secure predictable environment as her principal home while maintaining the important relationships with her maternal family.
Maturity, sex, lifestyle and background (including culture and traditions) of the child and either parent
The child is of South American heritage on her maternal side and has received the benefit of South American culture and traditions throughout her life from her mother. The child is fluent in Spanish and English and speaks Spanish with her mother and sister in that home. The mother has introduced the child to traditional dancing and food which she enjoys with her mother and sister.
As I understand it the mother is a practising Catholic and the child attends church and faith based activities with her. Although the father is not a Catholic he supports the child being raised as such by the mother. He does not propose that he exercise sole parental responsibility with respect to religion or cultural activities but that this be shared. The child will be able to continue to experience the benefits of the cultural activities and traditions she has enjoyed with her mother under each of the parent’s proposals.
The cultural traditions and heritage of the father are unknown.
The child had an inordinate number of absences from school in 2014, 2015 and 2016 most of which were supported by medical certificates and it is the mother’s case that the child has suffered from significant ill health. I am not satisfied that this is the case and accept the opinion of the expert that the mother has been preoccupied with the child’s health and has exaggerated the extent to which the child was required to be withheld from school due to illness.
There is no evidence to support that the child has had regular ill health notwithstanding that in 2015 and 2016 she was regularly presented to a general practitioner who appears to have regularly prescribed antibiotics. The child is not unwell and does not miss any school due to ill health when in the father’s care. Further, presentations to the doctor have diminished and the child’s school attendance has significantly increased since the release of the expert’s report where this was identified as a matter of concern.
Apart from suffering from asthma which appears to be well managed, the child is in good health and is progressing well at school.
The expert described the child as “charming, engaged and communicative” throughout his assessment. When interviewed a second time the child reiterated her love for all of her family on both sides, her enjoyment of school and extra-curricular activities. These activities include dancing and scouts which she attends when living with her father but generally does not attend when in her mother’s care as her mother does not prioritise these activities.
In my view it is more likely that the child will regularly attend school and participate in a wider range of activities under the father’s proposed orders than those of the mother. It is also likely that the father will continue to be more attuned to any legitimate concerns about the child’s health or development than the mother should they emerge in the future.
Attitude to the child and responsibilities of parenthood demonstrated by each parent
There is no doubt that both of the parents love and care for the child very much.
I accept the opinion of the expert that the mother has struggled to attend to the responsibilities of parenthood. It appears that this struggle is related to the mother’s emotional vulnerability and impaired capacity to provide for the child’s development needs in a consistent and stable manner as a result of her own developmental experience of abuse and neglect, rather than being due to a poor attitude to the responsibilities of parenthood.
The mother’s emotional volatility has also contributed to the ongoing difficulties since separation in co-parenting with the father.
There is also some concern that the child may have been exposed to inappropriate influences in the care of the mother associated with some of the mother’s former relationships including a former boyfriend who is reported to having a criminal history. By the time of the final hearing the mother no longer had any relationship with that person though his father filed an affidavit in the proceedings for the mother and was described as being a support person for her.
Family violence
Other relevant circumstances-parental conflict
Although for the reasons given earlier, I am not satisfied to the requisite standard that the father assaulted the mother as she alleges generally or on the particular occasions in March 2009 and April 2010, I also am satisfied that the mother was violent towards the father in August 2013 which caused the parties to finally separate and that the child and her older sister were regularly exposed to high levels of conflict between the parties prior to separation.
Although the conflict to which the children were exposed may fall short of family violence it is a matter of significance in these proceedings touching upon and related to a number of the best interest considerations. In respect of these matters the expert opined:
… [T]he nature of the volatile and conflictual relationship that did exist between the parents is, and has been, highly concerning…
In considering the nature of the allegations of family violence it is my view that it is probable that at various times both parties have contributed to the nature of the volatile interactions, between the parties…
To the extent that the father bears some responsibility for the conflictual relationship between the parties, it is not a matter that is ultimately determinative in these proceedings. The expert did not regard the allegations of violent interaction between the parties in 2010 as “the core issue at present” in relation to the issues to be determined by the court as to what is in the child’s best interests.
Regardless of the responsibility that the parties each bear for conflict in the past, it is of significance that the expert did not identify the child to be currently at risk of psychological harm or exposure to conflict or family violence in the father’s care and it did not alter his recommendations with respect to the issue of residence and contact with the non-residential parent.
It is also of significance in my view that neither parent suggested at the final hearing that there was an unacceptable risk of harm to the child on this basis in either household. Neither parent proposed that the other parent’s time with the child be supervised and both proposed that the child have substantial time in the other parent’s care.
Whether it would be preferable to make an order least likely to lead to the institution of further proceedings in relation to the child
It is always preferable to make an order that is unlikely to lead to further parenting proceedings.
In my view if orders are made as proposed by the mother there is a greater likelihood of contravention applications being brought in the future given the mother’s previous unilateral cancellation of some of the father’s time. However, this is not a particularly weighty factor in these proceedings.
Conclusion
Parental responsibility
Unless the Court makes an order changing the statutory conferral of joint parental responsibility, s 61C(1) of the Act provides that each of the parents of a child has parental responsibility for the child.
Section 61B defines “parental responsibility” as “all the duties, powers, responsibilities and authority which, by law parents have in relation to children”.
In Goode & Goode[7] the Full Court held that there is a difference between parental responsibility which exists as a result of s 61C and an order for shared parental responsibility, which has the effect set out in s 65DAC of the Act. The Court held that in the former, as there is no Court order in effect, the parties will exercise the responsibility either independently or jointly. On the other hand, once the Court has made an order allocating parental responsibility between two or more people, including an order for equal shared responsibility, the major decisions for long-term care and welfare of children must be made jointly, unless the Court provides otherwise.
[7] (2006) FLC 93-286
Where the Court is to determine parental responsibility, the starting point is s 61DA. This section provides that when making a parenting order in relation to a child, the Court must apply a presumption that it is in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child. The presumption does not apply if there are reasonable grounds to believe that a parent or person who lives with a parent has engaged in abuse of the child, or another child, or family violence (subsection 61DA(2)), or may be rebutted by evidence satisfying the Court that it would not be in the child’s best interest for the parents to have equal shared parental responsibility (subsection 61DA(4)).
The mother seeks sole parental responsibility for the child and the father adopts the ICL’s proposed order that he have sole parental responsibility in relation to the child’s health and education but that the parties otherwise have equal shared parental responsibility in relation to the child’s long term care, welfare and development.
The expression “sole parental responsibility” is not defined in the Act. Having regard to the definition of parental responsibility in s 61B, the order sought by the mother must mean that she would have all the duties, powers, responsibilities and authority which, by law parents have in relation to the child and that the father would have none of the duties, powers, responsibilities and authority with respect to the child.
The father’s proposal must mean that he alone would have all the duties, powers, responsibilities and authority by law parents have in relation to the child in relation to education and health.
In my view there is no evidence upon which I could find that it is in the best interests of the child for the mother to have sole parental responsibility for her. This is particularly so in these circumstances where having regard to the best interest matters I am of the view that it is in the child’s best interests to live primarily with her father.
I am also of the view that the presumption that it is in the best interest of the child for her parents to share equally parental responsibility is rebutted in relation to health and education for the following reasons.
It is well documented and not challenged by the mother that the child missed a significant number of days at school, when the child was in the mother’s care particularly in 2014, 2015 and 2016 and this did not occur when the child was living with the father. The mother has at all times maintained that the child’s absences were always due to ill health. For the reasons given, I am not satisfied that the child suffered significant ill health as contended by the mother or that it was necessary to keep the child regularly from school due to her ill health. In my view, giving particular weight to the evidence of the expert, the mother is hypervigilant and obsessive about the child’s health which has operated to the child’s detriment.
The expert describes the mother’s inability to ensure both of her children’s consistent attendance at school and extra-curricular activities as a source of psychological stress for those children. Ongoing failure to ensure the child’s regular and stable school attendance is likely to result in the child not reaching her academic potential as appears to have occurred with the mother’s older daughter.
The mother’s hypervigilance concerning the child’s health has also been put forth as the reason the mother has consistently failed to enable the child to attend at extra-curricular activities which has caused some disappointment for the child.
The expert’s recommendation in his assessment which he maintained at the final hearing is that parental responsibility for health and education should reside solely with the father.
For the foregoing reasons I am satisfied that the presumption of equal shared parental responsibility is rebutted in relation to health and education only. Accordingly, the orders with respect to these matters will be made as sought by the ICL and father. So far as other aspects of parental responsibility are concerned I am satisfied that it is in the best interests of the child for them to be shared.
As an order will be made for the parents to have equal shared parental responsibility for the child with respect to some matters under s65DAA(1) of the Act I must consider whether the child spending equal time with each of the parents would be in her best interests, and whether such an order is reasonably practicable.
Neither of the parents seeks an equal time parenting arrangement for the child notwithstanding that it has been in place for a number of years. I infer that the parents recognise that this form of care arrangement is not in the child’s best interests and I share that view.
The consistent theme of the expert’s evidence is that the child requires a stable and secure arrangement in which her needs are met and that this would be best achieved by the child living primarily with one parent and spending defined time with the other. In these circumstances I am not of the view that it would be in the child’s best interests to spend equal time with each of her parents.
Section 65DAA(2) of the Act also requires that I consider whether the child spending substantial and significant time with each of her parents would be in her best interests and reasonably practicable having made an order for equal shared parental responsibility (albeit in part). The time that each parent will spend with the child under their respective proposals amounts to “substantial and significant time” under s65DAA(3) of the Act. The expert recommends and I am satisfied that spending such time with the mother would be in the best interests of the child and no issues of reasonable impracticability arise.
I have considered each of the relevant matters in Section 60CC(2) and (3) of the Act and attach particular weight to the capacity of each parent to provide for the child’s needs. Having regard to all of the matter as required and attaching particular weight to the opinion of the expert for the reasons given, I am of the view that the orders proposed by the ICL and adopted by the father as to parental responsibility, where the child shall live and the time she will spend with the other parent are in the best interests of the child. The mother also opposed an order that the child have family therapy. I am satisfied that such an order is in the best interests of the child, particularly having regard to paragraph [190] of these Reasons.
As indicated earlier in these Reasons there are a number of other orders to which all parties consent and those are made on that basis. There are two additional orders proposed by the father concerning changeover and holiday dates which did not form part of the ICL’s final proposal. Having regard to the foregoing matters and especially the need to avoid the conflict associated with the need for further discussions between the parties as to these matters I am satisfied it is in the child’s best interests to make those orders.
For the foregoing reasons I make the orders set out at the forefront of this decision.
I certify that the preceding two hundred and fifty (250) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Hannam delivered on 17 November 2017.
Legal Associate:
Date: 17 November 2017
Key Legal Topics
Areas of Law
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Family Law
Legal Concepts
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Injunction
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Procedural Fairness