VINCENT & WALSH
[2015] FamCA 1004
•16 November 2015
FAMILY COURT OF AUSTRALIA
| VINCENT & WALSH | [2015] FamCA 1004 |
| FAMILY LAW – CHILDREN – with whom the child lives – with whom the child spends time – where the mother is a devotee of an Eastern religion – where the father is not – where the father asserts the mother fails to take the child to school when in her care – allegations of risk. |
| Family Law Act 1975 (Cth) |
| Vigano & Desmond [2012] FamCAFC 79 |
| APPLICANT: | Mr Vincent |
| RESPONDENT: | Ms Walsh |
| INDEPENDENT CHILDREN’S LAWYER: | Legal Aid New South Wales |
| FILE NUMBER: | LEC | 637 | of | 2012 |
| DATE DELIVERED: | Orders made 9 October 2015; Reasons for Judgment provided to the parties 16 November 2015 |
| PLACE DELIVERED: | Brisbane |
| PLACE HEARD: | Brisbane |
| JUDGMENT OF: | Hogan J |
| HEARING DATE: | 28, 29, 30, 31 July 2014; 1, 4 and 5 August 2014; 23 September 2015 |
REPRESENTATION
| COUNSEL FOR THE APPLICANT: | Mr Schonell SC |
| SOLICITOR FOR THE APPLICANT: | Christopher Hughes & Associates |
| SOLICITOR FOR THE RESPONDENT: | Mr Tester from Stephen Tester & Associates |
| COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: | Ms Smith on 28-31 July 2014; 1, 4 & 5 August 2014; Ms Frizelle on 23 September 2015 |
| SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: | Legal Aid New South Wales |
Orders
IT IS ORDERED BY WAY OF FINAL ORDER THAT
All previous parenting orders other than the order made 11 August 2014 are discharged from after school or 3.00 pm on Friday, 16 October 2015.
The parents have equal shared parental responsibility for all major long term issues in respect of the child, A Vincent-Walsh, born … 2007, including, but not limited to:
(a) education; and
(b) religious and cultural upbringing; and
(c) subject to the terms of the Order made on 11 August 2014, health; and
(d) name; and
(e)changes to the child’s living arrangements that make it significantly more difficult for her to live with each parent as provided for in this Order.
Each parent shall be responsible for the daily care, welfare and development of the child during times she is living with that parent.
The child shall live:
(a)with the father: from after school ends or 3.00 pm on Friday, 16 October 2015 until the school day ends or 3.00 pm the following Friday and each alternate week thereafter; and
(b)with the mother from after school ends or 3.00 pm on Friday, 23 October 2015 until the school day ends or 3.00 pm the following Friday and each alternate week thereafter.
The child shall have telephone communication with the parent with whom she is not then living each Tuesday between the hours of 6:00 pm and 7.00 pm or at such other times as may be agreed in writing between the parents with:
(a)the mother to initiate the telephone call to the father’s mobile telephone when the child is living with him; and
(b)the father to initiate the telephone call to the mother’s mobile telephone when the child is living with her.
From 1 December 2017, the terms of Clause (4) of this order shall be suspended during the school holiday period which occurs at the end of Term 4 each year and the child shall spend time with each parent as follows:
(a)with the father:
(i)for the first half of the school holiday period if the child had lived with the mother during the last week of Term 4 of that year; or
(ii)for the second half of the school holiday period if the child had lived with him during the last week of Term 4 of that year.
(b) with the mother:
(i)for the first half of the school holiday period if the child had lived with the father during the last week of Term 4 of that year; or
(ii)for the second half of the school holiday period if the child had lived with her during the last week of Term 4 of that year.
Notwithstanding any other provision in this Order, from 1 December 2017 onwards, the child shall spend time with each of her parents as follows:
(a)in odd numbered years: with the mother from 2.00 pm Christmas Eve until 2.00 pm Christmas Day and with the father from 2.00 pm Christmas Day until 2.00 pm Boxing Day; and
(b)in even numbered years: with the father from 2.00 pm Christmas Eve until 2.00 pm Christmas Day and with the mother from 2.00 pm Christmas Day until 2.00 pm Boxing Day.
In the event that the child would not otherwise be living with the father on the weekend on which Father’s Day occurs, she shall continue to live with him until after school on the Monday immediately after Father’s Day.
In the event that the would not otherwise be living with the mother on the weekend on which Mother’s Day occurs, she shall continue to live with her until after child school on the Monday immediately after Mother’s Day.
The child shall spend time on her birthday with the parent with whom she is not living as follows:
(a)if it falls on a Saturday: from 3.00 pm that day until 10.00 am the next day;
(b)if it falls on a Sunday: from 3.00 pm that day until the commencement of school the next day;
(c)if it falls on a school day: on that day from after school until 7.30 pm, with the parent with whom she is not then living to collect the child from school at the commencement of time and to return the child to the residence of the parent with whom she is then living at the conclusion of time.
Changeovers which occur during school term shall occur at the child’s school and those which occur during school holiday periods shall occur at a place agreed between the parties in writing or, failing agreement, at the Town P shops carpark.
The child is at liberty to have telephone communication at all reasonable times with the parent with whom she is not then living and, for the purpose of facilitating this, the parent with whom she is living shall ensure that she has privacy during any telephone communication.
During the time the child is with either parent, that parent shall:
(a)respect the privacy of the other party and not question the child unduly about the personal life of the other party;
(b) speak of the other party respectfully; and
(c)not denigrate or insult the other party or the party’s family in the presence or hearing of the child and use his or her best endeavours to ensure that others do not denigrate or insult the other party or the party’s family in the hearing or presence of the child.
Each party shall be entitled to have another person attend changeover on their behalf, provided that such person is known to the child.
The mother and father shall:
(a)keep the other informed at all times of a contact telephone number and an email address at which they can be contacted and advise the other of any change to the same within 48 hours of such change; and
(b)notify the other at least twenty-one (21) days prior to relocating the general location of their residence; and
(c)inform the other as soon as is reasonably practicable of any medical emergency involving the child; and
(d)keep each other informed at all times of the names and addresses of any educational facility at which the child attends; and
(e)keep each other informed at all times of the names and addresses of medical practitioners upon whom, or medical practices at which, the child attends.
Except in the case of an emergency, each parent shall do all acts and things necessary to ensure that, in the event the child needs to see a medical practitioner, she is taken to a medical practitioner at B Medical Centre, Town Y or Town P.
Neither parent shall discuss these proceedings with the child, save for as may occur during any counselling session.
Neither parent shall consume illicit drugs at any time when the child is in his or her care and shall immediately remove the child from any place in which any person is consuming illicit drugs.
Neither parent shall permit the child to be in the presence of Mr L and/or Mr O and shall immediately remove the child from any place at which either of these persons is present.
Each parent shall ensure the child attends school during school term unless she is physically unwell.
Neither parent shall enrol the child in any activity which occurs during time she is living with the other parent without first obtaining the written consent of that parent.
Each parent is at liberty to attend all school functions and events and extra-curricular activities which occur during the time the child is living with that parent and each is restrained, and an injunction issue restraining each parent from attending any school function (other than an awards night or special event to which parents are invited) and/or event and/or extra-curricular activity which occurs during the time the child is not living with that parent.
Each parent shall complete a Parents Not Partners program within six months of the date of this Order.
The parties shall communicate about significant issues relating to the child via email and shall ensure that each has an operative email address, the details of which are to be provided to the other within seven (7) days of the making of this Order.
Neither parent denigrate the other or their family to, or in front of, or within the hearing of, the child and shall direct third parties to refrain from denigrating either party or their family to, or in front of, or within the hearing of, the child and, failing the third parties’ compliance with such a direction, shall remove the child from that environment immediately.
By this Order, any medical practitioner, health care practitioner or hospital upon whom the child attends is hereby authorised to provide to each party, at that party’s request and cost, all such information that such medical practitioner, health care practitioner or hospital may lawfully provide about the child.
By this Order, any educational facility at which the child attends is hereby authorised to provide to each party, at that party’s request and cost, all information about the child’s education, progress and participation in school or any childcare related activities.
The father is permitted to remove the child from the Commonwealth of Australia for the purpose of holiday travel during any period she is living with him.
The mother, Ms Walsh, born … 1971 and her servants and agents be and are restrained from removing or attempting to remove or causing or permitting the removal of the child A Vincent-Walsh (a female), born … 2007, from the Commonwealth of Australia before … 2017.
It is requested that the Australian Federal Police give effect to the preceding order by placing the name of the said child on the Family Law Watchlist in force at all points of arrival and departure in the Commonwealth of Australia and maintain the child’s name on the Watchlist until … 2017.
Upon expiration of the period referred to in Clause (30) and subject to any further order of a court of competent jurisdiction, the Australian Federal Police will cause the removal of the child or children’s names from the Watchlist.
After … 2017, the mother is permitted to remove the child from the Commonwealth of Australia for the purpose of holiday travel during any time she is living with her.
Unless otherwise agreed between the parents in writing, any occasion during which either parent is permitted to remove the child from the Commonwealth of Australia for the purpose of holiday travel is limited to the time the child is living with that parent.
In the event that any parent wishes to remove the child from the Commonwealth of Australia, that parent shall provide the other with no less than sixty (60) days’ notice of the intention to travel overseas and shall provide details of the proposed departure and arrival dates, destination and contact details whilst overseas.
No less than thirty (30) days before date of departure from the Commonwealth of Australia, the travelling parent shall provide to the other a copy of a return ticket for the child, evidencing the date of departure and date of return to the Commonwealth of Australia and a copy of an itinerary which contains sufficient contact details to enable telephone communication between the non-travelling parent and the child to occur each Tuesday night during which the child is out of the Commonwealth of Australia.
The father shall be entitled to possession of the child’s passport.
Upon the mother’s request, the father shall provide the child’s passport to the mother no less than fourteen (14) days before any notified proposed date of departure from the Commonwealth of Australia.
In the event the mother removes the child from the Commonwealth of Australia for the purpose of holiday travel, she shall return the passport to the father within seven (7) days of the child’s return to the Commonwealth of Australia.
Each party shall do all acts and things reasonably required (including the signing or execution of all documents necessary to give effect to the provisions of this Order) within seven days of being requested to do so.
In the event a party refuses or neglects to sign or execute and return a document within seven days of presentation of that document to that party (or a solicitor representing that party), then a Registrar of the Brisbane Registry of the Family Court of Australia is appointed, pursuant to s. 106A of the Family Law Act (1975) (Cth), to sign such document or documents in the name of the defaulting party upon presentation of such document and an affidavit of a solicitor on behalf of the requesting party outlining the particulars of the default.
In the event a dispute arises between the mother and father in relation to the implementation of any arrangement in respect of the child or about the interpretation, implementation, enforcement or continuation of this order and the parents are unable to resolve that dispute through discussions and negotiations directly between them, then each party shall, before making any further application to the court, attend counselling and/or mediation with a Family Dispute Resolution practitioner and, for the purpose of facilitating this process:
(a)the father shall provide the mother with a list of the names of three Family Dispute Resolution practitioners; and
(b)within seven (7) days of receiving that list, the mother shall select a Family Dispute Resolution practitioner and advise the father in writing of this; and
(c)in the event the mother fails to provide the father with the name of a Family Dispute Resolution practitioner within seven (7) days of receiving the list referred to in Clause (41)(a), the father shall be at liberty to select the Family Dispute Resolution practitioner upon whom the parties will attend.
In the event that a party fails to participate in counselling and/or mediation with a Family Dispute Resolution practitioner as provided for in Clause (41), the other party shall not be required to participate in counselling and/or mediation before making any further application for parenting orders to the Court.
The Independent Children’s Lawyer is discharged.
IT IS FURTHER ORDERED THAT
All outstanding applications other than the Response to an Application in a Case filed by the Independent Children’s Lawyer on 18 September 2015 or any other Application by which the Independent Children’s Lawyer sought an order for costs are otherwise dismissed and removed from the list of cases requiring finalisation.
After the expiration of the appeal period, all subpoenaed documents be returned to the persons or institutions from which they emanated and all exhibits are returned to the person or persons who tendered the same.
Pursuant to s 65DA(2) and s 62B, the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders and details of who can assist parties to adjust to and comply with an order are set out in the Fact Sheet attached and these particulars are included in these Orders.
IT IS NOTED
A.If, after the expiration of the period set out in Clause (30) above, any parent seeks that the child’s name remains on the Watch List for a period beyond the period specified, that party must file and serve an application and an affidavit setting out the evidence which supports that application in the Family Court of Australia or the Federal Circuit Court of Australia.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Vincent & Walsh has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
| FAMILY COURT OF AUSTRALIA AT BRISBANE |
LEC637 of 2012
| Mr Vincent |
Applicant
And
| Ms Walsh |
Respondent
REASONS FOR JUDGMENT
I commence these Reasons with a sincere apology to the parties for the significant delay in finalising this matter. I assure them that I have had particular regard to the extensive contemporaneous notes I took during the hearing. I have, of course, revisited and reread these notes, the affidavit material, the exhibits, the various reports prepared by persons with professional expertise for the Court’s assistance and the contents of the parties’ respective summaries of argument, however described. I have also had regard to the transcript of the proceedings.
The parties commenced living together in about April 2007. It is unnecessary for the purpose of this proceeding to resolve their differences[1] about when their relationship finally ended because it is accepted they ceased living in the same residence in about February 2012.
[1]The father said the parties separated under the one roof in 2010 and finally lived separately from about February 2012 whilst the mother said separation occurred in 2012.
The parties have one daughter together: A (“the child”), born in 2007.
The mother, who has since re-partnered, has two children from previous relationships:
a)H, born in 2001 – her son with Mr S; and
b)D, born in 2005 – her son with Mr V.
The father has children from other relationships also, namely:
a)N, born in 2004 – his daughter with Ms U; and
b)M and T, both born in 2013 – his daughters with Ms R, his current partner.
Whilst N did not live primarily with the parties during their relationship, she spent time with them for about two nights per week on average. Her time with her father continued in this manner after he and A’s mother separated.
The mother is a devotee of an Eastern religion and has been for some time, including during the parties’ relationship. The father is not. The mother is engaged in home duties whilst the father has worked on occasions teaching relaxation techniques.
The mother lives at Town P, New South Wales and the father lives at Town K. Their residences are about 15-20 minutes’ drive apart.
The children A and N both attend the E School at Town Y. Until earlier this year, H did as well. He now attends Y High School. The mother indicates D will also move to attend Y High School when he completes his primary school.
The parenting proposals
The orders the father proposes as being in the child A’s best interests are particularised in Annexure ‘A’, Outline of Case document filed 25 July 2014. By way of broad overview, he proposes[2] that the child live with him and spend time with her mother:
a)each alternate weekend from after school on Friday until 5.00 pm Sunday (or 5.00 pm Monday if it is a public holiday or pupil free day), with such time to commence on the first Friday of each school term; and
b)each alternate Thursday from after school on that day until the commencement of school on Friday, with such time to commence on the second Thursday of each school term; and
c)for the first five (5) nights of all school holiday periods other than those which occur at the end of each calendar year; and
d)during the school holiday period at the end of each year: for three separate five night periods; and
e)on and for Mother’s Day and on her birthday and the birthdays of each of her brothers.
[2] Annexure ‘A’, Outline of Case document filed 25 July 2014.
The father proposes he have sole parental responsibility for the child, that she continue to attend the E School and that the mother’s parenting of her is mandated by a series of injunctions in relation to a number of issues.
The father’s case may be distilled to the following proposition: by virtue of the deficiencies in the mother’s parenting, the child’s best interests are met by ensuring that she lives primarily with him and spends three nights per fortnight in her mother’s care during school term and block time during school holiday periods.
The mother proposes that the parties have equal shared parental responsibility for the child A. Until submissions were provided by the parties, she proposed that the child live with her and spend time with the father:
a)each alternate weekend from end of school or 4.00 pm (if not a school day) on Friday until the commencement of school or 10.00 am (if not a school day) on Monday and that, if Monday is a public holiday or not otherwise a school day, until the commencement of school or 10.00 am (if not a school day) on Tuesday; and
b)from after school Wednesday until the commencement of school on Thursday (in Week 1) and from after school Wednesday until the commencement of school on Friday (in Week 2[3]); and
c)for half of the school holiday periods in all school holiday periods, as follows:
i)during the school holiday periods at the end of Terms 1, 2 and 3 each year: for the first half in even numbered years and the second half in odd numbered years; and
ii)during the school holiday period at the end of Term 4 each year: on a week about basis with the time to comprise the first week and each alternate week thereafter in even-numbered years and the second week and each alternate week thereafter in odd- numbered years; and
d)on Father’s Day.
[3] being the week after the weekend time.
The mother also proposed that, notwithstanding any other provision in any order, the child spend time:
a)in odd numbered years: from 2.00 pm Christmas Eve until 2.00 pm Christmas Day with her mother and from 2.00 pm Christmas Day until 2.00 pm Boxing Day with her father; and
b)in even numbered years: from 2.00 pm Christmas Eve until 2.00 pm Christmas Day with her father and from 2.00 pm Christmas Day until 2.00 pm Boxing Day with her mother; and
c)with her from 10.00 am on Mother’s Day; and
d)with each of her parents on her birthday as particularised in the ‘Minute of Order Sought’ provided to the Court.
The mother’s position changed during the course of the trial – or, at least, by the time submissions were made - such that her legal representative told the Court she supported orders being made largely in the terms proposed by the Independent Children’s Lawyer.
Counsel for the Independent Children’s Lawyer provided the Court with a Minute of Orders[4] proposed by the Independent Children’s Lawyer. These include that the child’s parents have equal shared parental responsibility for her and that she live with each of them in a week about regime.
[4] and a written Outline of Submissions.
Post separation parenting arrangements and previous orders
The child A remained living with her mother after her parents separated in early 2012. She spent between two nights per week and seven nights per fortnight in her father’s care.
The father retained the child in his care after the weekend of 19-20 November 2012. He says he did so because he “could no longer allow [the child] to remain in the home with the mother where, in my view, she was at risk of harm.” I accept the submissions made by Counsel for the Independent Children’s Lawyer to the effect that the matters relied on by the father as forming the basis for his view that the child was so at risk with her mother that he was compelled to take the dramatic step of retaining her in his care – and thereby changing her parenting regime unilaterally – were mostly known to him before he left Australia in August 2012 for a six week holiday.
The father commenced proceedings on 7 December 2012, at which time he also caused a Notice of Risk of Child Abuse to be filed.
On 18 January 2013, Federal Magistrate Spelleken[5] made Orders by consent in Chambers. These relevantly provided that the child live with her father and spend time with her mother from 2.00 pm until 5.00 pm on 16 January 2013 and from 3.00 pm on 18 January 2013 until 5.00 pm on 20 January 2013. The mother was required to ensure that a Mr L was not living at her home, that she not bring the child into contact with him and that she be restrained from permitting anyone other than her children, partner and a named boarder to reside at her home. Notations made that day record that the father had retained the child in his care since 21 November 2012, had filed an Initiating Application which was listed for hearing on 12 February 2013 and that the purpose of the orders was to enable the child to spend some time with her mother pending further agreement between the parties or order of the Court. I accept as more likely than not that the mother agreed to the terms of this Order in relation to its provision for the child’s time with her because that was the only way she could see her.
[5] As her Honour then was.
On 25 January 2013, the parties reached further agreement about the time the child would spend with her mother: namely, from 3.00 pm 24 January 2013 until 5.00 pm 25 January 2013, from 3.00 pm 1 February 2013 until 5.00 pm 3 February 2013 and from 3.00 pm 7 February 2013 until 8.30 am 8 February 2013. That they did so seems to me to suggest that the father accepted the mother’s assurances that she would ensure the child was not exposed to Mr L.
On 6 March 2013[6], Federal Magistrate Spelleken made detailed interim orders. These included that:
[6] and as amended on 7 March 2013.
a)the parties have equal shared parental responsibility for major long term issues in respect of the child; and
b)the child live with her father; and
c)the childa spend time with her mother:
i)during school terms: from after school Friday until the commencement of school on Monday in week 1 and from after school Wednesday until the commencement of school Friday in week 2; and
ii)during the end of Term 1 school holiday period in 2013: from 21 April 2013 until 27 April 2013; and
iii)from 9.00 am until 5.00 pm on Mother’s Day; and
d)the child have telephone communications twice weekly with the parent with whom she was not then living.
The March 2013 Order also required that the mother:
a)ensure that Mr L not reside on the property where she was living; and
b)not permit the child to come into contact with Mr L; and
c)ensure that no persons other than her children and her current partner (Mr X) live at her home or in the granny flat located on that property unless the father agreed to the same in writing; and
d)not leave the child in the care of any person (including her children) other than the maternal grandmother; and
e)be restrained from taking illicit drugs whilst the child was in her care; and
f)ensure that the child slept in her own bed.
Nothing in the evidence before me supports a conclusion that the mother has failed to comply with those requirements summarised in paragraphs 23(a), (b), (d), (e) and (f). To the extent that she failed to ensure that no person lived in the granny flat other than with the father’s consent, it appears that she had, at some stage entered into a lease with a woman for that person to rent those premises.
The parenting regime established by the March 2013 Order has persisted, supplemented by further orders: for example, in that made on 15 May 2013 the parents expressed their agreement about the time the child was to spend with each of them during the mid-year school holiday period.
On 19 June 2013, Judge Spelleken transferred the matter to this Court.
On 16 April 2014, the Acting Principal Registrar made further interim parenting orders by consent. These included that:
a)the parents do all that was necessary for the child to consult Ms G, a psychologist, for the purpose of support and therapy as considered necessary by Ms G; and
b)each parent be entitled to meet with Ms G before the child started to consult with her; and
c)the parents were restrained from seeking to obtain evidence from Ms G; and
d)the parents share equally the cost of the consultations with Ms G and use their best endeavours to arrange to take the child to consultations alternately.
The parties also agreed to a notation recording their agreement that consultations with Ms G were strictly for therapeutic purposes for the child and to promote her well-being. That they were able to reach agreement about a matter such as this, before their matter was listed to be heard finally, is obviously relevant to an assessment of their likely future ability to make decisions jointly about major long term issues relating to the child.
Whilst they may well both have very different approaches to the child’s parenting now, they achieved what many others may well have struggled to do: that is, to jointly decide that the child’s need for support and therapy to assist her should be accorded greater priority than their respective “need” to attempt to know her wishes via this process. That they were able to do this in the lead up to the final hearing provides part of the context within which and consideration of their respective proposals as to the manner in which the allocation of parental responsibility between them must occur.
Principles
In these proceedings, being proceedings for a parenting order[7] in relation to the child A, I may, subject to s 61DA[8] and s 65DAB[9] and Division 6 of Part VII of the Act, make such parenting order as I think proper.[10] I must have regard to the Objects of Part VII of the Act and the principles which underpin those Objects.[11] In deciding whether to make a parenting order, I must regard the child’s best interests as the paramount consideration.[12]
[7] s 64B of the Family Law Act 1975 (Cth)
[8] The presumption of equal shared parental responsibility.
[9] Parenting plans.
[10] s 65D of the Act.
[11] s 60B of the Act.
[12] s 60CA and s 65AA of the Act.
The benefit to the child of having a meaningful relationship with both parents
I must consider whether there is benefit to the child of a meaningful relationship with both parents: an affirmative finding does not, of course, depend simply on there being a lack of danger of physical or psychological harm to her arising from time and/or communication with that parent.[13]
[13]Vigano & Desmond [2012] FamCAFC 79, [128]-[129] per Bryant CJ, Strickland & Murphy JJ.
Mr J, a psychologist, has prepared a number of reports for the Court’s assistance in this matter.
In his first report, dated 13 May 2013, he outlined a synopsis of his thoughts at that time, in the context of his expressed expectation that he would reiterate some matters in his ‘final’ (or, more accurately – substantive) report. The May 2013 synopsis contains his tentative opinion to the effect that his suspicion was that, in the final analysis, there would be no reason why the child[14] should not have a meaningful relationship with each of her parents and that, for this to occur, there would need to be some sort of suitable shared parenting arrangement.[15]
[14]and her brothers given that at that time Mr J was considering the appropriate parenting. Arrangements for all three of the mother’s children and their respective fathers.
[15] Paragraph 21, Family Report dated 13 May 2013.
Mr J’s second report (his substantive one prepared after the April 2013 interviews and the opportunity to read material obtained via subpoena) is dated 19 June 2013.
The June 2013 report records that the father’s proposal at that time was for the child to live with her parents in an equal time, shared parenting arrangement, which would have seen her live with each of her parents on a week about basis.[16] However, the father told Mr J during his interview with him that he was concerned about the child’s care and safety when with her mother and so proposed that she spend each alternate weekend and one overnight in the alternate week with her.
[16] Paragraph 4, Family Report dated 19 June 2013.
The mother’s response was that the child should live with her and spend time with her father for each alternate weekend and from after school Wednesday until before school Friday in the alternate week.
It can easily be seen from the fact that each parent has always proposed that the child have the opportunity to spend substantial time with the other that each considers she will benefit from having a meaningful relationship with both of them. Both parents seemingly accept that her best interests are served by having the ongoing opportunity to spend time with each of them so as to continue to develop such a relationship.
Each parent clearly loves the child and I accept that she will benefit significantly from having a meaningful relationship with each of them. I also consider that the child needs to be afforded sufficient time with each of her parents so as to continue to have the ability to continue to have and develop a meaningful relationship with each of them. Of course, this consideration must yield to the imperative of protecting the child from exposure to an unacceptable risk of harm.
The need to protect the child from harm from being exposed to abuse, neglect or family violence
When cross-examined by the mother’s legal representative, the father said that it had not been a great concern of his that the mother had been physically violent toward the child. He said, during his cross-examination, that he had seen her smack the child repeatedly. This assertion – which was denied by the mother – had not been included in the substantial affidavit he swore for the proceedings. He explained the absence of such information on the basis that the mother’s behaviour toward the child was not to a degree he thought terribly relevant and was not to a degree that he felt he should make a big issue about it.
As noted above, his proposals for the child’s time with her mother include that she spend five consecutive nights in her care during school holiday periods. He certainly does not propose that the child’s time with her mother occur on a supervised basis. I can only conclude from this that he accepts that, whatever the mother’s alleged deficiencies as a parent, the child will not be at an unacceptable risk of physical harm through the mother’s direct actions toward her and/or discipline of her if she continues to spend unsupervised time with her mother – including where that time occurs for five consecutive nights on occasions.
It was said on his behalf that orders in the terms proposed by him ameliorate the risk to which the child has been – and, therefore, is likely to continue to be – exposed whilst in her mother’s care whilst providing her with sufficient opportunity to have a meaningful relationship with both of her parents. No persuasive reasoning explains why it is that the child will not be at an unacceptable risk of harm if she spends five consecutive nights in her mother’s care during school holiday periods but will be if she spends seven consecutive nights or such other time as may occur if an order for half school holiday time is made.
In essence, the father’s case really is that, because of the mother’s choices about and approaches to a number of matters historically, her parenting of the child exposes the child to a risk which must be ameliorated by limiting their time together and imposing those conditions he advances in relation to such time; that is, he advances that, such are the overall deficiencies in the mother’s manifestation of her parental capacity and decision-making that the child’s best interests are served by orders which will see her live primarily with him.
Before turning to consider these matters, it is, I think, appropriate that I deal with whether, in light of more recent events, the child will be at an unacceptable risk of harm if she spends time with H. This issue requires consideration because, in late 2014, H attended at the E School with a machete in his bag. The father said he made an appointment with the Principal in about November 2014 to see whether the child was at any risk of harm from H. Given that the father’s evidence goes no further than this, I can only conclude that the Principal did not convey any information which may have provided a basis for the suggestion that H represents any threat to the child.
Senior Counsel for the father acknowledged during his submissions that he could not suggest - and it would be improper to submit - that the machete caused or posed any risk to the child. I accept his submissions to this effect.
Consequently, I am not persuaded that the child is at an unacceptable risk of harm if she spends ongoing time with H.
As noted, the father asserts that the mother’s parenting is deficient in a number of significant respects. He submits that, when regard is had to the cumulative effect of these asserted deficiencies, the child’s best interests will be met by her continuing to live primarily with him and spending time with her mother in the manner he proposes. He says that if the child spends equal time with each parent, she will be at an unacceptable risk of harm when with her mother.
Allegation of being psychologically and physically abusive of the boys, including excessive discipline of H
As already recorded, the father does not suggest the child will be at an unacceptable risk of physical harm from her mother’s discipline. He does, however, claim that, during the time he lived with the mother, she excessively physically disciplined H, then aged between six and nine years.
The mother acknowledged to Mr J in April 2013 that she had previously slapped H. When Mr J spoke with H for the purposes of preparing the May 2013 report, he was either unwilling or unable to recall any asserted physical abuse; he (H) exhibited no evasiveness around the issue and Mr J considered that nothing emerged from H’s comments to support the assertions.
I join with Mr J in expressing a difficulty in reconciling the father’s current reported concerns about the mother’s alleged historic abusive behaviour towards H in circumstances where, at the time of these alleged abusive behaviours, he took no action at all to report any of them to any external authority charged with the obligation to protect children from harm. It seems he continued to attend to his day to day business, which took him away from the home for significant time during the days, leaving H – in respect of whom he, at one time at least, described himself as a psychological parent – to be cared for by his mother. Either he is now exaggerating or fabricating his claims about the extent of the mother’s behaviour toward the children at that time, or he is revisiting it through the prism of self-interest, or he was an adult who demonstrated no regard for the children’s well-being or safety, or he was willing to place his own interests ahead of the need to protect the children or – as I suspect is more likely than not – a combination of all of these.
Additionally, despite apparently witnessing the mother’s behaviour toward H, the father permitted the mother to remove the child A from Australia in April 2012 to travel with her and her siblings overseas and himself left Australia for a period of about six weeks after the parties finally separated, leaving the child and her siblings in their mother’s care. He could not have acted like this and absented himself in such manner if he seriously thought at that time that the child was at any sort of risk of harm.
I accept the mother’s evidence to the effect that she certainly struggled with H’s behaviour in about 2009. In fact, the evidence clearly establishes that the mother recognised that she was struggling to manage H appropriately and, as a result, she sought help from Ms F, upon whom she attended. Whatever her past difficulties in managing H’s behaviours, there is nothing to suggest these difficulties persist today.
Allegations associated with Mr L
A further reason the father says he retained the child in his care in late November 2012 is that he says he became aware Mr L was living in a caravan at or on the property at which the mother and the children were living. The mother says, in essence that this is not the case and that it was in fact the father who invited Mr L to stay at the property when she was overseas with the children. That is, on her account, the father knew Mr L himself. I accept her evidence in this respect.
A police record in relation to allegations made against Mr L in 1995 suggests that a report was made that a child believed she had woken to find him in her bed and rubbing her vaginal area. This was alleged to have occurred at a place of worship Another allegation of inappropriate behaviour by Mr L has previously been made. He has never been convicted of any offence involving children.
It appears from Mr J’s June 2013 report that, during a Departmental investigation:
a)The child made comments about Mr L coming into her in the boys’ room at night and taking them into the forest: this was not corroborated by the boys; and
b)the Department was concerned after investigating and finding that Mr L had previously been charged with child sexual offences: these charges were not proved as the alleged victim did not attend Court; and
c)Mr L was reported to have made admissions about further allegations of child sexual abuse made against him in the 1990s – it in fact appears he told the officers that a complaint had been made; and
d)the Department was concerned the mother let him live on the premises when she knew about the previous allegations and that she held the view he could not have committed any offences; and
e)the Department was concerned about the possibility of sexual abuse given the ages of the children and that they were sleeping in the one bed; and
f)the Department concluded initially that the children were at very high risk of sexual harm/injury: after the mother accordingly was informed, Mr L left the premises.
The child was interviewed twice by the Department (once at school and once at the father’s home). On each occasion, she maintained that Mr L entered her bedroom at night and took her and, at other times, her older brother from their beds into the forest at night.
Whilst the mother told the Department the children were not left alone with him, there is a record in the material that he (Mr L) took D on his own to his father’s farm.
Each of the children told Mr J in April 2013 that they had never been left alone with Mr L and that their mother was present at any time they saw him. All of them said that they had never been scared of Mr L.
When H spoke with Mr J in April 2013, he spontaneously referred to his interview with the Department – he said he was asked if Mr L dressed him up in girls’ clothes: he said he thought the questioning was quite strange.
I accept that the mother appears to have acted protectively by ensuring Mr L did not have contact with the children after investigation by the child welfare authorities even though she believed he posed no threat of harm to the children. I also accept – as the father must from the orders he proposes for the child A’s time in her mother’s care – that Mr L has not had any contact with the children since he left the mother’s premises after the authorities attended there to speak with her.
Asserted failure properly to supervise the children in Australia and overseas
The father alleges that the mother previously failed properly to supervise her children when they were infants and toddlers and, later, left them to their own devices and relied on strangers to return them to her care if they wandered off.
He told Mr J during his April 2013 interview that, when D was six years old and the child A four years of age, D was left alone to look after her for long periods of time. He outlined that each child was allowed to wander from the house to the beach and back and that each would be left alone at the home; he described that he knew this had happened with the child on many occasions and that, because the mother’s home was 400 metres from the beach, the children would have to cross a road and walk through a carpark.[17]
[17] Paragraph 21, Family Report dated 19 June 2013.
I note that the father also told Mr J in April 2013 that D would be left to “wander over to the playground at the beach when he was 18 months old and would be hundreds of yards away from his mother.”[18]
[18] Paragraph 22, Family Report dated 19 June 2013.
His account suggests that he personally witnessed these events on occasions. However, there is nothing to suggest that the father took any action at the time to supervise D himself or assist the mother to care for him on these occasions or did anything himself to prevent the child from becoming “hundreds of yards away” from his mother. His own recounting to Mr J suggests that, at the time, he was content simply to witness the manner in which the mother chose to supervise D.
The father told Mr J in April 2013 that, during the first year of his relationship with the mother, he was “dumbfounded” at her lack of supervision of the children. He sought to explain his lack of participation in supervising them by saying that, after a year or so, he “progressively stepped back”, particularly after the child was born, because he did not feel he could “extend himself” to the care of the other children in the same manner as he previously had.[19] That is, the father’s account appears to be that, despite his reported concerns about the manner in which the mother cared for the children when they were younger, he did nothing proactive about it at the time.
[19] Paragraph 23, Family Report dated 19 June 2013.
The father also criticised the mother because, according to him, she previously frequently took spontaneous trips away, leaving the children behind because “she needed time”. He, of course, took time away from the home when he travelled to work for part of the days and then attended to other chores and personal activities before returning to the mother and the children.
I am not persuaded the mother prioritised her needs above those of the children – including the child A – any more than the father did when he attended to his interest in and teaching of relaxation techniques and undertook the travel he did.
Whilst the mother’s attitude toward the supervision of the children when younger may well place her in the significantly laissez-faire category of parental supervision, the father’s participation in this approach - either by absenting himself from the home to attend to other activities or by observing passively from the wings without interfering - persuades me that he cannot have thought the children at particular risk at the time: the only other persuasive conclusion can logically be that, despite being concerned about young children’s welfare and safety, he was unwilling or unable to act to address those concerns.
It is clear that, in about April 2012, the mother took the children with her overseas for a period of three months. At that time the child was at preschool. The evidence establishes that the school consented to the mother’s request to remove H and D during that period. I accept the submission to the effect that all children appear to be doing well at school and that their absence overseas in 2012 does not, on the evidence before the Court, appear to have adversely affected their engagement with or performance at the school.
Asserted inappropriate behaviour toward the children
The father alleged the mother previously demonstrated what he considers to have been a preoccupation with D’s penis when he was a young child – although he is loath to suggest this was sexually inappropriate. He makes no similar assertion in relation to any of her interactions with the child A.
The fact that the father relies on his asserted observations of the mother’s interactions with D so many years ago in seeking orders in this case is, I think, a demonstration of his general attitude toward the mother.
He also asserts the mother was volatile in her interactions with the children, alternating between aggression, remorse and being “exaggeratedly” caring and affectionate. Such description amounts to further criticisms of the very manner in which the mother interacts with her children and highlights the differences in parenting approach. It also gives a certain credence to the mother’s claim that the father approaches their co-parenting of the child in a controlling manner.
Asserted failure properly to manage health issues / asserted general mismanagement and/or neglect of the children
Whilst the father alleged that the mother was previously reluctant to take H to a medical practitioner despite him exhibiting ongoing health problems such as constipation and soiling himself, there is no suggestion that the child A’s health has suffered during the time she was primarily cared for by her mother
I accept the submission made by Counsel for the Independent Children’s Lawyer that there are some historical instances of the mother failing properly to supervise the children: for example by leaving a baby at home alone (which clearly contributes a highly risky and inappropriate approach to parental supervision), leaving D in the car at the shopping centre (she parked her car in the shade, left the windows down and went into a shopping centre; whilst the records suggest that, when police arrived, the child was not visibly distressed, the fact remains that he was unattended for a not insignificant period of time) and permitting the children to walk back from the beach to their home.
There is nothing persuasive however, to suggest that, perhaps other than allowing the children to walk back from the beach, these behaviours were repeated or continued as at the date of the trial. All of the mother’s children are, obviously, now of an age where they are capable of a greater degree of self-management than was previously the case.
I accept the submission to the effect that there is no independent evidence – for example from the school - that the mother failed to feed and clothe the children in her care appropriately or adequately.
I am not persuaded that the mother would intentionally fail to provide the child with sufficient and appropriate sustenance.
Marijuana use
Both parents have previously smoked marijuana. The mother used this substance, as a substitute for pharmaceutical pain relief, during the child’s water birth. I accept as likely that the father prepared a pipe for her and held it to her lips during this process.
The mother admits she smoked marijuana on occasions during her relationship with the father. She says she did so during stressful times and out of the children’s presence. Whatever she may have thought, I think it is highly likely that at least H was aware that his mother smoked marijuana using a pipe.
The father says the mother used marijuana during their relationship – sometimes daily and sometimes there would be weeks in between her use. The recounting of each party then does not seem to me to differ materially. Additionally, it bears repeating that as the father left the relationship leaving the child in her mother’s care, he cannot seriously have thought she would have been at risk then.
The mother underwent drug urine analysis in November 2012. The results of this test did not reveal the presence of any illicit substance. I accept that there is no evidence that the mother has been observed to consume marijuana after that time.
Given the father’s proposal for the time the child spends with her mother, I accept the submission made by Counsel for the Independent Children’s Lawyer that I would not be satisfied on the evidence before me that the child is in any current danger in her mother’s home because of any consumption by her mother of illicit substances.
The mother’s attitude to the child’s attendance at school
The evidence establishes that, in the time after the father retained the child in his care toward the end of 2012, the mother kept her home from school on occasions. Correspondence from the school outlined its positon as at October 2013 (as being that it often recommended that younger kindergarten children had a regular rest day during the week but, once children were in the Prep year, the expectation was that they attend kindergarten every day unless their need - such as tiredness - required otherwise). The mother clearly kept the child in her care to increase their time together and, I find, to ameliorate the impact for the child of the significant reduction in her time with her mother and the members of her mother’s household that had followed on the father’s decision to retain her in his primary care in November 2012.
Given the abrupt change to the child’s life that the father’s decision caused, I accept the submissions of Counsel for the Independent Children’s Lawyer that, at the time the mother kept the child in her care rather than sending her to kindergarten, it was probably more important for her well-being for her to spend that additional time with her mother than attend at kindergarten.
The father alleged the mother has failed to prioritise the child’s education by failing to take her to school for significant periods. Senior Counsel submitted that she regarded the child’s attendance at school as optional and had demonstrated no insight into the benefit the child would obtain from regular attendance. Given the absences which have occurred on days when the child was in her mother’s care in the period between when the trial ended and the father’s application for leave to adduce additional evidence was heard and that evidence received, he submitted that the mother’s attitude towards the child’s attendance at school had not been improved by her appearance at the trial and hearing the criticism then made against her for her attitude toward this issue.
The father’s evidence is that in the period from early August 2014 until late June 2015, the child was in her mother’s care for school on fourteen Mondays and 18 Thursdays (between mid-October 2014 and late June 2015) and that she failed to attend at school on one of those Mondays and 13 of those Thursdays. In contrast, in the time the child was in his care during the school week, she failed to attend on only eight days in total (five of these being because he determined that she not attend school because of a family event such as a holiday or birthday and three of these because she was unwell). His evidence is that the child should generally attend school unless ill or on the ‘odd special occasion’.
The mother did not accept the accuracy of the father’s calculation of the number of school days on which the child was in her care in the nominated period: rather, she asserted that the child was with her on 54 school day mornings (and not 46 mornings) between 7 August 2014 and 25 June 2015. Once she had made this point, the father accepted that it was not 46 mornings and asserted that the child was with her on 55 mornings. The father’s ultimate position was that the child was in her mother’s care on 19 Thursdays – the mother accepted that the child did not attend school on 13 of these but said that four of these occasions arose because she kept her home as she (the child) had suffered an injury or from head lice.
The mother accepted she had kept the child home on the remaining nine occasions and said that, during this time, they engaged in activities of a type supported by the school. As already noted, the father’s evidence is that he decided that the child would not attend school on five occasions in a not dissimilar period.
The father’s complaints about the mother’s attitude toward the child’s attendance at school on a regular basis must, I consider, be assessed in the context that she appears to have done well there during 2014 and 2015. She is seen by the school as a pleasure to teach, warm and friendly: attributes to which both parents are likely to have contributed in my view.
Whilst the child’s attendance at school on the Thursdays she has been in her mother’s care since last year has not been consistent and the evidence clearly supports a conclusion that, for most of these days, the mother determined to keep her at home on those days to spend time with her and engage in activities together, I am not persuaded that this decision is reflective of an underlying failure to appreciate the importance of education: rather, I consider it more likely than not to be a further manifestation of the mother’s view that the parenting arrangements in force at the time did not afford the child sufficient time with her given that she had previously lived primarily with her until late 2012. I am confident that any future issues about the child’s attendance at school can be addressed by an order which requires both parents to ensure that she attends there unless she is physically unwell.
I accept the thrust of the submission made by Counsel for the Independent Children’s Lawyer that, despite the difference between the school and the mother about how the November 2014 machete incident was managed and/or regarded, H continued to attend at the school until March this year: that is, I accept that, despite the difference which arose between the mother and the school at that time, the school did not conclude that this difference warranted stopping H’s attendance there and/or termination of its ongoing relationship with his mother.
It was advanced that the fact that H was first suspended and, later, excluded by the school resulted in a falling out between the mother and the school with the consequences that the mother’s relationship with the school has become strained – a matter which, it is submitted, may adversely impact upon the child’s continued attendance there. However, I accept that there is nothing in the evidence to suggest that the child has suffered any adverse impact from the fact that a sibling no longer attends the same school. There is no evidence to suggest that the school has taken any steps to suspend or exclude the child. There is no evidence to suggest that she has not been treated as an individual, deserving of consideration based upon her own behaviours whilst at the school.
Whilst communication between the school and the mother about H and the prerequisites for his attendance at school camp in March 2015 appear to have broken down completely and resulted in the school terminating his enrolment ‘effective immediately’, recourse to the communications themselves reveals that, after the mother refused to sign a camp ‘contract’ (the terms of which being matters with which she did not agree nor support – a view she conveyed in front of H) – the school informed his father of its tentative termination of H’s enrolment on the basis that the relationship between the mother and the school had broken down; gave his father (the person responsible for meeting the costs of H’s attendance there) about 24 hours to respond or appeal this determination and, when he did not reply within that timeframe, made the final decision to terminate his enrolment, effective immediately: additionally, the school decided that it would not communicate with the mother about this decision because, despite being the parent required to sign the camp contract, she was not the parent with whom it had the enrolment contract (that being H’s father). In fact, the mother only learned of the decision to terminate H’s enrolment from his father after the decision had been made and, when she asked for an explanation about this, was told by the school that it did not intend to communicate further with her because she was not a signatory to H’s enrolment contract.
I accept that the school’s termination of H’s enrolment has not impacted adversely on the child A’s attendance there nor has the mother been asked to sign a Code of Conduct in relation to her.
Senior Counsel also submitted that the manner in which the mother dealt with the school’s issues about H provided a further example of her response when challenged with a view that does not accord with her own. Seen through another prism – and one which I favour – it also provides an example of a parent whose support for her children is unwavering.
Given that there is no evidence to suggest that the child’s ongoing attendance at the same school has been threatened as a result of the cessation of H’s attendance there, I am not persuaded that the matters surrounding H ceasing to attend at the school means that the school is unable or unwilling to continue to interact with the mother about the child.
I accept the submission made by Counsel for the Independent Children’s Lawyer that, whilst the relationship between the mother and the school may have been strained after H ceased attending – in part, I consider because of the manner in which the school acted in its communications with the mother and its later refusal to communicate with her - there is no evidence that the school has sought to terminate the child’s attendance and/or enrolment.
I do not accept the submissions made by Senior Counsel for the father to the effect that the events surrounding H leaving the school earlier this year demonstrate that the mother can only interact with the school in an aggressive way or that her behaviours toward the school – in circumstances where it behaved toward her child in a manner with which she clearly did not agree – mean that she represents a poor role model for the child.
Asserted negative impacts for the child arising from, or associated with, her mother’s spiritual beliefs
The father suggests that the mother’s devotion to her faith has had, and continues to have, the following negative consequences for the child and her siblings:
a)she does not permit the children to eat meat but forces them to adopt her vegetarian/vegan diet in a dogmatic fashion, whilst herself being inconsistent in her adherence to the same;
b)she prioritises her spiritual activities and interests over the children: for example, removing them from school to take them on pilgrimages overseas;
c)she leaves the children outside the place of worship while she prays;
d)she refuses to take the children to school because it interferes with her higher state of consciousness.
I am not persuaded on the evidence before me that the mother has placed her adherence to her faith above or in priority to her attending to meeting her children’s needs. Whilst the child’s attendance at school on Thursdays whilst in her mother’s care was certainly poor, there is nothing in the evidence to suggest that the two boys’ attendance suffered in a similar fashion. Whilst she may well take the children to the place of worship, leaving them outside while she prays, they appear to be with the children of other devotees and this does not appear to me to be different to any other person involved in and practising a particular belief. I am not persuaded that the father has established that the child’s attendance overseas with her mother (for a pilgrimage or any other reason) – to which he agreed - has resulted in any adverse consequences for her. In fact, many may well argue that the opportunity to participate in and live within a community which embraces views and lives somewhat differently to the manner in which children often live in Australia may have provided some benefits to the child and her brothers.
Whilst it is clear that the mother lives her belief in vegetarianism and encourages the children not to consume meat, adherence to this way of eating seems to me to be no different to adherence to the unquestioning consumption of meat as part of one’s day-to-day or weekly food intake. I am not persuaded on the evidence that decisions to fail to serve meat or to serve meat are anything more than manifestations of a parent’s respective beliefs. Neither could be said to place the child at an unacceptable risk of harm.
Asserted mental health concerns
After the father raised concerns about the mother’s mental health and whether this impacted on her capacity to parent the child, the issue of whether she has an underlying mental illness was considered by Dr W, a psychiatrist. The mother agreed to participate in this process.[20]
[20] Order made by consent on 31 October 2013.
I accept the contents of Dr W’s report. I accept his assessment of the mother and his opinions to the extent that the mother:
a)appeared to have a clear understanding of what she was saying; and
b)was fairly candid about her values and beliefs but was occasionally concerned he might interpret these in terms of her mental health functioning – a presentation which she manifested at times during the trial; and
c)did not demonstrate elevated or depressed mood and only became emotionally distressed when she explained she kept the child home each alternate Thursday because she no longer lived with her and she was seeing her so little; and
d)expressed strongly held religious beliefs and values which appeared to be a coherent element of her mental functioning and did not express these beliefs and values in a way that suggested they were poorly structured or organised or that there were bizarre elements to them which might have been comparable with psychotic illness; and
e)clearly presented with a strong belief in the faith around which she had organised her life; and
f)had likely suffered an adjustment disorder with depression when she saw Ms F in 2008/2009; and
g)did not then suffer from a diagnosable mental illness; and
h)did not appear, from the material provided to him, to have exhibited the behaviours necessary to establish the existence of a personality disorder; and
i)in her elevated scores in relation to grandiosity and psychotic expression identified in testing administered by Mr J, was likely to have reflected matters characteristic of people with esoteric beliefs; and
j)demonstrated a number of positive and empathic traits but was also somewhat of a controlling person.
The mother’s reactivity and/or volatility
In his May 2013 report, Mr J noted that, given the consistency of the concerns expressed by those he interviewed, it was hard to dismiss the concerns about the mother’s reactivity when challenged.
His report mentions:
a)a violent incident between the mother and Mr S – H’s father -during which it appeared that both behaved violently; and
b)a violent incident involving Mr V – D’s father – and his partner and the mother; and
c)the father’s concerns about the mother’s asserted harsh physical discipline of H when he was younger.
I accept the submissions made by Counsel for the Independent Children’s Lawyer that the incident on 22 November 2013 where the mother forced the maternal grandmother’s car to a stop on the road and removed D from the vehicle is the most concerning of all of her behaviours. I fully endorse the submission that nothing justifies the mother’s actions that day in placing all associated with the event at risk.
I accept that the mother during cross-examination accepted that her behaviour that day was appalling. I also accept that, in the course of cross-examination at least, she manifested some insight into the unacceptability of such behaviour.
Whilst Senior Counsel for the father submitted that one of the benefits of restricting the child’s time with her mother in the manner proposed by his client would be to minimise the risk that she is exposed to such behaviour into the future, I accept the submission by Counsel for the Independent Children’s Lawyer that the amount of time the child spends with her mother does not necessarily mitigate against such risk. Exposure to the mother’s unrestrained behaviour could just as easily occur during the weekend or five consecutive night block time the father proposes she spend with her mother.
I accept the submission made by Counsel for the Independent Children’s Lawyer that the two occasions on which the mother attended at the child’s school and precipitated – or at least was significantly involved in precipitating – distressing scenes to which the child was exposed do her no credit whatsoever. However, I also accept the submission that these two incidents should properly be viewed within the context that, at that time, the father had retained the child into his care and, from the mother’s perspective at least, enjoined the fathers of her two sons and her mother to align with him and support his proposal that the child continue to live primarily with him and orders be made for the boys to spend increased time with their fathers.
In assessing the likelihood of future risk to the child during her time with her mother, it is, I think, relevant to note that there is nothing in the evidence to suggest that, until the mother was involved in litigation simultaneously conducted by the three fathers of her children, she had behaved in the uncontained manner which she exhibited when she attended at the school and on 22 November 2013.
I accept that, on the evidence before the Court, there have been no incidents at the school since early 2014. The father corroborates this in his evidence most recently given wherein he makes the point of saying that he has not come into contact with the mother at school. Whilst I gathered that this was advanced by way of criticism of the mother – and, presumably, in support of his contention that parental responsibility should be accorded solely to him – it seems to me to be more likely than not that the mother has, in fact, acted in a manner consistent with the evidence she gave to the effect that she will not again behave at school in such a way because of her understanding of the deleterious impact on the child of being exposed to upsetting and argumentative behaviour there.
The litigation between the mother and the fathers of her sons has ended. Those parties agreed in relation to the terms of orders. This seems to me to be likely to have decreased the pressure and/or stress under which the mother was likely to have been operating earlier, including in November 2013.
Additionally, the incidents between the child’s parents at school appear to me to have arisen at or around the time the child’s time with her mother was very restricted. On the father’s most recent evidence, he and the mother have not interacted at the school since about July 2014. Further, whilst the mother has certainly had disagreements with the school in relation to the child’s brother’s behaviour there - including an exchange of email in which she expressed her views forthrightly – there is nothing in the evidence to suggest that she has again exhibited unrestrained or uncontained behaviour there. Nothing in the evidence suggests a repeat of the completely unacceptable event which happened in November 2013.
I consider that there is no persuasive evidence that the mother has engaged in regular psychological abuse of the child or in behaviours which have resulted in this consequence for her. Despite this conclusion, I accept the submission made by Counsel for the Independent Children’s Lawyer to the effect that it would be beneficial for the parents to participate in a ‘Parents not Partners’ program in the hope that this will enable both parents to continue to develop skills to deal with any frustrations arising from the differences in the manner in which each of them approach their respective parenting of the child. Attendance at such a course will supplement the matters to which the mother has been exposed by her attendance upon Ms F and at anger management training undertaken at the request of the Independent Children’s Lawyer. Given Dr W’s assessment of the mother as a person capable of renewing a relationship with a previous counsellor upon whom she attended (Ms F) to work on her interactions with the father so as to minimise the risk of adverse reverberations for the child, I am confident she will be capable of learning more skills to assist her in this regard in the future.
I also accept the submission made by Counsel for the Independent Children’s Lawyer to the effect that, save for Mr L and Mr O, there is no evidence to suggest that any of the other persons who from time to time came into contact with the children whilst they were in the mother’s care posed danger to them or placed them at risk. The evidence appears to me, as I have outlined earlier, to establish that, whilst the mother did not necessarily accept any allegations of adverse behaviour against Mr L, she acted to have him leave the premises as soon as those concerns were raised with her by the Department. In fact, he appears to have left the day after the relevant authorities conducted interviews with the mother and him at the premises.
There is nothing in the evidence to establish that after he left the premises in around late 2012 he has ever been seen at or near the mother’s premises or, even, in the general vicinity or location of her home. I accept that the making of an injunction on a final basis preventing any person from permitting the child ever to be left unsupervised in the presence of Mr L represents a significant future precaution and is something the adherence to which will ameliorate any remaining risk.
I further accept that there is nothing in the evidence to suggest that the mother has had any contact with Mr O since 2012. I accept that she terminated her association with him when she observed him to permit one of his children to smoke cannabis. I am not persuaded on the evidence called on behalf of the father that the mother continued her association with Mr O to Easter 2013. I consider the evidence given by Ms Z – called by the father in an attempt to establish this fact – to be so vague as to be entirely unpersuasive. Having regard to this and the mother’s evidence that the Easter referred to was 2012 and not 2013, I am not persuaded that it is more likely than not that the mother had any interaction with Mr O at Easter 2013.
Additionally, there is no evidence to suggest that the children were ever left unsupervised in the presence of Mr O.
Having considered the evidence adverted to above, I am not persuaded that the child is at an unacceptable risk of harm in her mother’s home because of neglect or exposure to her mother’s approach to parenting. Whilst certainly different to the approach adopted and implemented by her father, I consider it more likely than not that the child obtains benefit from the opportunity to experience two different approaches to parenting.
I also accept Mr J’s evidence that nothing in any of the children’s comments to him reinforced any concerns that the mother was emotionally unavailable to them; further that, in fact, her sons appeared to regard her as more emotionally available than their respective fathers.
I accept Mr J’s evidence of the mother to the effect that, whilst the father and maternal grandmother pointed to a number of her short-comings, she had raised, largely on her own, three very well-behaved, polite, intelligent and reflective children.
The mother’s attitude to parenting, involvement in the child’s life, participation in decision-making about major long term issues relating to her, fulfilment of obligations to support her and attitude to her and the responsibilities of parenthood
As noted, Mr J first interviewed the parties in April 2013. His first report contains his tentative – and/or interim – views. He said it appeared to him the mother had, what he described as, a sense of ‘propriety’ (read: proprietorial view toward) with respect to the child and her brothers in that she had previously made decisions about them and their care without consultation with their respective fathers. He thought she may have had some justification for this attitude if her account that her sons’ respective fathers had chosen not to be extensively involved in their sons’ lives to date were accepted.
The boys’ fathers’ proposals as summarised in Mr J’s June 2013 report supports my conclusion that it is highly likely the mother previously made decisions about her sons without input from – and, probably, consultation with – those children’s fathers because the fathers themselves (for whatever reason) did not press the issue of their ongoing involvement in their sons’ lives. Given this, I am not prepared to conclude from Mr J’s assessment that the mother manifested an inappropriate “propriety” or sense of entitlement in relation to her parenting of her sons or, that which she did was not based upon her previous experience of co-parenting.
Whether her experience of parenting them in this way coloured and/or influenced her attitude toward her parenting of the child after separation from the child’s father is, of course, another matter – just as the father is, of course, a parent different to the fathers of her other children. Senior Counsel for the father emphasised throughout the trial that the mother approached her parenting of the child with the same sense of propriety already asserted to.
Given my conclusion that the father did relatively little practically to support the mother in her parenting of her sons before the child was born, it seems more likely than not that the mother may initially have approached her parenting of the child on the basis that his attitude to fulfilling the responsibility of parenthood would mirror their approach.
However, the father’s actions in November 2012 and since can only have demonstrated to the mother that his approach to parenting differs significantly from that of her sons’ fathers. He clearly seeks to be significantly involved in the child’s care and in making decisions about issues relating to her. Whilst this may well have challenged the mother as a parent given her past experiences, I am confident that she has the capacity – with the support of attendance at the parenting program suggested by the Independent Children’s Lawyer and, if necessary, re-attendance on Ms F, to develop the skills to negotiate this “new” style of co-parenting so that the child obtains the maximum benefit from her interactions with each household.
Attitude to facilitating a relationship with the father and supporting the child in her relationships with others living in his home or associated with him
I note Dr W’s comment that, while the mother appeared to have quite a volatile relationship with H’s father, H continued to see him on quite a regular basis. In any event, whatever may have been the mother’s attitude to the facilitation of the child’s brothers’ relationship with each of their respective fathers, I am not persuaded that she is unlikely to facilitate and/or support the child in maintaining her relationship with her father.
The father asserted that the mother had demonstrated an unwillingness to permit the child to attend a birthday celebration for a day in June 2014. She did not allow the child to spend time with the father that day because of her expressed view that the child was not then spending a ‘healthy’ amount of time with her family and that, consequently, any loss of any time was not acceptable to her or, inferentially, beneficial for the child (in her view at least). Whilst the father offered the mother make-up time with the child on the upcoming public holiday, she refused his request on the basis that it was made too late and she already had made plans.
It cannot, I think, be overlooked that, whilst the father is critical of the mother’s response in this respect, his request for the child to spend this time in his care – at a time when, according to the operative Order she should have been spending time with her mother and brothers - came at about 1.16 pm the day before: that is, despite the celebration being his daughter N’s birthday party, he only asked the mother to change her plans to accommodate his request that the child attend about 24 hours before the celebration was to occur. In such a circumstance, I am not persuaded to conclude from this event that the mother demonstrated an inflexibility in relation to the child’s time with each of her parents or that she could be thought necessarily to be unsupportive of affording the child the opportunity to celebrate N’s birthday.
I accept that there is evidence that after their separation, the child spent significant and substantial time in her father’s care without the necessity for Court order. I consider that, whilst the father advanced at trial his view and/or interpretation that the time he was able to spend with the child was dictated or imposed by the mother, the reality is that – no doubt with some disagreement on occasion – both parents were able to agree arrangements which afforded the child the opportunity to spend time in each of their households.
Whilst it may well be thought by others that an order for equal shared parental responsibility in this case is an order which is more likely than not to cause future difficulties for the child the reality is that the parents have already demonstrated the ability to make a decision jointly about the school at which the child attends and the manner by which she is educated.
Whilst the evidence suggests that the mother has, on occasion, been disappointed by the manner in which the school has chosen to respond to issues which have, on occasion, arisen for the child and, more recently, H/D, mere ‘disappointment’ – or, even, disagreement – with the approach taken by a school on occasion does not necessarily mean that the mother is unlikely in the future to be able to continue to work with the school and the father in facilitating and managing the child’s attendance there.
Additionally, whilst the mother was clearly initially opposed to the child being immunised, she ultimately agreed to this course and orders were made in mid-August 2014 to reflect that agreement. There is nothing in the evidence to suggest that the mother has acted contrary to her agreement for the child to be immunised.
Irrespective of the allocation of parental responsibility, the child will, on either parent’s case, continue to be required to transition between their respective homes and manage the way in which each approaches her parenting. For example, she is already being asked to manage living in circumstances where one household favours the consumption of meat and the other is strongly opposed to it. I consider that an order which accords either parent effective control over the decisions about major long term issues relating to the child would be more likely than not to enshrine the power about such issues in its recipient – it has the very real attendant risk that the child is left with the message that such recipient’s views about matters is ‘better’ or more sensible or holds more validity that the views of the other parent: in my view, this is not something which is likely to be beneficial for the child in either the short or long term or in any way in her best interests.
I am confident that, with the assistance provided by their attendance at the parenting course prescribed in the orders made, these two intelligent, articulate, loving and equally determined and focused parents will be able to enhance their abilities to communicate sufficiently well so as to be able to discharge the obligations imposed upon them by an order for equal shared parental responsibility.
What Orders are in the Child’s Best Interests?
Given I have concluded that it is in the child’s best interests that her parents have equal shared parental responsibility for major long term issues relating to her, it is necessary that I consider whether it will be in the child’s best interests to spend equal time with each of her parents[28], consider whether equal time is reasonably practicable[29] and, if it is, consider making an order that she spend equal time with each parent.[30]
[28] s 65DAA(1)(a)
[29] S 65DAA(1(b)
[30] s 65DAA(1©
It is clear the child has siblings in the households of each of her parents. I consider it important that she has the opportunity to spend time with those siblings in a manner that affords her the opportunity to continue to develop and maintain her relationships with them. I accept that she has a strong attachment to her mother and brothers. I also consider that, whilst her comments about wanting more time with her mother may have some element of an attempt to manage her mother’s distress at the significant reduction in the time they had spent together, it is also more likely than not that the child herself was experiencing that loss significantly – especially given the abrupt means in late 2012 by which the father unilaterally changed what had been the primary living arrangements which had attended her life until then.
I consider that concerns about the mother’s parenting are not so profound as to preclude her from having care of the child for substantial periods of time. I consider that such risks as may exist will be ameliorated by the child spending substantial time with her father.
I accept that the child has genuinely expressed a wish to spend more time with her mother. In my view, this expression of wish is not unexpected given the parenting arrangements which predated the father’s unilateral change to them. Given that the child has had the experience of living primarily with her mother and then primarily with her father, I consider that weight should be accorded to her expressions of wish, albeit of course an amount that recognises her relative youth.
I am not persuaded that Mr J started with a presumption that the child should spend equal time with each of her parents. I accept his evidence that he did not ‘come at it’ from a perspective that she should spend equal time with each parent unless there was a good reason for this not to occur. I accept that, in arriving at his assessment that equal time with each of her parents was something that is in the child’s best interests, Mr J took into account that she has siblings in the households of each of her parents, strong relationships or attachments to her brothers and mother (with whom she had lived and spent the majority of her time and by whom she had been raised respectively until November 2012), her genuine wishes to spend more time with her mother and the arrangements which might best promote her having meaningful relationships with each of her parents.
I also accept that Mr J considered that affording the child the opportunity to spend equal time in her parents’ respective households might, in fact, act to ameliorate the possibility of ongoing conflict between them.
Whilst I am acutely conscious that it may – at first blush – appear somewhat perverse to conclude that more time with each parent is more likely to result in less conflict than the reverse, I emphasise my conclusion that much of the conflict arises out of each parent’s attempts to impose their respective wills and views about parenting on the other. There is no evidence that the mother demonstrated significant behaviours reflective of poor impulse control[31] until after the child was retained by her father in late 2012: whilst she may well have made decisions about the method of parenting different to those the father now espouses, there is nothing to suggest that she previously acted out of anger.
[31] other than her management of H for which she sought assistance.
Whilst Senior Counsel for the father continued to emphasise that the mother approached her parenting of the child with a proprietorial air, exactly the same conclusion is open when regard is had to the father’s actions: for example, he decided to act to change the child’s longstanding parenting arrangements in late 2012 in circumstances where, as I have found and outlined above, I have concluded it is more likely than not that he knew of the overwhelming majority of matters he relied on before he travelled overseas after separation; further, he encouraged meat consumption when he was well aware that the child’s mother was strongly opposed to this (as she had been during their relationship).
I consider that, to a large extent, each parent considers that they alone are best placed to determine what is in the child’s best interests – whilst the mother may well have previously made decisions about matters relevant to the child’s parenting without consultation, so too, I find, has the father.
I am certainly not persuaded on the evidence that a reduction in the time the child is able to spend with her mother could be regarded as being in her best interests: such a consequence would, I consider, be more likely than not to have the potential to impact negatively on her relationships with both her mother and her brothers and may well enhance the prospects of future conflict and/or emotive scenes to which she is exposed. I accept Mr J’s evidence to the effect that the father’s proposal that the child spend three nights per fortnight in her mother’s care will not be sufficient to meet and address her emotional and developmental needs. A reduction in time with the mother also has the very real prospect that the child’s relationship with her father may be adversely affected.
I am persuaded that an equal time arrangement on a week about basis is an arrangement that will best permit the child to continue to develop and maintain meaningful relationships with each of her parents and the siblings who live with each of them respectively. It will also permit her to develop a routine by which she is not required to transition during the school week between households in which there are significant differences. For her, the routine will become very much that, in the week she is living with her mother and brothers she will have the opportunity to be immersed in and benefit from exposure to that household’s routines, expectations, attitudes and approaches to life whilst, in the week during which she is living with her father and sisters, she will have the commensurate opportunity to be immersed in and benefit from exposure to his household routines, expectations, attitudes and approaches to life.
I consider that, for the child, this routine will afford to her the best opportunity to take the best from each of her parents and their households’ attitudes, beliefs and expectations and will also ensure that she is provided sufficient opportunity to be able to develop her own views and perspectives of those things which, over time, she considers are most aligned with her as a person.
I also consider that, whilst an equal time parenting regime may well have some practical difficulties, these difficulties are also likely to attend every other permutation of parenting regime. In fact, some of difficulties associated with the child moving between households during the week – which themselves are likely to have exacerbated conflict and difficulties between the parents – may well in fact be significantly ameliorated by an equal time, alternate week parenting arrangement.
In balancing the child’s right to have a meaningful relationship – not only with each parent but also her siblings in each of their homes and their partners – I am persuaded that an equal time, week about parenting regime is that which best affords her the opportunity to exercise and benefit from this right and it is that which will also best afford her the opportunity to be equally exposed to the full range of her parents’ values.
The child’s parents live in sufficient proximity that travelling between their homes and/or each of their homes and school imposes no particular impost on the child. I consider that both of the child’s parents have the capacity (with support and dedication) to communicate with each other sufficiently to be able to resolve sufficiently well difficulties which may arise in implementing an equal time arrangement. In a sense, this may well be easier than the current regime which has seen the child spend time in each of their homes each week: a regime which accords the child the opportunity to spend alternate weeks in each of her parents care would remove the requirement for sharing responsibility for practical, day to day issues each week.
As I have already outlined, increasing the child’s time in her mother’s care will, I consider, afford to her the benefits I have already identified. Requiring that she spend equal time with each of her parents in an alternating week regime would afford her sufficient time to settle into the routines and regimes implemented by each of her parents and remove the requirement that she adjust too frequently to the differences. I consider that the impact on the child of the opportunity to spend equal time with each of her parents is highly likely to be a beneficial one because it will provide her with the additional time with her mother which, in my view, she has consistently sought, will diminish the worry she currently feels and may well bolster her in her feelings toward her father. All of the matters persuade me that equal time with each parent is reasonably practicable for the child.
Holiday time and communication
As noted earlier:
a)the father proposes that the child spend five consecutive nights with her mother during each school holiday period other than that which occurs at the end of the school year and for three five night blocks during the end of year school holiday period; and
b)the mother proposes that the child spend half of each school holiday period with each of her parents and that, during the end of year school holiday period, this time occur in alternating weeks; and
c)the Independent Children’s Lawyer simply proposes that the child spend half of each school holiday period with each of her parents.
Given the conclusions I have already expressed, I am not persuaded that there is any benefit to the child in spending a block of five consecutive nights in her mother’s care rather than simply continuing the alternate week living arrangement which will apply during school term.
The benefit to the child of continuing this living arrangement during the likely shorter school holiday periods is that her routine will be uninterrupted. In the event that other children in each of the child’s homes attends a school at which the school holiday periods are different to those at the E School, she may well have the additional opportunity to spend individual time with each of her parents during her school holidays. In so far as affording her time during school holidays to spend time with N, whilst she and the child continue to attend the E School, their holidays will be the same and they will continue to have the opportunity to spend time together when the child is living with her father and N is spending time in his household.
I consider that, in order to maximise the predictability of her parenting arrangements, minimise the prospect of parental disagreement (and its consequent adverse impacts on the child) and provide time for both households to settle into the altered parenting regime which will following the making of orders that the child spend equal time with her parents, it is in her best interests that, until the 2017 end of year school holiday period, the alternate week regime should persist through all school holiday periods. After that time, I consider the child would benefit from the opportunity to spend extended school holiday time with each parent and, for this reason, the end of year school holiday periods thereafter will occur in blocks of time representing half of that period: in that way, travel away may also be accommodated.
The Christmas Day/ New Year period
Given the order that the child continue to live with her parents in a week about regime during the end of year school holiday periods until December 2017, there is no need to make specific arrangements for the Christmas Day/New Year period until then. That is because Christmas Day 2015 falls on a Friday in 2015 and Christmas Eve falls on a Friday in 2016. Given that the child will transition between her parents’ households on Fridays, she will be afforded to spend time with each household on Christmas Day 2015 and Christmas Eve 2016.
As I have concluded that it is in her best interests to spend half of the end of year school holiday period with each parent in a continuous block commencing in 2017 (at which time she will be 10 years old) so as to afford each parent an extended period of holiday time within which, for example, travel may be undertaken, the orders make provision for the child to spend time thereafter within each household – and, therefore, with her siblings who live in each of those households - during this celebratory period each year.
Telephone communication
The father proposes that, in the event the child is living primarily with him, she speak with her mother each Tuesday and on each of Christmas Day, New Year’s Day or her mother’s birthday if she is living with him on those days. He also proposes the child speak with him by telephone each alternate evening during any school holiday time she spends with her mother.
I am not persuaded it is in the child’s best interests for telephone communication to be mandated to occur at the frequency proposed by the father. His evidence establishes that the child is already manifesting a reluctance to divulge to him what is happening during her time with her mother and that she has seemed inhibited in speaking with her mother whilst in his care. I consider it more likely than not that to require telephone communication each alternate night will simply increase the child’s reluctance to share information with each of her parents and that such a regime is unlikely to remove from her the reluctance her father and his partner describe.
I am hopeful that, with time and the absence of a requirement to communicate more frequently than once per week whilst in each parent’s home, each parent will simply allow the child the freedom to communicate with the household in which she is not living as and when she has something she wishes to communicate.
How should changeovers occur?
The proposals for non-school day changeovers may be summarised as follows:
a)the mother: the father collect the child from her home at the commencement of time and return her to her home at the conclusion of time;
b)the father: the Town P shops car park;
c)the Independent Children’s Lawyer: as agreed between the parties in writing.
It is, I think, appropriate that I determine the changeover venue rather than simply abdicating the responsibility for the resolution of this aspect of the parties’ dispute to them. In doing so, I note that, on the father’s own recounting, there have been no issues about those changeovers at school for a significant period of time and that the mother has not been present at the school during times he has been there.
The Town P shops car park is the location at which non-school changeovers have occurred for some time. The father’s most recent affidavit does not contain any evidence that there have been any problems at these changeovers. Given the contents of his earlier affidavits, I have no doubt at all that, if there had been any difficulties using this location for the child’s transition between her parents’ households, details of any such difficulties would have been included in this affidavit.
Thus, there is nothing to suggest the current location should not continue to apply for non-school time changeovers into the future. It is, I think, important that both parents convey to the child, through demonstrable actions, that they are actively involved in assisting her to transition between her two homes. The orders formulated take this, and also that each parent is responsible for the care of children other than the child A and each has the assistance of a partner known to the child, into account.
Of course, in the event that the parties wish to change the location of transition from the Town P shops car park in the future, it is always open to them to agree such variation.
Attendance at school
The father proposes that an order be made that, during school terms, the mother ensure the child attend school on Friday when she is in her care and is not late to school and that if she is too ill to attend school, she contact him and arrange for the child to be collected by him or his nominee from the Town P shops car park at 9.00 am that day.
His proposal is clearly designed to address the issue of the child’s non-attendance at school during times she is in her mother’s care. Whilst understandable, it must be seen in the light of the evidence which establishes that he, too, has, on occasion, determined to keep the child at home on school days for what he describes as a “special occasion (birthday/holiday)”.
An order will direct that each parent ensure the child attends school unless she is physically unwell. It is made in these terms to remove the potential of further disputes. In making this particular order, I also note that the child’s brothers’ attendance at school has been regular and not the subject of any particularly adverse comment.
Injunctive relief proposed by the father
The father proposes that the mother be subject to specific injunctions as particularised in the Minute of Order prepared on his behalf. In particular, he proposes that the mother be ordered:
a)to ensure that no person (other than her children and her de facto partner) stays overnight at or resides at her home unless he agrees in writing to that person doing so; and
b)not to leave the child in the care of any person (including her children) other than the maternal grandmother or her current de facto partner (Mr X) or a person agreed between the parties in writing; and
c)to ensure that the child sleeps in her own bed whilst she is in her care; and
d)not to take the child to mental health professionals or alternative healers/practitioners without his written consent; and
e)not to change the child’s school from E School without his written consent.
The injunctive relief[32] contained within the orders outlined at the commencement of these Reasons is that which I have determined to be in the child’s best interests and that which I consider is more likely than not to minimise the prospect of further conflict and litigation.
[32] Howsoever expressed.
I have determined not to make the other orders of an injunctive nature sought by the father because I consider them unlikely to advance the child’s interests in any significant way and highly likely to be productive of, and provide opportunity for, ongoing conflict between her parents: something that could not be seen as beneficial for the child.
Further, much of the injunctive relief sought is, I consider, so broadly drawn that, if orders were made in those terms, they would result in unnecessary intrusion into each parent’s parenting of the child, be highly likely to be seen by the mother as a further demonstration of the father’s attempts to control her and her household and be highly likely to be productive of further dispute and/or litigation between the parties: none of these possible outcomes are likely to assist the child.
A passport and international travel
The parties are agreed that they should each do everything necessary to ensure that the child has an operative Australian passport. The father proposes that he retain possession of her passport whilst the mother proposes that it is held in her solicitor’s office. I am not persuaded that the course advocated by the mother is necessary.
The father proposes that, whilst he be at liberty to remove the child from the Commonwealth of Australia for the purpose of holiday travel during any period she lives with him, the mother be restrained from taking the child out of Australia and that her name remain on the Airport Watchlist to prevent the mother removing her from Australia.
The mother proposes that each parent be at liberty to take the child overseas for a period of up to six weeks each year. Further details of the specific orders she proposes be made to facilitate any overseas travel and the child’s communication with the other parent during this travel are outlined in the proposed Minute provided to the Court by her legal representative.
One of the matters relied upon by the father as providing the foundation for the restraint he proposes be imposed on the mother in preventing her removing the child from Australia is that, in February 2013, a medical practitioner upon whom the mother attended recorded that she spoke of the Court case and, according to the notes made, said she wanted to go overseas with her children.
Whilst the mother advances that she wants to be able to take the child overseas – as she has in the past – she says that she has no intention of living there. It was advanced that she has always returned with the children to Australia, that her two other children attend school here and have ties to the community in which they live, that she and the child have such ties also and that there is nothing to suggest that she will not return the child to Australia – as she has previously done – at the conclusion of any holiday time.
The evidence makes clear that on every occasion the mother has removed the child (and her other children) from Australia and travelled overseas she has returned. In fact, both parents appear to have travelled relatively regularly outside of Australia and international travel appears to have formed part of their lives.
Whilst I accept the submissions made by Counsel for the Independent Children’s Lawyer that little in the evidence supports a finding that the mother is more likely than not to “flee” with the child if permitted to remove her from the Commonwealth of Australia and that, given the parents’ history of international travel, it would be an unreasonable impost on their freedom to restrain them from travelling overseas with the child, I am also concerned to ensure that the parties have the time to settle into and accept the new parenting regime which will follow the orders made.
I consider that the prospects of such acceptance is unlikely to be reinforced if, during an initial period of time, the father remains fearful that the mother will remove the child from Australia and not return her. Accepting immediately that it is entirely arbitrary in one sense, I consider that a prohibition on the mother removing the child from Australia until November 2017 represents the balancing of this reasoning and the benefits likely to flow to the child if able to travel outside Australia with her mother after this time.
I certify that the preceding two hundred and twenty-four (224) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Hogan provided on 16 November 2015.
Associate:
Date: 16 November 2015
Key Legal Topics
Areas of Law
-
Family Law
Legal Concepts
-
Jurisdiction
-
Injunction
-
Costs
-
Procedural Fairness
-
Remedies
0