Tarlon & Scalera
[2022] FedCFamC1F 265
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Tarlon & Scalera [2022] FedCFamC1F 265
File number(s): DNC 506 of 2015 Judgment of: BERMAN J Date of judgment: 26 April 2022 Catchwords: FAMILY LAW – CHILDREN – Parental responsibility – Presumption of equal shared parental responsibility – Where the parties agree on equal shared parental responsibility – Best interests of the child considered - Where there is no reason to reject the presumption.
FAMILY LAW – CHILDREN – With whom a child lives and spends time with – Best interests of the child – Where the child is in the mother’s care and had not seen the father for a significant period of time until recent interim orders resumed time spending – Where the father originally sought equal time but now seeks orders to enable a relationship to be maintained with the child – Where the mother originally opposed any time spending but is now prepared to support the father’s relationship with the child but seeks a cautious approach to any significant increase in time – Where the child has Autism Spectrum Disorder – Where allegations of abuse were investigated and concluded – Where there is no evidence that the father presents as a risk to the child – Where the mother has relocated with the child to Adelaide and the father is prepared to relocate to Adelaide – Where the father and child have a positive relationship which should be fostered – Where there should be a gradual increase in the father’s time with the child – Orders
Legislation: Family Law Act 1975 (Cth) ss 60B(1), 60B(2), 60CA, 60CC(2), 60CC(3), 69ZN, 69ZT Cases cited: Harridge & Harridge [2010] FamCA 445 Division: Division 1 First Instance Number of paragraphs: 169 Date of hearing: 22 – 24 November 2021 Place: Heard in Adelaide, delivered in Melbourne Counsel for the Applicant: Mr Livingstone Solicitor for the Applicant: Maley Barristers & Solicitors Counsel for the Respondent: Ms Farmer Solicitor for the Respondent: Withnalls Lawyers ORDERS
DNC 506 of 2015 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MR TARLON
ApplicantAND: MS SCALERA
Respondent
ORDER MADE BY:
BERMAN J
DATE OF ORDER:
26 APRIL 2022
THE COURT ORDERS:
1.That the current parenting orders be discharged.
2.That the parties have equal shared parental responsibility for X born in 2013 (“the child”).
3.That the child shall live with the mother.
4.That the child shall spend time with the father as follows:
(a)from 10.00 am to 4.00 pm each Saturday for the period concluding 7 May 2022;
(b)as and from Friday 13 May 2022 from the conclusion of school on Friday to 4.00 pm on Saturday and each alternate weekend thereafter;
(c)as and from 24 June 2022 from the conclusion of school on Friday to 4.00 pm on Sunday and each alternate weekend thereafter;
(d)as and from 5 August 2022 from the conclusion of school on Friday to the commencement of school on the following Monday and each alternate weekend thereafter;
(e)as and from the school holidays commencing at the end of the third term in 2022:
(i)for the first half in 2022 and each alternate year thereafter; and
(ii)in the second half in 2023 and each alternate year thereafter.
(f)on special occasions as follows:
(i)on Father’s Day from 9.00 am to 5.00 pm provided that the father’s time with the child is suspended on Mother’s Day from 9.00 am to 5.00 pm;
(ii)on the child’s birthday if it falls on a school day for no less than two hours and if it falls on a non-school day for no less than five hours at times to be agreed between the parties and failing agreement from 10.00 am to 3.00 pm;
(iii)on Christmas Day provided that both parties are in the same location, in even numbered years from 5.00 pm Christmas Eve until 12 noon on Christmas Day and in odd numbered years from 12 noon Christmas Day until 5.00 pm Boxing Day;
(iv)on the Father’s birthday for up to five hours provided that the father’s time with the child shall be suspended for the mother’s birthday for up to five hours.
5.That the father’s time during school term time as and from the end of term three in 2022 is suspended during all school holiday periods and shall resume on the first Friday of the new school term.
6.That the parties shall communicate with each other concerning issues that may impact upon the child by way of email, SMS messages or phone at all reasonable times or as otherwise agreed.
7.That the parties or each of them shall inform the other as soon as is practicable, of any medical and like emergencies concerning the child, that may arise when the child is in the respective parent’s care and provide to the other parent details of any treating practitioners, hospitalisation and medication.
8.That the parties shall keep each other informed of their current residential address, telephone numbers and any change within 48 hours of such change occurring.
9.That for the purpose of change over, any change over that does not occur at the child’s school shall occur at the commencement and conclusion of such time at Handover Location A.
10.That the parties shall facilitate the child making contact with each of them by telephone, SMS message, email, FaceTime or Skype providing that such contact and communication occurs at reasonable times.
11.That within 7 days of this order the mother do advise the Principal of B School in writing of the following:
(a)the identity and contact details of the father;
(b)that the father is permitted to attend the school as permitted by court orders; and
(c)a copy of these orders.
12.That MS SCALERA born in 1985 and MR TARLON born in 1985 and their servants and agents shall be restrained from removing or attempting to remove the child X born in 2013 from the Commonwealth of Australia AND IT IS REQUESTED that the Australian Federal Police give effect to this order by placing the name of the said child on the Family Law Watchlist in force at all points of arrival and departure in the Commonwealth of Australia and maintain the child’s name on the Family Law Watchlist for a period of one year unless as may be agreed between the parties in writing or until the Court shall order its earlier removal.
13.Upon expiration of the period referred to in Order 12 and subject to any further order of a court of competent jurisdiction, the Australian Federal Police will cause the removal of the child’s name from the Family Law Watchlist.
14.That upon the expiration of one year from the date of this order each party is able to remove the child from the Commonwealth of Australia for the purposes of a holiday for such period as may not interfere or contravene orders made for the child to live with the mother and spend time with the father subject to the following conditions:
(a)That any intention to travel with the child out of the Commonwealth of Australia must be conveyed to the remaining parent by three months’ notice;
(b)That the child is only permitted to travel to a country that is a signatory to the Convention on the Civil Aspects of International Child Abduction;
(c)That no less than eight weeks prior to the departure date, the travelling parent shall provide to the other parent the child’s general travel itinerary, address at which the child will be staying and telephone number on which the child can be contacted during the child’s absence from the usual place of residence; and
(d)Such further or other terms and conditions as may be agreed between the parties.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Tarlon & Scalera has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
BERMAN J
INTRODUCTION
The proceedings between Mr Tarlon (“the father”) and Ms Scalera (“the mother”) concern the future parenting arrangements for X born in 2013 (“the child”).
Whilst the proceedings had been assisted by the appointment of an Independent Children’s Lawyer (“ICL”), by order made 22 November 2021 the order of appointment of the ICL was discharged. It was considered by all parties that the continued involvement of the ICL was unnecessary given that each of the parties were well represented by solicitor and counsel and there was no longer any issue before the Court that the father presented as an unacceptable risk to the child.
The trial commenced on 22 November 2021 with judgment being reserved on 24 November 2021.
Following the conclusion of the hearing, on 7 December 2021, the parties reached agreement as to the interim arrangements for the child to spend time with the father as follows:
…
2.That the child spend time with the Father as agreed and in default of an agreement as follows:
(a)On four (4) occasions, supervised at [Contact Centre 1] in the State of South Australia or at [Contact Centre 2] in (whichever has sooner availability) at all such times as [Contact Centre 1] may be able to facilitate (and on at least one occasion per week if [Contact Centre 1] are able to facilitate this);
(b)That upon the conclusion of four (4) supervised visits at [Contact Centre 1] the child shall spend time with the Father from 12:00pm to 4:00pm each Saturday; and
(c)In the event that the Mother travels with [X] to [City C] in the Term 4 2021 school holidays and the Father is in [City C], the Mother shall provide the Father with seven (7) days’ notice of such travel and make [X] available to spend time with the Father on each Monday and Wednesday from12:00pm to 4:00pm.
(As per the original)
The orders provided for there to be telephone communication between the child and the father pending his relocation to South Australia.
The father consented to an injunction restraining him from consuming alcohol to excess for a 12 hour period prior to and then during any time that the child spends with him.
The focus of the proceedings transitioned from the previously entrenched position of the mother that she should have sole parental responsibility and the child should spend no time with the father to a concession that there should be equal shared parental responsibility but that taking into account the child’s special needs, a cautious approach should be adopted to any significant increase in the time that the child spends with the father, in particular if it were to include overnight time.
For his part, the father initially sought that the care of the child should be shared between the parties however, he conceded that he wanted orders that would enable him to resume and thereafter maintain a meaningful relationship with the child. In doing so, the father recognised that his stated commitment to the child would require him to relocate from City C to Adelaide.
BACKGROUND
The father was born in 1985 and is 36 years of age. As at the date of the hearing, the father was not in permanent employment in circumstances where he was travelling between City C and Sydney to provide emotional and physical support for his brother who at the time was undergoing medical treatment. The father has acquired the necessary skill set to work in the marine industry.
It is the father’s evidence that subject to the orders that are made, he intends to relocate to Adelaide to be proximate to the child.
The mother was born in 1985 and is 36 years of age. She has a postgraduate degree and is pursuing another.
It is anticipated that the mother will complete her current studies in late 2022 and subject to the needs of her five children, she intends to pursue further relevant training opportunities.
The parties married in 2008 and separated in January 2013.
Following the birth of the child in 2013, the parties reached an agreement that initially the father would spend time with the child on two set times per week, being Tuesday evenings and Friday mornings.
There is significant disagreement between the parties as to the extent to which the father would request to spend time with the child where the mother alleged that the father failed to attend and on the occasions that he did, was often under the influence of alcohol.
The father contends that the mother resisted the father’s attempts to see the child.
The mother re-partnered with Mr D in 2013. The mother and Mr D spent eleven weeks in Europe in 2014.
The mother and Mr D married in 2015.
The mother and Mr D travelled with the child to Country E for extended periods in 2015, 2017 and in early 2018.
In December 2016, the child was diagnosed with sensory processing difficulties suggestive of Autism Spectrum Disorder (“ASD”).
It appears that across 2017 the father spent only occasional time with the child. In February 2018, the parties agreed to the father spending weekly time with the child.
Following orders made by consent on 15 October 2018, the father spent time with the child supervised by Ms F, a psychologist who was assisting the child’s ASD management. Ms F supervised the father’s time with the child on two occasions.
On 7 April 2018, the mother received a text message from a mobile number that was ultimately traced to the father’s brother, Mr G, stating “Bullets are fucking cheap”.[1]
[1] Affidavit of the mother filed 22 October 2021, paragraph 158.
The mother alleges that following four attempts to redial the mobile number, the father answered the phone and made a threatening remark.
In early 2018, the mother applied for a Domestic Violence Order which was granted on an interim basis with further consideration of the matter adjourned to 30 April 2018. On that date, an order was made that the father was not to come into contact with the mother, the child, one of the mother and Mr D’s children or Mr D. The effect of the order was that it prevented the child spending time with the father.
As foreshadowed by the mother, it ultimately transpired that at all times the threatening remarks were made by the father’s brother Mr G and there is no evidence that the father was in any way complicit.
The father commenced proceedings on 28 May 2018.
Following the engagement of Ms F and the child’s formal diagnosis of ASD level 2 with comorbidities of generalised Anxiety Disorder and Sensory Processing Disorder, the parties were able to reach agreement such that the father spent regular time with the child.
In July 2019, the father was advised by Organisation H that they had commenced an investigation as to whether he had perpetrated sexual abuse involving the child.
Notwithstanding a forensic interview, the investigation did not reveal the basis for any offence having been committed or that the father presented as a risk.
The father’s time with the child ceased on or about 20 July 2019 and did not recommence until observed interaction took place on 11 and 12 November 2021 pursuant to an order made under s 65L of the Family Law Act 1975 (Cth) (“the Act”). The Court Child Expert prepared a report dated 19 November 2021.[2]
[2] Exhibit “1”.
The evaluation by the Court Child Expert based upon the two supervised sessions was that the father and child appeared to have a firm and positive relationship which should be fostered. Thereafter, as is apparent from the interim consent order, the parties were able to reach agreement as to the reinstatement of the father’s time with the child.
During the course of the proceedings the mother, Mr D and their children relocated to Adelaide in mid-2021. The father now concedes the reality of the child’s relocation hence his stated preparedness to leave City C and take up residence in Adelaide.
There remains some uncertainty as to the extent to which the father’s stated commitment to his brother’s treatment in Sydney will interfere with his relocation plan.
DOCUMENTS RELIED UPON
The father relies upon the following documents:
(1)Amended Initiating Application filed 1 June 2021;
(2)Trial affidavit of the father filed 21 June 2021;
(3)Affidavit of Mr G filed 1 June 2021; and
(4)Affidavit of Ms J (annexing the Family Report of Mr K dated 27 May 2021) filed 5 July 2021.
The mother relies upon the following documents:
(1)Amended Response to Initiating Application filed 26 October 2021;
(2)Trial affidavit of the mother filed 22 October 2021;
(3)Affidavit of Mr D filed 22 October 2021;
(4)Affidavit of Ms F filed 22 October 2021; and
(5)Family Report of Mr K dated 27 May 2021.
THE EVIDENCE
At the commencement of the trial, the Court highlighted the provisions of Div 12A of the Act and in particular whether the Court should dispense with the provisions of s 69ZT and apply the excluded parts of the Evidence Act 1995 (Cth).
Neither party spoke against the application of the provisions of s 69ZT of the Act. I considered that the principles of s 69ZN of the Act would be better served by receiving the evidence of each of the parties relied upon, but exercising my discretion under s 69ZT(3) of the Act as to the weight which would be given to the evidence, particularly if it is contentious.
There was some consideration of objections to affidavit evidence. Each of the parties relied upon affidavits which were appropriately confined to the significant issues in dispute between the parties.
The father
The father’s evidence is that he intends to relocate to Adelaide given that the mother has now abandoned her original plan to relocate overseas with the child. The father did not have any firm plans for his relocation to Adelaide and had not obtained employment but was confident of his employment prospects.
There was some uncertainty as to the extent of time that the father would remain in Sydney in order to facilitate and support his brother’s medical treatment.
The father accepted, at least in part, the mother’s complaint that his involvement with the child had been inconsistent. Whilst the father denied that his ability to parent and spend time with the child was as a result of alcohol and marijuana use and abuse, he did concede that prior to 2019 he did not commit to spending regular time with the child.
The father acknowledged that various agreements had been reached between the parties which were not comprehensively undertaken however, he highlighted that his lack of contact with the child was in part exacerbated by the lengthy periods of the child being taken overseas by the mother and Mr D.
The father was asked to consider the mother’s concerns that the child exhibited separation anxiety and was reluctant to transition into the father’s care. The father was candid in his acceptance that there were occasions when the child was not prepared to separate from the mother and when it was apparent to him, he would leave without incident.
Paragraphs 99 to 145 inclusive of the wife’s trial affidavit filed 22 October 2021, provide a comprehensive history of the interaction of the parties and the child. To a significant degree, the father did not cavil with the mother’s description although he was not able to provide comment as to the mother’s purported observations of the child’s presentation after having spent time with him.
As considered, the father acknowledged that his brother’s conduct in forwarding threatening text messages to the mother was inexplicable and likely to be frightening to her.
It is difficult to understand why the father’s explanation as to who authored the text message was belated however, the more relevant question is whether the father could be considered to have been complicit in his brother’s conduct.
There is little doubt that the mother was entitled to be frightened and entirely justified in making an application for a Domestic Violence Order (“DVO”) to issue. It is not controversial that the father consented to the DVO but without admission. Whilst the conduct of the father’s brother is impossible to reconcile, I am satisfied that the father did not have prior notice of his brother’s intention to forward threatening text messages to the mother and other than the unnecessary consequences of the father’s belated explanation, I do not consider that there is relevance to the incident in terms of future parenting arrangements for the child.
The father acknowledged that the parties had reached agreement that the child would attend upon Ms F, psychologist, to assist in the better regulation of the child’s behaviour patterns to help in re-establishing the father’s time with the child.
The father agreed that from time to time the child had displayed dysregulated behaviour however, he felt confident of his ability to soothe the child and manage any hysteria or emotional lability.
The father accepted that he did not see the child from 20 July 2019 until the s 65L observed interaction.
In August 2019, the father was advised by Organisation H that there would be no further action taken in respect of any allegation that he had behaved inappropriately with the child.
The parties attempted mediation in October 2019 but even though there was opportunity for the father to arrange to spend time with the child, he did not do so from 10 October 2019 to 25 February 2020. The father’s explanation for his perceived lack of enthusiasm to arrange time with the child focused upon his residence in City C and that he wanted to be certain that the investigation by Organisation H was entirely resolved.
Simply put, I consider that there was no reason or basis for the father to have not seen the child or at the very least attempted to make appropriate arrangements to do so.
The father was prepared to accept that the child had received a formal diagnosis of ASD. The father had not spoken to any expert or specialist in respect of how the needs of the child might be properly met but whilst he did gain some assistance from Ms F in 2019, the father considered that he would be able to readily care for the child and appropriately manage any upset or distress that the child might exhibit whilst in his care.
The father had considered the issues surrounding parental responsibility and held the strong view that he would be able to work cooperatively with the mother and reach consensus in respect of significant issues that would affect the child.
In particular, the father was aware that the child had engaged in the Christian faith and was prepared to accept the child’s continuing involvement.
The father had no difficulty with supporting the child’s continued attendance at B School and was prepared to provide financial assistance in respect of the child’s secondary school expenses.
Whilst the father was aware of the medical issues that impact upon the child, he agreed that he had not had any involvement with the child’s paediatrician either in City C or in Adelaide.
To his credit, the father readily conceded his confidence in the mother’s ability to make appropriate arrangements for the child and whilst communication between the parties was at an all-time low, he hoped that there would be a change for the better once the litigation had concluded.
A positive aspect of the parties’ relationship was their ability to communicate about time spent and the father’s acceptance that his own expectations would be subordinate to those as may be expressed by the child.
Moreover, text and email communication between the parties had been respectful and whilst there has been some financial contribution by the father by way of child support, the current assessment is modest given the father’s provisional income as last stated in his taxation returns provided only limited financial support for the child.
The father agreed that he was not currently contributing to the child’s private school fees nor to the cost of the child’s attendances upon Ms F.
I find that the father was genuine in his desire to maintain a relationship with the child however, he was lackadaisical in seeking to do so.
The father’s evidence did not persuade me that the mother was being unnecessarily difficult but rather given the father’s lack of action in seeking to make arrangements to see the child, the mother did not consider she should be proactive in doing so.
The mother
The mother agreed that she enrolled the child at B School without reference to the father. The enrolment form contained contact details for the mother and Mr D but not the father. It was notable, that there was no mention of the father on any document involving the child’s attendance even extending to the emergency contact which was a member of Mr D’s family.
The mother’s explanation was that there had been no discussion with the father for nearly three years and for at least two years the child had not spoken to the father either in person, by telephone, FaceTime or social media. The first time that the child had seen the father was at the s 65L observed interaction.
The mother was asked to consider the child’s semester one 2021 school report. The report is entirely satisfactory and the mother agreed that it provides an appropriate summary of the child’s presentation. The general comment in the school report is as follows:
[The child] has shown excellent ability to set goals and be persistent in achieving them. She is confident, positive and a great role model for her classmates. [The child] is an attentive student who tries hard and shows a genuine interest in all areas of the curriculum. She shows a genuine desire to produce her best work on every task she undertakes. [The child] has a thorough understanding of Mercy and constantly carries out merciful actions within her school environment.[3]
[3] Exhibit “2”, page 2.
The mother was prepared to adopt the school report but did not consider that it properly reflected the impact of the child’s presentation with ASD.
The mother appropriately conceded her surprise by the observations of the Court Child Expert in the s 65L report in terms of the strength of the observed relationship between the child and the father given that at that point he had not seen the child for two and a half years.
Even though the school report is generally upbeat and presents the child as a confident, thoughtful and academically bright child, the mother still considers that she needs psychological support in Adelaide rather than relying on the remote sessions with Ms F in City C.
It is the mother’s intention that the child will continue gaining support from the child’s occupational therapist, speech pathologist and a paediatrician.
The mother’s evidence is that she remains sceptical as to the extent to which the father will be prepared to commit to the child. If he does, then the mother is prepared to support the relationship but is likely to be vigilant if the father returns to his recalcitrant conduct in being absent from the child’s life for extended periods.
It is to the mother’s credit that she is prepared to support the father’s relationship with the child provided that any significant extensions of time between the child and the father, including overnight time, is cautiously undertaken.
The mother also sought to be able to travel overseas with the child, albeit with the consent of the father, noting that as the child progresses in school it is less viable for her to travel other than during school holidays.
The mother readily conceded that there was nothing preventing the father from receiving school reports, attending parent/teacher interviews or even school events to which parents are ordinarily invited.
The mother further agreed that the child would like to see the father and whilst it is apparent by reference to the interim orders that were the subject of consent, the mother is not yet prepared to accept that there should be overnight time without the need for further assessment and possible future proceedings.
The mother’s evidence was not impressive in respect of her explanation as to why she did not list the father as either the child’s parent or a contact person on the school enrolment form and records. It is likely that the mother reacted to the lack of attentiveness by the father to maintaining regular contact with the child.
Generally, I considered the mother’s evidence to be reliable and whilst at times she was barely able to conceal her exasperation with the father, providing he is diligent in spending time with the child as either ordered or agreed, the mother is likely to be supportive of the relationship.
Ms F
Ms F has practiced as a psychologist for 32 years both in private practice and also in sectors involving childhood trauma and abuse, family violence, substitute care and family law matters where she received instruction as a regulation 7 counsellor. She is currently the principle psychologist in a private psychological practice based in City C.
Ms F has provided professional services to the child commencing July 2018, consequent upon a request by the father to resume spending time having not seen the child for four months.
An aspect of the child’s diagnosis of ASD is that she struggles to engage appropriately when speaking on the telephone.
Ms F’s most recent appointment with the child was on 13 October 2021. Ms F considered that the child struggled with the session conducted over the telephone in circumstances where face to face, Ms F observed the child to be talkative.
Following a request by the mother’s solicitors, Ms F prepared a report dated 9 October 2021, annexed to her affidavit of 22 October 2021.
Consistent with the mother’s history of the arrangements with the father, Ms F confirmed that the mother supported the child spending time with the father and following two joint sessions of observed interaction, the parties were able to agree time spending arrangements such that the child began to spend time with the father on weekends. Ms F observed that the child did not show any sign of resistance to the visits with her father but she expressed her view that overnight time was premature.
By June 2019, Ms F was advised that the child was spending time with the father at his home on Fridays from 3.00 pm until 7.30 pm and then on Saturdays from 9.00 am until 5.00 pm.
The mother reported that following these visits, there appeared to be an increase in the child’s dysregulated behaviour evidenced by symptoms of anxiety including nail biting, kicking, irritability and at times a reluctance to see the father.
Ms F recorded the mother’s history of the child reporting that she had been naked at the father’s home and the subsequent investigation.
Whilst there was an inability to conduct a meaningful investigation given that the child found it difficult to communicate with the police, there was no separate or independent evidence that was corroborative of the father engaging in inappropriate behaviour with the child. A consequence of the investigation was that the father ceased spending time with the child from July 2019.
The concern of Ms F was to assist the Court in better understanding the child’s presentation with ASD and how that would impact upon her ability to spend time with the father given two and a half years had elapsed. Ms F recommended that initially contact be resumed by the exchange of letters, cards and emails rather than the more direct communication by telephone. Thereafter, face to face communication could resume provided that the visits were of no more than one hour duration. If there appears to be no dysregulated behaviour then there can be a gradual increase in time.
Whilst arrangements between the parties have progressed the father’s time spending with the child beyond the more cautious approach as recommended by Ms F, a significant feature of her evidence is her confidence that the mother is highly motivated to support a relationship between the father and the child.
The section 65L report
Following an order made on 14 October 2021, Court Child Expert Dr L conducted supervised time on 11 and 12 November 2021, each of 90 minutes duration.
Dr L observed that:
12.Overall, this first observation session suggested that the father had some important communication and relationship skills that are likely to have contributed to a positive father-daughter relationship in the past, and this augurs well for the future of their relationship. He has a seemingly genuine warm tone of voice and an interested facial affect. He appears able to follow [the child’s] lead and her focus of interest, he is supportive and encouraging of her communication initiatives, and he appears respectful of the [the child] as a separate individual with her own interests and ideas. Parents who demonstrate these skills are more likely to parent with sensitivity and attunement, which contributes to the child sense of security in that relationship.
A similar opinion was expressed following the conclusion of the second observed interaction:
16.In this observation session the father continued to demonstrate important skills in his communication capacity, which are considered to underpin effective relationship building. That is, his seemingly genuine warm tone of voice and interested facial affects, his capacity to follow and support [the child’s] play ideas and her focus of interest, his ability to encouraging and support her communication initiatives, and his overall apparent respectful for [the child] as a separate individual. …
(As per the original)
Dr L considered that it would be important for the mother to support the child’s ability to maintain a relationship with the father and that were the relationship to falter, “this would mean a lost opportunity for [the child] to have the involvement of a positive and responsive father in her life”.[4]
[4] Section 65L Report dated 19 November 2021, page 7, paragraph 20.
It is likely that given the father had not spent time with the child for a period of over two years prior to the observed interaction, the positive nature of the relationship between the father and the child was surprising.
Report of Family Consultant
The parties sought that a single expert report be prepared to assist in determining the most appropriate parenting arrangements for the child.
Mr K was appointed as a family consultant instructed to undertake a family assessment and prepare a report.
Mr K was aware that the father sought equal time whereas the mother was prepared to support more limited time following a relocation of the child to Adelaide.
The report of Mr K dated 27 May 2021 is annexure B to the affidavit of a paralegal in the employ of the father’s solicitor, filed 5 July 2021.
At the time of conducting the assessment and interviews in May 2021, there were no orders in place that provided for the child to spend time with the father.
Mr K noted that the mother was open to the possibility of the father resuming time with the child but remained concerned that the child might yet again be disappointed if upon a resumption of time, the father did not maintain contact.
Mr K appropriately identified the primary issue for the Court’s determination, namely whether it was in the child’s best interest to resume a relationship with the father and if so to what extent.
The father was appropriately challenged by Mr K as to the mother’s allegations that he engaged in alcohol and drug abuse. The father did not deny that from time to time he consumed alcohol but did not accept that it was ever to excess or that it interfered with his ability to care for the child.
Mr K recorded that the father was aware of the child’s diagnosis of ASD and whilst he did not consider the diagnosis to result in the same level of complex behaviour as observed by the mother, he nonetheless felt confident of his ability to manage any dysregulation in the child’s presentation.
The father conceded that whilst he sought orders for equal time he was not determined to pursue those orders but rather wanted orders that would enable him to be a part of the child’s life. In interview, the father was respectful of the mother but did not trust that she would support him having a relationship with the child.
For her part, the mother expressed frustration in her previous involvement with the father and considered that he was recalcitrant in maintaining contact.
The mother did not trust the father and whilst at that time she accepted that there was no evidence to support a finding that the father had engaged in inappropriate conduct with the child, she nonetheless harboured a residual fear and concern. The orders sought by the mother were that the father should spend no time with the child but if time was ordered, then it should be under long-term supervision.
Mr K did not observe interaction between the father and the child but noted that whilst the child understood that she had not seen the father for a long time, she was not opposed to seeing him. She was not observed to be fearful of the father and did not know why she no longer saw him.
Mr K was satisfied that the child was not fearful of the father and would be prepared to see him.
Mr K considered that it would be in the child’s interests for there to be a restoration of the relationship, initially on a supervised basis then transitioning to unsupervised day contact and eventually overnight contact.
Mr K considered that a cautious approach should be adopted and following a period of supervised time, the child should spend unsupervised time with the father from 10.00 am to 2.00 pm on Saturday’s for a period of six weeks and then following a further brief report, a consideration of the introduction of overnight time and school holidays.
Mr K’s assessment predated the s 65L observed interaction and the subsequent report of Dr L.
PRINCIPLES RELATING TO PARENTING
I consider it necessary that I adopt the approach that considers the practical reality of the separate parenting proposals of the parties. I bring to account the considerations of the primary and additional factors in s 60CC of the Act that are applicable to the circumstances of each case.
Section 60CA of the Act requires that I have the best interests of the child as the paramount consideration. The best interest test is to be considered by the application of the objects of s 60B(1) of the Act and the underlying principles in s 60B(2) of the Act.
I propose to adopt the following approach:
(1)Give consideration to the separate proposals put by each of the parties as they were identified to the Court;
(2)Have regard to the objects expressed in s 60B(1) of the Act and the underlying principles in s 60B(2) of the Act;
(3)Have regard to the provisions of s 60CC of the Act in order to determine in each case what is in the child’s best interests;
(4)Have regard to the primary considerations under s 60CC(2) of the Act, namely the benefit to the child of having a meaningful relationship with both of the child’s parents and the need to protect the child from physical or psychological harm, if applicable;
(5)Have regard to the additional considerations under s 60CC(3) of the Act;
(6)The evidence adduced by each of the parties in respect of the particular considerations pursuant to ss 60CC(2) and (3) of the Act are to be considered, and if more weight is to be given to one or more of the matters raised then it must be the subject of delineation or comment.
PARENTING CONSIDERATIONS
Meaningful relationship
The parties are agreed as to equal shared parental responsibility for the child.
The proceedings are not complex and to a significant degree the parties have each retreated from their previously entrenched position as a result of the s 65L report.
The interim orders represent a significant concession by the mother that there should be a resumption of time on an unsupervised basis. That does not mean that the mother is not sceptical as to the extent to which the father is prepared to resume and maintain a relationship with the child but absent that consideration, the mother accepts that the child loves her father and maintaining a relationship with him is of value.
For his part, the father has retreated from his primary position of equal time and now seeks only an order that would enable a relationship to be maintained. He is hopeful that if he can demonstrate a significant change in attitude and maintain an ongoing relationship then the parties should be able to reconcile their differences and reach a consensus.
I consider it proper to make a finding that each of the parties see the advantage to the child in the father maintaining a substantial relationship with her.
Orders do not need to be considered as optimal but rather should enable each of the parties to maintain an important, substantial and parentally involved relationship with the child.
In this case, there is some level of complication arising from the unilateral relocation of the mother and her family to Adelaide. Having said that, the father is now accepting of the relocation and it is his intention to live in Adelaide in order to be more proximate to the child.
Is the child at risk
The evidence did not substantiate any allegation that the father presents as a physical risk to the child.
The 2019 investigation as to whether the father engaged in inappropriate conduct with the child was satisfactorily concluded in favour of the father. The unfortunate consequence of the allegations directed against the father and the subsequent investigation was a hiatus in the father spending time with the child over two years.
The mother’s continuing concern is not now that the child is at risk but that the father will not maintain his relationship with the child now that it has been re-established following the s 65L observed interaction.
There is however no evidence of the psychological impact upon the child were the father to lose interest in spending regular time with the child.
In Harridge & Harridge [2010] FamCA 445 at [73], Murphy J adopted the following list of enquiries with respect to the risk assessment and analysis:
…
(1) What harmful outcome is potentially present in this situation?
(2) What is the probability of this outcome coming about?
(3) What risks are probable in this situation in the short, medium and long term?
(4) What are the factors that could increase or decrease the risk that is probable?
(5)What measures are available whose deployment could mitigate the risks that are probable?
(B. Mahendra, ‘Psychiatric Risk Assessment in Family and Child Law’ (2008) 38 Family Law 569).
I have given careful consideration to the historical allegations made by the mother that the father resorted to alcohol and drug abuse, the 2019 allegations that the father presented as a physical risk to the child and the more recent iteration of the mother’s historical concern that the father is not sufficiently invested in re-establishing his relationship with the child so as to maintain regular time spending with her.
The distillation of the factors relevant to the assessment of risk focus upon the need for the father’s relationship with the child to progress, in a manner consistent with the child’s ability to accept and process the ongoing arrangements.
Wishes of the child
The wishes of the child are best informed by the interaction with Mr K and the observed interaction by Dr L.
Mr K was satisfied that even though at the time of his interview the child had not seen the father, the child did not express any fear of the father, did not set out any concerns in terms of not having seen the father for some time and had maintained a sufficient emotional connection to the father that Mr K recommended a resumption of time spending subject to terms and conditions.
The extent of the emotional attachment and the strength of the relationship as noted by Dr L following her observed interaction was surprising.
To a significant degree and to the credit of the mother, her consent to the interim spend time with arrangements is a recognition that she accepts the benefits to the child of a relationship with the father being fostered provided he maintains the opportunity to remain as a significant adult in the child’s life.
The nature and relationship of the child with each of the parents and other persons
The child is strongly bonded to the mother, Mr D and the child’s half siblings.
There is little doubt that the primary family focus of the child rests with the mother and her family.
The primary orders originally sought by the father that there be equal shared parental responsibility and equal time are not supported by the child’s current circumstances.
The households of the mother and the father are not equal. Even though the mother and her family have recently relocated from City C to Adelaide, she and Mr D have both secure employment and accommodation. Their personal and family circumstances are not in question whereas there is uncertainty as to the father’s ability to obtain employment and secure accommodation.
In addition, the mother has been deeply invested in the ongoing care of the child not just in respect of her everyday needs but also in terms of the management of her ASD. The difference in terms of the provision of care for the child by each of the parties is stark and demonstrably in favour of the mother.
The likely effect of any change in the child’s circumstances
The father’s stated position at Court is that he seeks orders that will enable a relationship to be maintained and appeared to accept that the order for equal shared time with the child was ambitious.
Any consideration of a significant change in the current living arrangements for the child, by either a change in the primary care arrangements or a dilution of same, is not supported by the evidence of Ms F, Mr K nor to a lesser extent Dr L.
Orders that provide for the child to remain in the primary care of the mother but to transition to more extended time with the father, including overnight periods, is supported by the evidence.
The practical difficulty and expense of the child spending time with each of the parties
I do not know the extent to which the child has spent time with the father pursuant to the interim orders. I have not been advised of the father’s arrangements to relocate from City C to Adelaide.
I am not able to speculate but rather I accept the evidence of the father that his desire to re-establish and maintain an ongoing relationship with the child is sufficient motivation for him to relocate to Adelaide.
On the basis of the father taking up residence in Adelaide, I do not anticipate there will be any significant practical difficulty in the father spending time with the child.
Future litigation
I am not able to determine what arrangements for the child spending time with the father may be warranted into the future.
The evidence at present supports orders that would see a continuation of the current interim arrangements, graduating to more extended time and consistent with the evidence of Mr K, overnight time being introduced.
The mother is at this stage resistant to orders that would include overnight time. Whilst it is a common position adopted by parties where there is a lack of confidence in the spend time with parent’s ability to care for the child to oppose overnight time, the Court is not entitled to act on intuition or concern alone but must have some objective evidence. There is nothing about overnight time in and of itself that would cause a Court to undertake a separate pathway. There either is or is not evidence that will assist the Court in making holistic orders.
I bring to account the evidence of Ms F as to the symptoms and behavioural indicators displayed by the child arising from her ASD diagnosis.
I do not consider that the evidence speaks against overnight time occurring at all, but rather supports a contention that the transition to more extended time which includes overnight time must be taken more slowly.
I do not ignore the evidence of the father that in circumstances where he observed the child to be upset, distressed or reluctant to remain with him that he was prepared to relinquish his time. The father impressed as having the child’s best interests at the forefront of his conduct and whether it be the child’s upset either during the day or the night, there is a level of confidence based upon the evidence that if the father was not able to adequately comfort the child then he would readily ensure that the child was returned to the mother.
The best interests of the child test does not mean that the parties must display optimal parenting at all times. What is required by a parent is responsible behaviour. It is often distressing and children are likely to be distressed by being placed in the invidious position of having to navigate between two parents. It is not possible to put in place orders which will shield a child from all distress and upset that might arise from the inter-parental conflict. What is required is for the parties to be responsible in their management of the child and be reactive to the child’s needs.
I find that the best arrangement for this child is to remain in the primary care of the mother and to spend time with the father that will gradually increase in duration to encompass each alternate weekend, half school holidays and other special occasions.
Such an outcome is reinforced by the positive school and academic achievements of the child which may well be enhanced by the continued overarching involvement of the mother and will provide an ability for the father to be involved in other aspects of the child’s life.
Parental responsibility
Parental responsibility is to be informed by what is in the best interests of the child. The mother sought sole parental responsibility. The parties now agree equal shared parental responsibility. The mother’s initial opposition in respect of the father is more the product of her exasperation with his lack of diligence in maintaining the relationship with the child prior to 2019.
The father’s evidence is that he does not propose to interfere with the child’s current school arrangements and is supportive of the decisions made for and on behalf of the child in that regard by the mother and Mr D.
I do not consider that the parties are likely to come into high conflict in respect of the child’s education.
Similarly, the mother has been responsible for the management of the child’s behaviour arising from the diagnosis of ASD. Again, the father does not speak against the mother’s concerns but rather indicates that his experience with the child is that he is able to manage her presentation even if at times the child is hysterical and dysregulated.
There is nothing presented in the evidence that suggests the father would not be able to deal appropriately with episodic lapses in the child’s behavioural regulation. That is qualitatively different to the father being able to manage the child’s health needs in terms of treatment and therapeutic assistance.
The Court can have a level of confidence that the father will defer to the mother in respect of appropriate decisions that need to be made to further enhance or support the child’s ongoing development.
In the circumstances as presented on the evidence and considering that parental responsibility is informed by the best interests of the child, there does not appear to be any good reason to reject the presumption that the parties should have equal shared parental responsibility for the child.
For reasons that have been discussed, equal time or in the alternative significant and substantial time is not supported by the evidence.
Overseas travel
The mother and Mr D have an ongoing connection with Country E. There is a history of the mother and her family travelling overseas with the child for extended periods of time. Despite the misgivings by the father, there has been no suggestion of any intention by the mother to remain overseas contrary to court orders.
Nonetheless, overseas travel is always a sensitive issue and there is a need to consider the extent of which the mother and her family have secure connections in Australia and whether it is more likely than not that there is a risk of the mother seeking to permanently relocate the child’s place of residence to an overseas destination.
The father is not totally opposed to overseas travel but rather seeks a moratorium for a period of two years.
There is some merit in a watchlist order remaining in force for a period of time to enable the child to develop a more secure relationship with the father, for the mother and her family to become more entrenched in her life in Adelaide and to be better placed to express a view as to any potential for her circumstances to be changed.
I propose to put in place orders that would provide for the child to remain on the Family Law Watchlist for a period of twelve months, with the parties restrained from removing or attempting to remove the child from the Commonwealth of Australia without the written consent of each other but that thereafter each of the parties will be permitted to take the child overseas subject to the provision of three months’ notice. Such an order will enable the child’s circumstances to be settled for a minimum period of 12 months and thereafter enable the child to travel overseas but give each of the parties an opportunity to bring an application if a concern arises.
CONCLUSION
I propose to order that the parties each have equal shared parental responsibility, with the child’s time with the father to gradually increase such that as and from the commencement of the child’s third school term, the child spend time with the father from the conclusion of school on Friday to the commencement of school on the following Monday and each alternate week thereafter and one half of all school holiday periods.
I make orders as appear at the commencement of these reasons.
I certify that the preceding one hundred and sixty-nine (169) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Berman. Associate:
Dated: 26 April 2022
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