Sutton and Sutton

FAMILY COURT OF AUSTRALIA

SUTTON & SUTTON

[2017] FamCA 233

FAMILY LAW – CHILDREN – Where the parties disagree about who should make major long term decisions for the child – Where the mother wishes to take the child to China to see her ailing grandmother but the father submits the risks of allowing that trip outweigh the benefits that the child would receive from that trip – Where the mother alleges that the father has sexually abused the child – Where there is no unacceptable risk that the father has sexually abused the child – Where the parents have been unable to agree on a high school for the child and an order is made as to which high school she is to attend – Where the parents have demonstrated an inability to communicate and make joint decisions –Where orders are made for the father to have sole parental responsibility for the child’s education and health and for the mother to have sole parental responsibility for the child’s culture provided they both make a genuine effort to come to a joint decision before making the final decision – Where orders are made for the child to spend equal time with both parents – Where orders are made restricting the mother from travelling overseas with the child

Australian Passports Act 2005 (Cth)
Family Law Act 1975 (Cth)

APPLICANT:

Mr Sutton

RESPONDENT:

Ms Sutton

INDEPENDENT CHILDREN’S LAWYER:

Ms Robertson

FILE NUMBER:

SYC

6929

2012

DATE DELIVERED:

13 April 2017

PLACE DELIVERED:

Sydney

PLACE HEARD:

Sydney

JUDGMENT OF:

Watts J

HEARING DATE:

6 March 2017; 8 – 9 March 2017; 13 March 2017

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Ms Clifford

SOLICITOR FOR THE APPLICANT:

Karras Partners

SOLICITOR FOR THE RESPONDENT:

Litigant in person

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER:

Ms Falloon

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER:

Robertson Solicitors

Orders

All previous orders for parenting of B, born on … 2005, (“the child”) and any consequential orders are discharged, including orders made on 31 August 2016 for the appointment of the Independent Children’s Lawyer (subject to order 32).
In the event that the child obtains a place at C School the child shall commence high school there in 2018. In the event that the child does not obtain a place at C School then she will commence high school at D School in 2018.
The father shall have sole parental responsibility for decisions about major long-term issues with respect to:
3.1.The child’s education; and
3.2.The child’s health.
On the conditions that:
3.3.The father shall advise the mother in writing immediately when he becomes aware of the need for a decision about a long-term issue with respect to the child’s education or health, including why the decision is necessary, and his view as to the decision that should be made; and
3.4.The father shall give the mother in writing any information relevant to the decision, including any information given to the father by an educational institution or a health service provider; and
3.5.The father shall consult with the mother in writing with regard to any such issue and shall consider any views that the mother provides to him in writing; and
3.6.The father and mother will make a genuine effort to come to a joint decision about any such issue; and
3.7.If no agreement is reached between the parties, then within 14 days the father shall make the final decision and advise the mother in writing of the decision about any such issue.
Subject to the father’s overriding responsibility in relation to the child’s education, the mother shall have sole parental responsibility for decisions about major long term issues with respect to the child’s Chinese culture on the conditions that:
4.1.The mother shall advise the father in writing immediately when she becomes aware of the need for a decision about a long-term issue with respect to the child’s Chinese culture, including why the decision is necessary, and her view as to the decision that should be made; and
4.2.The mother shall give the father in writing any information relevant to the decision; and
4.3.The mother shall consult with the father in writing with regard to any such issue and shall consider any views that the father provides to her in writing; and
4.4.The mother and father will make a genuine effort to come to a joint decision about any such issue; and
4.5.If no agreement is reached between the parties, then within 14 days the mother shall make the final decision and advise the father in writing of the decision about any such issue.
Provided that this order is also subject to orders restraining the mother from taking the child out of Australia without the father’s written consent or further court order.
Both parents shall ensure that the child continues to be involved in the Catholic religion and neither parent is to encourage the child in any other religion and in particular the mother is restrained from exposing the child to another Christian faith or taking the child to the S Church.
The parents shall have shared parental responsibility for decisions about major long-term issues for the child, other than decisions about her education, health and Chinese culture, and if they are unable to agree as a result of consultation with each other, they shall each do all things necessary to engage a suitably qualified mediator or family therapist at E Group to assist their decision-making prior to either party filing any application relating to a disputed issue about shared parental responsibility.
The father shall authorise the child’s present school, and any secondary school she attends, to provide the mother with all reports and information that is ordinarily provided to parents.
Both parents shall be at liberty to attend any school event to which parents are invited, including but not limited to speech day presentations, sporting and cultural events or such events that the child may nominate from time to time.
The father shall provide a copy of these orders to:
9.1.The child’s present school, within seven days;
9.2.Any school to which an enrolment application is made for the child in the future;
9.3.The child’s general medical practitioner, as chosen by the father, within seven days;
9.4.Any other person who needs to be satisfied that the father has authority to make final decisions about the child’s education and health.
During school terms, and commencing in accordance with the current fortnightly pattern, the child shall live with the parents in a repeating pattern of two nights/two nights and five nights/five nights as follows:
10.1.With the mother from the conclusion of school classes on Monday (or 6.00pm if the Monday is not a school day) until the conclusion of school classes the following Wednesday (or 6.00pm if the Wednesday is not a school day) each week.
10.2.With the father from the conclusion of school classes on Wednesday (or 6.00pm if the Wednesday is not a school day) until the conclusion of school classes the following Friday (or 6.00pm if the Friday is not a school day) each week.
10.3.With the mother from the conclusion of school classes on Friday (or 6.00pm if the Friday is not a school day) until the conclusion of school classes on the following Monday (or 6.00pm if the Monday is not a school day) in the first week and each alternate week.
10.4.With the father from the conclusion of school classes on Friday (or 6.00pm if the Friday is not a school day) until the conclusion of school classes on Monday (or 6.00pm if the Monday is not a school day) in the second week and each alternate week.
Subject to the order 12, during short school holiday periods commencing at the end of terms 1, 2 and 3, the child shall spend time with the parents, as follows:
11.1.In odd-numbered years with the father for the first half of the holiday period;
11.2.In odd-numbered years with the mother for the second half of the holiday period;
11.3.In even-numbered years with the mother for the first half of the holiday period;
11.4.In even-numbered years with the father for the second half of the holiday period.
In the event that the father gives one month’s notice in writing to the mother of his intention to take the child overseas and otherwise complies with order 24, the child will spend time with her father for the whole of term 2 school holidays each alternate year commencing 2017 and in any year when the child spends the whole of term 2 holidays with her father, she shall spend the whole of term 3 holidays with her mother.
During the long school holidays from December to January, the child shall spend time with the parents as follows:
13.1.In odd-numbered years with the father for the first fortnight and with the mother for the second fortnight;
13.2.In odd-numbered years with the father for the first half of the remaining holiday period, and with the mother for the second half of the remaining holiday period;
13.3.In even-numbered years with the mother for the first fortnight and with the father for the second fortnight;
13.4.In even-numbered years with the mother for the first half of the remaining holiday period, and with the father for the second half of the remaining holiday period.
Orders 10, 11, 12 and 13 shall be suspended as necessary so that the child is with the parents at the following times:
14.1.In even-numbered years with the father from 10am on Good Friday until 6pm on Easter Saturday, and with the mother from 6pm on Easter Saturday until 6pm on Easter Monday.
14.2.In odd-numbered years commencing 2019 with the mother from 10am on Good Friday until 6pm on Easter Saturday, and with the father from 6pm on Easter Saturday until 6pm on Easter Monday.
14.3.Each year with the mother from 10am (or 3.15pm if it is a school day) on Chinese New Year’s Eve to 6pm on Chinese New Year’s Day (or the commencement of school if it is a school day); and from 10am (or 3.15pm if it is a school day) on Chinese Moon Festival Day until 6pm the following day (or the commencement of school if it is a school day) provided that the order allowing the child to spend time with the mother on Chinese Moon Festival Day is subject to that order not interfering with the order providing for the child to spend time with the father on the child’s birthday.
14.4.Each year with the father from 6pm on the day preceding Fathers’ Day until 6pm on Fathers’ Day;
14.5.With the mother from 6pm on the day preceding Mothers’ Day until 6pm on Mothers’ Day;
14.6.In even-numbered years with the father from 6pm on 24 December until 6pm on 25 December, and with the mother from 6pm on 25 December until 6pm on 26 December;
14.7.In odd-numbered years with the mother from 6pm on 24 December until 6pm on 25 December, and with the father from 6pm on 25 December until 6pm on 26 December;
14.8.If the child’s birthday falls on a non-school day from 11am to 3pm with the parent she would not otherwise be with on that day;
14.9.If the child’s birthday falls on a school day from the conclusion of school classes until 6pm with the parent she would not otherwise be with on that day.
Changeovers for the child’s time with the parents shall be:
15.1.On school days, at her school;
15.2.At times when school is not open, at the father’s home at the commencement of the time, with the mother to deliver the child to or pick her up from the father’s home; and at the mother’s home at the conclusion of the time, with the father to deliver the child to or pick her up from the mother’s home.
That in the event either parent is unable to care for the child whilst she is in their care pursuant to these Orders, then that parent shall give the other parent the first option to care for her.
Each parent shall allow the child to communicate with the other parent by telephone or Skype or any other form of electronic communication at any reasonable time.
During any five-night period as set out in order 10, the parent with whom the child is not living with at 8pm on Friday and at 8pm on Sunday, may make a call to the child, and the other parent shall facilitate such an incoming call.
At any time when the child is living with a parent for seven days or more, that parent shall facilitate an incoming call to the child by the other parent at 8pm on the day that is halfway through the relevant period.
The child is to be given privacy during any communication she is having with a parent pursuant to orders 17, 18 and 19.
The father shall not commit the child to any out-of-school-hours activity, including private tutoring, during the time that the child is to be with the mother pursuant to these orders, unless the mother consents in writing and the mother is not to commit the child to any activity associated with her Chinese culture during the time that the child is to be with the father pursuant to these orders, unless the father consents in writing.
If the child suffers any illness or injury requiring urgent hospital admission, the parent caring for her at the time shall promptly inform the other parent, and advise the other parent the location and telephone number of the hospital.
Neither parent shall:
23.1.Physically discipline the child, or shout at her;
23.2.Speak rudely or critically about the other parent in the child’s presence, or within her hearing, or permit any other person to do so;
23.3.Discuss the family law proceedings with the child, or with any other person in the child’s presence;
23.4.Show the child any documents associated with the family law proceedings, or permit any other person to do so.
The father shall be permitted to travel internationally with the child, provided he gives the mother written notice not less than one calendar month before the intended departure date, including but not limited to flight details, details of accommodation, the travel itinerary and telephone number(s) on which the child can be contacted while she is outside Australia.
The mother is restrained from taking the child out of the Commonwealth of Australia unless such travel is with the written consent of the father or pursuant to a court order.
For the purposes of s 11 Australian Passports Act 2005 (Cth):
26.1.It is noted the above orders allow:
26.1.1.The child to travel internationally with the father;
26.1.2.The child to live with the father when the father is outside Australia.
26.2.The mother is restrained from making an application for an Australian passport or travel-related document for the child.
The child is permitted to have an Australian or United Kingdom passport or travel-related document provided the application for that document is made by the father, who may sign any declaration on the application in the form approved by the relevant Minister.
Any passport issued for the child shall be retained by the father.
In the event that the child is to travel overseas with the mother, pursuant to either a written agreement reached between the parties, or a court order, the father shall provide the mother with the child’s Australian passport not less than seven days prior to the date of the child’s departure, and the mother shall return the passport to the father within 48 hours of the child’s return to Australia.
Each parent shall obtain advice from E Group (telephone …) about ways in which the Keeping Contact programme could assist them in co-parenting the child.
So that it is clear, the parties may vary any of these orders by agreement in writing.
The parties shall ensure that the child attends an appointment with the Independent Children’s Lawyer, as arranged by the Independent Children’s Lawyer, for the purposes of having these Orders explained to her.
Pursuant to s 65DA(2) and s 62B Family Law Act 1975 (Cth), the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders and details of who can assist parties adjust to and comply with an order are set out in the Fact Sheet attached hereto and these particulars are included in these orders.

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 Sutton & Sutton 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

FILE NUMBER: SYC 6929 of 2012

Mr Sutton

Applicant

And

Ms Sutton

Respondent

REASONS FOR JUDGMENT

INTRODUCTION

The parties’ child, B (“the child”), is blessed with two parents who love her greatly. They disagree on who should make decisions for the child about major long term issues. They also disagree about what time the child should spend with each of them. The mother wishes to take the child to China to see her ailing maternal grandmother but the father submits the risks of allowing that outweigh the benefits that the child would receive from that trip.

DOCUMENTS RELIED UPON

The father relied upon his Initiating Application filed 17 July 2014 and his affidavit filed 16 February 2017. The mother relied upon her Response to Initiating Application filed 18 December 2014 and her affidavit filed 6 February 2017. Both parties and the Independent Children’s Lawyer also relied upon the family report of Ms F dated 7 February 2017 and tendered documents throughout the hearing.

SHORT HISTORY

The father was born in the United Kingdom in 1963 and is currently 54 years old.
The mother was born in China in 1971 and is currently 46 years old.
The parties married in 2002 in China. They did not cohabit prior to their marriage.
In 2005 the parties’ child, B (“the child”), was born, and is currently 11 years old.
On 19 November 2012 the parties separated. A divorce order was granted on 7 November 2016.

APPLICATIONS

The parties agree on a range of orders about specific issues. If I make an order which is not otherwise referred to, it is on the basis that it was sought by one of the parties or the Independent Children’s Lawyer and neither parent nor the Independent Children’s Lawyer thought the order was controversial and I was otherwise satisfied that it was in the child’s best interests.
The father initially sought an order for equal shared parental responsibility and a shared care regime. He changed his position during the hearing and sought an order for sole parental responsibility. The orders he seeks in his minute of order are set out in Schedule 1.
The mother seeks orders that the child live with her and spend time with the father every second weekend from after school Friday to 6pm Sunday. The orders she seeks pursuant to her Response to Initiating Application filed 18 December 2014 are set out in Schedule 2. However, the mother told me on the first day of the hearing that this Response was incorrect insofar as she sought orders for the child to spend time with the father every fortnight, not every week.
The Independent Children’s Lawyer tendered a proposed minute of order on the final day of the hearing. Those orders are set out in Schedule 3.

CREDIT

I had a difficulty with the father’s evidence regarding his knowledge in respect of the child’s bedwetting, given what the child had told the family consultant. Apart from that reservation, the father gave his evidence in a very straight forward way and on occasions easily made concessions against his interests. This was to be contrasted with the way the mother gave her evidence. Even allowing for the difficulty that her evidence was being interpreted, there were occasions where I formed the view that the mother understood the implications of questions she was being asked and constructed answers in an attempt to deal with the difficulty she perceived in the question. On many occasions she found it difficult to directly answer a question. Generally, I prefer the evidence of the father over that of the mother.

DETAILED CHRONOLOGY

The father was born in the United Kingdom in 1963 and is currently 54 years old.
The mother was born in China in 1971 and is currently 46 years old.
The parties married in 2002 in China. They did not cohabit prior to their marriage.
The mother moved to Australia on 24 January 2003 and moved in with the father. She says that within the first two weeks of living together, she discovered that the father had a short temper.
In March 2003 the mother says she became concerned about the father’s mental health.
In 2005 the parties’ child, B, was born, and is currently 11 years old.
The mother ceased working prior to the child’s birth.
During her pregnancy and following the child’s birth, the father says the mother suffered from depression. Following the child’s birth the maternal grandmother travelled from China to assist in caring for the child.
When the child was about 12 to 18 months old, she commenced attending a day care centre at the father’s work for a couple of days a week before progressing to attending five days per week.
In mid-2007 the father returned to the parties’ apartment on a Saturday to find the child crying alone and looking for her mother. He telephoned the mother who advised that she was out having lunch two blocks away and returned 20 to 30 minutes later.
In February 2008 the mother was drying the child after a bath and pushed her hard enough to cause her to fall backwards.
From the child’s birth to December 2008, the mother travelled to China to spend time with her family about once per year. On one occasion the father says she stayed in China with the child for about two to three months. He visited them twice during that time. He says on another occasion the mother stayed in China for three weeks but left the child in his care in Australia during which time the paternal grandmother travelled to Australia from England to spend time with the father and the child.
In 2008 the parties made the decision to move to China. The mother and the child moved in December 2008 and the father joined them in March 2009. The child attended school five days a week in China. In the last six months of living in China, the father returned to Sydney for two weeks each month. On one of his trips back to Australia, he took the child with him.
In June 2009 the father travelled to the United Kingdom with the child to visit his family.
In 2011, when the child was six years old, she was diagnosed with eosinophilic esophagitis.
In September 2011 the parties’ returned to Australia. The child commenced attending G School in Suburb H.
In 2012 the father had two back operations. After those operations, the mother says that the father became angry even more frequently and would shout at her and the child for no reason when he returned from work. She says that the father would demand that she take the child out of the house on the weekend and did not want to spent time with them. I make no finding about those allegations.
In June 2012 the mother spent several weeks in China. In late June 2012 the father and the child travelled to the United Kingdom to visit his family for a few weeks. The mother later joined them.
On 19 November 2012 the parties separated. The mother says that the parties had an argument during which the father pushed her and hit her on the shoulder with an open hand which left a red mark. I make no finding about that allegation. After separation, the father moved into his current rental accommodation in Suburb I. The mother says that she stayed at a hotel for a few days before moving back into the parties’ Suburb J apartment. She then moved to her current rental accommodation on K Street in Suburb J.
On 19 November 2012 the father filed an Initiating Application seeking, amongst other things, an order for the child’s name to be placed on the airport Watch List after he became concerned that the mother would relocate to China with the child. On 10 March 2014 the child’s name was removed from the Watch List. At about this time the father requested that the mother give him the child’s passport because he needed it for taxation purposes. He then refused to return the passport for the mother and has continued to hold it since this time.
Not long after the parties’ separation, the father says they reached an agreement for the child to spend equal time with both of them. The mother says that she had no input into this arrangement and it was something that the father proposed. I prefer the father’s version. From 2012 to May 2014 the child spent time with each parent on a 2-2-5-5 arrangement, spending each Monday from after school until the beginning of school on Wednesday in the mother’s care and with the from the conclusion of school on Wednesday until the start of school on Friday. The child then spent the balance of the fortnight equally with her parents.
In 2013 the father organised and paid for the mother to undertake a TAFE course in English and other studies.
In 2013 the mother says that she wrote a letter to the father advising that she wanted to change the care arrangements for the child. She says the father did not discuss it with her.
On 11 May 2014 the mother asked the father to book and pay for a flight to China for her which he did. On 12 May 2014 the mother flew to China for her father’s funeral where she remained until 7 June 2014. The father cared for the child during that time.
Upon the mother’s return to Australia on 7 June 2014, the parties resumed the equal shared care arrangement until about July 2014.
On 30 June 2014 the mother says the child returned from spending time with the father and was pale, lacked energy and had lost weight. She says that on Wednesday 2 July 2014 the child had improved but was still not well. She says that she told the father that she would keep the child until Friday to care for her. The father says the mother refused to allow the child to speak to him. On 3 July 2014 the mother attended a police station and reported her concerns about the father’s care of the child. The following day the child was interviewed by the police. The mother also called the Department of Family & Community Services (“FACS”) who advised her that if she did not think the child was safe, to keep her in her care. The father says he spent 30 minutes with the child on 3 July. The child spent time with her father from Friday 4 July until her mother resumed her care on Monday 7 July.
On 9 July 2014 the mother says that she and the child were walking after dinner when the father drove up and approached them and started shouting at the mother and she says appeared to want to start a fight. She says the father attempted to grab the child’s hand and told her she was to stay with him that day. The mother says the child started crying. The mother told the father she had already gone to the police. She says the father then let go of the child’s hand.
On 14 July 2014 the mother says the child returned from being in her father’s care smelling dirty. The mother called police who advised her to call FACS.
On 17 July 2014 the mother only allowed the child to spend two and a half hours with him.
On 24 July 2014 the mother says an incident occurred which resulted in both parties calling the police. She says the father and the child came to her house to collect the child’s clothes. That evening, the mother found the child’s homework at her house and she called and sent the father a text message to inform him. Later that night, the father responded by saying that he would collect the homework in the morning. The mother did not want the child to be late to school so went to the father’s house to deliver the homework. The police records (Exhibit 1) note that the mother did not in fact bring the child any items from her home when she attended the father’s home. In her oral evidence the mother agreed that she wanted to take the child back to her own home to have the child complete her homework. The mother says that upon arriving at the father’s residence, she and the father had an argument and the father was shouting. The police arrived and told the mother to leave. The COPS record (Exhibit 1) states that the mother “told police that she was upset the [father] had not been making [the child] do Homework and believed that [the child] wasn’t being looked after by [the father]”. Police advised the mother “not to bother police and [the father] with silly immature matters”. The police noted that the child “did not appear to be treated wrongly in anyway”.
From 31 July to 4 August 2014 the mother only allowed the child to stay with him for four nights.
On Wednesday 6 August 2014 the mother says the father collected the child from school without informing her.
On 16 October 2014 orders were made reinstating the previous shared care arrangement and for a week about arrangement during school holidays.
A divorce order was granted on 7 November 2016.
From 25 February to 3 March 2017 the mother travelled to China to visit her ailing mother.

THE MOTHER’S SEXUAL ABUSE ALLEGATIONS

The mother says that on or about 6 June 2014 the child was playing in her bedroom and she saw the child displaying sexualised behaviour with her toys. The mother says that that was the first time she had seen her do this. She said she saw the child take her toys and push them together as if they were kissing and having sex. The mother says that she said to the child “Who taught you this?” and the child replied “I don’t know. I’m just playing”. The child said “daddy has many soft toys”. The mother said that this behaviour by the child concerned her greatly and she reported it to police.
Records produced by the NSW Police (Exhibit 14) contain a COPS entry dated 3 July 2014 where an Officer L records that at about 2.30pm on Thursday 3 July 2014 the mother attended at a police station to report concerns that the child was being exposed to inappropriate sexual behaviour when she spent time with the father. Detectives attended and discussed the mother’s concerns. The mother stated that she and the father never had a “normal” sexual relationship; with the father choosing to masturbate rather than have sexual intercourse with her (the mother in oral evidence said something similar). The police officer records that the mother said that the relationship had never been loving or comforting. The mother alleged to police officers that in the first two years of their marriage they did not have sex. The child was conceived shortly after that time. She told police officers that during the early years of the relationship she observed the father to play with children’s toys, placing them in positions suggestive of sexual activity. When the child reached the age of two years, the mother alleged to police officers that the father would put the toys in these positions in front of her.
The mother then made a statement to police in respect of which she was cross examined. The police record notes the mother alleged that she had “located a hidden box at [the father’s] house, inside of which were a number of pairs of the child’s underpants that were stained with what she believed to be semen. When she confronted [the father] about this he became angry and defensive and asked her to leave”.
The mother conceded in cross examination that the “hidden box” was a box on the floor in the child’s bedroom which was not hidden in any way. It was a box that served a dual purpose as a stool. The father said that it was used as a dirty linen basket and agreed that it would have had the child’s dirty underwear in it. The mother’s oral evidence was that she found three pairs of underpants in this box, two of them folded and one had been used and was soiled. In her oral evidence, she said that she never alleged that there were semen stains on the child’s underpants and that was something that the police had put into the statement for reasons that she was unable to explain. The mother’s oral evidence was that although this one pair of underpants was soiled, she did not form the view that they had been stained by the father’s semen. It is unclear from the police records whether an interpreter was used by the police. Even allowing for communication difficulties due to language it is unlikely that the police would get such a significant allegation so wrong. I find that the information that the mother gave the police about the child’s underpants in a hidden box, the dolls and more generally about sexual matters evidences an intention on the part of the mother at this time to raise the issue of possible sexual interference of the child by the father.
The child was subsequently interviewed. The FACS records indicate that Senior Constable L said to be accredited in child interview techniques, interviewed the child on 31 July 2014 and reported that “the child made no disclosures, there was no evidence of the child being sexually abused, child presented as a very well balanced and mature” and noted that the child stated she “felt safe with each parent”. The mother agreed in oral evidence that that outcome was communicated to her. It did not however resolve her fears which to some extent she still holds today.
The mother also on 4 July 2014 complained to police that the child had returned from the father’s house on three separate occasions with “fungal disease in her bottom”. The mother said to police “it is only an adult disease”. The mother was clearly asserting to police that the child had contracted some sexually transmitted disease from her father. In her oral evidence the mother said that it was the police who suggested that the child’s condition was sexually transmitted. The mother conceded however that when the child was medically examined the doctor’s opinion was that it was not a fungal infection and did not suspect it to be caused from a sexually related matter but could be a secondary infection common with irritated skin for example a sweat rash or from a wet area or a dirty floor. Given the child’s history with bedwetting in the mother’s household it is possible that any difficulty with a rash was connected to her bedwetting.
On this occasion the police spoke with the child’s GP who advised that her medical records did not reflect any concerns for her physical welfare or that she was being abused in any way. While the police were speaking to the mother, a call was received from FACS who spoke with the mother, through an interpreter, and advised her that if she had genuine concerns for the child’s safety, the child should not spend time with the father by herself. The mother did stop the child from seeing the father for a period of time.
The mother also alleged that an incident occurred where she found the father in the child’s bed. The mother did not include this allegation in her written evidence. She initially said that she was advised by her solicitor not to include it as she had no evidence to support it and did not report it to police but later gave exactly the opposite evidence saying that she may not have told her solicitor but definitely did report it to the police. I have no police record of the mother making this complaint.
Exhibit 12 is a page which the mother was very keen for me to have. On it she has written the words “eccentric, odd queer. Don’t carry your daughter! See doctor would be helpful”. The mother said that she wrote this page before the parties separated. She said that she was concerned that the father was sexually interfering with the child but wasn’t too concerned as they were all still living together.
I find that there is no unacceptable risk that the father has sexually abused the child.

THE MOTHER’S MENTAL STATUS

In October 2014 the mother made a complaint to police about various incidents that had occurred in her apartment over the previous 10 months (which the mother thought could have been a neighbour or the father). Those allegations continued in 2015. The police record that the mother “was talking rapidly in a loud, high-pitched tone, appeared hysterical, was repeating herself continually and would not answer some direct questions asked of her by police”. The COPS entry records “police are of the opinion that the matters she is reporting are extremely doubtful and have recorded the incident as rejected as a result. Police think that [the mother] may be suffering from symptoms of a mental disorder”. The police also recorded when they attended the mother’s home on 7 August 2015 (after she reported another break in), that the mother may have mental health issues.
I have insufficient evidence to address the question of the mother’s mental status. The family consultant opined that the mother may have an overly rigid belief system. I accept this is so. Some of the things that the mother said during her evidence left me with the impression that the mother may have been struggling with some features of her personality. However, it is difficult to say how much of the mother’s presentation is a result of her not being fluent in the English language and other cultural factors.

INCIDENT ON 20 NOVEMBER 2016

An incident took place at the mother’s home on 20 November 2016. The child had completed her homework for the weekend. As a reward, the mother allowed her to go to her friend’s house which was three blocks of flats down the road. The evidence differed as to whether or not it was 9pm or 10pm when the child returned home (it was probably more like 9pm). Shortly after the child came back home from her friend’s house the mother began shouting at the child. The mother’s excessive, loud shouting resulted in nearby neighbours calling the police. When police interviewed the child they recorded that she didn’t seem distressed in any way and was not fearful of the mother in any way. I draw two conclusions from this incident. Firstly, there is a level of volatility in the mother’s household whereby the mother can on occasions react in an extreme way (certainly in a way that alarmed neighbours to such a degree that they thought it was appropriate to call the police). Secondly, it is testament to the way that the child has learnt to manage her mother’s behaviour that she was not, at least overtly, distressed at the way her mother had behaved towards her. This however was not an example of good parenting. Notwithstanding the mother’s concern as to the lateness of her daughter coming home (probably after dark) the mother had not walked the short distance down the road to pick her up from her friend’s place as she said she needed to wash up the dishes and tidy the house and the child did not want her to pick her up as she wanted more freedom. She had rather waited for her to get home and had then lost her temper with the child.

THE APPROACH IN CHILDREN’S CASES

The objects of Part VII of the Family Law Act 1975 (Cth) (“the Act”) 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 those objects (unless contrary to a child’s best interests) are:
(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).

Section 60CA of the Act provides that when deciding whether to make a particular parenting order in relation to a child, a court must regard the best interests of the child as the paramount consideration.
Section 60CC of the Act sets out those matters which a court must consider in determining what is in the child’s best interests.

STATUTORY CONSIDERATIONS

Primary considerations

The benefit to the children of having a meaningful relationship with both of the children’s parents (s 60CC(2)(a))

As stated above, the child’s parents love her greatly and she will benefit from having a meaningful relationship with both of them.

The need to protect children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence (s 60CC(2)(b), noting s 60CC(2A))

The mother told the family consultant that she had been subject to both verbal and physical family violence by the father. The mother alleges that the father was emotionally controlling of her during their relationship. For example, she says he would delete emails she received from friends in China and did not give her a key to the letterbox. The mother also alleges that the father had “weird sex habits” and “bought in excess of 20 pairs of second hand shoes … and demanded that [she] wear these shoes to have sex with him”. The mother says that she consulted her general practitioner in relation to this issue and got a referral for the father to attend a psychiatrist. She says the father attended upon the psychiatrist on five occasions. The father denies this allegation and I accept his denial given that there is no other evidence of this occurring.
The mother alleges that an incident occurred when the child was a toddler where the father would get very angry if the child was not wearing a nappy and wet the floor and would grab her and almost throw her on the floor. She says that when the child was two to three years old, he would shout at the child if she did not listen to him and became very angry if she made a mess at the table. She says they would frequently argue about how to discipline the child throughout their relationship. The mother also alleges that an incident occurred in 2007 where the father grabbed the child’s hair and pulled it when she ignored his request that they needed to go home.
The mother says that when the parties lived together the father did not like noise and became stressed easily. She says that the father would usually go into his office when the child had a friend over. She is concerned about the amount of time that he allows the child to spend in her room when she spends time with him.
During July and August 2014 the mother made a number of complaints to the police and FACS including allegations of sexual abuse as detailed above. She also made complaints about the following:
69.1.That the father did not take the child to her gymnastics class and after school care in August 2014 and was not paying school fees.
69.2.That the father did not bathe the child when she was in his care and provided her with poor nutrition.
69.3.She complained that the child had sexual knowledge.
69.4.That the father provided inadequate basic care to the child and that the child was underweight.
69.5.That the father did not take the child to a doctor when she had a fungal infection outside her lip.
The Department found that the child was not at risk of harm from the father and closed their file.
The father denies that he has any mental health issues and denies the broader allegations made by the mother. He concedes that he lost his temper or became angry during the parties’ marriage but was never violent. In the family report it is recorded that the father said that the parties “engaged in shouting at each other during their relationship and that there were incidents of [the mother] pushing him and him pushing her away”.
The family consultant concludes that the mother “certainly perceives that [the father] was verbally and emotionally abusive toward her during their relationship and that he was physically abusive on several occasions. [The father] describes the issues as mutual conflict. There do not appear to be any particular issues arising from the allegations of family violence during the relationship that would impact the consideration of appropriate parenting arrangements”. She goes on to say that if the mother’s allegations that the father has been sexually abusing the child or behaving in an inappropriate manner are true, it would indicate a risk to the child. However as indicated above, she says it is possible that the mother “may still hold such concerns, as part of an overall rigid belief system that the child should be in her primary care and not based on an objective assessment of the child’s presentation, behaviour and views. In this case, it would be of concern that [the mother] may be prone to rigid thinking and accusations against [the father] that may ultimately have a negative impact on the child”.
I find that the child does not need protection from physical or psychological harm at the hands of her father. I agree that if the mother’s baseless allegations persist, those allegations may have a negative impact upon the child.

The additional considerations

Children’s views (s 60CC(3)(a))

The father says that the child has indicated to him that she would like the current arrangement of equal time to continue.
In the family report, the family consultant states:
…[the child] said that she thinks that she should remain living equally between her parents, either in accordance with the current arrangement (two-two-five-five) or in a week about arrangement. She said that, perhaps when she commences high school, a week about arrangement might make it easier to move her uniforms and school work between the homes.
[The child] said that, if the Judge were to order that she primarily live with one parent, she would not be happy and would be upset because she could not live equally between her parents but that she would be “okay” if she were to live with her mother and “totes [totally] fine with it” if she were to live with her father … the child said that, if she were to live primarily with one parent, she would want to see the other parent “lots” during each week … When asked if she would like to advise the Judge as to which parent she would prefer to live primarily with, [the child] said that she would not.
The family consultant concludes that the child “is an articulate child and her reported views appear to be reasoned and reflective of her genuine desire and consideration of what would be in her best interests”. She says that “[w]hilst the child should not be the decision maker, her age, presentation and circumstances all suggest that her views are worthy of serious consideration by her parents and the Court”. She concluded that while the child’s views may indicate her determination to remain loyal to both parents, it seems that she is aware of their differences and is able to accept those differences “without excessive emotional burden”. The father similarly opined that the court should place “due weight” on the child’s views and he “respects and understands her view but is concerned that the child may not fully appreciate the “bigger issues” and the impact on her of her mother’s style of parenting”. Conversely, the mother says that the child’s views should not be given a lot of weight as the child is “controlled” by her father. In her oral evidence the family consultant did not believe that the child’s views had been influenced by her father and there was nothing to suggest her opinion was anything other than her considered views.

Relationships of the children with the parents and other persons (s 60CC(3)(b)) and participate in making decisions about major long-term issues in relation to the child, and to spend time with and communicate with the children (s 60CC(3)(c))

The family consultant observed the child to have meaningful and close relationships with both of her parents. The child perceived that she has equally close relationships with each parent and the family consultant observed that she was very even handed in discussing those relationships.

Extent to which each parent has fulfilled their obligation to maintain the children (s 60CC(3)(ca))

The mother says that throughout the parties’ cohabitation she was primarily responsible for the day to day care of the child including the time that they lived in China. She says the father would usually return home from work, have dinner and stay in his office for a few hours. She says he occasionally slept in the office and did not come home. The mother concedes that on some occasions when the father returned home from work, he would play with the child while the mother prepared dinner and would occasionally change her nappy. I don’t accept the mother’s version.
The mother cared for the child while the father was at work. However, the father shared in the day to day care of the child before and after work and on the weekends.
When the child commenced attending the day care centre attached to his work, the father would take the child to day care each morning and if the mother had not collected the child earlier in the afternoon, he would leave work and collect her at 5pm and take her home.
Once the child commenced primary school, the mother would normally drop off and pick up the child from school. However the father was actively involved in her education and attended most school events. He also assisted her with her homework and took her to Chinese classes on Saturday mornings. The mother says that she tried to encourage the father to participate in the school community and he would tell her that he didn’t have time. I don’t accept that. The father was usually responsible for getting the child ready for bed after dinner and the parties’ shared the child’s care on weekends.
During the parties’ marriage from time to time the father was concerned about the mother’s ability to care for the child. On at least three occasions, the mother left the child at home alone.
The father solely financially supports the child. The mother’s lease is in the parties’ joint names and the father has continued to pay the mother’s rent. The father initially deposited funds into the parties’ joint account and the mother would deduct what she needed and if the balance became low he would deposit further funds. In 2016 the father ceased this arrangement and commenced depositing $600 a fortnight into their joint account for the mother’s use. He continues to pay the mother’s rent and pays $70 a month for internet.

Likely effect of any change in the children’s circumstances (s 60CC(3)(d))

The family consultant opined that if the mother’s proposal is not implemented the mother would have a negative reaction due to the rigidity of her beliefs in thinking that the child should primarily live with her (despite the fact that the father’s proposal has largely been in place for about four years). The family consultant said that given the mother’s historical behaviour (making allegations and reports to FACS and the police) she may somehow attempt to put into effect the arrangement that she thinks is in the child’s best interests.
I don’t share that concern. The mother has a reasonable history of complying with court orders.

Practical difficulties and expense of the children spending time and communicating with a parent (s 60CC(3)(e))

The father lives in Suburb I and the mother lives in Suburb J. The distance between their houses is not so significant to create any practical difficulty.
The parents have difficulties communicating with each other. They most often communicate by way of text message and email.

The capacity of each of the parents (and any other person) to provide for the needs of the children, including emotional and intellectual needs (s 60CC(3)(f)) and the attitude to the children and the responsibilities of parenthood demonstrated by each of the children’s parents (s 60cc(3)(i))

The father says that the mother puts pressure in the child in relation to her academic achievements. The father says he has concerns about the mother’s ability to provide assistance to the child in high school given her difficulty with English.
The mother identified the father’s strengths to the family consultant to be his “quiet and gentle nature (when he is not angry) and his taking the child travelling. She simultaneously expressed some concern that their travelling is not educational”. The father conceded that “he finds parenting difficult when he experiences stress associated with demands on him, particularly the competing demands of needing to earn money but to also be available for the child”. The mother told the family consultant that “it seems that the child experiences stress when she is with her father” and when the child returns to her care, she has to encourage her to relax and also has to re-establish a morning routine before school.
In the family report the father identified the mother’s strengths to be her “motivation to provide opportunities for the child and her capacity to provide her with practical and emotional experiences beyond that which he is capable of or comfortable in providing”. But he expressed some concern that the mother “takes things too far and places the child at greater risk then he would but he identified this characteristic generally as being a strength of [the mother’s] parenting”. He also considered that the child would benefit from living primarily with him as he did not believe that the mother provided the structure or stability for the child that he does. He described the mother as “disorganised and chaotic”. The mother acknowledged that “sometimes she talks loudly and that the child asks her to be quieter”.
The family consultant noted that one “constant source of conflict” between the parties was the child’s education and how much she studies. She notes however that “[n]either parent appears to be significantly lacking in their capacity to promote and support the child’s education. Neither parent appears to be significantly intrusive or abusive with respect to their expectations. At this stage, it seems that the child is able to manage the differences between her parents and that she receives benefit from both parents having input into supporting her education. Whilst [the mother] may have greater focus on sourcing support for the child and higher expectations of the child, [the father] appears to have the greater capacity to assist and support the child in a way that the child finds helpful.”
It was noted in the family report that “[The child] perceives that her father’s level of pressure for her to study is at the optimum level that she requires at this time whereas her mother’s level of pressure is a little bit too high … [the child] indicated that, because English is her mother’s second language, she finds that her father is often better able to assist her with homework”.
In the family report the mother agreed that her “Chinese way” is not suitable for the child. She told the family consultant that “she knows that being strict with the child will not work and that she must demonstrate to the child the behaviour she wants her to display. [The mother] said that [the father] may have something to offer the child due to English being his first language but that he does not have the time to help the child and tells her that he is too tired”.
The family consultant opines that the father “has a greater reflective capacity than [the mother]. That is, he appears to be more attuned to the child’s needs and better able to consider his own contribution to any problems that might exist. [The mother] appears to be focussed on her own beliefs of what is right and she seems to be somewhat critical of the child, lecturing her in a way that the child was not responding to and unable to truly hear the child”. In her oral evidence the family consultant explained that when the mother spoke to the child about certain topics (such as the child’s morning routine before school and how she felt about studying), the child’s lack of verbal response and her body language indicated that she was not engaging in that discussion but the mother did not pick up on those cues that the child was not engaging with her and it was only with the family consultant’s intervention that the mother ceased speaking about those topics.
In her oral evidence the family consultant said that the father, if given decision making abilities for the child, would make appropriate decisions and would not deny the child any opportunities or deny the mother any opportunities to share with the child.
The mother is concerned that the child is not adequately cared for by the father as she is often left to her own devices when he is working from home. She says the child spends a lot of time in her room alone, watching television or YouTube videos. She says there have been occasions when the father has not been able to work from home and the child has been enrolled in after school care or he has taken the child with him to work. She says she is not in paid employment and is available during the week to care for the child. I am unable to assess the extent to which these criticisms have substance.
The child is underweight for her height. The mother says that since the parties’ separated, she has observed that the child has suffered from several infections upon returning from the father’s care including to her foot, skin, eyes and lips. She is also concerned that the father is giving the child too much frozen or processed foods. She says that the child has had six fillings in her teeth. The mother also says that the child is often pale and weak after she returned from spending time with her father and returns with body odour (alleging that the child does not bathe at the father’s residence and the father does not wash the child’s school uniform). The mother tendered examples of correspondence between the parties. Exhibit 8 is an email sent by the mother to the father on 24 October 2015 where she complains about what the father had put in the child’s school lunchbox. The mother says that the food provided by the father was unhealthy and not good given that the child is underweight. She alleges that when the child returned to her care she had a cough and a blocked nose for which the mother bought her medicine. Another email tendered by the mother was one sent by her to the father on 6 July 2013 with the subject line “You treat the child likes Animal??” (Exhibit 9). In that email the mother complains again about what the father gave the child for lunch, specifically dry noodles, and calls him a stupid man. The mother tendered additional emails (Exhibits 10 and 11) she sent the father where the mother complains that the child has been getting ill or diseases and the father had not done anything to rectify it when the child is in his care. I find that the father’s parenting capacity does not pose an unacceptable risk to the child’s health or diet.
Exhibit 13 is a page from a wall calendar that the mother tendered for another purpose. It is dated February 2017. As an indication of the level to which the mother intensely involves the child in adult matters, is an entry on 22 February in which the mother had the child write, “I haven’t vacuumed my room since last granny”. This was a reference to the fact that the mother had ascertained from the child that the bedroom in which she sleeps at the father’s house had not been vacuumed since her paternal grandmother had last visited which the mother gave evidence was about a year ago. The mother obviously gave that evidence to attempt to demonstrate the father’s bad parenting but inadvertently gave an insight into the extent to which the mother involves the child in the adult dispute.

The maturity, sex, background and lifestyle of the children and parents (s 60CC(3)(g))

At any time when the child is living with a parent for seven days or more, that parent shall facilitate an incoming call to the child by the other parent at 8pm on the day that is halfway through the relevant period.
B is to be given privacy during any communication she is having with a parent pursuant to orders 14, 15 and 16.
A parent shall not commit the child to any out-of-school-hours activity, including private tutoring, during the time that the child is to be with the other parent pursuant to these orders, unless the other parent consents in writing.
If the child suffers illness or injury requiring hospital admission, the parent caring for her at the time shall promptly inform the other parent, and advise the other parent the location and telephone number of the hospital.
Neither parent shall:
a.physically discipline the child, or shout at her;
b.speak rudely or critically about the other parent in the child’s presence, or within her hearing, or permit any other person to do so;
c.discuss the family law proceedings with the child, or with any other person in the child’s presence;
d.show the child any documents associated with the family law proceedings, or permit any other person to do so.
Both parents shall forthwith sign all documents necessary to apply for Australian and United Kingdom passports for the child [B] born … 2005.
In the event that the mother refuses or neglects to sign, or for any other reason does not sign and return to the father an application for the issue of any passport for the child pursuant to order 21 (‘a passport application’) then a Registrar of the court shall be and is hereby appointed to sign the passport application pursuant to s106A of the Act.
Any passport issued for the child shall be retained by the father.
In the event that the child is to travel overseas with the mother, pursuant to either a written agreement reached between the parties, or a court order, the father shall provide the mother with the child’s Australian passport not less than seven days prior to the date of the child’s departure, and the mother shall return the passport to the father within 48 hours of the child’s return to Australia.
The father shall be permitted to travel internationally with the child, provided he gives the mother written notice not less than one calendar month before the intended departure date, including but not limited to flight details, details of accommodation, the travel itinerary and telephone number(s) on which the child can be contacted while she is outside Australia.
The mother is restrained from taking the child out of the Commonwealth of Australia unless such travel is with the written consent of the father or pursuant to a court order.
Each parent shall obtain advice from [E Group] (telephone …) about ways in which the Keeping Contact programme could assist them in co-parenting the child.

NOTATION
A.For the purposes of these orders, ‘writing’ includes emails and telephone text messages.

[2017] FamCA 233

13 April 2017

Key Legal Topics

Areas of Law

Family Law

Legal Concepts

Jurisdiction

Remedies

Procedural Fairness