Timmins and Zadrima

[2018] FamCA 100

FAMILY COURT OF AUSTRALIA

TIMMINS & ZADRIMA [2018] FamCA 100

FAMILY LAW – CHILDREN – With whom a child lives – Where consent orders were made in 2013 that provided the child live with the mother and spend time with the father – Where the child has a rare genetic disorder – Where the child has a meaningful relationship with both parents – Where in 2016 the mother placed the child in the care of the father – Where the child has flourished in the care of the father – Where the father has the support of external paternal and maternal family members – Where the mother breached orders by relocating the child and bringing the child into contact with her new partner –Where a change in the child’s residence would take an unacceptable risk of destabilising the child – Where there is no prospect of open honest communication between the parties about issues involving the welfare of the child – Where the practical difficulty and expense of the child travelling between the two households is a genuine consideration – Ordered the father have sole parental responsibility for the child and the child live with the father – Ordered the mother spend time with the child two weekends per school term and time during school holidays

Family Law Act 1975 (Cth) s 60CC

APPLICANT: Mr Timmins

RESPONDENT: Ms Zadrima

INDEPENDENT CHILDREN’S LAWYER: Legal Aid NSW G Town Family Law

FILE NUMBER: NCC 1507 of 2012

DATE DELIVERED: 26 February 2018

PLACE DELIVERED: Newcastle

PLACE HEARD: Newcastle

JUDGMENT OF: Cleary J

HEARING DATE: 15 – 19 January 2018

REPRESENTATION

COUNSEL FOR THE APPLICANT:	Not Applicable
SOLICITOR FOR THE APPLICANT:	Mr Haricharan

COUNSEL FOR THE RESPONDENT: Not Applicable

THE RESPONDENT: Representing herself

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: Mr Betts

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Legal Aid NSW G Town Family Law

Orders

1.That all previous parenting orders in relation to B, born … 2008 (“the child”) be discharged.

2.That the father  have sole parental responsibility for the child.

3.That the father keep the mother advised in writing [which may include email or text] of decisions taken in relation to long-term issues, such as education, religious instruction and health.

4.That the child  live with the father.

5.That the mother spend time with the child as follows:

a.During each school term on the third and sixth weekend of that term from 4:30 pm Friday until 4:30 pm Sunday, commencing 9 March2018 [Sixth weekend of Term 1];

b.For one week during each of the NSW school holiday periods at the end of terms 1, 2 and 3 commencing Saturday 7 July 2018.[End of Term 2]

c.Unless otherwise agreed in writing between the parties, the mother’s time with the child in even numbered years will commence at 4:30 pm on the first Saturday of the holiday and conclude at 4:30 pm on the second Saturday, and in odd numbered years the mother’s time with the child will commence at 4:30 pm on the second Saturday of the holiday and conclude at 4:30 pm on the last Saturday;

d.During the NSW school holidays at the end of Term 4:

i.For Term 4 holidays commencing in even numbered years, from midday on the first day after the last day of  Term 4 until midday on 30 December  [commencing 20 December 2018]; and

ii.For Term 4 holidays commencing in  odd numbered years, from midday on 27 December until midday on 6 January;

iii.Every year the mother shall spend time with the child from midday on the second last Friday of the Term 4 holiday period until midday on the last Friday of that period.

e.On the Mother’s Day weekend, from 4:30 pm Friday until 4:30 pm Sunday and in the event that the Mother’s Day weekend does not fall on the third or sixth weekend, time spent with the child is to be in substitution for the closer one of those weekends.

f.In the event that Father’s day falls on the third or sixth weekend of a term,  time that the child would  spend with the mother on that weekend shall be suspended and shall take place on the following weekend.

g.The mother may spend time with the child at such other and/or additional times, if any, as agreed between the parties in writing [which may include by exchange of text message].

6.For the purposes of changeover, the father shall deliver the child to the mother at Suburb C Train Station at the commencement of the mother’s time for weekends and the mother shall return the child to the father at Suburb C Train Station at the conclusion of that weekend time.

7.For the purposes of changeover for school holidays, the father shall deliver the child to the mother at Suburb D Train Station at the commencement of the mother’s time and the mother shall return the child to the father at Suburb D Train Station at the conclusion of that holiday time.

8.The mother is at liberty to communicate with the child by telephone each Tuesday and Thursday between 6:00 pm and 6:30 pm, with the mother to initiate such telephone call to the father’s mobile number.

9.Each party is restrained from causing or permitting the infliction of corporal punishment on the child.

10.While within the child’s presence or hearing, each party is restrained from:

a.Denigrating the other parent;

b.Denigrating any members of the other parent’s extended family;

c.Denigrating the other parent’s partner;

d.Denigrating the other parent’s friends; or

e.allowing any other person to engage in such denigration.

11.If the child suffers any illness, injury or medical emergency whilst in the care of a parent such that medical treatment is required, then that parent is to notify the other parent about the matter as soon as possible.

12.The father is to ensure that a copy of these orders is provided to:

a.the child’s current treating General Practitioner;

b.the child’s current treating Paediatrician;

c.Any school/s attended by the child.

13.These orders authorise the medical practitioner/s referred to in Order 12 (a) and 12 (b) to provide the mother (at her expense) any and all medical information that the mother may request in relation to the child’s health care and treatment.

14.These orders authorise any school/s attended by the child to provide to the mother (at her expense) copies of all school reports, photograph forms and any information or document/s ordinarily provided by the school/s to parents of a student.

15.Each party shall forthwith keep the other party informed, in writing, of their respective mobile telephone number and address and inform the other party in writing of any change to those details within five (5) days.

16.That in the event that the mother elects to undertake dialectical behaviour therapy (“DBT”), she is at liberty to provide her treating DBT practitioner with a copy of these orders (and Reasons for Judgment) and a copy of the single expert report of Dr E filed in these proceedings.

17.That the Registrar of this Court provide a copy of these orders (and the Reasons for Judgment) to the New South Wales Department of Family and Community Services.

Note: The form of the order is subject to the entry of the order in the Court’s records.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Timmins & Zadrima has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).

FAMILY COURT OF AUSTRALIA AT NEWCASTLE

FILE NUMBER: NCC1507/2012

Mr Timmins

Applicant

And

Ms Zadrima

Respondent

And

Independent Children’s Lawyer

REASONS FOR JUDGMENT

Introduction

1.These are competing applications for parenting orders in respect of one child B (“the child”) a girl recently turned 10.  The child has been living with her father by arrangement between the parties since April 2016.  She presently spends limited supervised time with her mother.

2.The child has a rare chromosomal condition[1] which is not inherited.

[1] Duplication 10P, Deletion 10Q Genetic Mutation

3.The child did not meet her early developmental milestones.  She has benefitted from a variety of therapeutic interventions over her life, including eye surgery and regular physiotherapy.  She presently has a support teacher at school and a respite carer for four hours per fortnight.

The Parties

4.The parties began an intimate relationship in 2006.  They began living together late in 2007, weeks before the child was born in early 2008.  They lived in Suburb F, a suburb of G Town.

5.The parties separated in April 2012, now almost six years ago.

6.After separation the mother moved away with the child to H Town, a regional centre in Region J. 

7.The mother now lives in Suburb K, a suburb in L Region, south west of Sydney. 

8.The distance between the two households is 235 kilometres, about 3 hours travel by car out of peak hour time zones.

The Applicant Father

9.The applicant is the father Mr Timmins, aged 44 years.  He has remained living in Suburb F.  He is self-employed in a business there, owned and run together with his sister who is his business partner.  She too lives with her family in the local area.

10.The paternal grandparents live close by to the father and are involved in the day to day care and supervision of the child.  They care for her for two hours each school morning and at times in school holidays. 

11.Relatives of the mother, the mother’s brother and his family also live in the local area and the child sees them regularly.

The Respondent Mother

12.The respondent is the mother Ms Zadrima, aged 38 years.  She now lives in Suburb K with her partner Mr M, aged 45.  Her household apparently consists of herself, Mr M, their infant son N aged about seven months, and the two children of Mr M’s prior relationship O, a girl aged almost 10 and P, a boy, of seven.

13.The mother is expecting a second child with Mr M in August 2018.

The Trial January 2018

14.The interests of the child were represented by an ICL who instructed counsel. The father was legally represented by his solicitor as advocate.  The mother represented herself in the proceedings.  Her application for Legal Aid had been unsuccessful.

15.The mother had filed a trial affidavit, of herself, on 23 August 2017. It is unclear whether that affidavit was served on the other two parties. The November 2017 trial dates were soon after vacated due to the unavailability of the Single Expert. Dates in January 2018 were allocated.

16.The mother filed a further affidavit two days before this trial began. No objection to reliance on that affidavit was raised by the other two parties.

17.As is often the case with self-representing parties the mother did not file a Case Outline document.

18.The August 2017 affidavit was not identified by the mother and was not read by me prior to trial. The presence in the file of the first affidavit came to my attention after the trial had concluded and judgment reserved. The parties were notified and the opportunity afforded to relist. However the other parties raised no objection to the affidavit of the mother being read and accepted into evidence.

19.The orders sought by the mother were finalised during the first day of trial with copies provided to the Court and the other parties after lunch on that day.  Again, no objection was raised.

20.The mother had not filed an affidavit by her partner.  I let the mother know that in any case for contested residence I would expect to see an affidavit by all adult members of both households.

21.Mid-morning on the second day of trial the mother produced a draft of a proposed affidavit by her partner.  Mr M stepped into the witness box and affirmed the contents of the document to be true.  On that basis the document was treated as an affidavit.  It was marked as an exhibit.[2]

[2] Exhibit 6

22.The matter had been allocated five days of hearing and was concluded at lunch time on the fifth day.

History of Relevant Events

23.Immediately after separation in April 2012 the mother did not allow the child to see and spend time with the father.  The child was then aged four.

24.In June 2012 there was a temporary change of arrangements when the Department of Family & Community Services (“the Department”) became involved.[3]

[3] Affidavit of the father filed 9 January 2018, Annexure B

25.The mother had become concerned that a man with whom she had been briefly involved may have molested the child.  There were investigations, examinations of the child and a JIRT interview.  Ultimately the Department became concerned about the mother’s state of mind.  The child was placed with the father for a short period of time pursuant to the safety plan put in place by the Department.  The father returned the child to the mother when he considered that she had recovered her equilibrium.

26.In June 2012 the mother filed an application for residence which she soon thereafter discontinued.

27.In September 2012 the father filed an application for residence.

28.Interim orders were made in the Federal Circuit Court providing for the child to live with the mother and spend time with the father.  The parties were to have shared parental responsibility.

29.On 1 February 2013 final orders in the same terms as the interim orders were made by consent (“the February 2013 consent orders”).  The orders were largely complied with until about May 2015.

30.In December 2014, if I accept the evidence of the mother’s partner Mr M on this issue, the mother met him online.  Early in 2015 they made contact and established a relationship.

31.On 4 May 2015 the mother sent the father a text advising him that she intended to marry her new partner and to move to live with him in the south western region of Sydney.

32.On the weekend immediately following the father noted with some concern that the child was calling the mother’s new partner “Dad” in a telephone call.  When he spoke to the child about the matter, the child explained to him that she called Mr M “Dad” because “Mum likes it”.[4]

[4] Affidavit of the father filed 9 January 2018,  pars 56 & 57

33.On 29 May 2015 the father received a message from the mother wanting to discuss parenting arrangements in view of her wish to move away.  The father agreed to negotiate and consented to a meeting between all parties and lawyers.

34.Unbeknownst to the father on 19 May 2015 the mother had completed an enrolment form[5] for the child at a school near Mr M’s home.  The mother conceded in cross-examination that the enrolment application was deliberately misleading.  In the form, the mother identified the father of the child as being her partner Mr M.  Mr M was present at the school at the time and at least allowed the principal of the school to believe he was the father of the child even if he did not actively make that representation.  There was no reference to the father in any section of the enrolment application.

[5] Exhibit 13

35.In June 2015 the mother moved to live with Mr M taking the child with her.

36.In July 2015 the father filed the current application.  The focus of that application was on keeping the child within Region J, either living with the mother if she returned to the area, or with the father if the mother chose to remain living south of Sydney.

37.In August 2015 orders were made by consent for the mother to return to live with the child in the H Town area and to return to her school there Q School.  An Independent Children’s Lawyer (“ICL”) was appointed and a Family Report ordered.

38.On 22 October 2015 an interim Apprehended Violence Order (“AVO”) was made protecting the father from the mother’s partner.

39.On 22 November 2015 the mother miscarried a twin pregnancy to Mr M in dramatic circumstances.  The mother had been advised by her doctor that the pregnancy was not viable. She had been given medication to induce a therapeutic miscarriage.  The mother was advised that there was an outside risk of severe side effects of the medication.  Unfortunately the mother suffered those effects of significant blood loss and clotting.  The child was with her and they were alone together. 

40.The mother telephoned the father and asked for his help.  He responded immediately.  The father arrived at the mother’s home, called an ambulance, reassured the child, put the mother in the recovery position and monitored her condition until she was taken to hospital.

41.In her oral evidence the mother explained that Mr M had not been with her because he had the care of his two children at that time and she had felt confident that the procedure would be straight forward.

42.The mother agrees that she thanked the father for his help at the time and by message subsequently.  However, in her oral evidence she said that she had thanked him only through fear and that he had in fact taken the opportunity to sexually assault her during this episode.

43.Within days of release from hospital the mother contacted police and made a complaint to that effect that she had been sexually assaulted.

44.On the face of it, the complaint is a serious one which reads as follows:

… The victim felt faint and fell on the ground in the kitchen when blood started to gush out of her vagina and the pain continued.  As the victim was on the floor the accused has turned up and he got down on the floor next to the victim and he started to grope and fondle the breasts of the victim.  The accused was using both hands.  He was squeezing the victim’s breasts and he was fondling her nipples.  The accused did not say anything as he was doing this.  This went on for about five to six minutes.  The victim was on the floor and she was crying, vomiting, and was in pain and she asked the accused to stop on several occasions.  The accused only stopped when he heard the front door open and [a friend of the mother’s] arrived back at the victim’s house.

45.Counsel for the ICL submitted that the Court could not accept that the father had assaulted the mother in this way.  Not only because no charges were brought but because of the inherent unlikelihood of such an assault taking place in those circumstances in the presence of a distressed and hysterical child, then aged almost eight years.

46.I agree and am confirmed in that conclusion by the fact that in her oral evidence the mother resiled from her original allegation and asserted that the assault had gone on for five or six seconds and that the time period referred to in the police report (5 or 6 minutes) must have been a mistake.

47.I also consider that it is at least likely that the mother’s complaint to police[6] on 27 November 2015 came in response to the father having filed an Application in a Case asking that the mother be restrained from allowing the child to come into contact with Mr M by any means including electronic means.

[6] Exhibit 9

48.The father was at that time concerned about reports by the child that Mr M had called her an insulting name “retard” and had also told him that she hated Mr M. I am satisfied that although that word was used in a conversation with the child it was not directed at her.

49.On 10 December 2015 interviews took place with all parties for the first Family Report. On that occasion the child in what is described by the Family Consultant as an “unsolicited manner”[7] said to the Family Consultant “Dad has guns, Mum is telling the truth”.

[7] Family Report dated 17/12/2015, par 69

50.Earlier when the Family Consultant had conducted an observation of the father with the child, he noted that the child was initially reluctant to be engaged in play but after a minute wanted the father to play with her, saying at the same time however to him, “You’ve got guns at your house”.[8]

[8] Family Report dated 17/12/2015, par 72

51.The Family Consultant then asked the child who had told her and she replied by saying “Mum”. The father then reassured the child “You know I don’t have guns, you’ve been to my place.” Thereafter the child is reported to appear relaxed in her father’s presence.

52.These interviews took place two weeks after the mother had complained to police that the father had sexually assaulted her.  She did not, at the time of making that complaint, make any reference to the father having guns in his home. 

53.Given the innocence of this child, it is possible, if not probable, that the mother simply told the child that the father had guns in his home and that it would be important for the child to tell the Family Consultant about that.

54.The Family Consultant expressed a range of concerns about the mother’s presentation on that day.  He noted the possibility that she had suffered Post Traumatic Stress as a result of a long violent and abusive relationship engaged in from the age of 15 years.  At a young age the mother’s mother had died of breast cancer and her father thereafter moved away.  The Family Consultant described this period in the mother’s life as “turbulent, abusive and clearly psychologically destructive for her.”[9]

[9] Family Report dated 17/12/2015, par 74

55.The Family Consultant recommended that the mother’s mental health be further investigated by a clinician/ psychiatrist with expertise “with personality disorders and post-traumatic stress”.

56.The Family Report was released initially to the ICL soon after receipt and released to the parties on 9 February 2016 noting that a Chapter 15 Expert should be appointed.

57.On 12 February 2016 the father filed a Notice of Risk. Raised in that notice was an allegation relating to the child having made statements at school in mid-2015 to the effect that Mr M had come into her room to tickle her and to wrestle with her whilst naked.  There was also an allegation that Mr M had threatened to slit the father’s throat.

58.The father may have also been motivated by having had a telephone call on 8 January 2016 from police resulting from allegations by the mother that the father had guns and had made death threats.  He attended for interview after which the application for an AVO for the protection of the mother was withdrawn by police.  There were no charges and no further follow up.

59.On 22 February 2016 orders were made by consent appointing a Single Expert, restraining the mother from allowing the child to come in contact Mr M and increasing time for the child with the father, namely on Wednesday nights for dinner.  At that time it was noted that the father’s application for interim residence remained live and that the father might seek to press those orders on the next occasion.  Also on that date the mother informed the Court that she had separated from Mr M.[10]

[10] Notation to Orders 22/02/2016

60.Having heard all of the evidence I conclude that the statement by the mother about separation from her partner was not a truthful one.

61.On 14 and 15 March 2016 the parties, the child and others were interviewed by the child and family psychiatrist who had been appointed as the Single Expert, Dr E.

62.On 18 March 2016 after the interviews but before the release of the report, the mother proposed to the father a trial of the child living with him.[11]  It is apparent that the father responded unfavourably.  There was a second communication by the mother ending with the words “… so you’re telling me you can’t take her, is that correct?”  Those texts were provided by the father to Dr E who referred to them in her report and attempted to contact the mother to discuss their implications.  However after two unsuccessful attempts and no response by the mother to a voicemail message the Single Expert did not pursue the matter further.

[11] Exhibit 19

63.The Single Expert produced a report in April 2016 and gave oral evidence in these proceedings. 

64.Without proceeding to a formal diagnosis the Single Expert made a clinical assessment of the mother as follows:[12]

[Ms Zadrima] did not demonstrate any insight into how her behaviours could be viewed as unhelpful to her and [the child], nor did she appear willing to reflect on different perspectives to her own.  Without acknowledging a need to make changes she will not be assisted by therapeutic interventions.  Her alleged long term propensity to be deceptive without remorse ‘possibly to avoid taking responsibility for her actions’ to have intense, chaotic relationships, to be impulsive and emotionally reactive, [is] one highly suggestive of marked DSM Cluster B traits (dramatic, erratic).

[12] Single Expert Report dated 8/04/2016 annexed to affidavit filed 10/05/2016, page 21, sub-    pars 2 & 3

65.The Single Expert recommended that the child go to live with the father and that there be graduated periods of time with the mother culminating in alternate weekends. A further recommendation was that the mother “could find psychotherapy with a dialectical behaviour therapist useful should she voluntarily undertake a course of change.”

66.Mr M was not present for interviews with the Single Expert in March 2016.  In the witness box the mother denied that she had separated from Mr M at that time.  She could not remember why he was not present.  The Single Expert reports that the mother told her that “She used to be in a relationship with Mr M which was why Court started”.[13]

[13] Single Expert Report dated 8/04/2016 annexed to affidavit filed 10/05/2016, page 3 point 6

67.Further, the child told the Single Expert that “They [she and her mother] did not go to [Mr M’s] home anymore ‘because he put her in the backyard for time out which I hated’”.[14]

[14] Single Expert Report dated 8/04/2016 annexed to affidavit filed 10/05/2016, page 5 point 4

68.The Single Expert reported that although she had been told by the mother of this separation she was not convinced that the parties had separated.

69.I conclude that the relationship between the mother and Mr M did not break down.  The mother spent time with Mr M when the child was with her father on alternate weekends and I conclude that the report of separation to the Single Expert was a ruse by the mother.

70.The subsequent oral evidence of both the mother and Mr M confirmed the Single Expert’s assessment. They had not separated and the mother misrepresented the situation.

71.On 26 April 2016 the matter was back before the Federal Circuit Court.  The Contravention Application filed by the father was listed for an interim hearing.  On that day the mother informed the Court that she had resumed her relationship with Mr M. 

72.On the afternoon of that same day the mother placed the child into the care of the father. 

73.The father had declined to drive to the home where the mother lived with Mr M. I consider that his attitude reflected concern about further allegations by the mother of wrong doing, not lack of interest in the welfare of the child.  Faced with his refusal to come to her new home the mother was driven by Mr M with the child to the home of the paternal grandparents in G Town and the child was delivered to the father there. The child has remained living with him since.

74.The arrival of the mother with Mr M at the home of the paternal grandparents with the child represented a flagrant breech of the order restraining the mother from bringing the child into contact with Mr M. The mother had consented to that restraint two months prior.

75.On balance, I consider it likely that the mother did not strictly comply with the restraint from the time it was ordered in February 2016.  Indeed, she may not have complied with it at all.

76.In May 2016 the report of the Single Expert was released. 

77.By then, the mother was openly living with Mr M full time in his home in Suburb K.

78.On 25 May 2016 further orders were made in the Federal Circuit Court effectively confirming the residence arrangements put in place by the mother with the acquiescence of the father.

79.Over the following weeks further orders for time and communication for the child with the mother were made in the Federal Circuit Court; for telephone contact [10 June 2016] and supervised time in a contact centre [17 June 2016].

80.Supervised time was to take place for 12 weeks, followed by alternate weekend time. Notations to those orders were that the matters in respect to the child were complex and the mother currently lives with Mr M and intends to file an application seeking to remove the injunction preventing her from bringing the child into contact with Mr M.

Transfer to the Family Court

81.At that point the matter was transferred to this Court.

82.After transfer, the matter was listed before a judge of this Court for case management.  On that day, by consent, all outstanding applications in relation to de facto property dispute were dismissed with no order as to costs.

83.During the course of this trial, the mother asserted that the father had offered to return the child to her in exchange for the mother withdrawing her property application. There was, in the first affidavit of the mother, a copy of a text message from the father encouraging the mother to withdraw her property application and agreeing to lift the restraint on the mother’s partner.[15] The tenor of the suggestion was in the nature of settlement discussions and also drew the mother’s attention to the limitation period for property claims.

[15] Affidavit of the mother filed 22 August 2017, Annexure F2

84.On the same day interim orders were made by consent, discharging the orders made on 17 June 2016 about supervised time at R Contact Centre and providing for  time with the mother, supervised by S Contact Centre, for two hours every third Sunday.

85.On 11 November 2016 further interim orders were made. The 2013 consent orders were suspended and interim parenting orders were discharged. Orders were made by the Court that the child live with the father, that the parties ensure that the child spend supervised time with the mother two hours each third Sunday under the supervision of S Contact Centre, that the parties be restrained from allowing the child to remain in the company of Mr M, that both parents undertake CDT testing and chain of custody urinalysis. All otherwise outstanding applications were dismissed.

86.On 25 November 2016 the matter came before me.  The parties were directed to attend for a further report with the Family Consultant who had seen them in December 2015.

87.On 8 September 2016 the mother wrote an intemperate letter directly to the ICL titled “No Supervised Visits!”  It was a critical letter and rude in parts, described by counsel for the ICL as a “rant”. The flavour of it can be understood from the opening sentences:[16]

I do NOT need or will be attending any supervised visits with my child [B].  That’s the biggest insult I’ve even (sic) gotten and you should be ashamed of yourself for even suggesting it let alone putting it to a judge.  It just shows how little you truly know!

[16] Exhibit 11

88.Both parents, Mr M, the paternal grandparents and the child were interviewed and observed by the Family Consultant.

89.The ultimate recommendations in the resulting report[17] were that the child live with the father, that the mother commence spending unsupervised time with the child every third weekend from Friday afternoon until Sunday afternoon and school holiday time with the mother if six months of uneventful contact had taken place.  The recommendation was conditional on the mother engaging in Dialectical Behaviour Therapy (“DBT”) with a clinician with expertise in the area. 

[17] Family Report dated 7/03/2017

90.By then the mother had begun supervised time despite her earlier protestations.

91.On 21 April 2017 the matter was listed for a five day hearing in November 2017. 

92.In mid-2017 the mother gave birth to the child of her relationship with Mr M.

93.When the trial commenced in January 2018 the mother, through her affidavit, advised the Court that a second child was expected in August 2018.

Evidence

94.At the commencement of the trial both the father[18] and the mother[19] had proposed Minutes of Order.  By the conclusion of the trial, both the father[20] and the ICL[21] had proposed draft Orders.

[18] Exhibit 2

[19] Exhibit 3

[20] Exhibit 23

[21] Exhibit 22

95.The documents relied on in respect of the application were as follows: 

The [Applicant] father

(a)Minute of Orders.[22]

[22] Exhibit 23

(b)Affidavit of the father filed 9/01/2018;

(c)Affidavit of the father filed in Court on 16/01/2018;

(d)Affidavit of the paternal grandfather Mr T Timmins filed 9/01/2018;

(e)Affidavit of the paternal grandmother Ms U Timmins filed 9/01/2018;

(f)Affidavit of the maternal uncle Mr V Zadrima filed 9/01/2018;

The [Respondent] mother

(g)Minute of Order;[23]

[23] Exhibit 3

(h)Affidavit of the mother filed 11/01/2018;

(i)Affidavit of the mother filed 22/08/2017;

(j)Affidavit of mother’s partner Mr M;[24]

[24] Exhibit 6

Reports

(k)Family Report dated 17/12/2015;

(l)Family Report dated 7/03/2017;

(m)Single Expert Report dated 8/04/2016 and annexed to an affidavit filed 10/05/2016.

Oral Evidence

The Father

96.The father presented as composed and thoughtful. He made appropriate concessions. For instance, that the mother had been responsible for the majority of day to day care of the child until separation. Further that the mother arranged the majority, if not all, of the medical appointments for the child whilst the parties were together.

97.The father made a concession that he had been a regular user of marijuana until separation.

98.The father did not step back from having consented to the 2013 consent orders and from being satisfied with the arrangement that the child live with the mother pursuant to those orders. It is likely that if the mother had remained living in the Region J area the father would have been content for the child to continue living with her, all other things being equal.

99.In relation to the CDT testing which was ordered, the father’s first test result showed elevated levels of alcohol consumption.[25]  He was directed to undergo a second test, the result of which was normal, that is, it did not support excessive alcohol intake.[26]

[25] Affidavit of the father filed 9/01/2018, Annexure D

[26] Affidavit of the father filed 9/01/2018, Annexure E

100.Counsel for the ICL submitted quite properly that the ICL had been concerned by the elevated levels reflected in the first test. Enquiry by subpoena revealed a matter in 2008 when the father was found to have mid-range prescribed content of alcohol. The matter was dealt with under s 10 and did not proceed to conviction.  There is otherwise no other evidence to support the father drinking at dangerous levels although he may have done so.

The Paternal Grandfather – Mr T Timmins

101.The paternal grandfather is 65 and retired.  He presented as a straight forward and honest witness.

102.He firmly acknowledged the need for the child to speak to her mother by telephone. He has initiated occasional telephone calls at breakfast time between the child and her mother. He has also himself sent photographs to the mother of the child at special events and at school.

103.I am confident that whatever he privately thinks about her behaviour at times, the paternal grandfather is respectful of the relationship between the child and her mother and of the mother herself in that role.

The Paternal Grandmother – Ms U Timmins

104.The paternal grandmother is 63. She has retired from the business which she and her husband formerly ran. However she assists her son [the father] and daughter who bought the family business as they require her help.

105.She too was a straight forward witness with a no-nonsense air about her.

106.The paternal grandmother made concessions appropriately. For instance, that she had in the past complimented the mother on the child’s good manners.

107.I accept that the paternal grandmother became impatient and then angry about a period of months when the paternal family was unable to see the child, even in a photograph. 

108.Those feelings prompted her in January 2016 to make a direct request of Mr M’s mother for photographs of the child. She also chose to issue a warning to the mother’s future mother-in-law about the mother’s conduct.[27] The mother was offended by this correspondence and asked questions in cross examination accordingly. However, there was no challenge to the commitment and interest of the paternal grandmother in the child.

[27] Affidavit of the mother filed 11/01/2018, Annexure B

The Maternal Uncle – Mr V Zadrima

109.The maternal uncle, the mother’s brother, was not required for cross-examination. His evidence was accordingly unchallenged. 

110.He is aged 40, married and lives with his wife and children in the area local to the paternal family.

111.The uncle and his family have been closely involved with the child all her life.  They have regularly cared for her in their home. The child and her older maternal cousins have a close relationship.

112.Post-separation the uncle and the mother had a falling out which has not been repaired. The mother thereafter ceased visiting her brother and his family and refused to bring the child to see them. However, the father and his family have maintained their relationship with the maternal uncle and his family.

The Mother – Ms Zadrima

113.The mother presented as a passionately determined parent but not as a reliable witness.

114.I formed the impression that when she answered, as she frequently did, that she could not remember an event because it was “so long ago” that the answer was given to avoid responding in a way she thought may not assist her.  I am supported in this view by her ability to give detailed responses about many events further back in time.

115.The mother was evasive on the subject of her relationship with Mr M. That relationship commenced early in 2015. In May 2015 the mother told the father that she intended to marry Mr M and wanted to move to Sydney to live with him.

116.The mother has more recently taken on the role of full-time step-parent to Mr M’s two children from a previous relationship.

117.The mother wishes to have the child back in her full time care. I am satisfied that she said and did whatever she thought would be most effective in achieving that goal. She probably felt justified but was indifferent to the adverse consequence on others, including the child, of fabrications and exaggeration.

The Mother’s Partner - Mr M

118.Mr M gave the Court his occupation as a tradesman, working on a permanent casual basis.

119.In 2016 Mr M told the Family Consultant in his own Family Court proceedings that he owned a business catering to parties such as hen’s nights.[28] The mother in her oral evidence referred to Mr M owning this business and stated that she made some money from conducting parties through Mr M’s business. Mr M may have forgotten to include information about this business in his affidavit although it seems unlikely.

[28] Exhibit 15, CAPIA dated 15 April 2016,  par 33

120.The document which became an affidavit of this witness was largely focused on criticism of the father. Mr M made accusations, strongly denied by the father of which the following are examples.

121.The first relates to the first meeting of the father and Mr M which is said to have taken place at the mother’s home in H Town.  The occasion was on a Wednesday night when the father had arrived to take the child out for dinner.  Wednesday nights for dinner were added to the pattern of time for the child with her father by consent orders made on 22 February 2016.  It seems unlikely that the first meeting of the two men was almost 12 months after the relationship began between the mother and Mr M but it may have been so.

122.Mr M alleges that he introduced himself to the father who responded immediately with advice to leave the mother who was “trouble” and “would use him.” 

123.Further, it is alleged that the father offered to obtain drugs, “marijuana and ecstasy” for Mr M. It was specifically denied by the father and seems unlikely given the contested legal proceedings over the child that the father would seek to antagonise Mr M with criticism of the mother, and further, put himself at risk of trouble by offering drugs to a stranger.

124.Another incident is said to have taken place after the father dropped the child off to the mother in the company of a man with the nickname “Mr W”.  Mr M alleges that Mr W could hardly walk, “He was either drunk or stoned” and that “[Mr Timmins] [the father] wasn’t much better, even though he had just drove with the child in the car.” The mother was, on the evidence of Mr M, present on this occasion. It seems improbable that if Mr M and/or the mother genuinely believed that the father had driven the child home to her in a state of intoxication that no complaint was made to police or at least the legal representatives for the father.

125.In his oral evidence, Mr M was less critical but not particularly reliable. The evidence about his own drug use was inconsistent.

126.In December 2015 he had told the Family Consultant in these proceedings that he had used cannabis previously but “has not been an illicit substance user for at least a ten year period.”[29]

[29] Since 2005

127.In his oral evidence Mr M said he had not used drugs since 2007. He conceded error about that when taken to the CAPIA for himself and his former partner conducted in April 2016. At that time he stated to a Family Consultant “he had used cannabis daily but only in the evenings up until 2 years ago when ceased all cannabis use”.[30]

[30] Exhibit 15, CAPIA dated 15/04/2016, par 34. No drugs since 2014

128.Later in his oral evidence Mr M corrected again to nominate 2012 as the date when he gave up using drugs after the end of his relationship with his former partner.

129.Mr M was present for interviews on 10 December 2015 for the first Family Report. He did not attend for interviews with the Single Expert and said that he was unaware that he was required to be there. That evidence sits uncomfortably with the statements made by the mother to Dr E that the relationship between them had finished some weeks ago and that she had decided to end it for stated reasons.

130.In his oral evidence Mr M said that speaking for himself he believed that he and the mother had been together as a couple since early 2015 with a week or two weeks at most on a break where they thought through their circumstances.

The Single Expert – Dr E

131.Dr E considered the two reports from the psychologist whom the mother had consulted[31] as a result of recommendations made by Dr E.

[31] Exhibit 3

132.Dr E considered that the instrument used to test the mother on two occasions was not diagnostic and whilst acknowledging that psychologists went about things differently, in her view diagnosis of personality difficulties required a clinical assessment.

133.Dr E also noted that she had not found the mother to be “patient and unassertive” as the psychologist did, far from it, nor did she consider that the mother suffered from symptoms of a generalised anxiety disorder.

134.Dr E noted that the mother had communicated to her that she was still talking to Mr M but they were not often seeing each other, she had no contact with his children, the sexual relationship had ceased and the relationship itself had stopped weeks ago.

135.The Single Expert noted that amongst the many documents she had read, there was a Family Consultant’s memorandum from 2012 raising the prospect of mental health difficulties for the mother. 

136.Dr E in the witness box, was clear to say ,when asked by the mother to describe what the problem about herself was, that her behaviours were maladaptive and that her personality was characterised by “…intense, chaotic relationships, being impulsive, being deceptive and emotionally over-reactive” and that was the meaning of the reference to Cluster B traits.  She explained to the mother “I haven’t diagnosed you because I don’t have a clear history of characteristic behaviour by you throughout adulthood.  You have exhibited some of those behaviours”.

137.The Single Expert also explained to the mother that she, in her forensic role as Single Expert Reporter, does not accept what people say to her at face value, “people tend to put their cases in the best way they can.”

138.The Single Expert explained to the mother that Dialectical Behaviour Therapy could be useful for her, and would deliver new skills to assist her with distress tolerance, emotional regulation, improved critical thinking, and a reduction in chaotic interpersonal relationships.

139.It is to the credit of the mother that she sought out a clinical psychologist after the Single Expert Report was released. The two reports produced by that clinical psychologist are based only on what the mother had reported. The mother had been keen to establish that she was the best mother she could be and that she did not suffer from mental illness. The mother was trying to “clear her name”

140.For that reason this attempt by the mother to follow up as recommended misfired, with the mother concealing perceived faults; so much is clear in the reports by the psychologist:

[Ms Timmins’] pattern of responses suggests that she tends to portray herself as being exceptionally free of common shortcomings. As a result she will be reluctant to admit minor faults. She may tend to minimise the negative impact that her behaviour has on others and on herself.  Given the high level of defensiveness, the clinical scale profile potentially reflects considerable distortion and minimisation of difficulties in several areas.

141.I infer from the evidence of the Single Expert that the value to be drawn from consulting a therapist skilled in DBT would only be gained if the mother saw a need to change her behaviour, to learn if there was something dysfunctional about her personality and to commit to the prolonged therapeutic procedure required.

Family Consultant - Mr X

142.The main concerns of the Family Consultant were that the mother would denigrate the father, undervalue his significance to the child and undermine the relationship between them intentionally or unconsciously.  He balanced that against the seriousness of the loss to the child of the close loving relationship that exists between herself and the mother. He was very clear to say that although he considered there was risk in periods of unsupervised time with the mother, there was greater risk in allowing only limited supervised visits to continue.

The Law

143.The objects of the Family Law Act 1975 (Cth) (“the Act”) in relation to parenting orders are to ensure that:

a)Children have the benefit of both of their parents having a meaningful involvement in their lives to the maximum extent consistent with their best interests;

b)Children are protected from physical and psychological harm;

c)Children receive adequate and proper parenting to help them achieve their full potential; and

d)Parents fulfil their duties and meet their responsibilities concerning the care welfare and development of their children.

144.These are applications for parenting orders pursuant to s 64B(2) of the Act. In deciding whether to make a particular parenting order in relation to a child, a court must have regard to the best interests of the child as the paramount consideration. The way a court determines what is in a child’s best interests is by considering the matters set out in s 60CC(2) and (3) of the Act.

145.There is also a presumption when making a parenting order; that it is in the best interests of the child for the parents to have equal shared parental responsibility for the child.  The presumption may be rebutted by evidence that equal sharing of parental responsibility would not be in the best interests of the child in question.

146.I have contemplated the issues of parental responsibility, residence, time to be spent and communication between child and parent as well as any other specific issues.

147.I have considered the mandatory factors and conclude that the following matters are relevant to the best interests of this child

Parental Responsibility

148.The parties did comply with their own consent orders reasonably well for about two years between 2013 and 2015.

149.After the mother met her new partner the mother behaved deceptively and erratically in a series of manoeuvres to achieve her desired outcome. That outcome was to live with her partner, with the child, without “interference” from the father.

150.Although the mother herself decided to place the child with the father she is now angry with him for not “giving the child back”.

151.There is no prospect at this time of open honest communication between the parties about issues involving the welfare of the child.

Primary Considerations

The benefit to the child of having a meaningful relationship with both of the child’s parents

152.The child does have a meaningful relationship with each of her parents.

153.The evidence suggests that she accepts at face value what her parents tell her about the other parent. She is therefore quite vulnerable to being made to feel worried and uncertain and to misreport and exaggerate events in the other household.

Additional Considerations

Any views expressed by the child and any factors (such as the child’s maturity or level of understanding) that the Court thinks are relevant to the weight it should give to the child’s views

154.The child expressed a heartfelt view to the Family Consultant in the report of March 2017. She said this at the conclusion of her interview, “I love them both [each of her parents]. It’s hard for me, I want to see my mum”.[32]

[32] Family Report dated 7/03/2017, par 53

155.There is no doubt that the child is close to her mother and although she is happy living with her father, has missed some of the activities she has enjoyed in the past, such as having stories read to her.

156.The child expressed positive feelings about living with her father, she described him as being “fun” and that he took her to the beach as well as other activities.

157.She also spoke of her grandparents who were “super nice” and enjoyed going to their home in the morning and being collected at times from school or out of school hours care by one of them.

158.She described her father as a “good Dad” because he looked after her.

159.In relation to her mother she was clearly missing her; wanted to see her mother more but knew she lived a long way away.

160.It is evident that the child aged 10 and globally delayed has done exceptionally well given the disorder she suffers from. She does have the love and support of each of her parents and she knows it. She does not understand why she cannot see her mother more often and wants to. It is as simple and as complicated as that for the child.

The nature of the relationship of the child with each of their parents and other persons (including any grandparent or other relative of the child)

161.The mother described the child as a social child who enjoys the company of other children.

162.She has strong, close relationships with many members of the paternal family and some members of the maternal family.  Her most important relationship is with her father and mother.

163.She probably enjoys a working relationship with Mr M and it is impossible to know as they not having been interviewed together, how she relates to Mr M’s two children. 

164.She is excited by the thought of her baby brother and no doubt by the thought of another baby coming in August.

The extent to which each of the child’s parents has taken or failed to take the opportunity to participate in making decisions, to spend time with the child and to communicate with the child

165.I consider that the parents did co-operate reasonably well in the period between the 2013 consent orders in February of that year until April 2015 when the mother announced her wish to move away.

166.There was an incident in 2014 where police were called to the mother’s home as a result of a fracas after the mother and some of her neighbours had been drinking together.

167.However each of the parties has used drugs in the past, marijuana in particular, also ecstasy, and have also drunk to excess.  Together, they may have been able to neutralise the dangers to the child by one of them always being available.  Apart, they are highly critical of each other for the faults they each share.

168.The mother took it upon herself to move and to deceive the father about her intention to move which is entirely inconsistent with equal shared parental responsibility into the future.

The extent to which each of the child’s parents has fulfilled or failed to fulfil the parent’s obligations to maintain the child

169.The father has paid child support to the mother in the past.  She is not in the paid workforce now although she makes a little bit of money from operating within her partner’s business. She seemed surprised and confronted by the notion that she would make any financial contribution to the father for the child although she has bought clothes for her.

170.The father is certainly in a stronger financial position to provide for the child and does so. He has not applied for child support contribution by the mother although he is entitled to do so..

The likely effect of any changes in the child’s circumstances including the likely effect on the child of any separation from either of his or her parents, or any other child or other person

171.This is a particularly significant issue.

172.The child has been living now with her father since April 2016 and has achieved stability. She is doing well at school. There has been a little bit of bullying but nothing that has caused her a setback. 

173.There is a routine for her where she gets up in the morning, goes with her father who has her school uniform, bag and equipment to the home of her paternal grandparents. She enjoys having breakfast with her grandfather who then takes her to school. In the afternoon her father collects her from school and takes her home, other than on afternoons when she has physiotherapy or goes to out of hours school care as a special social treat.

174.I accept the submission made on behalf of the ICL that the mother had not anticipated when she decided to deliver the child to the father in April 2016 that he would not only manage, but would embrace the notion of raising his daughter with the assistance of extended family, but he has and the child has flourished.

175.To change her residence now to live in the mother’s household is to take, in my view, an unacceptable risk of destabilising the child for two reasons.

176.First, she would become a member of a household that she has not lived in before with the mother, Mr M, his two children presently living with him fulltime, the baby N aged seven months and later this year a new baby.  She would start back at a school with which she only had a brief encounter.  She would lose her friends, sports and regular activities in her current local area. 

177.The other reason, even more significant, is that the mother on past history is unlikely to actively encourage and support the child spending time with her father.  The mother was angrily critical of the father throughout the proceedings right to the conclusion of her submissions. 

178.The risk is that if the child was placed into the mother’s residential care the provisions for time with the father would either fall away or the child would become uneasy about the father and reluctant to spend time with him.

179.There is no history of the father undermining the mother’s relationship in that way.

180.If the child is able to spend whole weekends and holiday periods, unsupervised, with her mother and the rest of the household, although she may at first feel overwhelmed by the number of people in the family and her new place in it, there will be a very positive benefit of being able to have her mother’s love and attention in an ordinary family setting.

The practical difficulty and expense of a child spending time with and communicating with a parent

181.Practical difficulty and expense is also a genuine consideration here.

182.The mother has chosen to move away from the G Town area to live where it is suitable for Mr M to live with his two children. It is a long trip for the child and an awkward one in traffic, travelling to Sydney and then to Suburb K, southwest of Sydney. Three hours in the car would be the minimum with no disruptions; on public transport more likely to be four to five hours factoring in time taken to get to the train station at each end.

183.The travel, not less than 6 hours return in a weekend, affects the number of occasions on which it is realistic for the child to do that trip. This is especially so when holiday time is also proposed by the father and the ICL in each holiday period.

184.The appropriate course it seems to me is to provide for two weekends per school term, on the third and sixth weekends. That way there is at least two full weekends between the times when the child is travelling to see her mother for weekend and school holiday periods.

185.The parents have argued over where the change-over point should be, but that is about their convenience and expense. The child has the whole distance to travel there and back on every occasion. If it happens too often, there is a risk that she will become resentful and resistant no matter how much she enjoys time with her mother.

The capacity of the child’s parents and any other person to provide for the needs of the child, including emotional and intellectual needs

186.The mother is a loving parent with a quirky sense of humour and a true commitment to the child becoming the best possible person she can be.

187.There are aspects of the way the mother conducts her life that are unhelpful to her and the child.  These have been identified, both by the Family Consultant and assessed by the Single Expert. That is, that she can be deceptive and unapologetic about it; that she can be emotionally dysregulated with a tendency to weigh in as a result of anger or distress without prior thought of the consequences of her actions; and that she can be impulsive and reactive.

188.The mother is an intelligent woman and outside the pressure of litigation may well decide to go back to the therapist she found, or to another person, and be entirely candid about her whole social history including her long traumatic relationship commencing at age 15, the early loss of her mother and other circumstances outlined in the first Family Report. 

189.She has the capacity to be a loving parent but her tendency to create and break relationships with people and to react fiercely without prior thought represents an emotional risk for any child but especially a child who is as vulnerable as this child is.

190.The Single Expert spoke of the benefits of mindfulness. That is, learning the skill of thinking before acting or reacting.  The mother has difficulty with that approach.

191.I have been urged in this case to make orders conditional on the mother undergoing that therapy and I decline to do so. I have taken into account the opinion of the Single Expert, earlier referred to in these reasons, that the mother must desire change for therapy to be useful.

192.It is a matter for her whether she chooses to seek out the dialectical behaviour therapy (DBT) over a long period of time that might make her own life easier if those personality characteristics were modified.

193.I am obliged to come to a decision on the evidence before me not on the possibility of change.

194.The father impresses as a person who has steadied. He adapted to the idea of being a single man without responsibilities post-separation, which may have led to levels of drinking safe enough for him but inappropriate for the care of a young child.

195.He may not be as physically affectionate nor as engaged in activities such as reading and telling stories as the mother is however he is a hard-working and competent man; he loves the child and she knows it. Together the parents have complimentary benefits for the child.

196.The child is a 10 year old girl with a rare genetic disorder. She is a joyful child, defenceless against conflict between her parents, anxious to please, keen to say whatever it takes to make them happy. It is that that creates her vulnerability.

The attitude to the child, and to the responsibility of parenthood, demonstrated by each of the child’s parents

197.In this respect I accept the submissions of counsel for the ICL that the mother’s attitude to the father, being a dismissive one, is to underplay the significance to the child of the relationship between herself and the father.

198.The evidence is that very early in the relationship between the mother and Mr M the child was calling Mr M “Dad” and Mr M’s children were calling the mother “Mum” which suggests a wish to create a “new family” rather than fully acknowledging the relationships of the children, each with their other biological parents.

Any family violence involving the child or a member of the child’s family, and if a family violence order applies, or has applied, to the child or a member of the child’s family – any relevant inferences that can be drawn from the order

199.There have been many complaints by each of the parents about the conduct of the other.

200.The mother has made complaints to police and statements to the effect that the father sexually assaulted her in November 2015. The evidence does not support such a finding to any extent.

201.The child has also referred to the father as having guns in the home. There is no evidence that he ever has had guns in his home.

202.The child has made a complaint at school that Mr M came into her room naked to wrestle and tickle her. The father was naturally alarmed by that. However there is no evidence which would support a finding of misconduct by Mr M.

203.There have been interim AVOs which have not proceeded to final AVOs.

Whether it would be preferable to make the order that would be least likely to lead to the institution of future proceedings in relation to the child

204.In submissions the mother spoke movingly of her wish to help her little girl grow through teenage and into maturity and later perhaps to motherhood and that she wanted to be there for her and to be available to talk to her about the myriad aspects of finishing school, growing up, entering new relationships and creating a family of her own.

205.Provided that there is substantial time for the mother to spend with the child in a natural setting, there is no reason why those conversations and those activities cannot be undertaken.

Conclusion

206.The child is presently safe, stable, happy well-loved and doing well at school. It is for that reason the most appropriate course in my view is to confirm the child living with her father but to make provision as is urged on me by the ICL and the father, for weekend and holiday time as often as is practicable given the amount of travel involved.  Three weekends each school term was proposed. However two weekends in the mother’s home each term seems more appropriate when the child will also be travelling for school holidays. This pattern strikes a proper balance between substantial time and too much travelling such as would deter the child from wanting to continue.

207.School holiday should commence in the holiday period after term Two 2018 to enable the child to settle in to a pattern of weekend time before the first longer block period.

208.Orders are made accordingly.

I certify that the preceding two hundred and eight (208) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Cleary delivered on 26 February 2018.

Associate: 

Date:  26 February 2018