SWIFT & CORCORAN
[2015] FCCA 872
•25 May 2015
FEDERAL CIRCUIT COURT OF AUSTRALIA
| SWIFT & CORCORAN | [2015] FCCA 872 |
| Catchwords: FAMILY LAW – Parenting – serious allegations of family violence – denied by the father, but substantiated in evidence – where mother suffers post-traumatic stress and has borderline personality traits – where reversal of existing care arrangements in child’s best interests. |
| Legislation: Family Law Act 1975 (Cth), ss.4AB, 60B, 60CA, 60CC, 61DA, 65DAA, 67ZC, 68B, 68C |
| Briginshaw v Briginshaw (1938) 60 CLR 336 MRR v GR [2010] HCA 4 |
| Applicant: | MS SWIFT |
| Respondent: | MR CORCORAN |
| File Number: | WOC 160 of 2013 |
| Judgment of: | Judge Altobelli |
| Hearing date: | 2 February 2015 |
| Date of Last Submission: | 23 March 2015 |
| Delivered at: | Wollongong |
| Delivered on: | 25 May 2015 |
REPRESENTATION
| Counsel for the Applicant: | Ms Humphreys |
| Solicitors for the Applicant: | Sward Law |
| Counsel for the Respondent: | Mr Lo Schiavo |
| Solicitors for the Respondent: | Shoal Legal |
| Counsel for the Independent Children's Lawyer: | Ms Picker |
| Solicitors for the Independent Children's Lawyer: | Helen Volk Lawyers |
ORDERS
PARENTAL RESPONSIBILITY
That the Mother have sole parental responsibility for the Child, X born (omitted) 2010, subject to the following:
(a) considering any views expressed by the Father in the context of parental responsibility; and
(b) informing the Father of any decisions made by her in the exercise of such responsibility.
PARENTAL COMMUNICATION
That for the purpose of the Mother communicating with the Father in the exercise of her parental responsibility, the Mother and Father shall use their best endeavours to engage in such communication through either of the maternal grandparents and paternal grandmother.
LIVING ARRANGEMENTS
That the Child live with the Mother.
SPENDING TIME ARRANGEMENTS
Subject to the provisions of Order 5, that the Child spend time with the Father:-
(a) prior to the Child’s commencement at school:-
(i)from after preschool Tuesday until 9:00 am Wednesday each week; and
(ii)from 10:00 am on Saturday until 2:00 pm on Sunday each alternate weekend commencing the first weekend after the making of these orders.
(b)after the child commences school:-
(i)from after school or 3:00 pm Tuesday until the commencement of school or 9:00 am each Wednesday;
(ii)from 10:00 am on Saturday until 3:00 pm Sunday each alternate weekend during 2016; and
(iii)from after school on Friday to before school on Monday each alternate weekend during 2017 and each year thereafter;
(c)subject to the provisions of Order 8, at such further times as requested in writing by the Father’s treating therapist, to enable the Father and Child to engage in therapy aimed at improving the parent/child bond between the Father and the Child;
(d)for four (4) hours on X’s birthday, and in lieu of agreement, from 10:00 am until 2:00 pm if it is a non-school day, and after school to 7:00pm if it is a school day.
(e)from 10:00 am to 4:00 pm on Father’s Day;
(f)from 10:00 am until 4:00 pm on the father’s birthday if the father’s birthday falls on a non-school day and from 3:00 pm until 5:00 pm in the event that the father’s birthday falls on a school day;
(g)from 10:00 am until 4:00 pm on Christmas Eve in odd numbered years and from 10:00 am until 4:00 pm on Christmas day in even numbered years;
(h)For one week in each mid-year school holiday period after the Child has commenced school, being the first week in even numbered years (and commencing from after school on his last day of term and concluding 7 nights thereafter) and the second week on odd numbered years (and concluding at 4:00pm on the Sunday immediately before he recommences school); and
(i)For one week in the December/January school holiday period after the Child has commenced school as agreed between the parents, but failing agreement, as from the first Friday of the new year and concluding 7 nights thereafter.
SUSPENSION OF TIME
The time the Child spends with the Father pursuant to Order 4(b)(i), (ii) and (iii) shall be suspended:
(a)from 10:00 am until 4:00 pm on Christmas Eve in even numbered years;
(b)from 10:00 am until 4:00 pm on Christmas day in odd numbered years;
(c)from 10:00 am to 4:00 pm on the Mother’s birthday;
(d)from 2:00 pm until 4:00 pm on the Child’s birthday;
(e)on two occasions each year to allow the Child to spend two, 2-week blocks of time with the Mother at such times as are nominated by the Mother, and in lieu of agreement, commencing the first Saturday of the April NSW school holiday period and commencing 15 January in each year;
(f)on Y’s birthday being (omitted) 2014.
CHANGEOVER
That for the purposes of facilitating changeover pursuant to these Orders, where the time the Child spends with the Father does not commence or conclude at school or preschool, the Father will collect the Child from the Mother at Coles at (omitted) at the commencement of such time and the Father shall deliver the Child to the Mother at McDonalds at (omitted) at the conclusion of such time.
COMMUNICATION
That the Child communicate with the Father by telephone or Skype each Thursday and Sunday that the Child is not already spending time with the Father, and in lieu of agreement, at 5:00 pm, with the Mother to facilitate the Child telephoning the Father’s mobile telephone number or connecting to Skype.
THERAPEUTIC INTERVENTION
That in addition to the time the Child spends with the Father, if the Father arranges for counselling referred to in Notation C, provided that the Father provides the Mother with confirmation of counselling appointments, and evidence of the Father’s ongoing attendance with the Child at the therapeutic counsellor referred to at Notation C, the Mother shall facilitate the Child attending counselling with the Father, with the Mother to deliver the Child and to collect the Child from such counselling pursuant to Order 4(c).
AUTHORITY
That these orders operate as the authority of the Father for the Mother to obtain any information she may seek from the counsellor engaged by for the Father for the Father and Child, pursuant to Order 8.
SPECIFIC ISSUES
That leave be granted to the Mother to provide a copy of the Report of Dr Q and the final Orders of the Court and reasons for judgment to her treating therapist.
That, subject to the Father providing evidence of his engagement in the therapy referred to at Notation C to the solicitor for the Mother, leave be granted to the Father to provide a copy of the Report of Dr Q and the final Orders of the Court and reasons for judgment to the Father’s treating therapist.
PERSONAL PROTECTION ORDER
Pursuant to s.68B and s.67ZC of the Family Law Act 1975, the Father is hereby each restrained by injunction from:
(a)assaulting, molesting, harassing, threatening, stalking or intimidating the Mother or the Child.
(b)exposing the Child to any form of domestic violence including verbal violence or using abusive language to, within, or in the hearing of the Child;
(c)physically disciplining, striking or otherwise abusing the Child.
A Police Officer may arrest the Father without warrant, pursuant to s.68C of the Family Law Act 1975, if such Police Officer believes on reasonable grounds that the Father has, since the orders were made, breached the injunctions contained in the preceding Order and it is to be taken for the purposes of this order that each of the injunctions in the preceding Order relate to the personal protection of the Child and the Mother.
OTHER MATTERS
That The Mother and Father be and is hereby restrained by her/himself, her/his servants or agents from:
(a)Speaking or permitting any other person to speak to or about the other parent or their family in a negative, offensive or unpleasant fashion in the presence or hearing of the child/ren’s.
(b)Discussing any proceedings between the parents or the parental relationship in the presence or hearing of the children or permitting any other person to do so.
If the Child is in his Father’s care at the time these orders are made, the Father is to do all things necessary to return the Child to his mother’s care no later than 24 hours after these orders are made.
The orders for the Child to spend time with his father are not to commence before the first weekend after these orders are made.
NOTATIONS
(A)That both parents are committed to therapeutic intervention for The Child to assist him to reach his potential.
(B)That the Mother requires ongoing weekly psychotherapy which should continue for so long is recommended by her treating practitioner to assist her with her personality vulnerabilities and provide support to her.
(C)The Child and the Father would greatly benefit from the Father attending with the Child upon a child psychologist to improve the parent/child bond with a view to improving the Father’s capacity to interact with the Child.
IT IS NOTED that publication of this judgment under the pseudonym Swift & Corcoran is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT WOLLONGONG |
WOC 160 of 2013
| MS SWIFT |
Applicant
And
| MR CORCORAN |
Respondent
REASONS FOR JUDGMENT
Introduction
This case is about X, who was born on (omitted) 2010 and is five years old. His mother is the Applicant. She is 26 years old. X’s father is the Respondent, he is 34 years old. The family lives in the (omitted) region of New South Wales. Both parents propose that X lives with them, and spends time with the other parent.
Background
X’s parents commenced a relationship in 2009, and this ended in October 2012 when the Mother left what was then the family home, leaving X in his father’s care. There was then a period when X spent time with his mother, but it was on an ad hoc basis. The Mother complained that the Father would not let X spend time with her, and the Father complained that the Mother was not interested in spending time with X. Eventually, it was the making of orders in 2013 that resulted in X spending regular time with his mother.
The Mother’s case is that her relationship with X’s father was a violent and controlling one. In her evidence she gives detailed accounts of the violence that she suffered, and the control and abuse that she endured. The police were involved at times. The Father categorically denies the Mother’s allegations. Both parents had mental health admissions at local hospitals.
The period after separation continued to be a tumultuous one for the parents, with the Mother alleging that the violence and control continued. It was accepted in her case that she left X in his father’s care, but the Mother says this was because she was escaping the Father’s violence and had been so adversely affected by it that she, in effect, doubted her own ability to care for X.
Up until the final day of the hearing, the only parenting order in effect was a consent order dated 5 June 2013 which stated that X was to live with his father, but to spend time with his mother each Wednesday at 9 am until 5 pm on Thursday, and each alternate weekend from 4 pm Friday until 12 noon Sunday (but alternating to 4 pm Sunday).
When the hearing concluded on 4 February 2015, the parents invited the Court to make a consent order that provided for X to spend time with his mother each Wednesday from 9 am until 9 am Thursday, and then from after school Friday until the commencement of preschool Tuesday each alternate weekend. Whilst these were consent orders, the court makes the observation that by the final day of evidence, it must have been abundantly clear to all of those present that there was no reason why X should not be spending this additional time with his mother.
Competing Proposals
At the final hearing, the Mother’s proposal was contained in her Amended Application filed 22 December 2014. She sought an order that she had sole parental responsibility, that X live with her, that any parental communication be by way of mail, telephone via the Maternal Grandfather, or telephone by the Grandmother. X was to otherwise spend time with his father from after school on Friday to 5:00pm on Sunday on each alternate weekend, together with each alternate Thursday from after school to before school on Friday.
Because of the way the Father’s case was run, it was not entirely clear what his proposal was at the commencement of the hearing. Certainly the only Response he had filed on 28 March 2013 indicated that he proposed joint parental responsibility, for X to live with the Father, and to spend time with his mother each alternate weekend from 5:00pm on Friday to 5:00pm on Sunday, and then each alternate Wednesday 5:00pm to 9:00am the following Friday. By the end of the evidence on the fourth day, however, the Father’s counsel was able to explain that the Father’s proposal was that X continued to live with him, but to spend six days each fortnight with the Mother. In addition, should the court find that X live with his mother, the Father should have six days each fortnight with X.
When the hearing commenced, the Independent Children's Lawyer was not able to formulate a proposal. That continued to be the case as at the close of the evidence.
By the time written submissions were received, the following became apparent about the competing proposals.
·The Independent Children’s Lawyer, supported by the Mother, proposed that X live with the Mother and she have sole parental responsibility. X would spend time with his Father with the actual time dependent on whether he had commenced school or not. The actual order sought is reproduced in the first schedule to these reasons.
·The Father proposed joint parental responsibility, that X live with him and spend time with the Mother depending on whether he had commenced school or not. The actual order sought is also reproduced in the first schedule of these reasons.
The Evidence
The Mother relied on the following documents:
·Affidavit of the Maternal Grandfather, Mr D, sworn 15 February 2013;
·Affidavit of the Maternal Grandmother, Ms C, sworn 14 February 2013;
·Affidavit of Ms P, the Mother’s current employer, sworn 19 January 2015.
·Affidavit of Ms Swift sworn 23 January 2015;
·Affidavit of Ms T, previously a neighbour of the parents, sworn 23 January 2015; and
Each of these witnesses was cross-examined by Counsel for the Father, and some were cross-examined by Counsel for the Independent Children's Lawyer.
The evidence in the Father’s case was limited to his Affidavit of 29 January 2015.
The Independent Children's Lawyer relied on the Single Joint Expert Report of Dr Q received by the Court 5 May 2014. Dr Q is a consultant psychiatrist. She was extensively cross-examined by all counsel.
In addition, a considerable volume of documents became exhibits and, where reference to these documents becomes necessary in these reasons, they will be identified and discussed. The Court had the assistance of comprehensive, well-considered written submissions.
Overview of these Reasons for Judgment
In the next section, the applicable law will be stated. Thereafter, the evidence of each of the witnesses will be identified, summarised and discussed. Dr Q’s evidence will be discussed first, only because she is the only witness who was both independent and expert. In discussing the evidence of each of the witnesses, where necessary, assessments will be made about matters of credibility and weight. Regrettably, this is a case where the evidence in the Mother’s case diverges significantly from the evidence in the Father’s case, and credit findings are necessary. Appropriate reference will be made, when necessary, to the documents that came into evidence as exhibits. Thereafter, the evidence will be discussed by reference to the relevant provisions contained in Part VII of the Family Law Act 1975 (Cth) (“Family Law Act”), and orders then formulated.
The Applicable Law
In determining parenting matters under Part VII of the Family Law Act the Court must regard the best interests of the child as the paramount consideration: s.60CA.
The objects and principles of Part VII are set out at s.60B:
60B Objects of Part and principles underlying it
(1) The objects of this Part are to ensure that the best interests of children are met by:
(a) ensuring that children have the benefit of both of their parents having a meaningful involvement in their lives, to the maximum extent consistent with the best interests of the child; and
(b) protecting children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence; and
(c) ensuring that children receive adequate and proper parenting to help them achieve their full potential; and
(d) ensuring that parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of their children.
(2) The principles underlying these objects are that (except when it is or would be contrary to a child’s best interests):
(a) children have the right to know and be cared for by both their parents, regardless of whether their parents are married, separated, have never married or have never lived together; and
(b) children have a right to spend time on a regular basis with, and communicate on a regular basis with, both their parents and other people significant to their care, welfare and development (such as grandparents and other relatives); and
(c) parents jointly share duties and responsibilities concerning the care, welfare and development of their children; and
(d) parents should agree about the future parenting of their children; and
(e) children have a right to enjoy their culture (including the right to enjoy that culture with other people who share that culture).
(3) For the purposes of subparagraph (2)(e), an Aboriginal child’s or Torres Strait Islander child’s right to enjoy his or her Aboriginal or Torres Strait Islander culture includes the right:
(a) to maintain a connection with that culture; and
(b) to have the support, opportunity and encouragement necessary:
(i) to explore the full extent of that culture, consistent with the child’s age and developmental level and the child’s views; and
(ii) to develop a positive appreciation of that culture.
At the very core of Part VII of the Family Law Act 1975 is the creation of a presumption of equal shared parental responsibility in s.61DA. Section 61DA provides:
Presumption of equal shared parental responsibility when making parenting orders
(1) 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.
(2) The presumption does not apply if there are reasonable grounds to believe that a parent of the child (or a person who lives with a parent of the child) has engaged in:
(a) abuse of the child or another child who, at the time, was a member of the parent’s family (or that other person’s family); or
(b) family violence.
(3) When the court is making an interim order, the presumption applies unless the court considers that it would not be appropriate in the circumstances for the presumption to be applied when making that order.
(4) The presumption may be rebutted by evidence that satisfies the court that it would not be in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child.
If the presumption applies, the Court is required to consider certain things:
Court to consider child spending equal time or substantial and significant time with each parent in certain circumstances
Equal time
(1) If a parenting order provides (or is to provide) that a child’s parents are to have equal shared parental responsibility for the child, the court must:
(a) consider whether the child spending equal time with each of the parents would be in the best interests of the child; and
(b) consider whether the child spending equal time with each of the parents is reasonably practicable; and
(c) if it is, consider making an order to provide (or including a provision in the order) for the child to spend equal time with each of the parents.
Substantial and significant time
(2) If:
(a) a parenting order provides (or is to provide) that a child’s parents are to have equal shared parental responsibility for the child; and
(b) the court does not make an order (or include a provision in the order) for the child to spend equal time with each of the parents; and
the court must:
(c) consider whether the child spending substantial and significant time with each of the parents would be in the best interests of the child; and
(d) consider whether the child spending substantial and significant time with each of the parents is reasonably practicable; and
(e) if it is, consider making an order to provide (or including a provision in the order) for the child to spend substantial and significant time with each of the parents.
(3) will be taken to spend substantial and significant time with a parent only if:
(a) the time the child spends with the parent includes both:
(i) days that fall on weekends and holidays; and
(ii) days that do not fall on weekends or holidays; and
(b) the time the child spends with the parent allows the parent to be involved in:
(i) the child’s daily routine; and
(ii) occasions and events that are of particular significance to the child; and
(c) the time the child spends with the parent allows the child to be involved in occasions and events that are of special significance to the parent.
(4) Subsection (3) does not limit the other matters to which a court can have regard in determining whether the time a child spends with a parent would be substantial and significant.
Reasonable practicality
(5) In determining for the purposes of subsections (1) and (2) whether it is reasonably practicable for a child to spend equal time, or substantial and significant time, with each of the child’s parents, the court must have regard to:
(a) how far apart the parents live from each other; and
(b) the parents’ current and future capacity to implement an arrangement for the child spending equal time, or substantial and significant time, with each of the parents; and
(c) the parents’ current and future capacity to communicate with each other and resolve difficulties that might arise in implementing an arrangement of that kind; and
(d) the impact that an arrangement of that kind would have on the child; and
(e) such other matters as the court considers relevant.
Because s.65DAA refers to the best interests of the child the Court must then go back to consider s.60CC which specifies how the Court must determine what is in a child’s best interests.
Determining child's best interests
(1) Subject to subsection (5), in determining what is in the child's best interests, the court must consider the matters set out in subsections (2) and (3).
Primary considerations
(2) The primary considerations are:
(a) the benefit to the child of having a meaningful relationship with both of the child's parents; and
(b) the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.
Note: Making these considerations the primary ones is consistent with the objects of this Part set out in paragraphs 60B(1)(a) and (b).
(2A) In applying the considerations set out in subsection (2), the court is to give greater weight to the consideration set out in paragraph (2)(b).
Additional considerations
(3) Additional considerations are:
(a) any views expressed by the child and any factors (such as the child's maturity or level of understanding) that the court thinks are relevant to the weight it should give to the child's views;
(b) the nature of the relationship of the child with:
(i) each of the child's parents; and
(ii) other persons (including any grandparent or other relative of the child);
(c) the extent to which each of the child's parents has taken, or failed to take, the opportunity:
(i) to participate in making decisions about major long-term issues in relation to the child; and
(ii) to spend time with the child; and
(iii) to communicate with the child;
(ca) the extent to which each of the child's parents has fulfilled, or failed to fulfil, the parent's obligations to maintain the child;
(d) the likely effect of any changes in the child's circumstances, including the likely effect on the child of any separation from:
(i) either of his or her parents; or
(ii) any other child, or other person (including any grandparent or other relative of the child), with whom he or she has been living;
(e) the practical difficulty and expense of a child spending time with and communicating with a parent and whether that difficulty or expense will substantially affect the child's right to maintain personal relations and direct contact with both parents on a regular basis;
(f) the capacity of:
(i) each of the child's parents; and
(ii) any other person (including any grandparent or other relative of the child);
to provide for the needs of the child, including emotional and intellectual needs;
(g) the maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the child and of either of the child's parents, and any other characteristics of the child that the court thinks are relevant;
(h) if the child is an Aboriginal child or a Torres Strait Islander child:
(i) the child's right to enjoy his or her Aboriginal or Torres Strait Islander culture (including the right to enjoy that culture with other people who share that culture); and
(ii) the likely impact any proposed parenting order under this Part will have on that right;
(i) the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child's parents;
(j) any family violence involving the child or a member of the child's family;
(k) if a family violence order applies, or has applied, to the child or a member of the child's family--any relevant inferences that can be drawn from the order, taking into account the following:
(i) the nature of the order;
(ii) the circumstances in which the order was made;
(iii) any evidence admitted in proceedings for the order;
(iv) any findings made by the court in, or in proceedings for, the order;
(v) any other relevant matter;
(l) whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to the child;
(m) any other fact or circumstance that the court thinks is relevant.
Family Violence is defined in s.4AB as follows:
Definition of family violence etc.
(1) For the purposes of this Act, familyviolence means violent, threatening or other behaviour by a person that coerces or controls a member of the person's family (the family member ), or causes the family member to be fearful.
(2) Examples of behaviour that may constitute family violence include (but are not limited to):
(a) an assault; or
(b) a sexual assault or other sexually abusive behaviour; or
(c) stalking; or
(d) repeated derogatory taunts; or
(e) intentionally damaging or destroying property; or
(f) intentionally causing death or injury to an animal; or
(g) unreasonably denying the family member the financial autonomy that he or she would otherwise have had; or
(h) unreasonably withholding financial support needed to meet the reasonable living expenses of the family member, or his or her child, at a time when the family member is entirely or predominantly dependent on the person for financial support; or
(i) preventing the family member from making or keeping connections with his or her family, friends or culture; or
(j) unlawfully depriving the family member, or any member of the familymember's family, of his or her liberty.
(3) For the purposes of this Act, a child is exposed to family violence if the child sees or hears family violence or otherwise experiences the effects of family violence.
(4) Examples of situations that may constitute a child being exposed to family violence include (but are not limited to) the child:
(a) overhearing threats of death or personal injury by a member of the child's family towards another member of the child's family; or
(b) seeing or hearing an assault of a member of the child's family by another member of the child's family; or
(c) comforting or providing assistance to a member of the child's family who has been assaulted by another member of the child's family; or
d) cleaning up a site after a member of the child's family has intentionally damaged property of another member of the child's family; or
(e) being present when police or ambulance officers attend an incident involving the assault of a member of the child's family by another member of the child's family.
In MRR v GR [2010] HCA 4 the High Court said:
Sub-section (1) of s 65DAA is headed "Equal time" and provides:
"If a parenting order provides (or is to provide) that a child's parents are to have equal shared parental responsibility for the child, the court must:
(a) consider whether the child spending equal time with each of the parents would be in the best interests of the child; and
(b) consider whether the child spending equal time with each of the parents is reasonably practicable; and
(c) if it is, consider making an order to provide (or including a provision in the order) for the child to spend equal time with each of the parents." (emphasis added)
Sub-section (2) makes provision for where a parenting order provides that a child's parents are to have equal shared parental responsibility for the child (par (a)) but the Court does not make an order for the child to spend equal time with each of the parents (par (b)). In such a circumstance the Court is obliged to:
"(c) consider whether the child spending substantial and significant time with each of the parents would be in the best interests of the child; and
(d) consider whether the child spending substantial and significant time with each of the parents is reasonably practicable; and
(e) if it is, consider making an order to provide (or including a provision in the order) for the child to spend substantial and significant time with each of the parents."
Sub-section (3) explains what is meant by the phrase "substantial and significant time".
Each of sub-ss (1)(b) and (2)(d) of s 65DAA require the Court to consider whether it is reasonably practicable for the child to spend equal time or substantial and significant time with each of the parents. It is clearly intended that the Court determine that question. Sub-section (5) provides in that respect that the Court "must have regard" to certain matters, such as how far apart the parents live from each other and their capacity to implement the arrangement in question, and "such other matters as the court considers relevant", "[i]n determining for the purposes of subsections (1) and (2) whether it is reasonably practicable for a child to spend equal time, or substantial and significant time, with each of the child's parents".
A little later in the judgment the High Court said:
Section 65DAA(1) is expressed in imperative terms. It obliges the Court to consider both the question whether it is in the best interests of the child to spend equal time with each of the parents (par (a)) and the question whether it is reasonably practicable that the child spend equal time with each of them (par (b)). It is only where both questions are answered in the affirmative that consideration may be given, under par (c), to the making of an order.
The Evidence of Dr Q
Dr Q describes herself as a consultant psychiatrist currently in practise as a consultant forensic, child and family psychiatrist. Her curriculum vitae indicates she has extensive experience in the field. Her qualifications and experience were not the subject of challenge. Her written Report dated 2 May 2014 consists of 58 pages, contained a review of all the documents that had been filed, and orders made, as at the date of the interviews, as well as a review of the documents that have been produced on subpoena as at that date. Members of both the paternal, and maternal family were interviewed. The interviews in question took place on 24 February 2014 at Dr Q’s rooms.
One of the most significant features observed by Dr Q, during the interviews and observations, was the very different behaviour displayed by X with the Mother’s family, compared to the Father’s family. For example, in discussing the interviews with the paternal family, at page 15 Dr Q observed as follows:-
X seemed a little emotionally vulnerable; when his grandmother removed his iPad and asked him to participate in the interview he didn’t deal with it very well and became distressed but soon settled and then sat on the floor and played with trucks. I noted rather repetitive sequences his play that was suggestive of autistic features. When distressed, X went to his father for comfort. Mostly he remained quiet and somewhat draw.
At page 19 she continues to observe as follows:-
X had not been much engaged with the adults and his play continued to show the repetitive qualities suggestive of autism. He had now left the toys and was quietly looking at a picture book. During the interview I noted that when Mrs Corcoran tried to contribute, Mr Corcoran tended to cut across her.
As her interviews with the paternal family continued, she further observed at page 24:-
X and Mrs Corcoran and Mr S had been waiting in another room; we now returned to join them, I noticed that X seemed very relaxed with his grandmother and more talkative than he had been previously.
The contrasting observations with the maternal family commence at page 36:-
X was very happy to see them and there was a dramatic change in him: his face lit up and began chatting immediately. His demeanour was completely different in this setting. He asked his mother to play with him and she did. He laughed a lot; he was interactive and exploratory; he chatted happily with all the family; his speech was now much easier to understand.
At page 37, Dr Q’s observations continue:-
“Ms Swift had continued playing with X. He was very playful and interactive with her and she was sensitive and responsive to him. She made a point of introducing colours into the game and encouraged him to name them. X continued to chat and play and was very interactive with all of the family; a very different demeanour in this setting.”
Finally, Dr Q observes at page 39:-.
Observations
X settled quickly after going to the toilet and resumed his play with the toy figures. His play now was a lot more organised whereas earlier in the day it had been quite restricted and repetitive and seemed indicative of autism.
Again it was notable that X was speaking more and speaking more intelligibly in this context. He had maintained contact with his mother mostly but he was very much at ease with all the family; he referenced them all and interacted easily.
Separation and changeover
Some 40 minutes had elapsed and I now signalled that we would wind up; X was clearly unhappy about this and didn’t want to leave. He became distressed and clung to his mother; he did not want to separate. Mr Corcoran had now returned to collect him and we had to insist to X that he must join his father. The maternal family left.
What should the Court make of these contrasting observations? At page 46 of her Report, and in the context of discussing whether X had expressed any views about the matters before the Court, and if so, what weight should be given to them. Dr Q observes as follows:-
At this assessment, however, his behaviour gave a very clear indication of his adjustment in the two contexts: he was happy and expressive in the company of his mother and her family, but low key and restricted in his play in the company of his father and the paternal family. The stark contrast in his behaviour in the two settings not only provides an indication of X’s feelings, it also suggests the differential quality of the parenting in each situation.
Dr Q records at pages 21 and 22 of her Report the Father’s history to her about how the Mother left the home, leaving X in his care. The Father reported that this had happened several times during their relationship, and that at the final date of separation she did not return. He described the Mother by saying, “She started hating me; she started hitting me” and that, “It started getting quite physical.” He also referred to the Mother’s false allegations of violence against him, and how the assault charges and Apprehended Violence Order (“AVO”) against him were withdrawn when the Mother would not proceed. He says that the Mother admitted that the injuries on her arm were self-inflicted.
There was a starkly contrasting history recorded of the Mother’s account of family violence to Dr Q. Her account was more detailed and Dr Q records her observations of the Mother becoming quite distressed, and weeping whilst presenting her history. She also records the history the Mother gave about the Father’s control of the time that she could spend with X after separation.
Dr Q was asked to address certain terms of reference in her Report. This commences at page 45 onwards.
Dr Q noted that X has a meaningful relationship with both of his parents, and that it should be possible for this to be sustained, provided there is an adequate level of cooperation between the parents as regards arrangements relating to X. The Court observes that this is undoubtedly the case. All proposals advanced to the Court should result in the meaningful relationship that currently exists between X and both of his parents to be continued into the future.
Dr Q noted the obvious benefit of X having a continuing relationship with both parents, the only caveat being a safety issue. She noted that X, “is a child with special needs, and therefore has particular vulnerability.”
Dr Q was asked to comment about issues of risk to X. She does so under heading (c), on pages 45-46 as follows:-
The mother and her family say there has been domestic violence from the father, including verbal and psychological abuse, and that some of this has been directed at the child. If their account can be relied upon then there has been and likely to continue to be significant risks to the child from witnessing domestic violence and from being the subject of verbal or psychological abuse; there is ample research evidence of the risk of harm to children where there is family violence (McIntosh, 2003; Margolin et al, 2000; Osofsky, 2003).
The mother and her family report that early in the separation Mr Corcoran would bring the child to meet Ms Swift but then keep him in the car while questioning her. If this account can be relied upon then it is of great concern since such a situation would have been extremely distressing to a young child, especially at a time when he would have been suffering from the psychological trauma of separation from his mother. To be kept in the car where he could see her but was not allowed to join her would have been extremely distressing and possibly traumatising. Again this would be damaging to any young child and even more so to one with special needs.
Before the separation the mother had exposed the child to considerable psychological harm by her abrupt departures from the household at a time when X was very young and would have suffered separation anxiety. Again, this would be damaging to any young child but more so in this case.
As it turns out, the evidence before the Court enables it to make clear findings about the domestic violence perpetrated by the Father, including verbal and psychological abuse. The risk issues are, therefore, real and not theoretical. As it turns out, the evidence before the Court also leads it to conclude that the Father was controlling the Mother’s time with X after separation, both in terms of what he did, and said. The evidence also leads the Court to conclude that the Mother exposed X to considerable psychological harm, as her result of her lack of consistency in his life before separation, as well as inability to protect him from the dysfunctional relationship that existed between the parents.
Dr Q was asked to comment about any views expressed by X. She noted that he has limited capacity for communication, and, in any event, could not understand the complexity of a situation. However, his actions during the observation spoke very clearly. Her comments in this regard have been extracted above.
Dr Q noted that X had a warm and loving relationship with his mother and her family, and that, when observed, he was “expressive, affectionate and playful.” By contrast, however, he seems “to have a limited relationship with his father and the paternal family. And in that context he was withdrawn, and his play was suggestive of an autistic disorder.
Reflecting once again on the differences in behaviour with both families, at page 47 Dr Q notes:-
That the child’s behaviour is so dramatically different in the two settings strongly indicates that, in spite of potentially traumatic separation experiences, the quality of parenting he has received in the care of his mother has been more beneficial to him and has done more to stimulate his development than has been the case in the care of the father.
Dr Q was asked to comment on the willingness and ability of each of the parents to facilitate contact. At page 48 she says:-
At present Mr Corcoran seems cooperative with the parenting arrangement, however the history from the mother and her family is that there was considerable opposition to this for some time, which may suggest some need for concern regarding future arrangements. The mother appears willing to facilitate contact in the future if X is primarily in her care.
Neither party has any lack of ability to facilitate parenting arrangements; the issue would be one of a lack of goodwill from both.
In relation to the issue of the likely effect of changes in circumstances on X. She states at page 48:-
X has already suffered considerable trauma related to separation from his mother, both in terms of her abrupt leavings when the couple were still living together and also the period of months early in the separation when the father did not facilitate contact. That trauma has been ameliorated to some extent since a regular parenting arrangement has come into effect.
If the current circumstances were altered as a result of the mother’s application being successful then X would cope with seeing his father less often but nevertheless would need to sustain regular weekly contact.
If X were to continue in the present situation of spending somewhat less than half the time with his mother, then his progress is likely to continue, as at present, to be suboptimal with the likelihood of him having both learning and behavioural problems. In particular his rather autistic presentation in the company of his father is a concern.
The issue of each parents' capacity to meet X’s needs was obviously a big issue in this case. At page 49 Dr Q notes:-
The mother provides well for the child as is evident in that he is extremely responsive in her care. In the past she has not met his emotional needs consistently by virtue of having abruptly abandoned him on a number of occasions and exposing him to risk of harm during episodes of self harm. That pattern of behaviour would usually suggest a failure of empathy on the part of the parent yet the observable responsiveness of X to his mother would seem to suggest the opposite. Ms Swift would attribute her past failings in this regard to the situation of partner violence and this is likely to be a factor but in my view would not be the entire explanation, as further explicated below.
The father appears to have adequate capacity to provide for the child’s physical needs but X’s lack of engagement with Mr Corcoran and his family suggests that the level of emotional responsiveness and stimulation in that household is unlikely to be optimal.
The Court observes that the evidence before it is consistent with Dr Q’s opinion.
In relation to family violence, Dr Q observes at page 50:-
Ms Swift and her family give an account of domestic violence, including some physical abuse and, more persistently, verbal and emotional abuse and controlling behaviours, which would suggest a profile of ‘intimate terrorism’ or ‘coercive control’: attempts to dominate and exert control over partner using a range of power and control tactics, including violence (Jaffe et al, 2008; Johnson et al, 2005). If that account can be relied upon it is of considerable concern: there is significant risk of harm and maltreatment of children in households where there is family violence (McIntosh, 2003; Stanley et al, 1993; Tomison, 2000). Ms Swift also reports that she retracted her application for a family violence order because of pressure and threats from Mr Corcoran; if that is the case it is of considerable concern.
The Father and his family dispute the history of domestic violence and suggest that it was in fact Ms Swift who was violent towards Mr Corcoran.
Based on all the evidence, some of it which is discussed in the reasons that follow, the Court is able to find quite clearly that the Mother’s account of the family violence and abuse perpetrated by the Father is to be accepted over that of the Father’s.
In relation to attitudes about parenthood Dr Q at observes at page 50:-
The mother’s attitude has been less than adequate in the past: her frequent abrupt departures from the home during the first two years of the child’s life, when he was most vulnerable to abandonment, are of considerable concern. There were also occasions of suicidal or self harming behaviour when the child was present that posed a risk to his welfare as well as to her own; X would have been at risk of both physical and psychological harm. Like her sudden abandonments of him this would suggest a lack of appreciation for the needs and feelings of the child. In other respects Ms Swift has perhaps been a responsible parent.
The father appears to have been responsible in most respects although the mother and her family would suggest that during the relationship, Mr Corcoran did not show adequate interest in the parenting role.
Dr Q had concerns about whether these parents could sustain a shared care arrangement, given the lack of cooperation and goodwill between them.
Dr Q concludes with observations under the heading, “Any other matter the court expert considers relevant.”
As noted in the preceding item, X’s behaviour in the company of his mother and the maternal family is so completely different that it would suggest very strongly that he would benefit most from being primarily in her care. However Ms Swift has not demonstrated a good capacity for stability in the past and has shown impulsiveness that would have caused harm to the child; this includes her sudden exits from the home and also her suicidal and self harming behaviour, which not only caused harm to her but could have incapacitated her and thus caused harm to the child; also, X was present and apparently witnessed these incidents and this too had the potential to cause him harm. These behaviours are strongly indicative of borderline personality disorder, a chronic psychiatric disorder characterized by marked impulsivity, instability of mood and interpersonal relationships and chronic suicidality (Paris, 2005). These features are less evident since separation, the mother’s current function is adequate and on current presentation I would assess her as exhibiting borderline personality traits rather than disorder since this is a spectral disturbance; this variation in presentation is more readily understood when explained in terms of the impact of trauma, thus:
There is considerable overlap between borderline personality disorder and chronic post traumatic stress disorder (PTSD) and many experts are of the view that they are one and the same (Moreau et al, 2002; Dr Q, 2005; Taylor et al, 2006). Since PTSD is common in situations of intimate partner violence, it is possible that Ms Swift developed more severe post traumatic symptoms in that context so that her function was compromised and what were borderline traits increased to a more frank disorder. Thus, her difficulties at that time may have been consistent with borderline personality disorder but have improved since she has escaped the traumatic situation.
There was certainly some pre-existing immaturity or vulnerability in Ms Swift’s personality development and partly this was a function of her age and partly it reflects the instability of her developmental years and the impact of childhood sexual abuse.
Whatever the precise nature of her difficulties, Ms Swift is in need of specialised counselling or psychotherapy aimed at promoting more mature personality adaptation and developing more insight about her past behaviour and its impact on X. It would seem highly likely that she will re-partner, possibly in the short term, and psychotherapy would assist also in promoting insight into the difficulties of her relationship with Mr Corcoran and how to avoid a repetition of this dynamic; also it would provide her with an understanding of how such a transition would need to be negotiated in terms of its impact on X.
The maternal family has been extremely disrupted in terms of multiple changes in parenting over the years and it would be extremely valuable for Ms Swift to explore this in psychotherapy in order to avoid the same pattern in her own relationships and the same outcomes for her children. Such psychotherapy would need to involve regular weekly sessions over at least two years and with a clinician with expertise in borderline personality dynamics.
With regard to Mr Corcoran, there is no psychiatric diagnosis but he has had difficulties in terms of a learning disorder and there is some suggestion of antisocial behaviour in the police file. If the history of domestic violence can be relied upon then that would raise further concerns about his psychosocial adjustment and also about risk of harm to the child.
I tried to speak with Mr Corcoran’s counsellor, but Ms F has not returned my calls.
The penultimate paragraph referring to the Father is of concern to the court, having regard to the evidence before it, which will be discussed below. It is possible that concerns about the Father’s behaviour may not have been fully appreciated by Dr Q. For example, the Report records that she had reviewed extensive medical records in relation to admissions by both the Mother and the Father and that a close examination of the latter is of concern.
Dr Q was cross-examined on the last day after all the other witnesses had given their evidence. A number of points emerge from the evidence she gave in cross-examination:-
·Picking up on the issue foreshadowed by the Court in the preceding paragraphs above, Counsel for the Independent Children's Lawyer took Dr Q to those notes of the Father’s hospital admissions for mental health issues in which he seems to make admissions about family violence perpetrated against the Mother. She said that this merely underlines the concerns previously expressed about the Father, and his firm denials in cross-examination add to her concerns.
·Dr Q was unaware that the Mother had given birth to another child, Y, now seven months old. This did not change any of her recommendations, however, provided the Mother was coping well with a new baby.
·In relation to the Father’s parenting of X, Dr Q suggested that he engage with a child psychologist, who might be able to assist with his bonding with X.
·As for the Mother, she would benefit from ongoing psychotherapy to deal with the past issues of abuse she had suffered.
A number of scenarios were put to Dr Q, based on potential findings of the Court.
·If the Mother’s account of family violence was accepted, Dr Q thought that sole parental responsibility in the Mother’s favour was required, without any obligation to consult, as the parents are incapable of doing so. Indeed, Dr Q agreed that even if the Court did not make the findings referred to above, having regard to the observed difference in interactions between X and his parents, an order for sole parental responsibility in the Mother’s favour might still be required.
·Even if family violence allegations were established against the Father, X should still be spending weekly time with him, though, depending on the nature and extent of the findings, the time might be reduced. This was to mitigate against the risk of X being subjected or exposed to the Father’s violence. Dr Q expressed the view that “a violent partner is more likely to be a violent parent”. She thought, however, that shorter periods of time in a family setting would be adequately protective of X, and that it wasn’t necessary to have proper supervision.
·If the Court was not as concerned about family violence then X’s time with the Father could be on a weekly basis, certainly on weekends, though not necessarily every week. She agreed that as X became older, his capacity to protect himself increased. She thought that if the Court found there was no risk of harm to X in his Father’s care, each alternate weekend from Friday to Monday, plus two nights in the other week would be appropriate. This would have to be scaled back, however, if there was a risk of harm.
·If X was to live with his mother then, for the time being, school holidays should be expressed in terms of five day blocks with the Father in the shorter school holidays, and five to seven day blocks in the longer school holidays.
Further points that emerged from Dr Q’s evidence are as follows:
·Counsel for the Father probed Dr Q about her observations of different behaviour by X in the presence of each of his parental family groups. Specifically, he probed for alternative hypotheses about X’s different behaviour. She emphasised that it was the quality of X’s play that was most significant, and was most starkly different in the two settings. X’s behaviour when with his father and father’s family was not normal for other children his age in this context who explore, interrupt, interfere, and who are spontaneous in their interaction. Dr Q did not accept the alternative hypotheses.
·Dr Q thought that X’s level of development was at a three-year-old level.
·The risk of harm issues for X would be multiplied by his vulnerability due to these development issues.
·Dr Q emphasised that she had no concerns about the Father’s capacity to meet X’s physical needs, rather, the focus was on his ability to facilitate X’s emotional/psychological/intellectual development.
·She emphasised that changeovers needed to minimise the opportunity for previous destructive behaviours to play out.
·She agreed that both parents were sub-optimal, but in different ways. The Mother’s personal vulnerabilities were not easily amenable to change, hence then need for her to have long-term therapy. By contrast, if, as she believed, the Father’s real problem was in relation to interpersonal violence, given that he denies that it happened, he would not be a candidate for behavioural change at all. Indeed, Dr Q suggested that even a person with borderline personality disorder who has some insight into their condition has a greater prospect of changing their behaviour than a violent person without that insight. She acknowledged, however, that much depended on the Court’s findings about the nature of the violence in question.
·If the Court had concerns about both parents, then, in her opinion, the Court should seek to manage the risk in each household by very structured arrangements and prescriptive orders.
Overall, the Court accepts Dr Q’s evidence, subject to an assessment of the remaining evidence. If anything, Dr Q’s recommendations were not just confirmed, but strengthened by the matters put to her in cross-examination.
Evidence of the Applicant Mother.
The Mother’s Affidavit was sworn 23 January 2015. It consists of 35 pages of detailed evidence and about 30 pages of annexures. The Mother gives detailed evidence of the history of her relationship with the Father, and particularly the violence, abuse and control that she experienced. She gives evidence, for example, about a physical assault in (omitted) 2009, a push when heavily pregnant in (omitted) 2009, destruction of property by the Father in late 2011, a punch to the head above her right ear in (omitted) 2012, being chased by the Father out of the house who was wielding a hammer in mid-2012, being grabbed by the hair, pulled to the ground and punched to the ribs whilst she was holding X in October 2012, as well as various controlling acts after separation. A common feature of all of this evidence is its detail. She annexes a copy of a photograph of a black eye and diary entries which are consistent with her written evidence and copies of SMS messages from the Father.
The Mother was extensively cross-examined by both Counsel for the Independent Children’s Lawyer and for the Father. A number of points emerged: -
·For the most part, when answering questions about the family violence she deposed to the Mother often became distressed and teary, the same sort of behaviour she was observed to demonstrate by Dr Q.
·She failed to adequately disclose not just the birth of her baby, but that the baby’s Father was a man with a known history of violence. She stated, however, that whilst this Father does spend time with Y, it is never at her home. She explained that the reason why she hadn’t disclosed this was because a fear of what the Father in the present case would do.
·She agreed that, notwithstanding what she told Dr Q, she had in fact overdosed twice, but had only been hospitalised once. She then gave detailed evidence about the family violence perpetrated by the Father, which led her to become so emotionally upset as to take an overdose of eight painkiller tablets at the time. She was, however, continuing to see a counsellor to help with these issues, and was on medication at times.
·She agreed that in respect of some of her detailed allegations of violence perpetrated by the Father, she had not reported these incidents to police and that, more often than not, there were no other witnesses to these alleged violent incidents. She also agreed that she had retracted the allegations of violence against the Father on 17 December 2012, but explained that she did so in circumstances where the Father had taken her to the police station for this purpose, even if he was not present in the room at the time.
·The way in which the Mother presented her evidence was genuine and forthright. There was no element of histrionics in the emotions she displayed when cross-examined about issues that must have been difficult for her. She agreed that there were violent incidents in her past, for example, the Jeep and the incident at (omitted) in 2007.
·A feature of the Mother’s evidence about family violence is that it is consistent with other records. For example, her diary, exhibit ICL2, appears to be a contemporaneous record of violence in 2012. The record of SMS messages between the parents, exhibit A1, is corroborative of her assertions of post-separation violence, abuse and control. Records produced by the Department of Family and Community Services contain corroborative references. The documents produced by New South Wales police are more problematic, given the Mother’s retractions, but are not always inconsistent with her assertions. The Court is certainly not prepared to draw an adverse inference against the Mother for not reporting to the police every incident of violence, in circumstances where she admits that she retracted allegations (for reasons the Court accepts) and where she felt that the police became (perhaps understandably) sceptical about her reports. Her evidence about violence is corroborated by records of her psychologist. As will be seen below, the Mother’s allegations are also corroborated by the Father’s admissions in his hospital records.
The Court does not accept the Father’s submissions that the Mother’s evidence about family violence should not be accepted because of inconsistencies, and because of the retracted allegations of violence. The inconsistencies in her evidence are, quite frankly, inconsequential compared to the consistency and cogency of the rest of her evidence. The retraction of allegations against the Father, viewed on the overall factual context, is neither surprising nor inconsistent with the overall evidence she gives. As it turns out, therefore and as will become more apparent after a discussion of the Father’s evidence, the Court finds that the Mother’s evidence about family violence should be preferred over that of the Father.
Evidence of Mr D
The Maternal Grandfather swore an Affidavit on 15 February 2013. There is nothing in cross-examination that would cause the Court to doubt the evidence that he gives. It is broadly corroborative of the Mother’s evidence about the Father, her concerns about his parenting capacity and her seeking to control X’s relationship with his mother in the post-separation period.
Evidence of Ms C
The Maternal Grandmother’s Affidavit is sworn on 14 February 2013. Again, there is nothing in cross-examination that would cause the Court to doubt this evidence. It too is corroborative of the Mother’s concerns as set out above.
Evidence of Ms T
Ms T was previously the next-door neighbour of the parents when they lived in (omitted). Her Affidavit sworn 23 January 2015 is an eyewitness account of what she saw and heard in relation to the violence perpetrated by the Father against the Mother. Again, there is nothing in the cross-examination of this witness which detracts, in any way, from its veracity.
Evidence of Ms P
Ms P is the Mother’s current employer. Ms P's Affidavit of 19 January 2015 is also corroborative, in a broad sense, of the Mother’s concerns about the Father’s violence. Nothing arose in cross-examination that would cause the Court to have any concerns about this evidence.
Evidence of the Father
The Father’s Affidavit was sworn 29 January 2015. It was unhelpful in many respects, because it purported to reply to an Affidavit for the Mother that was not tendered by her in the present hearing. This Affidavit has a number of features, nonetheless. For example, it refers to numerous paragraphs of the Mother’s Affidavit previously sworn in this case, but not read, and simply denies the content of the same. No context is given. At other times, the Father disagrees with paragraphs in the Affidavit. Curiously, at paragraphs 27 and 28 of his Affidavit, and referring to 21 paragraphs in the Mother’s Affidavit, he says that he either agrees to:
… the bulk of the material contained therein.
or he denies the
… bulk of the assertions contained therein.
The approach adopted to the preparation of this Affidavit was singularly unhelpful to the Court. The obvious limitation of denying or agreeing to the “bulk” of material is that the Court does not know what, precisely, is admitted or denied.
A common feature of the Father’s Affidavit is his accusatory tone towards the Mother, and the allegations that he makes of her violence. For example, at paragraph 10 he alleges that:
… she became enraged and screamed abuse at me and pushed me and hit me in the chest area.
At paragraph 19:
Ms Swift had, on numerous occasions, threatened to harm herself and had on occasion self-harmed.
At paragraph 21:
Ms Swift became violent, and in her rage pulled on the gear lever and pulled the car out of gear. Ms Swift was wild and waving her arms about, and I put my left arm up to prevent her hitting me, and she grabbed my arm and bit me on the hand, drawing blood.
Notwithstanding this, the Father agrees he was the one charged with assault arising out of this incident.
Paragraph 40 of the Father’s Affidavit is an interesting part of his evidence. Here he deposes as follows:-
About a week after Ms Swift came home from her mother’s house I went into the bedroom to find Ms Swift with a belt around her neck and tied to the bed. Ms Swift was sort of sitting on the floor with the belt pulled tight and was semiconscious. X was on the bed next to Ms Swift and was screaming hysterically. I managed to lift Ms Swift enough to loosen the belt and then got her onto the bed and removed the belt. Ms Swift recovered in a few moments and then began to scream and hit me.
This is clearly a most serious allegation, particularly given the assertion that the child X was present, and was clearly distraught. One would have thought that it would be a topic for cross-examination of the Mother by the Father’s counsel. It was not.
The Mother gives evidence about her engagement in self-harm, but certainly not this incident. Curiously, however, when the Father was admitted to (omitted) Hospital, during the course of his mental health assessment completed on 5 October 2012, the hospital records state as follows:
Thought Content. Suicidal behaviours in past week.
Tightened a self-tightening belt around his neck and pulled until it locked, wanted to die at the time. Girlfriend Ms Swift released it.”
The Father’s allegations about the incident to which he deposes at paragraph 40 in his Affidavit is truly bizarre. He says the incident occurred after they returned home from their trip to (omitted). The totality of the evidence before the Court leads to the conclusion that the trip took place in the second half of 2012. The Mother’s evidence, for example at paragraph 62-63 of her Affidavit, is that they celebrated her birthday after returning from the (omitted) trip, and she began to be quite concerned about the Father who said on one occasion “it feels like I’m losing control.” She then deposes at paragraph 65 of her Affidavit about his admissions to (omitted) Hospital on 5 October 2012. She specifically deposes that “Mr Corcoran admitted himself to” the hospital. This becomes significant, later on.
The Father’s statement to the hospital staff about tightening a belt around his neck is made on 5 October. A reasonable inference that can be drawn from the totality of the evidence is that the Father’s paragraph 40 is a fabrication of the evidence and, indeed, it was the Father who put a belt around his neck, and not the Mother.
The Father makes very serious allegations about the Mother damaging property, according to him in the course of her rages. For example, at paragraph 40 he asserts that she, in effect, bashed down the door to the garage, smashing it open with such force that it was knocked from the hinges. At paragraph 44, referring to an event in September 2012, he describes the Mother bashing down another door. At paragraph 45, he refers to an incident in which the Mother demolished the master bedroom ensuite, smashed the shower screen off the wall, tore all the doors off the bathroom vanity, and threw a decorative glass vase full of pebbles everywhere. At paragraph 46, he deposes to the fact that the house “is still in need of repairs after the damage by Ms Swift.”
Despite the seriousness of these allegations, and the Father’s contentions about the current state of the house, there was not one photo tendered in evidence. There was no cross-examination by the Father’s counsel about these serious allegations. One cannot help but wonder whether the actual explanation for whatever damage was done is again found in the admission records for the Father on 5 October 2012 when he said, for example, that he, “gets angry at home, punches holes in walls…”. Under the heading “History of Presenting Problem” the records note:
Physical violence at home smashes up his own furniture, punctures holes in his walls.
The Father’s evidence about property damage is truly bizarre insofar as he asserts the Mother was responsible. It is plainly inconsistent with his own admissions to the (omitted) Hospital on his admission there on 5 October 2012. His evidence is deeply disconcerting, at many levels, not just because of his actions, and not just because of his blaming the Mother, and externalising responsibility entirely onto her, but perhaps most significantly because the Court cannot be sure that Dr Q is aware of these inconsistencies between the Father’s evidence and the medical records.
The accusatory tone of the Father’s evidence continues. For example, at paragraph 47 he admits he was depressed, anxious and admitted himself to (omitted) Hospital. He says the staff told him there was nothing wrong with him and that one doctor said that he “needed to look at my home environment”, a comment that must be intended to be an adverse reflection on the Mother.
At 59, he accuses the Mother of deliberately misleading Dr Q.
The Father was extensively cross-examined, particularly by Counsel for the Mother. He was frequently unresponsive to questions asked by Counsel. He rarely missed the opportunity to be critical of the Mother, or scornful of her evidence. For example, when he was asked whether he was aware that the Mother had kept a diary in which she recorded family violence allegations, he said that he was aware and that he had “thought of knocking one up myself, that’s what I think of it.” Curiously, in cross-examination, his own Counsel never put it to the Mother that she had just “knocked it up”. He continued to be scornful of the Mother’s evidence insofar as it was based on her records of the SMS messages between them saying, in cross-examination, that whilst it was possible that he had sent text messages to the Mother, her “whole case was based on fiction ... it’s all fraudulent”.
Overall, in terms of the Father’s demeanour, and the manner in which he gave evidence, he was less than convincing. As it turns out, this was the least of his worries.
The Father insisted that he was never violent to the Mother, and that he had never hit her. In cross-examination, he was confronted with a business record from the (omitted) Hospital. One such record on 3 September 2012 states as follows:
Describes domestic violence history with partner Ms Swift. ‘I don’t want to, sometimes I just can’t control my anger.’
Another record on 3 September 2012 states:
Describes occasional physical violence to partner Ms Swift and having had difficulty controlling anger for a while (over one year).
At first, the Father denied making these statements. Then he said he didn’t recall talking about violence. Then he said he was on medication at the time and just wanted to go to sleep, the inference being that if he said anything to that effect, it was not coherent. Later, his explanation was that indeed he had not given the history, the Mother did as she was present.
There are a number of problems with the Father’s evidence about the admission he made on 3 September 2012, and the medical records generally. Focussing on the admission in September 2012, despite the production of the hospital file, there is absolutely no evidence to suggest that the Father was medicated to such an extent that he could not give a history, and yet the record contains quite extensive records of the history that he gave to various persons at the hospital. Moreover, one of the records make it plain that the Mother did not arrive until after the Father had been admitted. Indeed, there are multiple admissions recorded by the Father as to family violence perpetrated by him against the Mother and, if anything, these records show that the Mother was denying the safety risks to her as late as September and October 2012. That does not detract from the significance of the Father’s admissions. For example, there are multiple documents that contained admissions about family violence. There is a document entitled ‘Risk Assessment’ dated 3 September 2012 containing admissions about physical violence to his partner, Ms Swift. There is a document entitled ‘Initial Management Plan’ of the same date, to the same effect. There is a document called ‘Physical Examination Summary’, which includes a section on risk assessment that refers to domestic violence. The record of his mental state examination of the same date contains an admission. A document entitled ‘Mental Health Assessment: Current Functioning and Supports’ contains not just an admission, but a record of a discussion with the Father about the impact of family violence on a child, whether the child was a victim or not. Thus, the admission by the Father, “I don’t want to, sometimes I just can’t control my anger,” is only one part of a business record containing multiple admissions about his conduct.
The hospital records are damning to the Father’s denials about family violence. He only undermined his credibility further by trying to contrive explanations and excuses for what the Court otherwise considers to be an independent and accurate business record.
The evidence about the text messages is equally damning for the Father.
To put this in context, evidence of text messages between the parents was annexed to the Mother’s Affidavit and had, indeed, been annexed to previous affidavits. The Father was well and truly on notice of the fact that the Mother was going to use this evidence against him at the hearing. During his cross-examination, the Father was taken to a number of messages that he sent to the Mother which, if accepted by the Court, tended to show admissions about violence, and continuing abuse and control (particularly as regards to the Mother’s time with X) in the post-separation period. In general terms, the Father’s evidence about the text messages could be described as evasive. The messages in question were between the Father and the Mother, but via the Maternal Grandmother’s phone as the Mother simply refused to have any form of communication with the Father. He was taken to certain messages, for example, 11.25 am on 12 October 2012. As with all the other text messages in question, he admitted that the number from which the message emanated was his telephone number.
Notwithstanding that, firstly he said that he never sent the message, then he said that he did not recall it, and then that there were multiple people living in his house at the time the message was sent, the inference being that they had access to his phone and would have sent the message. This is inherently unlikely given the context of the messages, the content of the messages, and the time at which they were sent. In one message, he refers to the Mother as “a dumb cunt”. In another message he says words to the effect “Sorry, will never hit you again.” The Father denied the offensive messages, even in a context when a message sent a minute later was totally innocuous, for example, “Get her to call me please,” and most likely sent by him.
Perhaps the most damning message is one which the Mother alleges the Father sent on 12 October at 11.25 pm from the Father’s phone. There is no issue that the number in question is the Father’s number. The content of the text messages is as follows:-
“Why are U doing this? Just come home, please come home. I’m no let you have X on Sunday if you don’t come home today. I’m so U can come see him not having him on street or where I know were he our time. Sorry. I’m really sorry about (omitted), sweetie. I really em sorry from bottom of my hart. I promises on X I'll never ever hit you again. I promise on my son’s life Ms Swift please trust me. Just one c more. Just let show how good I’m doing too be. Ms Swift I promise on my if ever hit you again I will leave you with X. That’s how much I mean it, sweeth. Please from botem of your hart trust me. Please give me a go. I’ll sprize you.”
The Father flatly denied sending that message. He suggested that it was quite possible that someone else had his telephone at that time but he couldn’t explain why they would send a text message like that. He insisted that he had never hit the Mother and then raised the theory that maybe the Mother, or some other person, had arranged for that text to be sent.
He was then taken to a series of text messages which were more innocuous in terms of their content. In each case, of course, the texts emanated from his number. A characteristic of the text messages is that they follow chronologically, and often are consistent in terms of the theme. It is quite possible, indeed highly likely, that each individual message was part of a larger thread. Thus, for example, on 29 October 2012, the Father agreed that he sent a message at 6:58, as well as one on 30 October at 8:08 and then also 9:18. He was not asked about a number of other messages between 9:18 on 30 October and 13:46 on 30 October. But there is a certain consistency in the messages which create the inference that they were sent from the same number, by the same person. Curiously, however, a message sent at 13:46 is different. He didn’t think he would send the message at 13:46 or the preceding one at 13:42. The 13:42 message says, “This rong ehat going on bullshit. I’m going sink her she doing pick up by cops soon for fraud by way”. The 13:46 message is, “Do you won’t see him torow or not? I’m realy sick of this shit a been three weeks now since seen X or won’t is her see him but I’m sick of trying to make deals with her. You know your”.
There is no need to go through each individual message. Some of them are plainly abusive. The messages are entirely consistent with what was happening in the lives of the parents in the post-separation period. For example, they are purporting to negotiate a spends time with arrangement, and changeover arrangements. The Father’s explanation is simply implausible, that is, that someone else who had access to his telephone sent the messages in question.
The absolute nadir of the Father’s case came when, in cross-examination, he tried to suggest that it was possible to send a message using a remote site which impersonates the sending number. The Father’s evidence in this regard is utter nonsense. The inference he asks the Court to draw is that the Mother had somehow manipulated the text messages so that they appeared to be sent from the Father’s phone. Of course, his Counsel never put that to the Mothers, confirming the Court’s suspicion that this was a farfetched idea that the Father had concocted as it became more and more obvious to him, and everyone else in the room, that the records of text messages sent by him were as damning as the admissions he made in the medical records.
The Court has significant difficulties in accepting the evidence of the Father where it conflicts with that of the Mother. The Court categorically rejects the submission that in relation to the allegations of family violence, his denials should be accepted.
Consideration of Matters under Section 60CC Family Law Act
In determining what is in the best interests of X, the Family Law Act requires me to consider the matters set out in section 60CC(2)-(3).
The benefit of X having a meaningful relationship with both of his parents is expressed to be a primary consideration under the Act. All of the evidence suggests that X already has a meaningful relationship with both of his Mother and Father and, indeed, none of the proposals advanced before the Court would suggest there is any reasonable prospect of this changing. Even a drastic reduction in the Father’s time with X should not result in a change to the relationship that he has with him. The cautionary note expressed by Dr Q at page 45 of her Report must not go unheeded. Dr Q said that:
Benefits need to be weighed against any risks of harm, which in this case is an even more important consideration than usual since he is a child with special needs and therefore has particular vulnerability.
These comments lead to a consideration of the second of the primary considerations, that is, the need to protect X from physical or psychological harm, from being subjected to, exposed to, abuse, neglect or family violence. The totality of the evidence before the Court, including those parts of the evidence that have been discussed above, regrettably lead the Court to conclude that X has in fact been exposed to the quite systemic family violence (as defined in the Act) that was perpetrated by his father, against X’s mother, including after separation. The Court’s findings do not, however, extend to findings that the Father has been violent to X. Amongst the many issues in this case, this one did not receive enough attention in cross-examination. No criticism is intended here. There were many other equally important issues that, quite properly, attracted the attention of counsel. An impression of the evidence, but certainly not a finding, is that the Father may have been excessive in corporal punishment and discipline. The case does not turn on this.
The evidence against the Father about family violence, as defined in the Act, is quite overwhelming. Indeed, the Court is satisfied on the Briginshaw standard (Briginshaw v Briginshaw (1938) 60 CLR 336). Quite apart from preferring the evidence of the Mother and her witnesses over the Father, the objective business records tendered in evidence contain quite clear and damning admissions by the Father about the violence he perpetrated on the Mother.
What is deeply disconcerting is that the Father denied these allegations, and continued to deny them notwithstanding the quite overwhelming evidence with which he was confronted in cross-examination. The more he was confronted with the reality of his past actions, the more creative became his explanations for the evidence against him. It is not possible to give the Father the benefit of the doubt, in this regard. It is not possible, for example, to say that he had lapses in memory, or simply had a different recollection of the events in question. The only plausible finding is, regrettably, that the Father misled to the Court about his conduct to the Mother. By the end of the evidence, there was not the slightest suggestion, impression, or even inference that could be drawn, from anything that he said, or the way in which his case was conducted, that suggested contrition, remorse, or even the faintest glimmer of insight into the impact of his behaviour on the Mother, on X, on their relationship, and on her capacity to parent him.
As Dr Q noted at pages 45-46 of her Report, the Father’s past conduct, and his continuing lack of insight mean there are likely to continue to be significant risks for X. Quite apart from the quite inadequate role model that the Father would present to X, not only as regards to the Mother, but as regards to women generally, there are the deeper and perhaps unresolved issues about the Father being able to regulate his emotions, including anger, and unresolved issues about his mental health.
The risks contemplated by this primary consideration, are clearly present in this case. The risks can be mitigated, however. Firstly, by returning X to his Mother’s primary care where she will be less exposed to the problems adverted to. Despite her problems and, indeed, her dysfunctional past life, the evidence suggest she is able to provide a far more nurturing and protective environment for X than the Father. The corollary of this, that is reducing X’s time with his Father, also mitigates the adverse impact that he might have on X, as well as regulating the risk factors.
The risk factors pertaining to X in the Mother’s household must also be addressed. These factors are clearly identified and articulated by Dr Q at pages 51-52 of her Report. She thought that the Mother probably has borderline personality disorder:
A chronic psychiatric disorder characterised by marked impulsivity, instability of mood and interpersonal relationships and chronic suicidality.
She observed, however, that these features were less evident after separation, that the Mother’s current functioning was adequate, and that whilst her past history suggested borderline personality disorder, her current functioning suggests borderline personality traits. The explanation for the difference, Dr Q explained, is the removal from the trauma of the violent relationship with the Father. Indeed, Dr Q opined that the Mother may well be suffering from post-traumatic stress disorder as a result of the violent relationship.
The Court recognises the Mother is clearly vulnerable, not just because of her experiences in the relationship with the Father, but her difficult life preceding that. The Mother’s vulnerability is adequately demonstrated by her own evidence of now raising a child to a father who has a clear record of violence himself. This at least implicitly raises the possibility that the Mother has a propensity to enter into violent relationships.
Dr Q seemed confident, however, that the risks pertaining to the Mother’s household could be mitigated by the specialised counselling or psychotherapy that she recommended. The Mother indicated she was prepared to undertake this.
Accordingly, whilst it could not be said that there are no risks in the Mother’s household, from X’s perspective, the Court is confident, based on the evidence before it, that the risks in the Mother’s household are less than the risks in the Father’s household, and are, in any event, manageable.
The Court is required to consider any views that have been expressed by X. There is no evidence of his views, as such, on which the Court would place any weight. Dr Q noted the limitations in any expression of views by X, but was very concerned about the clear changes in behaviour that X demonstrated when observed as between the Father’s family and the Mother’s family. She believes that the stark contrast in his behaviour in the two settings did, indeed, provide an indication of X’s feelings and a preference towards his Mother’s household.
To the extent that the differences in his behaviour can be seen as an implied expression of a view, the Court is prepared to take it into account. It is, in any event, another relevant factor to be considered whether a view, or not.
The Court is required to consider the nature of X’s relationships with his parents and other significant persons in his life.
At one level X appears to have a good relationship with all of the adults in his life. Certainly the evidence about the nature of X’s relationships with other adults in his Mother’s family is much stronger than that about his Father’s family.
At a deeper level, however, for reasons that have been previously articulated, Dr Q was concerned about the very different features in X’s behaviour when interacting with his Mother’s family, and his Father’s family. Indeed, in cross-examination she suggested that the Father might be assisted by therapy to assist him in his relationship with X.
In any event, none of the proposals advanced before the Court would have the effect of changing the existing good relationships that X enjoys.
The Act requires the Court to consider the extent to which each of the child’s parents has taken, or failed to take, the opportunity to do the matters articulated in s.60CC(3)(c).
The evidence suggests that at the time of separation the Mother did absent herself from X’s life, and could have done far more to remain engaged. At one level, the evidence suggests that the Father sought to encourage this relationship. At a deeper level, and with the benefit of all of the evidence, the Mother’s inaction at the time of separation must be understood in the context of fleeing a violent and controlling relationship. Indeed, a close look at the Father’s evidence about seeking to encourage X’s time with his mother in the post-separation period creates a strong impression that the communication in question was more about seeking to control the Mother, possibly even reconcile, than it was about seeking to encourage the relationship.
Indeed, the evidence before the Court leads the Court to conclude that in the post-separation period the Father’s controlling behaviour simply continued and that he said things, and did things which made it impossible for the Mother to participate in making decisions about X, or to spend time and communicate with him, other than on terms that the Father unilaterally imposed.
The Mother’s evidence about the post-separation period, which the Court prefers over the Father’s evidence, is quite disconcerting. The Father sought to effectively block communication and contact between the Mother and X, except on terms that had more to do with coercion and control, than anything else.
The Court is required to consider the likely effect of any changes in X’s circumstances, including, for example, separation from a parent, or other significant adult.
Because of the Court’s concerns in relation to the past family violence, its impact on the Mother and X, and its continuing impact on them not the least because of the Father’s unwillingness to acknowledge the same, a significant change in X’s existing parenting arrangements is warranted. The question is, is this change too much for X, and will it affect his relationship with the Father?
Quite apart from being of the view that the change in residential arrangements was very much needed and in X’s best interests, Dr Q did not appear to be too concerned about whether X could sustain his relationship with his father. From Dr Q’s perspective, her belief was that the Mother offered X significantly improved parenting as compared to the Father, and thus the change was warranted anyway. Dr Q did not appear concerned about the change, subject to there being weekly contact.
There appeared to be no issues in this case about practical difficulty and expense of X spending time in communicating with a parent.
The Court is required to consider issues of parental capacity, to provide for the needs of X, including emotional and intellectual needs.
Dr Q was quite clear in her opinion that the Mother’s capacity to provide for X’s emotional and intellectual needs was greater, and that she had the dedication and patience that was needed for X, particularly in view of his developmental delay issues. The observed differences in X’s interaction with his father were clearly of concern to her. She felt that the Father could certainly provide X’s physical needs, but was deficient in terms of his emotional needs.
The Father’s violence and control during the relationship, continuing after separation, and his lack of insight about his behaviour, merely adds concerns about his ability to understand, let alone to provide for, X’s emotional needs.
The Court is required to consider the maturity, sex, lifestyle and background of X and his parents, and any other characteristics of X that the Court considers relevant.
X’s developmental needs are significant in this regard, and the evidence suggests that the Mother is more than capable of addressing the challenges that X confronts in this regard. Of concern to the Court is the very minimalist nature of the Father’s evidence in relation to X’s special needs. The Court is told, for example, about preschool, speech therapy and (omitted), but the Court is told very little about precisely what the Father does to deal with X’s issues on a daily level. Instead of spending so much time in his Affidavit attacking the Mother, and indeed Dr Q's, one wonders whether the Father’s Affidavit might have been of more use to the Court by focusing on X.
It should be recognised that when all the evidence was considered by the Court, including the voluminous documents produced as exhibits, it is clear that both parents have had difficult lives before cohabitation, and both present with different levels and types of personal dysfunction. In these circumstances the Court must recognise the inherent limitations that each parent possesses and look towards the support systems that each parent has in place. The evidence of the Father’s support system is plainly inadequate. The evidence of the Mother’s support system is abundant.
The Court is required to consider parental attitudes towards X, and to the responsibilities of parenthood. As previously mentioned, the Mother’s actions, and inaction, in the early years of X’s life, and particularly in the period before and after separation, were inappropriate. The Father’s evidence about the Mother’s abrupt departures during the relationship were borne out by the Mother’s own evidence. Quite apart from the difficulty that this would have placed on the Father as a parent, it would have been deeply distressing for X.
The criticism of the Mother in this regard is difficult to maintain when the overall evidence is considered about the violence, abuse and control that she was subjected to by the Father, not only before separation but afterwards. Dr Q opines that she could be suffering post-traumatic stress disorder. The Mother’s evidence suggests insight, as well as a willingness to address these past issues through therapy.
By contrast, the Father’s violence, abuse and control, and his steadfast refusal to acknowledge any of this, raises very serious concerns about his attitudes to X, and to the responsibilities of parenthood. As previously mentioned, it raises serious concerns about his ability to meet X’s emotional needs. It does not auger well, at all, in terms of the Father being an adequate role model for X. The Father could not demonstrate in evidence that he had any insight into the impact on X, let alone the Mother, of the violence, abuse and control he perpetrated. The post-separation period is replete with examples of him using X as a tool to control the Mother.
There is a revealing observation made in one of the hospital records pertaining to the Father. In more than one document, including, for example, an assessment record of 3 September 2012, it is noted;
Describes a great love of his son – ‘I would never hurt him’.
By contrast, a clinical note record of 6 October 2012 at 8pm noted that:
Teary this pm. Ruminating thoughts about missing family and child... visited several times by family (wife and child). On observation showed no warmth or physical contact with child. Non-congruent with report of ‘my son is my best friend’, ‘I need to cuddle him’.
The observed incongruence between what the Father says about his relationship with X, and the actual nature of the relationship, is apparent.
Parental attitudes are very important for children. There is no question that over years of caregiving, children absorb their parents’ attitudes and, in time, reflect them. There are obvious concerns, therefore, about X absorbing his father’s attitudes both towards him, and his mother. This is accentuated, of course, when the Father does not even acknowledge that there is a problem.
The Act requires me to consider family violence, and any family violence order that applies. There is no need to traverse the findings the Court has already made in these reasons about family violence. The Court accepts the Mother’s evidence about family violence, over the Father’s. In cross-examination, Dr Q described the violence as being controlling, coercive and systematic. She also used the term “intimate terrorism”. All of these terms aptly reflect the evidence of the Father’s behaviour towards the Mother.
The absence of police records of many of the Mother’s allegations means nothing. Once the nature of the violence is understood as being controlling, it should be not surprising that the Mother did not report all of the incidents. In any event, the Father’s admissions put the matter beyond doubt.
Family violence casts a long shadow that affects the victim, the child who is exposed to the violence, and reflects on parenting well after the cessation of the violence itself.
Parental responsibility
Section 61DA of the Act creates a presumption of equal shared parental responsibility, however 61DA(2) provides the presumption does not apply if there are reasonable grounds to believe that a parent of the child has engaged in abuse or family violence. The Court’s findings in this case are quite clear. The Father has engaged in family violence as defined in the Act. The violence continues to have an effect, and the Father does not acknowledge the same. The statutory presumption does not apply.
In any event, 61DA(4) provides that the presumption may be rebutted by evidence that satisfies the Court that it would not be in the best interests of X for the parents to have equal shared parental responsibility. For the same reasons articulated above, and based on the evidence before the Court, the presumption has been rebutted. The presumption assumes the two parents can communicate with each other, and negotiate issues to parenting, as equals. The level playing field that is implicit in the concept of equal shared parental responsibility is plainly absent in this case.
The orders proposed by the Mother and the Independent Children’s Lawyer gives sole parental responsibility to the Mother. The reasons for that are self-explanatory having regard to the Court’s reasons. Likewise, and on the same basis, X should live with his Mother. The focus then turns to what time he should spend with the Father?
The Father’s time with X
X will probably commence school next year. The Independent Children’s Lawyer and Mother propose that, until then, he should spend time with his Father from after pre-school on Tuesdays until 9:00am the following morning, each week. In addition, each alternate weekend from 10:00am – 2:00pm on Saturday and Sundays. Whilst this is adequate to sustain X’s meaningful relationship with his father, and is also sufficiently protective of the risks identified in this case, it is curious that an overnight is proposed weekly mid-week, but not on the alternate weekends. As the Court is concerned about minimising the opportunities for the parents to come into physical proximity of each other, and as there are no developmental concerns that contra-indicate the weekend overnight, the Court prefers an alternating weekend order for time that commences at 10:00am Saturday, and concludes at 2:00pm Sunday.
Once X commences school, the Mother and the Independent Children’s Lawyer propose that he spend time with his father each Tuesday from after school to Wednesday before school, and then longer periods of time on weekends, but again limited to day-times. For the reasons stated above, the Court can see no reason why X’s time cannot commence from after school Friday and conclude at 4:00pm on the Sunday. Indeed, from the commencement of school in term 1 of 2017 it should conclude with a return to school on Monday mornings.
Despite the very serious concerns that the Court has raised about the father in these reasons, what is apparent from the evidence is the good relationship he has with X, and his undisputed ability to meet his physical needs. There is no issue about X coping with overnights. The risk of psychological harm to X is mitigated by the fact of return to his Mother’s care in circumstances where his time with his father will be significantly reduced. Moreover if, as the Court hopes he will do, the father engages in the therapy proposed in the Independent Children’s Lawyer’s proposal, not only are risk issues for X mitigated, but the nature of his relationship with X might improve further, hopefully, as a gaining of greater insight into his past actions and behaviours.
Thus the order for X to spend time with his father will go close to being a substantial and significant time order, which the Court believes is in X’s best interests.
The remaining orders proposed by the Mother and the Independent Children’s Lawyer are all appropriate, including the personal protection order. Orders in those terms will be made. It is very important that X’s parents not discuss these proceedings with him, or denigrate each other in his presence, or allow anyone else to do so. The Court will make orders to this effect.
X’s time with his father during school holiday periods was not the subject of submission or much evidence. Consistent with the reasoning set out above, there can be no reason in principle why X should not have school holiday time with his father, but such periods should not extend beyond one week in any school holiday period.
X should move into his Mother’s full-time care as soon as possible. If he is in his father’s care when these reasons for judgment are published, and orders made, he should be returned to his Mother within 24 hours. The orders for him to spend time with his father should commence the week after these orders are made.
I certify that the preceding one hundred and forty-three (143) paragraphs are a true copy of the reasons for judgment of Judge Altobelli
Associate:
Date: 25 May 2015
Schedule one
Independent Children’s lawyer’s Minute of Order as agreed by the Mother
PARENTAL RESPONSIBILITY
That the mother have sole parental responsibility for the child X born (omitted) 2010 subject to the following:
(a) considering any views expressed by the father; and
(b) informing the father of any decisions made by her in the exercise of such responsibility.
PARENTAL COMMUNICATION
For the purpose of the mother communicating with the father in the exercise of her parental responsibility, the mother and father shall use their best endeavours to engage in such communication through either of the maternal grandparents and paternal grandmother.
LIVING ARRANGEMENTS
That the child live with the mother.
SPENDING TIME ARRANGEMENTS
Subject to the provisions of Order 5, that the child spend time with the father:-
(a) prior to the child’s commencement at school:-
(i) from after preschool Tuesday until 9:00 am Wednesday each week; and
(ii) from 10:00 am until 2:00 pm Saturday and from 10:00 am until 2:00 pm Sunday each alternate weekend commencing the first weekend after the making of these orders.
(b) after the child commences school:-
(i) from after school or 3:00 pm Tuesday until the commencement of school or 9:00 am each Wednesday; and
(ii) from 10:00 am until 4:00 pm Saturday and 10:00 am until 3:00 pm Sunday each alternate weekend during 2016;
(iii) from 10:00 am until 4:00 pm Saturday and 10:00 am until 4:00 pm Sunday each alternate weekend during 2017 and each year thereafter;
(c) subject to the provisions of Order 8, at such times as are evidenced in writing by the father’s treating therapist, to enable the father and child to engage in therapy aimed at improving the parent/child bond between the father and the child;
(d) for four (4) hours on X’s birthday and in lieu of agreement from 10:00 am until 2:00 pm;
(e) from 10:00 am to 4:00 pm on Father’s Day;
(f) from 10:00 am until 4:00 pm on the father’s birthday if the father’s birthday falls on a non-school day and from 3:00 pm until 5:00 pm in the event that the father’s birthday falls on a school day;
(g) from 10:00 am until 4:00 pm on Christmas Eve in odd numbered years and from 10:00 am until 4:00 pm on Christmas day in even numbered years.
SUSPENSION OF TIME
The time the child spends with the father pursuant to Order 4(b)(i), (ii) and (iii) shall be suspended:
(a) from 10:00 am until 4:00 pm on Christmas Eve in even numbered years;
(b) from 10:00 am until 4:00 pm on Christmas day in odd numbered years;
(c) from 10:00 am to 4:00 pm on the mother’s birthday;
(d) from 2:00 pm until 4:00 pm on X’s birthday;
(e) on two occasions each year to allow the child to spend two, 2-week blocks of time with the Mother at such times as are nominated by the Mother and in lieu of agreement commencing the first Saturday of the April NSW school holiday period and commencing 15 January in each year;
(f) on Y’s birthday being (omitted) 2014.
CHANGEOVER
For the purposes of facilitating changeover pursuant to these Orders, where the time the child spends with the father does not commence or conclude at school or preschool the father will collect the child from the mother at Coles at (omitted) at the commencement of such time and the father shall collect the child from the mother at McDonalds at (omitted) at the conclusion of such time.
COMMUNICATION
That the child communicate with the father by telephone or skype each Thursday and Sunday that the child is not already spending time with the father, and in lieu of agreement, at 5:00 pm with the mother to facilitate the child telephoning the father’s mobile telephone number.
THERAPEUTIC INTERVENTION
In addition to the time the child spends with the Father, if the Father arranges for counselling referred to in Notation C, provided that the Father provides the mother with confirmation of counselling appointments, and evidence of the father’s ongoing attendance with the child at the therapeutic counsellor referred to at Notation C, the mother shall facilitate the child attending counselling with the father, with the mother to deliver the child and to collect the child from such counselling pursuant to Order 4(c).
AUTHORITY
That these orders operate as the authority of the father for the mother to obtain any information she may seek from the counsellor engaged by for the Father for the Father and child, pursuant to order 8.
SPECIFIC ISSUES
10.That leave be granted to the mother to provide a copy of the Report of Dr Q, and the final Orders of the court and reasons for judgment to her treating therapist.
11.That, subject to the father providing evidence of his engagement in the therapy referred to at Notation C to the solicitor for the mother, that leave be granted to the father to provide a copy of the Report of Dr Q and the final Orders of the court and reasons for judgment to the father’s treating therapist.
PERSONAL PROTECTION ORDER
Pursuant to s.68B and s.67ZC of the Family Law Act 1975, the Father is hereby each restrained by injunction from:
assaulting, molesting, harassing, threatening, stalking or intimidating the mother or the child.
exposing the child to any form of domestic violence including verbal violence or using abusive language to, within, or in the hearing of the child;
physically disciplining, striking or otherwise abusing the child.
A Police Officer may arrest the Father without warrant, pursuant to s. 68C of the Family Law Act 1975, if such Police Officer believes on reasonable grounds that the father has, since the orders were made, breached the injunctions contained in the preceding Order and it is to be taken for the purposes of this order that each of the injunctions in the preceding Order relate to the personal protection of the child and the mother.
NOTATIONS:
The Court notes:
A. That both parents are committed to therapeutic intervention for X to assist him to reach his potential.
B. That the mother requires ongoing weekly psychotherapy which should continue for so long is recommended by her treating practitioner to assist her with her personality vulnerabilities and provide support to her.
C. The child and the father would greatly benefit from the father attending with X upon a child psychologist to improve the parent/child bond with a view to improving the father’s capacity to interact with the child.
Schedule two
Father’s Minute of Order
That the Mother and Father have joint parental responsibility for the Child, X, born on (omitted) 2010.
That the Child live with the Father and spend time with the Mother.
That, subject to Order 5, that the Child spend time with the Mother as follows:
a. Prior to the Child commencing school from;
i.Wednesday 9am until Thursday 9am, and
ii.After pre-school Friday until the commencement of pre-school on Tuesday morning, each alternate weekend.
b. After the commencement of school;
i.From after school or 3pm Wednesday until the commencement of school or 9am each Thursday, and
ii.From after school Friday or 3pm until the commencement of school on Monday or 9am each alternate weekend.
Other Special Dates
a. The Child shall spend from 4pm on the day preceding Father’s Day to 4pm on Father’s Day;
b. The Child shall spend from 4pm on the day preceding the Father’s birthday until 4pm on the Father’s birthday if the birthday falls on a non-school day, and from 3pm until 6pm in the event that the Father’s birthday falls on a school day.
c. The Child shall spend from 4pm on the day preceding Mother’s Day to 4pm on Mother’s Day;
d. The Child shall spend from 4pm on the day preceding the Mother’s birthday until 4pm on the Mother’s birthday if the birthday falls on a non-school day, and from 3pm until 6pm in the event that the Mother’s birthday falls on a school day.
e. The Child shall spend his birthday from 3pm until 9am the following day with the Father in even numbered years, and from 3pm until 9am the following day with the Mother in odd numbered years if the birthday falls on a school day. If the Child’s birthday falls on a non-school day, the Child shall spend from 3pm the day previous until 12pm (noon) with the Mother, and from 12pm (noon) until 9am the following day with the Father in odd numbered years, and from 3pm the day previous until 12pm (noon) with the Father, and from 12pm (noon) until 9am the following day with the Mother in even numbered years.
f. The Child shall spend his half-sister Y’s birthday from 3pm until 9am the following day with the Mother. If the half-sister Y’s birthday falls on a non-school day, the Child shall spend from 3pm the day previous until 5pm with the Mother.
g. The Child shall spend Christmas Day from 3pm the day previous until 12pm (noon) with the Mother, and from 12pm (noon) until 9am the following day with the Father in odd numbered years, and from 3pm the day previous until 12pm (noon) with the Father, and from 12pm (noon) until 9am the following day with the Mother in even numbered years.
School Holidays
a. Upon the Child’s commencement at school, the Child shall spend the first half of the school holidays with the Father in odd numbered years and the second half with the Father in even numbered years. School holidays shall be taken to commence at 3pm on the last day of the school term and end at 9am on the first day of the school term. School terms are defined by the gazetted school holidays for the State of New South Wales.
That for the purposes of facilitating the time the Child spends with the Mother pursuant to these Orders, where changeover does not occur at preschool, that the parties meet at Coles (omitted) at the commencement of the time the Child spends with the Mother, and at McDonalds Family Restaurant at (omitted) at the conclusion of such time.
That the Child communicate with each parent, when in the care of the other, by telephone, Facetime or Skype, each alternate day, at such time as is mutually agreed, and in lieu of agreement, at 5pm.
That each parent be restrained from:
a. Making critical or derogatory remarks about the other party or members of the other party’s family in the presence or within hearing distance of the Child, AND shall immediately remove the child from the presence of any other person who does so; and
b. Physically disciplining the Child.
That each party shall ensure the other is kept informed as soon as is reasonably practicable of:-
a. Any medical problems or illness suffered by the Child;
b. Any medication that has been prescribed for the Child;
c. Any medical appointments with any doctor, psychiatrist, psychologist or counsellor regarding the Child;
d. Any other matter relevant to the welfare of the Child; and
e. For the purpose of such communication, the parents will use their best endeavours to arrange for the respective parents to facilitate such communication.
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
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Remedies
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