Teece and Byers
[2012] FMCAfam 1146
•20 September 2012
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| TEECE & BYERS | [2012] FMCAfam 1146 |
| FAMILY LAW – Parenting – high conflict – mother opposed to parties’ five year old daughter spending overnight time with father – mother alleging a risk to child spending overnight time with father – mother failing to articulate the nature of the risk – parental responsibility – where parties do not communicate – where mother may use sole parental responsibility as a weapon against father – overseas travel. |
| Family Law Act 1975, ss.4(1), 60B, 60CA, 60CC, 61DA, 65DAA, 65DAB, 65DAC(4) Family Law Legislation Amendment (Family Violence and Other Measures) Act 2011, Schedule 1 |
| Goode v Goode [2006] FamCA 1346, (2006) 36 Fam LR 422, (2006) FLC 93-296 MRR & GR, [2010] HCA 4, (2010) 42 Fam LR 531, (2010) FLC 93,424 U & U, [2002] HCA 36, (2002) 191 ALR 289, (2002) 29 Fam LR 74, (2002) FLC 93-112 KB & TC, [2005] FamCA 458, (2005) 33 Fam LR 471, (2005) FLC 93-224 |
| Applicant: | MS TEECE |
| Respondent: | MR BYERS |
| File Number: | PAC 4055 of 2011 |
| Judgment of: | Halligan FM |
| Hearing dates: | 10, 11, 12, 17, 18 & 19 September 2012 |
| Date of Last Submission: | 19 September 2012 |
| Delivered at: | Parramatta |
| Delivered on: | 20 September 2012 |
REPRESENTATION
| Solicitors for the Applicant: | Mother In person |
| Counsel for the Respondent: | Mr DeGreenlaw |
| Solicitors for the Respondent: | Veritas Legal |
| Solicitors for the Independent Child’s Lawyer: | Ms Hafey Legal Aid Commission of New South Wales |
ORDERS
All prior parenting orders in relation to the child, [X], born [in] 2007, are discharged.
Orders are made in accordance with the minute of order proposed by the Independent Child’s Lawyer, marked exhibit I, subject to the following alterations:
(a)In paragraph 3(a), delete “each alternate weekend” and insert “each weekend”.
(b)In paragraph 3(b), delete “each alternate weekend” and insert “each weekend”.
(c)In paragraph 3(g), delete “each alternate weekend” and insert “each weekend”.
If the mother is not working and is available to care for the chid personally on a weekend the child is to live with the father, other than under paragraphs 3(h) and (i) of exhibit I, and other than the Father’s Day weekend, the mother may notify the father not less than 14 days in advance by SMS message of her intention to retain the child on no more than one weekend per calendar month, and on the mother giving the father that notice, the father’s time on that weekend shall be suspended.
IT IS NOTED that publication of this judgment under the pseudonym Teece & Byers is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT PARRAMATTA |
PAC 4055 of 2011
| MS TEECE |
Applicant
And
| MR BYERS |
Respondent
REASONS FOR JUDGMENT
Introduction
These are contested parenting proceedings under the Family Law Act 1975.
The principal issues between the parties, who are the parents of five year old [X], are:
a)whether the father should have a psychiatric assessment before he commences to spend time with the child, as the mother seeks;
b)whether the child should spend overnight time with the father, as he seeks and as the Independent Child’s Lawyer also proposes, but to which the mother is implacably opposed, and, if so, what that time should be; and
c)whether the mother should be permitted to take the child overseas to the mother’s country of origin to visit relatives there, or whether both parents should be restrained from removing the child from Australia.
Another issue that I have raised, even though both parties seek, and the Independent Child’s Lawyer proposes, an equal shared parental responsibility order, is whether that order, or a sole parental responsibility order, should be made.
The principal issue said by the mother to be relevant to the question of whether the child should spend overnight time with the father is whether there is an unacceptable risk to the child when spending overnight time with the father, but not when spending daytime only with the father.
Background
The mother is aged 51, the father is 29. The parties commenced cohabitation in 2004 and they finally separated on 5 November 2006.
[X] was born [in] 2007.
The mother has a child of a prior relationship, [Y], who is aged 16. [Y] currently lives with his father, but the mother’s evidence is that he is imminently due to return to live with her.
The father has another child, [Z], born [in] 2012, to whom I will make further reference later.
On 20 December 2011, after a contested hearing, interim parenting orders were made providing for the parents to have equal shared parental responsibility for [X], for [X] to live with the mother, and for [X] to spend time with the father on an increasing overnight basis commencing with one night each weekend and ultimately moving up to three nights each weekend.
Despite the father obtaining the orders for overnight time after a contested hearing at which he was present and represented by counsel, despite having been represented by solicitors at all relevant times, and despite having received a copy of the orders I made, he professed to have been unaware of the orders for overnight time until he swore his affidavit for this hearing on 24 August 2012 and, hence, up to that time, he had not sought to spend any overnight time with [X].
So far as the mother is concerned, despite admitting to being aware of the order for overnight time, she never advised the child that the child was due to spend overnight time with the father and never prepared the child on any occasion to do so.
The child has spent overnight time with the father on one weekend only since I made the orders in December last year, namely, the weekend of 31 August to 2 September, when the evidence suggests the child spent overnight time with the father for two consecutive nights despite my orders providing for the child to initially commence spending one overnight at a time with the father.
The applicable law
These proceedings being for parenting orders, they fall to be determined under Part VII of the Family Law Act 1975.
Because these proceedings commenced prior to 7 June 2012, most of the amendments to the Family Law Act that were effected by Schedule 1 of the Family Law Legislation Amendment (Family Violence and Other Measures) Act 2011 do not apply to these proceedings (see Part 2 of Schedule 1 of the latter Act). In particular, the definition of family violence contained in s.4 applicable to these proceedings, and the provisions of s.60CC applicable to these proceedings, are the form of those provisions in operation immediately before 7 June 2012.
In determining what parenting order should be made the Court must regard the child’s best interests as the paramount consideration (s.60CA). The Court may make such parenting order as it sees fit, subject section 61DA, which creates in certain circumstances a rebuttal of presumption as to equal shared parental responsibility, and section 65DAB, which refers parenting plans (s.65D). There are no parenting plans in relation to [X], so section 65DAB is not relevant.
Section 60B sets out the objects of Part VII of the Family Law Act, under which this matter must be determined, and the principles that underlie those objects.
In deciding what parenting order to make, as I say, the child’s best interests are the paramount consideration, and in determining where the child’s best interests lie the Court must have regard to the matters identified by s.60CC.
The synthesis of ss.60B and 60CC in the decision-making process is explained by the Full Court of the Family Court of Australia in Goode & Goode, [2006] FamCA 1346 at [10], (2006) 36 Fam LR 422 at 428, (2006) FLC 93-296 at 80,888-9, as follows:
“10. Thus, in deciding to make a particular parenting order, including an order for parental responsibility, the individual child’s best interests remain the paramount consideration (as they did prior to the amending Act – see B v B: Family Law Reform Act 1995 (1997) FLC ¶92-755 at paragraph 9.51) and the framework in which best interests are to be determined are the factors in ss 60CC(1), (2), (3), (4) and (4A). The objects and principles contained in s 60B provide the context in which the factors in s 60CC are to be examined, weighed and applied in the individual case.”
If the Court is to make an equal shared parental responsibility order, as I am urged to do by both parties and the Independent Child’s Lawyer, then the Court must consider the child spending equal time with each parent and, if such an order is not made, it must consider the child spending substantial and significant time with each parent (s.65DAA). In relation to each of these options, the Court must consider whether an arrangement for either equal time or, if not, substantial and significant time, would be in the child’s best interests and separately consider for each in turn whether such an arrangement would be reasonably practicable (MRR & GR, [2010] HCA 4, (2010) 42 Fam LR 531, (2010) FLC 93,424. If so satisfied on either of these options, and they are dealt with sequentially, equal time first, then the Court must consider making such an order.
As to the Court’s power to consider options other than those presented by the parties - as I have indicated has arisen in this case - and the need to afford procedural fairness if doing so - and I have alerted those at the bar table that I am considering a sole parental responsibility order – see U & U, [2002] HCA 36, (2002) 191 ALR 289, (2002) 29 Fam LR 74, (2002) FLC 93-112, KB & TC, [2005] FamCA 458, (2005) 33 Fam LR 471, (2005) FLC 93-224.
I will turn to the proposals of each of the parties and the Independent Child’s Lawyer and make some observations about them without going into great detail in relation to the evidence, and then address the relevant considerations under section 60CC.
The mother's proposals
The mother proposes, as I say, that the parents have equal shared parental responsibility and that the child live with her. Since day 3 of this hearing she has sought orders that the child spend time with the father, subject to the father having a mental health assessment and that assessment being satisfactory, during school terms each Saturday and Sunday from 9 am to 6 pm on alternate weekends; in the April, July and September school holidays on Monday, Tuesday and Wednesday each alternate week from 9 am to 6 pm each day, but not overnight; and during the Christmas holidays on Monday, Tuesday and Wednesday each alternate week, no times specified. I infer the times in the Christmas holidays would be the same as in other holidays, 9 am until 6 pm.
Again subject to a satisfactory psychiatric assessment report for the father, the mother then proposes that the child have particular time with the father on Father’s Day, Christmas Day, Boxing Day, Labour Day and New Year’s Eve, and would seek an order to ensure that the child spends the whole of Mother’s Day with her.
The mother proposes other orders which I will not particularise in relation to parental communication. Frankly, some of the terms of these orders are not entirely clear. This is not said as a criticism of the mother, she having conducted her case without legal representation. The mother seeks an order restraining each of the parties from making critical or derogatory remarks in relation to the other parent in the presence or hearing of the child.
The mother seeks an order to be permitted to take the child out of Australia on 8 October 2012 for a period of one month for the purpose of travelling to the Philippines, subject to her obtaining tickets. She further seeks to be permitted to travel within Australia and internationally provided four to six weeks notice in writing is given to the father, including an itinerary for the proposed travel.
The mother proposed that changeovers for the child to pass between the parents occur at a public place and suggested a McDonald’s located opposite her home at [suburb omitted].
The mother sought an order that the orders be reviewed, she suggested when the child is 10, but in fact she specified 12 December 2016. This is a mysterious date to me, frankly, but it is a date that has assumed some apparent significance in the orders proposed by both parties, and why has never been explained. It is not the child’s birthday and the child will not, in fact, by then be 10.
The mother currently lives in her home at [omitted]. It is subject to a mortgage. She lives there with the child, and her evidence suggests that shortly [Y] will return to live there too. [Y] was a member of the parties’ household, it seems, when they were together, and the evidence suggests that there is a good relationship between the father and [Y], and there is no suggestion that [Y] would be other than an appropriate presence as a half sibling for [X].
The mother also has a separate granny flat, as she describes it, at the back of her property which is leased through estate agents, and she also has boarders. No criticism has been made in the father’s case of those arrangements.
The mother works [omitted] and since about the middle of this year has run her own [business omitted]. This has necessitated the mother working, in effect, seven days per week, six in the [business] itself and one acquiring [omitted] for the [business].
The mother was supported in her case by her sister. Her sister and the mother both indicated that on Thursdays the sister collects [X] from after school care and looks after the child until the mother herself can collect the child when she [finishes occupation omitted]. The sister also indicated that she is available and prepared to assist the mother with the care of the child when she herself is otherwise not working. She does not work on Thursday and she does not work on alternate weekends. As I understand the evidence of the mother’s sister, she suggested that she was prepared to assist the mother by working in the mother’s [business] on weekends when she is not working in her own job so that the mother could spend time with [X], but this proposal seemed to be somewhat nebulous, and bearing in mind the mother’s proposals that the child spend alternate weekends with the father, I was left uncertain on the basis of the evidence in the mother’s own case as to exactly what care arrangements the mother would propose for this child on the weekends that under her proposal the child would not be spending with the father.
The child attends a school near where the mother lives. The enrolment in that school was a unilateral decision by the mother. The child seems to be progressing well at school.
The father's proposals
The father’s proposals are, as I have indicated, that the parents have equal shared parental responsibility. Ultimately – and when I say ultimately I think it was the sixth iteration during a six-day hearing of the orders that the father sought – his proposal was that the child live with the mother and live with him on an escalating regime which was expressed to be
a)from 9.30 this coming Saturday 22 September to 6 pm Sunday and each weekend thereafter until 20 October, that is, commencing with one overnight;
b)thereafter, from after school Friday 21 October to 6 pm Sunday 23 October and every weekend thereafter until 16 December, therefore moving up to two overnights at a time;
c)then, to cover the Christmas holiday period, from 6 pm Friday 21 December 2012 to 6 pm on 23 December 2012, from 1 pm Christmas Day to 6 pm Boxing Day in 2012, from 9.30 am Saturday 29 December 2012to 9 am Monday 31 December2012, and from 9.30 on Friday 4 January 2013 to 9 am on Monday 7 January 2013 and every weekend thereafter until “6 pm on Sunday 3 February 2013” (sic).
I will assume that the reference to “6 pm on Sunday 3 February 2013” is a typographical error and is meant to refer to the Monday rather than the Sunday, because the father's proposal is that at that time the child would be with him from 9.30 Friday to 9 am Monday.
The father’s proposal is that thereafter the child spend time with him from after school on Friday 8 February 2013 to 9 am Monday
13 February 2013 and every school week thereafter.
In the alternative, if the court determined that the child should spend alternate weekends with each parent, the father sought, in addition to the Friday to Monday on alternate weekends, three consecutive nights in his “off” week.
The father proposed that, commencing in 2013, he spend time with the child during school holidays, being half of the holidays at the end of Terms 1, 2 and 3, being the first half in holidays commencing in 2013 and each alternate year thereafter, and otherwise in the first half. The father’s proposal was that the changeovers that do not occur at school be effected at McDonald’s at [suburb omitted].
In relation to the Christmas school holidays, the father proposed that in odd-numbered years, the child spend time with him for the first two weeks and for the fifth and sixth weeks. In other years, his proposal was that the child spend time with him from 6 pm, commencing two weeks after the last day of the school year, until 6 pm two weeks later, and from 6 pm on the last day of the sixth week for the balance of the holidays.
The father proposed specific arrangements for special days, including Christmas Day and Boxing Day, the child’s birthday, Father’s Day, Mother’s Day, each of the parents’ birthdays, and Easter.
The father sought an order that during any period of time that either party is not in a position to have the child live with them then the party who is unavailable to spend time with the child must provide the other party first option to care for the child.
He sought an order that the parties facilitate telephone communications at any time the child seeks to speak to either parent and, otherwise, either parent have telephone communication every Tuesday and Thursday between 5 pm and 5.30 pm.
There are a number of other provisions which I will not elaborate, but of particular significance – and here the reference to 12 December 2016 becomes part of the father's proposals - each of the parents be restrained from removing the child from Australia until 12 December 2016.
The father was living in a unit that he owned near [suburb omitted] until earlier this year. He then moved to live with the mother’s sister, to whom I have already referred. On the evening of the third day of this hearing, Wednesday of last week, the father left those premises and moved to the home of his parents at [omitted]. That home is in the process of being, or will shortly be, sold. It is anticipated that it will no longer be available for the father to occupy by the end of this year or early next, at which point the father proposes that he would move to another property owned by his parents at [omitted]. The father’s evidence is that he has a room available for the child at each of the premises owned by his parents just referred to.
I referred already to the fact that the father has another child, [Z], only born six months ago. The mother of that child is living in the Philippines. The father first met her via the internet, then met her personally when he travelled overseas to Singapore, and the mother of [Z] spent three months in Australia on a tourist visa from about 17 December last year to 17 March this year. As I say, she is now back living in the Philippines. She has two children of an earlier relationship.
The father’s evidence suggests that once he has the money to meet the cost of doing so, it is intended that a visa application would be made to enable [Z]’s mother, who he describes as his fiancée, to come to Australia. As with many aspects of the father’s evidence and proposals, there was some lack of clarity and, in fact, inconsistency in what he said his proposals were. His evidence-in-chief suggested that it was intended at the time he swore that affidavit, 24 August this year, that his fiancée’s visa application would cover not only [Z], but his fiancée’s two older children as well.
His evidence in the witness box, however, was different, and suggested, with not convincing certainty or assuredness, that he now thought that his fiancée’s two older children would remain in the Philippines if she was successful in obtaining a visa for herself and [Z].
If and when successful in obtaining a visa, the father's suggestion, confirmed and corroborated by his mother who was also a witness in his case, was that the father’s fiancée would not, in fact, move to live with the father but rather would go to [omitted] where the father’s mother has a [omitted] business, and she would work in that business. She and [Z] would visit the father in Sydney from time to time.
When I raised with the father in the witness box whether he had taken any advice in relation to the proposal for a visa application, either from a lawyer or a migration agent, he at first said, “No.” However, he then indicated he had, in fact, had advice from a migration agent who had suggested that he had two alternative forms of visa to apply for, and it was suggested that the preferable course would be to apply for a fiancée visa, as he described it. There is no such thing, as I understand it, and the situation was not clarified in the father's evidence, even though I raised this very clearly as a matter of concern to me, with his counsel. I was concerned that there was no subsequent clarification of this position.
When I asked the father if it were to be the case that to be able to have his fiancée be granted permanent residency in Australia that he and she had to live together and to satisfy the immigration authorities they were doing so, whether it would impact the plan that they not live together, he said it would and they would then live together. However, he suggested they would do so if this was a requirement of the immigration authorities. He did not seem to appreciate that it might be the other way around; rather, that it was a matter for him to satisfy pre-existing visa requirements, and if he did not do so then the visa application might fail.
But be that as it may, even if one puts those concerns aside, there remained a number of aspects of uncertainty about the father’s proposals.
The Independent Child's Lawyer’s proposals
In addition to the equal shared parent responsibility order previously mentioned, the Independent Child’s Lawyer proposed that the child live with the mother except on specified occasions when she proposed the child live with the father.
As I understand it, her proposals ultimately became - they were slightly different to the written terms submitted, which became exhibit I, that the child live with the father-
a)from 9.30 am on Saturday 22 September 2012 to 6 pm Sunday 23 September 2012 on each weekend until 21 October, changeovers to occur at McDonald’s [suburb omitted];
b)from the conclusion of school Friday 2 November 2012 to 6 pm Sunday 4 November 2012 and each weekend thereafter until 16 December 2012, changeovers at the same venue;
c)from 6 pm on 23 December 2012 to 1 pm Christmas Day 2012 and in alternate years thereafter;
d)from 1 pm Christmas Day 2013 to 6 pm Boxing Day 2013 and in alternate years thereafter;
e)from 9.30 am on 4 January 2013 to 6 pm on Sunday 6 January 2013;
f)from 9.30 am on Friday 18 January 2013 to 6 pm on Sunday 20 January 2013; and
g)from the conclusion of school on Friday 1 February 2013 until the commencement of school on Monday 4 February 2013 and each week thereafter during school terms, changeovers to occur at the school, subject to two matters that I will explain.
First, it was clearly implicit in the Independent Child's Lawyer’s proposals that the last mentioned time would be suspended during school holidays, and recommence on the first Friday of each new school term.
Second, the Independent Child’s Lawyer proposed to that there be a specific weekend per month for the child to remain with the mother, and that the mother be required to notify the father in advance if she was intending to have the child on that weekend and was, in fact, available to care for the child that weekend.
I raised as an alternative the option of not specifying a particular weekend each month when the child might remain with the mother, but rather giving the mother the option of nominating one weekend per calendar month on which she was not working and was available to care for the chid. And I will return to that later.
So far as school holiday time is concerned, the Independent Child’s Lawyer proposed that from 2013, the child live with the father for seven consecutive nights in the holidays at the end of terms 1, 2 and 3 from 9.30 am on the first Wednesday to 6 pm on the second Wednesday of those holidays, unless the parties agree on alternative dates prior to the last Monday of each school term.
For the Christmas school holidays, the Independent Child's Lawyer proposed that the child spend time with the father on 14 consecutive nights from 6 pm on 2 January to 6 pm on 16 January each year unless the parties agree on alternate dates.
The Independent Child’s Lawyer proposed that the child be with the mother on Mothers Day and with the father on Fathers Day. She proposed that the father have telephone communication each Tuesday and Thursday, he to initiate the call no earlier than 6.30 pm and no later than 7.30 pm. During the block school holiday time with the father, the Independent Child’s Lawyer proposed that the mother have telephone communication on Thursdays and Saturdays between 6.30 and 7.30 pm.
The Independent Child's Lawyer proposed certain other orders intended to facilitate the flow of communication between the parents in relation to the child’s education, welfare and health; a restraint upon the parent’s denigrating the other in the presence or hearing of the child; and a restraint on each parent enrolling the child in any extra-curricular activities that impinge upon the time that the child is to live with the other parent without consultation with and the agreement of the other parent.
Independent Child’s Lawyer proposed an order that the father ensure the child is provided with a bed during the time the child is with the father, and the father be restrained from sleeping in the same room as the child.
The Independent Child’s Lawyer supported an order permitting each of the parents to travel overseas with the child on no more than one occasion for no more than 30 days each alternate calendar year, provided six weeks notice of intention to travel had been given to the other parent with full itinerary details, together with confirmation that the child’s teacher had been consulted in advance.
Credit of witnesses
The witnesses cross-examined in this matter were each of the parties, the mother’s sister, and the father’s mother, the child’s paternal grandmother.
The father initially sought to rely upon an affidavit of his sister, but she was not made available for cross-examination, and reliance on that affidavit was withdrawn.
He also relied upon an affidavit of a cousin who was not required for cross-examination. Her evidence is of a very broad and generalised nature, offering such assistance as she may be able to afford and as the father may need in relation to the care of the child. It is very generalised and vague, and whilst I accept it, it is not particularly significant.
I have real concerns about the credit of both the mother and the father.
So far as the mother is concerned, she made very serious allegations against the father of rape. She gave a statement to the police in relation to her allegations in April last year. She alleged that those rapes occurred most significantly in the few months immediately following [X]’s birth. The statement that she gave to the police gave quite specific dates in relation to these incidents that she says had occurred in March and April of 2007, some four years prior to her reporting them to the police for the first time. Nor does it seem did she tell anybody else about them before then.
However, whilst the mother had been able to be quite clear and specific in her report to the police four years after the event, when it came to give evidence in cross-examination a little under a five and a half years after the event and something less than 18 months after making the report to the police, and despite her relating these matters by attaching a copy of an AVO application in her affidavit evidence in chief, she was not able to give evidence consistent with what she reported to the police.
After expressing some vagueness and uncertainty as to when the first alleged rape occurred, she ultimately said that it was in April or May. That is clearly inconsistent with her evidence otherwise.
Nor was I satisfied with the suggestion she gave as to why she had not reported this matter to the police earlier. One matter that she identified was embarrassment that this kept happening again and again. But of course that could not be a reason for not reporting the first one, or the second one, or perhaps even the third one. And otherwise, it could not be any reticence to involve the police for fear of any repercussions from the father, because in fact, she involved the police in relation to violent incidents between the parties in Australia in 2004, and again in the Philippines in 2008. And despite involving the police after a violent incident between the parties in the Philippines in 2008, in which the mother sustained actual injuries, there is no suggestion at that point she reported the rapes to the Filipino authorities, and there is no explanation why she did not.
They were not the only areas that caused me considerable concern about the reliability of the mother’s evidence. Another matter concerned her suggestion that there was a risk to this child of spending overnight time with the father, but she was either unwilling or unable to articulate what that risk was. When asked to do so, the mother, both to the Family Consultant and in cross-examination in this court, referred to her allegations of rape. But when I specifically asked the mother in the witness box was she concerned that the child may be raped by her father, she said no, she was not. Later when she was asked whether she was concerned that the child might be sexually assaulted by the father, she said she did not know.
I explained to the mother very clearly and at some length, and especially bearing in mind her expression of deep dissatisfaction, as she saw it, at the lack of action by the New South Wales police following her allegations of rape against the father – not only did they not charge him with any criminal offence, they withdrew the AVO application they brought – that for the court to take seriously and to give fair and serious consideration to her expressed concern that this child was at risk, she needed to say what the risk was. She needed to say to the court what she was fearful might happen to the child. She persistently and consistently said she could not say so. At that point, the mother is expressing a concern which appears to be illogical, if not irrational.
I will not go through all the other areas in the mother’s evidence that caused me concern.
Nor was I particularly impressed with the evidence of the mother's sister. The mother very belatedly seemed to attempt to make some criticism of the father’s feeding of the child, and lack of attention to an appropriate diet. One way she sought to do this was by attempting to lead oral evidence - and she did not put her sister on affidavit, I granted her permission to lead evidence orally in chief from her – in relation to what the sister had observed the father feeding [X] of an evening. Her evidence was that she saw him feeding the child deep fried nuggets and fried sausages, and if she ate those, she got treats.
When I asked Ms P what she meant by fried sausages, and how were they cooked, she indicated what I certainly would not understand a frying. She said they were cooked in a pan with no addition, not even oil. But of more concern, when she was prompted as to whether that was all she had seen [X] given by the father for an evening meal, she then, and only then, indicated that he regularly gave her vegetables.
This was clearly an attempt by the mother’s sister to mislead the court by telling a half-truth. And as I say, I am therefore not particularly impressed with her credit.
But it gets no better on the father’s side, for either of the witnesses in his case who were cross-examined.
It is of some concern to me that neither the father nor his mother, were able to tell me accurately what the father’s living arrangements were, or were to be, the very day after they changed. Each of them swore affidavits last Thursday, 13 September, indicating that it was proposed in the future that the father would move to live at the father’s parent’s home at [omitted]. The father did not say when he would move. His mother said he would move on the coming weekend. In fact, he had by then moved only the night before to live at his parent’s home at [omitted]. When there is such a cavalier attitude taken to an oath as to the truth, and to an accurate relating of the truth, even in the evidence in chief, I have grave concerns about the reliability of the evidence of those two witnesses.
I need to observe that the mother is a poor relater of very recent fact, as well. She swore an affidavit of 3 September 2012 as to something that happened the night before, and had to correct it later as being wrong.
But there are other areas of the evidence of the father that cause me considerable concern. They include, for example, the assertion in his evidence in chief that on [X] returning from hospital after birth, he attended the mother’s home every day for the next few months to assist the mother in the care of the child. In fact, over that period of time, he spent a week overseas and three or four days in hospital.
The mother too was prone to broad generalised, what some might suggest are exaggerations, but in fact, are untruths. It is not true for the father to assert that he was at the mother's home every day, in the same way as it was not true for the mother to make broad and sweeping allegations and assertions of fact on various occasions that were untrue.
For these reasons, I approach the evidence of both parties, in particular, with considerable caution. I am not satisfied either was a reliable witness.
I will relate the remaining significant evidence to the particular considerations relevant to this case under section 60CC, before coming back to make some overall assessment of the various proposals and indicating my ultimate decision.
The s.60CC considerations
Primary considerations
The first of the primary considerations under section 60CC(2) is the benefit to the child of a meaningful relationship with both parents
It is clear that this child has a meaningful relationship with both parents, and I am satisfied that the child has benefited from that in the past. I did not understand the basis for the mother’s expression of risk to the child being with the father overnight but curiously not during the day. And subject to her belated decision that there was some issue with the father’s mental health, there did not appear to be any question that the child would, in the future, continue to benefit from a meaningful relationship with both parents.
The next of the primary considerations is the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.
Bearing in mind-
a)the view that I take of the mother’s credit;
b)the inconsistencies in her evidence in relation to her allegations of rape by the father and that the father threatened to kill her; and
c)the father's denials of these allegations,
I am not satisfied on the balance of probabilities that the rapes or the threats to kill actually occurred.
These are serious allegations to make, and the court, before being satisfied even at the civil standard, on the balance of probabilities, must be reasonably certain that it is more likely than not that what the mother asserts occurred did occur, and I am not.
That is not to say, however, that I am not satisfied that there was any family violence. There were two other incidents, to which I have already adverted, in Australia in 2004, which in fact resulted in both an apprehended violence order against the father and him being charged with assaulting the mother, the charge being found proven and the father being given a bond with no conviction recorded, and the incident in 2008 in the Philippines.
The father’s suggestion is that on both of these occasions he retaliated after the mother instigating some violent interaction. His counsel sought to suggest it was self-defence. There is no stretch of the imagination by which I could read on the father’s evidence what he described as being necessary self-defence.
I note there is quite a significant difference in the size and stature of each of these parties, the father being considerably larger than the mother. There was, in my view, no need for him to retaliate, if in fact that is what he did, in 2004. I am prepared on the evidence as it stands to proceed upon the basis that it is more likely than not that there was a degree of mutuality in what occurred in both 2004 and in 2008. Each of these parties, as I understand it, is seeking to suggest that these incidents involved family violence perpetrated on them by the other parent.
At that point, it is significant to take into account very carefully the definition of family violence as applies in these proceedings. That is, in the following terms (s.4(1))-
“Family violence means conduct, whether actual or threatened, by a person toward or towards the property of a member of the person’s family that causes that or any other member of the person’s family reasonably to fear for or reasonably to be apprehensive about his or her personal wellbeing or safety”
Even if I accept the evidence of the father in relation to the incident in 2004 that he slapped the mother in the face in retaliation for the mother striking him first, there is no evidence before me that the father was in fact apprehensive about his wellbeing at all. It is otherwise in relation to the mother. She went to the police, made a complaint, an apprehended violence order was issued and the father was charged with assault and assault was found proved. That is enough, in my view, the mother being sufficiently apprehensive about her personal wellbeing or safety to take the matter to the police, to satisfy me that this was an incident of family violence by the father on the mother, and it was not family violence by the mother on the father.
Similarly in relation to the incident in the Philippines in 2008. Even if I accept the father’s evidence - that the mother first struck him in the stomach without provocation, that he then struck her in the stomach with a clenched fist to show her what it felt like, that she then punched him again and that he then pushed her - I am not satisfied on the evidence that he was reasonably or in fact subjectively apprehensive about his personal wellbeing or safety. Even if I accept his evidence that the mother’s initial blow hurt him, there is no suggestion that he was apprehensive about his personal wellbeing or safety. He did not need to touch the mother in response. If he was, all he needed to do was withdraw. He did not. That is not consistent, in my view, with him either being concerned with his personal wellbeing or safety nor in fact is it sufficient to satisfy me that what he then did amounted to any form of self-defence.
Again I am concerned that the father sought to minimise or gloss over why it was that the mother, when he pushed her after the second time he alleges she struck him, fell, struck her face and sustained a facial injury that required hospital treatment. He sought to suggest she simply tripped over her own feet and that was why she fell. When tested about this he said she moved sideways and tripped over her own feet. When pressed further he said that she first moved backwards then moved sideways and fell over her own feet. And when I specifically asked him whether it was because of the force of his push that she moved backwards, he said it was.
I am satisfied on the father’s own evidence that the reason the mother fell and struck her face was because of the force of his push to her. The fact that the mother sought hospital treatment, and the fact that she went to the Filipino authorities and obtained the equivalent there of an apprehended violence order, again satisfies me that this was an incident of family violence as defined in the Family Law Act by the father on the mother and not the other way around.
However it needs to be emphasised very strongly that despite my finding that at the time of each of these incidents the mother was apprehensive about her safety and welfare, I am not satisfied, as the mother sought to portray, that the mother had a general and pervasive deep fear of the father. She sought to ascribe this to the alleged rapes and the alleged death threats which I am not satisfied she has proven.
She also sought to suggest in her evidence that the care arrangements for this child after separation were the result of the father’s insistence and demands and her being too fearful and overborne to resist his demands. That evidence is a nonsense. The mother herself says that certainly from when the child was about 12 months old - and I note therefore that it was around about the time of the incident in the Philippines - there was an “agreement” between the parties as to the parenting arrangement. This is her description of the arrangement:
“An agreement that the child would spend almost all weekends with the father, Saturday and Sunday, day time only.”
And that is in fact the arrangement that has applied.
There have been two exceptions to that. One was in March last year when the father retained the child overnight, and I do not intend to go into the full circumstances of that. I am not satisfied that it is particularly relevant. It is not determinative in this matter. And the only other occasion was the occasion earlier this month when, as I have already alluded to, the father had the child for two consecutive nights on one weekend apparently seeking to rely upon the supposed strict letter of the order that he belatedly became aware of, but again that was simply wrong because by then he was entitled to three consecutive nights, not two. So why he had two remains a mystery, but he had two.
I am not satisfied that there is at the present time any risk of a recurrence of family violence between the parties, provided they meet in a public place.
I am also, of course, required under the second of the primary considerations, to ensure the protection of the child from physical or psychological harm from being subjected to abuse or neglect. The mother has never alleged abuse or neglect, as I understand it, subject to her rather belated attempt to criticise the diet that the father was giving the father, and that attempt failed dismally.
Where the mother says that there is a risk to this child with the father, but does not articulate what that risk is, as I have already said, the court can hardly treat that concern seriously. If the mother has some vague, nebulous, indeterminate concern that she simply cannot quite put her finger on, then it is very difficult for this court to understand it. As I have said, when being asked about this question, the mother kept harking back to her allegations of sexual abuse by the father. But in light of the mother expressly disavowing any suggestion that she thought the child may be at risk of rape by the father and saying that she did not know if the child may be at risk of sexual abuse by the father, and when one considers her resiling from part of her evidence-in-chief in her affidavit where she said she was concerned the child may be exposed to sexual behaviour, and where she similarly disputed a sexual interference risk that the Family Consultant understood that she was implying in things that she had said to the Family Consultant, I am left with simply no articulated risk to this child with the father at all.
The mother apparently was seeking to suggest that there was some sort of risk to the child because, as she suggested to the Family Consultant, the father had poor or no impulse control in relation to his sexual desires in the early hours of the morning between 1 and 2 am. But where the mother is not saying that the child is at risk of sexual abuse or exposure to sexual behaviour, that concern becomes irrelevant. But in any event, there is simply no evidence of such lack of control between 1 am and 2 am or at any other time of the day.
The only other possible risk to be considered, and I would take it to be a risk of neglect and not abuse, would arise from the mother’s desire that the father not have any time with the child until he passes a mental health assessment. The mother’s suggestion that this is necessary is risible. She agreed from when this child was one year old that the child spend almost every Saturday and almost every Sunday with the father. At the beginning of this hearing on Monday of last week, the mother was proposing that that arrangement continue. It was at the beginning of day 3 of this trial for the first time that the mother proposed an order to stop the father’s time with the child, time that she at all times up until then had been quite happy to facilitate, with that time not to resume until he passes a mental health assessment.
Nothing happened between the mother’s proposal on Monday and her proposal on Wednesday to explain this change. In fact, the change, as I understand it, relates back to the hospital admission that I alluded to, that the father had in April of 2007. I am satisfied that at that time, the father was suffering a major depressive episode and was self-harming. The mother was aware of that and this occurred a month after the child was born. And when the child was 12 months old, the mother agreed that the child could spend every Saturday and every Sunday with the father knowing what happened in April 2007. And the mother permitted that to continue thereafter without concern or demur until the third day of this hearing.
That frankly raises deep concerns about the mother’s motivation in a number of aspects of this particular case. It certainly is telling in relation to her attitude about the child’s relationship with the father, which I will come to shortly. But just how ridiculous, and I use the term advisedly, the mother’s proposal made at the beginning of day 3 of this hearing was, is illustrated by the evidence that she gave in cross-examination the preceding day. Counsel for the father in cross-examination of the mother on day 2 of the hearing, took the mother through what the father was then seeking by way of orders and he was then seeking an equal time arrangement. The mother said she had no objection to that except for overnight. At that stage she said she would accept the child spending every day for half the time with the father, provided it was not overnight.
And that is far more than the mother has ever proposed. But she clearly, on Tuesday of last week, had absolutely no concerns about the father’s mental health impairing his ability to have the child. Why she represented she had such a concern in the minute she gave me on day 3 of the trial has never been satisfactorily explained and I am satisfied it does not bear any satisfactory explanation. I am satisfied that at the moment there is no risk to the child and the child does not need protection from anything by reference to the second of the primary considerations.
Additional considerations
Turning then to the additional considerations. The first is any views expressed by the child and the factors such as the child’s maturity or level of understanding that the court thinks relevant to the weight it should give to the child’s views.
I have the benefit of a family report in this matter, and it is appropriate at this point that I deal with some of its contents which touch upon both this consideration and the next one - the nature of the child’s relationship with each of the parents and any other significant persons - which I will, therefore, deal with together.
The child’s views and relationships
The child, who was seen by the Family Consultant on 10 August this year, only last month, impressed the Family Consultant as a vivacious, confident, sociable child. The child clearly indicated that she had some understanding of there being a poor relationship and conflict between her parents. She is quoted as being of the view that her parents do not like each other very much.
That clearly is an indication of mutuality of dislike between the parents and from everything I have seen and heard during this hearing, the child is entirely accurate. However, she is reported as going on to say that her mother is angry with her father, and that of the two parents, the mother is angrier.
The child was asked by the Family Consultant if she wished to sleep overnight with her father and she replied without hesitation that she would. In response to a question about who the child would prefer to look after her if she was sick, the child said it was her father.
In paragraph 37 of the Family Consultant’s report she says this:
“Using projective techniques, [X] nominated her father as her favourite person and the person to whom she feels closest. Her nanna was nominated as her second favourite person, followed by her half-brother, [Y]. Her mother was low down on the list.”
And in the following paragraph 38:
“[X] was observed in a play session with her father. She greeted him warmly and they settled into a happy and relaxed play session together. (The father) took the role of supportive audience, rather than being proactive in play. During the session (the father) was able to demonstrate that he was comfortable taking her to the toilet and also attending to her hair.”
I observe at this point that the Family Consultant, despite the order for the family report requesting that she report upon the nature of the child’s relationship with each of the parents, did not observe the child interacting with the mother. She was asked about this in cross-examination and gave no clear reason for any conscious decision not to, other than suggesting that she thought that, as a result of the parties’ proposals, she was focusing more on the child’s time with the father. She said that with the benefit of hindsight perhaps she should have observed [X] with her mother.
With all due respect to the Family Consultant, may I say emphatically, with no doubt at all, she should have, because that was what was required by the order if she was unable to give any clear reason why it was unnecessary to do so to adequately meet the terms of the order that I made that she report on the child’s relationship with both parents.
The Family Consultant made observations, as a result of the child’s comments to her, about the child’s relative relationship with each parent and repeated that in the witness box, at one point even suggesting that the child’s primary attachment figure may be the father. The difficulty I have with placing any great weight upon that opinion, frankly, is that she has not performed a like assessment for each parent. She conceded it was possible that had she observed the child with the mother, it may have put a different gloss or complexion upon the child’s statements, but thought it unlikely. Nonetheless, she did say that the child should not be taken literally in relation to other things that the child said, for example about the days of the week that [X] said she thought she would like to spend with her father. I do not seek to be unduly critical of the Family Consultant, but I do have to say that I am not satisfied that the assessment was appropriate to address the terms of the order that I made.
I will, therefore, have to approach with some qualification, the expressions of opinion by the Family Consultant in relation to the respective relationships of this child with each parent.
Nonetheless, at paragraph 44 of the report, the Family Consultant says:
“[X] has a secure attachment with (the father). She nominated him as her favourite person in the family and the one to whom she feels closest. She perceives him as having nurturing qualities as evidence by her preference for him as her carer when she is sick. She asserted that she is not spending enough time with him. She expressed a wish to spend overnights with her father.”
Later, at paragraph 46, the Family Consultant expressed the opinion that her assessment found that overnight stays should begin as soon as possible and that there was no reason why the child should not spend blocks of school holiday time with her father. The Family Consultant then, however, noted that the father’s life is a point of change, referring to various matters, some of which I have already alluded to, including the future concerning his relationship with his fiancée and whether they would live together or visit each other from time to time or remain separated in different countries.
I have also referred to the changing accommodation, but the father has other changes that he is dealing with in his life at the moment. He is currently unemployed. He sought to start university earlier this year he says, but then deferred when a job became available. That job did not work out. He then obtained another job. He stayed on it for two days and was dissatisfied with the way he was being treated and left and, as I say, is currently unemployed. It is unclear from his evidence whether he is actively seeking employment, but he is in receipt of Newstart Allowance and I am prepared to proceed upon the basis that he is at least satisfying Centrelink that he is meeting the activity requirements to continue to receive that benefit, that is, he is satisfying them that he is making appropriate, active attempts to find employment.
However, he has stated his intention now is to attempt to commence studies towards gaining a university degree to qualify him as a [omitted] next year. He said he sought to do so in August this year but found he could not do so. He said he was seeking to start in the semester for the latter part of the year, but the evidence that he gave in the witness box satisfied me that he had no real idea about the arrangement of the university academic year at all, and I, frankly, was left somewhat perturbed about what I should make of his suggestion that he seriously intended to try and commence university studies in the second semester, as it would be, in August of a year.
The level of ignorance of the father about academic years and inferentially perhaps about other requirements for him to be able to commence his studies next year leaves me with no confidence or certainty that he will do so, even if he is otherwise entitled to, because I am not confident that he has the capacity to organise himself to meet enrolment requirements.
In fact, a number of aspects of the father’s evidence, including his evidence that he did not understand an order for overnight time had been made in December last year when he was present in court, leave me with some concern that this father is particularly gormless.
I should at this point, so I do not overlook it, make some observations about the part of the orders that was made on 20 December 2007 requiring the father to provide a separate bed for this child and not sleep in the same room as this child when spending overnight time with him.
On the one occasion the father spent overnight time with this child on the first weekend of this month, he slept in the same room as the child despite knowing that order forbade him doing so. He sought to excuse his behaviour. He failed to satisfy me that he had an adequate excuse. I accept that he maybe offended by the allegations of rape made against him. I accept he maybe offended by the assertions in the mother’s evidence, from which she subsequently resiled, that the father may be some sexual risk to this child. But bearing in mind what he knows to be the mother’s attitude towards him, it is unbelievable that the father would set himself up by sleeping in the same room as the child on the very first opportunity he had to do so under an order the court made over the mother’s implacable opposition. To describe his actions as stupid is not an exaggeration.
He had other alternatives. One, of course, was to ring up the mother and attempt to return the child to her on the basis that he was unable to make the sleeping arrangements required of him under the court order. He chose not to do so. He gave me no evidence why he could not have stayed overnight at his parents home, where there is a bed available for the child in a separate room. So there were options that the father simply did not bother to consider.
In the same way the mother knew of the orders of 20 December 2011 from the start and did nothing to facilitate them, the father made no serious effort to comply with a requirement of them when he became aware of them, and that causes me concern about what the future may hold, whatever orders I make, because I am left to doubt that that either of these parents has a true regard for what a court order is and requires of them. Nonetheless, some order is required whether the parties abide by it or not.
As the Family Consultant observed, there are many unknowns in the father’s life, but notwithstanding that, the Family Consultant was of the view that the child should spend every weekend with her father, including overnight on Saturday night, increasing to overnights Friday and Saturday, and then to Friday, Saturday and Sunday overnights. However, she recommended that if, as she put it, the mother quit the [omitted] industry and was not working on weekends, the child should spend every second weekend with her father from Friday night to Monday morning and three nights during the “off” week, and it is effectively that position that the father, ultimately, on the sixth iteration of the orders he sought, urged upon me. I note of course that the mother need not quit the [omitted] industry not to work on weekends.
Turning then to the child’s views. Clearly, the child has expressed a wish to spend more time, including overnight time, with her father. I note the child’s age, and, therefore, this child’s views would not be strongly persuasive, but they clearly are relevant.
I am satisfied the child has a good relationship with each of the parents. Each of them conceded as much even though they were reluctant or unable to really articulate any benefit the child might have or obtain from the other parent. That, I am satisfied, is simply an indication of the poisonous relationship between these parents.
Bearing in mind the comments I have made in relation to the process of inquiry and observation by the Family Consultant, I am not prepared to elevate the father’s relationship with the child as highly compared to the mother’s as the Family Consultant suggested. I am quite happy to accept that the child has a good relationship with extended family on both sides that she is able to have a relationship with.
Of course, she is not able to have a relationship with her extended family in the Philippines unless she is able to travel there. If she were able to travel there, I am satisfied that she would benefit from being able to develop a relationship with that pat of her extended family, such as she could develop consistent with her age and relatively infrequent travel.
Willingness and ability to facilitate the child’s relationship with the other parent
So far as the willingness and ability of each of these parents to facilitate and encourage a close and continuing relationship between the child and the other parent, I have grave doubts in relation to the mother. Certainly, she has facilitated the father spending day time only with the child most weekends from when the child was only one. She is to be congratulated for that.
It was sought to be suggested that that was a matter of personal convenience to the mother, but her involvement in work seven days a week only arose this year. That is not consistent that she has only been prepared to allow this time for her own convenience, rather than for any benefit to the child, as far back as 2008.
However, what is of concern is the mother’s implacable opposition to overnight time without the ability to articulate any reason for it, her approach on the third day of the trial to stop the time that she had agreed to since the child was one with no good reason to do so, and the fact that she enrolled this child to commence school unilaterally without reference to the father at all.
The father suggests that he has sought to be involved more and the mother has declined. And that certainly seems to be the evidence.
Effect of change
So far as the likely effect of change in the child’s circumstances is concerned, the Family Consultant clearly indicated that to stop this child’s time with the father, as the mother now seeks, could have catastrophic adverse effects upon this child. And I accept that is so. In any event, there is simply no reason at all to stop the child’s time with the father. There is not one piece of evidence before me to suggest there is any valid basis for the mother's suggested concerns about the father’s mental health.
I am satisfied that it will have a beneficial effect upon this child to increase the child’s time with the father to include overnight time. The child should be able to share and enjoy with both parents as many aspects of her life as possible. As I will come to, regrettably the poisonous relationship with these parents will, in effect, significantly limit the opportunities that this child could enjoy with each parent. But I am certainly satisfied that the child would benefit from an increase, particularly with the overnight time and being able to have the child enjoy, for example, a bedtime ritual with the father.
I am satisfied that even without the suspension of the father’s time until there is a mental health assessment, maintenance, as the mother seeks it, of day only time will stultify the child’s ability to continue to develop her relationship with her father as she herself grows and develops.
Parenting capacity
In relation to the capacity for these parents to meet the child’s needs, including emotional and intellectual needs, I am satisfied that each of these parents’ capacity is satisfactory.
If that sounds less than a fulsome endorsement it is meant to be. Clearly, the mother fails to appreciate the potential benefit to this child of having more time with her father. To that extent I am satisfied that she is failing to recognise the emotional and intellectual needs - particularly emotional needs - of her child. I am concerned that she is blinded to those needs by her animosity towards the father.
But I am concerned that it is not much better on the father’s side. He, too, I am satisfied, has made decisions that have been coloured by his attitude towards the mother. The most immediate example is sleeping in the same room as the child earlier this month despite an order that he not do so. I am also concerned about the incident in March last year when - and I am prepared for present purposes to accept that he was justified in retaining the child overnight - he nonetheless did not return the child to the mother as he told her he would. It has never been explained satisfactorily or at all to me why he did not.
The parties, if they are able to do so, need to take on board the fact that the child’s relationship with each of them is fundamentally different to their relationship with each other. Their relationship is poisonous. The child’s relationship with each of them is not. Irrespective of the time the child spends with her parents, each of them needs to differentiate between this child’s needs and her relationships with her parents and their relationships with each other.
The child’s and parents’ characteristics
As to the next relevant consideration - the maturity, sex, lifestyle and background of the child and either of the parents - I will say no more about the child’s age. I have alluded already to the mother’s country of origin. Of course, not only would the ability to travel to the Philippines with the mother, or with the father for that matter, enable the child to meet members of her extended family there, it would also expose the child to the culture of the country of origin of her mother. This is part of the child’s own cultural heritage.
Parental attitudes
The attitude to the child and responsibilities of parenthood demonstrated by each of the parents has, in my view, been adequately covered already.
Family violence and family violence orders
I have already dealt with family violence. I have alluded to family violence orders.
An order least likely to lead to further litigation
In this case it would be preferable to make an order least likely to lead to the institution of further proceedings, but the difficulty for the court is to see that one option is less likely to result in further litigation than another.
The track record for these parties and the fact that even after court orders were made nothing changed does not instil a great deal of confidence that whatever the court orders it might put an end to disputation between the parties.
Section 60CC(4) and (4A)
In relation to subsections (4) and (4A) of section 60CC, I have already adverted to each of the parents taking or failing to take the opportunity to participate in decisions about the child. The father was not given an opportunity to participate in a decision as to the school the child would attend.
He has sought to spend time with the child and I am satisfied that up to a point the mother has facilitated this, but she has been reluctant, in fact implacably opposed, to what would seem to be a logical and natural progression as the child grows and matures to move from day time only to overnight time and she has not been able to articulate a clear reason why.
The third of the categories of matters to be considered under subsection (4), and under subsection (4A) in particular after separation, is the extent to which the parties have fulfilled or failed to fulfil their obligations to maintain the child. The father is, as I say, on a Centrelink benefit. He is paying child support as assessed, which is a very modest sum indeed. I must say in that context I was a little concerned to read his evidence of the amount from his very meagre social security benefits he is repatriating to the Philippines for the support of his fiancé and his youngest child.
If one looks at the intention in relation to both child support and child maintenance, that one child of a parent not be advantaged at the cost of another in relation to support, I am satisfied that the father is advantaging [Z] at the cost of [X]. I am satisfied that the father’s level of support to [Z] is quite disproportionally greater than the support he is prepared to give to [X]. That does him no credit at all. The mere fact that he is paying what he must pay under an assessment does not limit the extent to which he should pay. There is no evidence of any legal obligation to pay anything to the Philippines, but he pays a significant sum there.
Discussion and decision
Having dealt with the relevant considerations it is a matter of now identifying from the various options which is most appropriate.
In doing that I must have regard to section 61DA of the Family Law Act under which in most cases, a rebuttable presumption arises that it is in a child’s best interests for the parents to have equal shared parental responsibility. But that rebuttable presumption does not arise if the court is satisfied there has been family violence (s.61DA(2)). I am so satisfied so the rebuttal presumption does not arise.
In relation to parental responsibility, as I have said, it is the application of both parties and the proposal of the Independent Child’s Lawyer that there be equal shared parental responsibility. I made plain my deep concern as to whether these parties could exercise equal shared parental responsibility. The evidence is that they simply do not communicate.
The mother says she does not want to communicate with the father. The father says he attempts to and she will not communicate with him when he attempts to, so there is a consistency at that point in the evidence.
Whether the problem arises on one side or the other or the problem arises on both sides, if there is no communication it is difficult to see how these parties can do what an order for equal shared parental responsibility requires that they do. I, therefore, as I say, raised the option of a sole parental responsibility order and that more likely than not would be to the mother, she being the parent under all proposals ultimately put to the court who would have the child for the majority of the time.
It was put by the Independent Child’s Lawyer, and I accept, that bearing in mind the dynamics in this particular case, that to make an order for sole parental responsibility is to simply equip the mother with another weapon to be used against the father and to give her power which she may misuse or abuse and not exercise consistently with the best interests of the child. As I say, I agree with that. But on the other hand, I am troubled as to how parental responsibility might be equally shared and exercised by these parties.
Whilst hope springs eternal, and one would hope that these parties might get to the point of being able to do so, I would not have confidence at the present time that they could exercise equal shared parental responsibility. Nonetheless, I am ultimately persuaded on a fairly finally balanced decision that it would be preferable to make an equal shared parental responsibility order despite great doubts that these parties could exercise it rather than to equip the wife with a potential weapon to be used against the father and not necessarily consistently with the best interests of the child.
At least if there is an equal shared parental responsibility order it will require each of the parents to consult with the other before any decision is made on any major issue concerning the child’s long-term care. It will require them to make a genuine effort to come to an agreement and it will require them to make a joint decision. And if they are unable or unwilling to make a joint decision, then they will have to come back to court to have the court make the decision for them.
That clearly is an order that arguably might be more likely to lead to further litigation than an order for sole parental responsibility. But giving the mother what may potentially be used as a weapon may itself lead to further litigation. As the Independent Child’s Lawyer pointed out, as can presently be anticipated, it is not likely that there would be any significant decisions that would need to be taken for the next five or six years, that is until the child would be due for enrolment in high school. That, of course, puts aside the unforeseeable, including, for example, major health issues.
But in relation to that and particularly in case of an emergency, I am satisfied that one parent de-facto would be able to give sufficient authority for the administration of necessary medical treatment because of the provisions in the Family Law Act not requiring third parties to inquire as to whether a decision involving parental responsibility has been made in accordance with the order (s.65DAC(4)).
I am, therefore, satisfied on balance that an equal shared parental responsibility order is in the child’s best interests.
I must, therefore, first consider an equal time arrangement. Neither party seeks one ultimately, although the father did initially in these proceedings. But I am satisfied that an equal time arrangement and, for that matter, a substantial and significant time arrangement, involving the child spending time during the school week with the father is neither in the child’s best interests nor is it reasonably practicable.
The level of conflict and animosity between these parties and their inability to communicate is such that they are unable to cooperate and make the necessary arrangements between themselves to enable this child to spend equal time or to enable this child to spend week day time with the father. To do so requires close cooperation. What is evident here is the direct antithesis of close cooperation between the parents. It is clearly against this child’s best interests to put the child in a situation where, for example, as the father suggested, if the child during the school week was in his household and found she needed something at school which was in the mother’s household, that he would take the child to the mother’s home, wait outside and send the child in to sort it all out.
Sorting it all out is why this five year old has parents. It is the parents’ responsibility, not the child’s. And the father’s proposal shows that he simply had no understanding or appreciation of the fact that what he was putting would put the child right in the middle of the parental conflict. And that is exactly the problem. The only way it could work is by the child being put in the role of a parent. And at five years old, that is not in this child’s best interests.
For those reasons, I am satisfied that neither equal time nor substantial and significant time, nor any other arrangement involving mid-week time during school term with the father can work for this child’s best interests, whatever other benefits might accrue to the child from doing so.
Exposure of children to conflict between the parents can be quite destructive of the child. And as I say, it is something that I am not prepared to run the risk of exposing this child to more than is necessary.
The result is that I am satisfied that the appropriate arrangement is for overnight time, but to occur on weekends. To ensure that these parties come into contact with each other minimally, I am satisfied that that should be, ultimately, from after school Friday to before school Monday.
But as is recognised in the proposals by the father and the Independent Child’s Lawyer, that should be built up to. It should not happen immediately. Where, at the present time, the evidence suggests that the mother is working all of all weekends, I am satisfied that it is appropriate that the father have time each weekend during school terms. However, I am concerned that this child, if the mother were available, would benefit from spending quality time with the mother on a weekend. That is, time with the mother when the mother is not, during the school week, having to get the child ready for school and keep the child to a particular regimen involving school, homework and the other mundane matters that must be attended to, and the mother getting ready herself for work.
I am satisfied that it would greatly benefit this child, and it may well improve the child’s reported attitude towards the mother, if the mother was able to arrange her affairs such as to spend some relaxation time with her daughter on weekends. I note the evidence of the mother’s sister, of working alternate weekends, and therefore being available each other weekend to assist her sister and being prepared to do so. If that assistance were, as I understood it to be suggested, by helping out in the mother’s [business] so that the mother was free to be with the child on the weekend, this would be, in my view, quite beneficial for the child.
The difficulty is how to frame an order that may accommodate this if it is a possibility. The Independent Child’s Lawyer proposed that that be by specifying a particular weekend, subject to the mother giving advance confirmation to the father that she was, in fact, spending that time and was available to do so. I raised as an alternative, giving the mother the option of nominating a weekend a month when she knew that she could be free, and giving the father forewarning of it.
I am satisfied, notwithstanding the submissions, which have some force and weight, by the Independent Child’s Lawyer about the difficulties that either of these proposals may entail, that it is the latter that is more appropriate. At the moment, I have no evidence that enables me to determine which of any two weekends the mother’s sister is available to assist. And of course, they may change over time with her work commitments. The only evidence that I have at the moment of the mother being able to be relieved of attending her [business] on weekends is by the mother being able to afford additional casual staff or her sister relieving her at the [business].
And where I cannot, by fixing a predetermined weekend, have any confidence that the mother would be able to avail herself of that weekend, then in my view, that is not maximising the prospects of this child benefiting from some weekends with her mother. I am satisfied that the way that can happen is by giving the mother the option of nominating a weekend, provided the father is given adequate forewarning, that she will have the child and the father’s time would be suspended for that weekend.
The condition of doing so is that the mother will not be working and she will be available personally to care for the child and will do so. This is not meant to be a means of the mother, by the back door, reducing the time that I am otherwise giving the father. It is to give the child an opportunity to spend some relaxation time on a weekend with her mother. As I have said, I am satisfied this child would greatly benefit from the ability to do so.
Subject to that, I intend to make the orders as proposed by the Independent Child’s Lawyer, including, and I will give reasons now for doing so, the order concerning overseas travel.
As I have said, the mother seeks to travel overseas with the child, and the father opposes it. The father acknowledged that it would be beneficial to the child to have contact with her extended family in the Philippines. He said that he feared that the child may be taken to the Philippines by the mother and not returned to Australia.
He suggested that the mother had threatened to do this. The evidence in relation to the circumstances of this was less than clear. The mother indicated that she is entitled to remain in Australia permanently, and that she intends to remain in Australia permanently. Her elder child is in Australia and settled in Australia. She has a business in Australia, she owns property in Australia, and her roots are in Australia. She has a sister here.
The mother has other siblings in the Philippines as well, and the father asserted, although his source of knowledge was never disclosed, but the mother did not dispute, that the mother also has property in the Philippines. But ultimately, I am not satisfied that there is any appreciable risk of the child’s non-return if the mother takes the child to the Philippines.
Clearly, if there was any appreciable risk of non-return, there would be a significant risk of detriment to this child, because the child would be denied, in that manner, a relationship, at least for a period of time, with her father, and that would be highly detrimental to her, as the Family Consultant clearly indicated.
But I am not satisfied that there is any appreciable risk that the mother will not return with the child if permitted to go. That is not to say I am satisfied there is no risk. That could never be asserted. But I do note that in 2008, the mother requested to take the child to the Philippines. Apparently, the father agreed on condition that he also accompany the mother and the child, and did so. It was while there in 2008 that the assault and the incident of family violence to which I have already referred occurred.
The father, after this incident of violence, left where he was then staying with the mother and the child and went to the Australian Embassy and made inquiries about an earlier than previously planned departure from the Philippines to return to Australia. The mother went to the hospital and made a complaint to the authorities, which resulted in the equivalent of an apprehended violence order. At that stage, one might think, the mother might have had motivation to remain in the Philippines and not come back, but she returned with the child, as planned.
That gives me some confidence, together with the roots that the mother has in Australia and the property she has here, that if permitted to go, she is far more likely than not to return. I will therefore make an order, as proposed by the Independent Child’s Lawyer, to permit both parties, under the regime that she proposes, to take the child overseas.
I certify that the preceding one-hundred-and-eighty four (184) paragraphs are a true copy of the reasons for judgment of Halligan FM.
Associate:
Date: 24 October 2012
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