Wemple & Dautry (No.2)
[2014] FCCA 2847
•18 December 2014
FEDERAL CIRCUIT COURT OF AUSTRALIA
| WEMPLE & DAUTRY (No.2) | [2014] FCCA 2847 |
| Catchwords: FAMILY LAW – Parenting issues involving persistent allegations by the Mother against the Father, none of which are substantiated – Mother’s false evidence given to Magistrates Court in relation to parenting proceedings and orders in this Court – change of residence of child in part because of Mother’s constant frustration and harassment of Father (and his partner) – likely detriment to Father’s relationship with child – use of evidence of proceedings in Magistrates Court – persistent allegations by Mother against Father (a serving AFP officer) including stalking the Mother and child, fabricating documents, and hacking the Mother’s emails, all allegations established to be false – the Mother instructed her then lawyers to claim in this Court that the transcript of her evidence in the Magistrates Court was incorrect, which claim was also established to be false. |
| Legislation: Family Law Act 1975, ss.60CA, 60B(1) & (2), 60CC(2)(a) & (b), 60CC(2A), 60CC(3)(a) – (i), 61DA, 65DAA, 69ZN, 69ZT(1)(c), 69ZX(3) Evidence Act 1995, s.91 |
| Adamson & Adamson [2014] FamCAFC 232 AON Risk Services Australia Ltd v Australian National University (2009) 239 CLR 175 Carlson & Fluvium [2012] FamCA 32 Collu & Rinaldo [2010] FamCAFC 53 Damiani & Damiani [2010] FamCA 217 Fox v Percy (2003) 214 CLR 118 Goode v Goode (2006) 206 FLR 212; (2007) 36 Fam LR 422 McCall v Clark (2009) 41 Fam LR 483 McGregor v McGregor (2013) 47 Fam LR 498 Maluka v Maluka (2012) 45 Fam LR 129 Mazorski v Albright (2008) 37 Fam LR 518 Moose & Moose (2008) FLC ¶93-375 Mulvany v Lane (2009) 41 Fam LR 418 RCB (as litigation guardian of EKV, CEV, CIV and LRV) v The Honourable Justice Forrest (2012) 247 CLR 304 Rice & Asplund (1979) FLC ¶90-725 SCVG & KLD (2014) FLC ¶93-582 Shaeffer v Jacobs (2011) FLC ¶93-468 Sigley v Evor (2011) 44 Fam LR 439 Smith v NSW Bar Association (1992) 176 CLR 256 Suell & Suell (Re-Opening) [2009] FamCA 55 Su v Chang (1999) 25 Fam LR 558 Wemple & Dautry [2013] FCCA 2376 Wemple & Dautry (Stay Application) [2014] FCCA 401 |
| Applicant: | MR WEMPLE |
| Respondent: | MS DAUTRY |
| File Number: | CAC 1472 of 2013 |
| Judgment of: | Judge Neville |
| Hearing dates: | 24 – 25 July & 10 September 2014 |
| Date of Last Submission: | 14 November 2014 |
| Delivered at: | Canberra |
| Delivered on: | 18 December 2014 |
REPRESENTATION
| Counsel for the Applicant: | Mr N James |
| Solicitors for the Applicant: | Farrar Gesini Dunn |
| Counsel for the Respondent: | Mr T Hodgson |
| Solicitors for the Respondent: | N/A |
| Solicitor/Advocate for the Independent Children's Lawyer: | Mrs G Yeend |
| Solicitors for the Independent Children's Lawyer: | Yeend & Associates |
ORDERS
The Father have sole parental responsibility for the child [X] (“the child”), born [omitted] 2008.
The child live with her Father.
To support the change in the living arrangements for the child:
(a)The Father will enrol the child in confidential counselling within seven (7) days and provide the Counsellor with a copy of these Orders and be solely responsible for all arrangements regarding this counselling;
(b)The Father will authorise the Counsellor pursuant to Order 3(a) to discuss with each parent and their respective Counsellors, the dates for counselling with the child and any other issues considered relevant by the Counsellor;
(c)Each parent will enrol in a course of counselling with a Counsellor and authorise the Counsellor to discuss with the Counsellor appointed pursuant to Order 3(a) any issues the Counsellor considers relevant;
(d)Each parent will enrol in a parenting after separation course within seven (7) days and provide the other parent with written evidence of completion.
The child spend time with her Mother as follows:
(a)In Week 1: From after school on Friday (or 3.00pm if Friday is a non-school day) until 5:00pm on Sunday; and
(b)In Week 2: From after school on Thursday (or 3.00pm if Thursday is a non-school day) until 7:00pm on Thursday.
Notwithstanding these orders, each of the parties take all reasonable steps to ensure that the child spends time with her parents as follows:
(a)With her Father for the first half of all school holiday periods commencing in years ending in an odd number, and the second half of all school holidays periods commencing in years ending in an even number;
(b)With her Mother for the second half of all school holiday periods commencing in years ending in an odd number, and the first half of all school holidays periods commencing in years ending in an even number;
(c)With her Mother from 9:00am until 5:00pm each Mother’s Day and with her Father from 9:00am until 5:00pm each Father’s Day.
(d)If the Mother’s birthday or the Father’s birthday falls on a day when the child would otherwise be living with the other parent, the following Orders apply:
(i)That if the Mother’s or Father’s birthday falls on a weekday, each of the parties take all reasonable steps to ensure that the child spends time with the parent having the birthday for a period of at least three hours at a time to be agreed between the parents, but failing such agreement from after school or 3:30pm (if a non-school day); and
(ii)That if the Mother’s birthday or Father’s birthday falls on a weekend each of the parties take all reasonable steps to ensure that the child spends time with the parent having the birthday from 9:00am until 5:00pm on the birthday.
On the child's birthday each year, the parent with whom the child is living make her available to spend time with the other parent for a period of at least two hours at a time to be agreed between the parents, but failing such agreement from 5:00pm until 7:00pm;
(a)In even-numbered years, from 10:00am on Christmas Eve until 10:00am on Christmas Day with the mother and from 10:00am Christmas Day until 10:00am Boxing Day with the Father;
(b)In odd-numbered years, from 10:00am on Christmas Eve until 10:00am on Christmas Day with the father and from 10:00am Christmas Day until 10:00am Boxing Day with the Mother; and
(c)Such further or other times as the parties may agree.
That for the purposes of Orders 4(a) and 4(b), in the absence of any written agreement between the parties to the contrary, the following Orders apply:
(a)The first half of school holidays is deemed to commence at the end of classes on the last day of school;
(b)The second half of the December/January school holidays is deemed to commence at 5pm on the Friday in January that falls approximately three weeks after the last day of the fourth school term of the previous year;
(c)The second half of all other school holidays is deemed to commence at 5pm on the middle Saturday of the school holidays or the middle Wednesday of the school holidays if the relevant holiday period has an odd number of weeks; and
(d)One half of the school holiday period be calculated by dividing the total number of days the children do not attend school by 2. If the number of days are not even, the Father is to have the extra day in even years and the Mother is to have the extra day in odd years.
For the purposes of Orders 2, 3, and 4 where handover does not occur at the child’s school, it occur at the [omitted] or at a location as agreed in writing by the parties.
That during the time that the child lives with her Father, the Father facilitate the child making a telephone call to the Mother as follows:
(a)In Week 1: On Monday and Wednesday afternoons between 5:00pm and 6:00pm; and
(b)In Week 2: On Tuesday and Saturday afternoons between 5:00pm and 6:00pm; and
(c)Any other reasonable time that the child requests to speak to her Mother.
Neither parent change the child’s place of residence from the Australian Capital Territory/Queanbeyan area without first obtaining the written consent of the other parent or an Order of the Family Court or Federal Circuit Court.
In the event that either parent intends to change their place of residence within the Australian Capital Territory/Queanbeyan area or their contact telephone number, they provide the other parent with 14 days’ notice of the new address and/or telephone number.
Each parent notify the other immediately of any serious illness or injury affecting the child, and immediately provide the necessary authorities to entitle the other parent to obtain information from any doctor or hospital treating the child.
Each parent notify the other of the name of any general practitioner or paediatrician or other specialist who treats the child whilst the child is in that parent’s care.
Neither parent say unkind or uncomplimentary things about the other (or the other’s partner) to or in the presence of the child, nor cause or allow anybody else to do so.
Both parents be restrained from:
(a)Discussing these proceedings with or in the presence of the child;
(b)Enrolling the child in any extra-curricular activities which fall during the period that the child lives with the other parent without the prior written consent of the other parent;
(c)Contacting the child by telephone other than the times set out in Order 9 unless in the event of an emergency.
During all times that the child lives with her Mother, the Mother ensure that the child is able to sleep in her own bedroom, and the Mother do all things necessary to ensure that the child sleeps in her own bedroom during any time she spends while in the home of her maternal grandmother, Ms D.
The Mother ensure that she is present during any time that the child is in the presence of any member of the [G] family (including Mr G) during any time the child lives with her.
In the event that either parent wishes to travel out of the Canberra/Queanbeyan region with the child during their time with the child, they must provide the other parent with:
(a)Written notice of the travel before the travel occurs; and
(b)A contact telephone number.
Pursuant to Section11(1) of the Passports Act 2005, the Court permit the child to travel internationally.
In the event that either parent wishes to travel overseas with the child, they must provide the other parent with at least two months’ notice of their intention to travel, along with copies of return tickets for the child at least 14 days prior to the departure, a detailed itinerary providing addresses and phone numbers for the accommodation in which the child will be staying at least 14 days prior to departure and the other parent will not unreasonably withhold his/her consent (which must be in writing) to the proposed travel.
The Mother be restrained from taking the child to the [omitted] Medical Centre at any time for any reason without the prior written consent of the Father.
Notwithstanding anything in these Orders, for the purposes of the 2014 Christmas and school holidays only the child shall spend time with her parents as follows:
(a)With the Father from 18 December 2014 to 15 January 2015;
(b)With her Mother from 15 January 2015 to 30 January 2015; and
(c)For a period of 4 hours on Christmas Day from 12pm until 4pm with the Mother.
For the purposes of Order 22 (a) above the Mother is deliver the child to the Father no later than 6pm this evening, 18 December 2014.
Changeover shall take place at the [location omitted] at 4:00pm on the relevant day.
The parenting matter is now finalised and the proceedings be adjourned for directions in relation to the property matters to 6 February 2015 at 9:15am.
AND IT IS NOTED THAT:
A.In the light of the concerns expressed in the reasons for judgment delivered today, the Mother is on notice that if anytime she withholds the child from returning to the Father’s care in accordance with these orders that upon notification of same to the Court there is a risk that a Recovery Order will issue in Chambers without further notice.
IT IS NOTED that publication of this judgment under the pseudonym Wemple & Dautry (No.2) is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT CANBERRA |
CAC 1472 of 2013
| MR WEMPLE |
Applicant
And
| MS DAUTRY |
Respondent
REASONS FOR JUDGMENT
Introduction
In the course of the Mother’s cross-examination, she agreed with the proposition put to her by the independent children’s lawyer that “this is pretty high stakes litigation.” This was qualified to confirm that the focus of these high stakes was 6 year old [X].[1] Ever since the litigious contest was initiated by [X]’s Father in the latter part of 2013, the stakes have been high indeed, and played accordingly, in- and outside the court-room. At times, this has been especially so by the Mother.
[1] Transcript (25th July 2014) p.234.
Unfortunately, the Mother’s actions have resulted in her being found in the Magistrates Court of the Australian Capital Territory (“the Magistrates Court”) to have given dishonest evidence, in certain respects, in apprehended violence proceedings against the Father, which ultimately led to those proceedings being dismissed and an adverse costs order being made against the Mother. In this Court, as these reasons show, she has also been found to provide evidence that was clearly false and misleading.
There is a quite significant procedural history to this parenting matter.[2] It began, primarily, with a contest in approximately mid to late 2013 over (a) some parenting matters generally and (b), most particularly, which school [X] should attend beginning in 2014.
[2] Property proceedings arising out of the parties’ relatively short de facto relationship remain on foot.
There is an even more significant evidentiary history. That history exposes in detail the remarkable but completely lamentable nature of the parenting contest, notably on the Mother’s part.[3]
[3] Regarding the procedural and evidentiary history, see Wemple & Dautry [2013] FCCA 2376; Wemple & Dautry (Stay Application) [2014] FCCA 401. In the first of these judgments the significant email and text message correspondence between the parties is detailed which confirms that the Mother’s two children, [X] and [Z], spent considerable and regular time – including overnight time – with the Father, contrary to the Mother’s later assertions in another court. Those two judgments, to the degree necessary, should be taken as reference points for this judgment. Accordingly, I seek not to replicate or repeat matters that are otherwise set out in them, including the general history of the relationship.
In the light of the very clear, extremely detailed and convincing evidence before the Court, explored and considered at length in these reasons, in my view, it is in [X]’s best interests, indeed it is essential that she now reside with her Father and spend regular but limited time with her Mother. The evidence makes plain that such a course is necessary, among other things, because I cannot be confident in any relevant respect that the Mother will not continue to cause the utmost difficulty to the Father’s relationship with [X], which the Family Consultant considered to be at risk. To the degree necessary, the same concern relates to [X]’s relationship with her Father’s partner, Ms K. Ms K has endured an unrelenting and hurtful campaign, along with her de facto Husband, by the Mother.
Nor can I be remotely confident that, while-ever [X] remains at a school not approved of by the Mother, [X] will either be supported by the Mother at such a school, or even that the child will attend school punctually or regularly. The undisputed evidence is that, since the order was made last year for [X] to attend the school sought by the Father (which was ultimately so ordered by the Court), [X] has been late, or has been taken out of school early, on a very large, indeed unusually large, number of days, and has similarly missed a significant number of days at school. All such omissions have occurred invariably while [X] has been in the Mother’s care. Details are noted later in these reasons.
The independent children’s lawyer (“the ICL”) supports the change in residence. Conditional on the Court’s findings, the Family Consultant also supported a change in residence.
Overview
To speak generally, the parenting contest on display in these proceedings dealt with the following matters:
(a) allegations by the Mother against the Father that he had hacked her email account(s) and otherwise falsified SMS and other messages between the parents;
(b) the general credit and credibility of the Mother’s evidence, not least in the light of her clearly erroneous evidence in another court about proceedings and [lack of] orders in this Court;
(c) allegations by the Mother against the Father that he stalked the Mother and child [in Canberra] at a time when documentary evidence confirmed that the Father was in Melbourne, where he had undergone [omitted] surgery; faced with this evidence the Mother simply and pointedly said that she “saw what she saw”. Among other things, when such things occurred during the trial, it made her look foolish and rather immature, rather like a child who had been found out, so to speak, but who refused to accept the truth or reality of the situation; and
(d) the Mother’s “obsession” (to use the word of her own Counsel) to ensure [X]’s attendance at [G] School.[4]
[4] In the course of these reasons various iterations of the name of this school are used (e.g. [G] School). They should all be understood as references to this particular school.
Also to speak generally, the evidence exposed the remarkable lengths to which the Mother would go (and has gone) to expose what she said was, among other things (as I have just noted), the Father’s intimidating and predatory conduct towards her, which included stalking her and [X], as well as hacking her emails and text messages.[5] No evidence has ever been produced to support such serious allegations. They assume even greater import because they have been made against a serving Australian Federal Police (“AFP”) officer. Consistently, the Father provided detailed evidence that contradicted the Mother’s claims.
[5] Among a number of places, see the submissions by the Mother’s solicitor, Transcript (17th February 2014) pp.2-3, 6, 8-9 & 10.
One very clear consequence of the Mother’s actions was that it placed her conduct and her “credit” as a witness very much at the forefront of the trial. In this regard, I have been compelled to give very particular attention to the evidence of the Mother, bearing in mind the central considerations mentioned by the High Court in Fox v Percy regarding the advantages of a trial judge in the evaluation of the credibility and evidence of a particular witness.[6]
[6] Fox v Percy (2003) 214 CLR 118 at [23] (Gleeson CJ, Gummow & Kirby JJ), at [65] ff., (McHugh J).
In saying this, of course, the parenting orders ultimately made must be on the basis of the best interests of [X] as determined according to the legislative scaffold in Part VII of the Family Law Act 1975 (“the Act”), rather than solely or significantly on the bases of the veracity or credibility of any particular witness.[7]
[7] See s.60CA of the Act for the paramount, statutory requirement of orders being made in the best interests of the child.
Still by way of overview, the following examples, considered in detail later, give some indication of the Mother’s evidence and its import for the parenting contest.
For example, in her extensive oral evidence, often she presented or gave evidence that suggested that she is something of an ingenue in almost every aspect of her life, which she described as always being in a state of “flux” but which is, fortunately for her, regularly accommodated by others; but she is no ingenue.[8] At other times, indeed quite regularly, she presented and gave evidence almost as a naïve but also coquettish young lady who is very used to getting her own way, and who feigned naiveté as a means of deflecting difficult or inconvenient questions.
[8] The Macquarie Dictionary (Fourth Edition, 2005) defines ingenue as: “the part of an ingenuous woman, especially as represented on the stage.” Whatever of the role of ‘the stage’, the Mother confirmed that she has worked as [occupations omitted]. See Transcript (25th July 2014) p.219. Unless otherwise required, all further references to the Mother’s evidence should be taken as from the transcript of this date, thus “T” followed by the page number.
There is no doubt that, in many respects, she is an accomplished woman. To speak broadly, she has qualifications in [omitted], and she is now seeking to acquire qualifications in [omitted]. She claimed to have business interests that, potentially, will provide her with very substantial sums from patent royalties.
Notwithstanding these accomplishments, at other times in the course of the trial, and as supported by the vast documentary evidence provided by the Father, she has clearly been in the habit of making exaggerated, sometimes bordering on extravagant, claims, and being rather malleable (to put it as neutrally as possible) in the presentation of facts. And when her claims were exposed either as distortions or much worse, no responsibility was taken, and quite some dissembling, or feigned argument, was proffered in mitigation.
For example, in her oral evidence, she claimed at one stage that she was a [occupation omitted] working with the [C] from which she drew a wage;[9] the documentary evidence confirms that she has recently completed a masters degree in [omitted] (as opposed to a degree in [omitted]), but there was no evidence from [C] that she has ever been employed by or otherwise engaged with that organisation. Indeed, Exhibit V, dated 4 September 2014 (produced under subpoena), is a letter from [C], which confirms that it has no documents to support the contention of Ms Dautry. Her later evidence suggested that her relationship with [C] was more “collaborative” rather than one of professional engagement that resulted in remuneration, as the Mother originally said in her oral evidence.
[9] See T 162.
She also claimed to be an assistant lecturer at the University [omitted]. She also said that she taught a course (or perhaps she intended to say more accurately “in” a course) on “[omitted]”, and will teach next year (2015), in a course that involves a component on ethics.
A letter provided by that University, (dated 7th September 2014; Exhibit R) confirmed that she was in fact employed as a “sessional tutor”. She then said that her “job description” called on her to lecture also. She further said that her rate of pay referred to by the University in that letter was wrong.
Early in her evidence, the Mother said that she was “halfway through” her [omitted] studies.”[10] Yet, as part of Exhibit R, there is a transcript, apparently but not obviously from [university omitted] in Melbourne (where the Mother said she attended courses every six months), of the Mother’s [omitted] studies. According to it, she has completed 7 courses out of a scheduled 24. Seven, or even nine courses (counting the Mother’s current enrolment), do not add up to “halfway through” as the Mother deposed.
[10] T. 162.
The Mother also estimated that she would finish her [omitted] studies “at the end of next year.”[11] Given her current enrolment pattern of two subjects per semester, and with a total requirement of 15 courses to be completed (according to Exhibit R), subject to what is said later in these reasons, it will be the better part of 3 years before the Mother’s [omitted] studies are completed.
[11] T. 163.
Exhibit T is a copy of her submitted master of [omitted] thesis. There is no standard text on ethics referred to in her bibliography. This is in circumstances where, in answer to a question from the Bench regarding her qualifications to teach ethics, the Mother said that the work on her thesis was considered sufficient qualification. In my respectful view, and in the light of the evidence, something rather more formal and substantial would usually be required to teach a university course on ethics.
Unfortunately, as the above briefly shows, embellishment seems to have become a form or feature of regular discourse by the Mother, at least in matters before this Court. In my view, in the course of the Mother’s evidence, there was a general malleability about matters of fact; “truth” was very much presented, when it did not suit her purposes, as something that was to be evaded or negotiated. Of course, embellishment is neither novel for courts generally (and certainly not in family law proceedings), nor is it, strictly speaking, a “hanging offence.” That said, accuracy and honesty is always sought and should be strived for.
In this regard, and more tellingly, in ex parte AVO proceedings before the Magistrates Court of the ACT on 25th February 2014, she claimed in oral evidence that (a) the Father never had the children ([X] and her brother [Z] – the Mother’s child from a different relationship) overnight: yet there are voluminous text and other messages between the parties (attached to the Father’s affidavit material filed in this Court) over a long period that confirm the Father regularly had the children overnight;[12] and (b) there were no parenting orders in place. Yet it is incontestable that there were parenting orders made by this Court in December 2013, at which event the Mother was present in Court when they were pronounced. Indeed, there were parenting orders earlier made by the Court, by consent, on 14th October 2013, and further orders were made on 19th February 2014.[13]
[12] The Mother also claimed in the Magistrates Court that she (and the children) had not really seen the Father for nearly two years after the parties separated. This claim too was false for the reasons already given. See Magistrates Transcript (27th May 2014) p.7. Indeed, in evidence in this Court (T 247), the Mother said that she hoped things would get back to what they were previously “that [Mr Wemple] will see them a lot.”
[13] A copy of the transcript from the Magistrates Court hearing is annexure L to the Father’s affidavit, filed 21st March 2014.
Obviously on instructions, the Mother’s then solicitor contended in this Court that (a) the transcript from the Magistrates Court was not accurate, and (b) the Mother did not say the things recorded in that transcript.[14]
[14] See, for example, the comments of the Mother’s solicitor: “She says, “That’s not what I said,” [in the Magistrates Court]”. Transcript (4th April 2014) p.4.
To deal with these contentions, the Court obtained a copy of the audio recording of the ex parte application in that Court and played it in open court with the parties and their lawyers present (and the ICL). The audio recording confirmed (a) the accuracy of the transcript, (b) the Mother’s erroneous evidence before the Magistrates Court, and in consequence, (c) her erroneous claims in this Court. The Mother’s then solicitor confirmed that he would give advice to her about the evidence given in the Magistrates Court, and any likely import of it in the proceedings in this Court.[15]
[15] Transcript (4th April 2014) p.10.
I should record that the AVO proceedings were ultimately dismissed, with costs being awarded against the Mother.[16] Indeed, as recorded later in these reasons, the Magistrate found the Mother to have been dishonest in her evidence in that Court.
[16] These matters were confirmed to Counsel for the Mother at the commencement of the trial given that he was not involved in the AVO proceedings in the Magistrates Court. See Trial Transcript (24th & 25th July 2014) pp.27 - 28. Unless otherwise noted, all further references will be to the transcript of the trial on the dates noted, hereafter “T” followed by page number.
I might also mention here that the Mother’s contention about the transcript in the Magistrates Court being inaccurate, and that she did not say what she clearly did, and the Court’s action to deal with it, showed a certain, if not typical, [pattern of] conduct by the Mother, which the Father recorded at much greater length. This is to say that each time the Mother makes some contention (e.g. that she is being stalked, that she did not say or do something, etc.,) someone else has to go to the trouble and time (and often quite some expense) to disprove it.
Here, the Mother clearly knew what she had said in the Magistrates Court. Nonetheless, she obviously gave instructions to her solicitor that (i) the transcript was inaccurate, and (ii) she did not say in that Court what is clearly recorded – in writing and on audio. Upon being found out in this Court that her claims about the alleged [in]accuracy of the proceedings in the ACT Magistrates Court were unsustainable, the Mother sought simply ‘to move on’, so to speak, with little or no accountability for (a) the trouble and expense to which she had put everyone (including the Court), and (b) her clearly and deliberately false evidence.
More summarily, in the light of the cycle of “claim by the Mother followed by the Father marshalling evidence to disprove it”, I suggest that another reason why the Father (and his partner) justifiably cannot trust anything the Mother says is simply because (with due adjustment for gender) she has “cried wolf” too many times. And this constant cycle has clearly led both the Father and his partner to live in a certain and constant state of alert (possibly bordering on a form of understandable paranoia – noted later in these reasons) about what the next allegation against the Father (and his partner) is going to be levelled against him or them by the Mother, which they will again have to fend off – at great effort and expense.
Another consequence of the Mother’s actions is that, in my view, she has completely severed any reasonable prospect of a business-like or remotely workable parenting relationship with the Father. In my view, he could not (nor could his very improperly maligned de facto spouse, Ms K) trust the Mother in anything. Among other things, her actions towards the Father (and his partner) have consistently been, for the better part of a year, the source of chaos and regular harassment in the Father’s life and that of his partner. Relevant details are set out later in these reasons. Because of his position with the AFP, and because of the Mother’s persistent reporting of him to the AFP professional responsibility unit, he now reports himself to it as a matter of course when there is even a hint or prospect of such a report by the Mother being made.[17]
[17] Among other places, see para.377 of the Father’s affidavit, filed 5th May 2014. One more recent event involved the Father noticing the Mother’s distinctive car in the vicinity of the Court building. The Mother’s car is a [omitted] with the distinctive number plate “[omitted]”.
To give a further and very significant example of the parenting contest and her highly distorted claims, the Mother asserted (with particulars given later in these reasons) that in March 2014 the Father stalked her and [X] by following her car on a particular date and time. The Father produced a large number of documents, including plane boarding passes and a number of time- and date-stamped Eftpos receipts, which confirmed that he was in Melbourne (where he was having surgery at the [omitted] Hospital) for a period of time that included the date and time the Mother contended she was followed or stalked by him in his car.[18]
[18] Among other places, see his affidavit, filed 2nd April 2014, especially the documents collected at annexures B & C.
The Mother showed, in my view, a remarkable inability to recognise the impact of her actions, and more worryingly, an even more stark inability to take responsibility for them. Likewise, she showed an alarming lack of insight regarding the impact that her actions, directed towards the Father, have (and will likely continue to do so) on [X].
In the course of the considerable number of events in this Court, and as evidenced in transcripts of proceedings in other courts, the Mother has treated fact, and her actions and their consequences, with a certain blithe disregard, as if there are no consequences, at least for her. The impact of her actions on the Father and his partner have been very significant, in almost every respect – financially, emotionally, and much more besides.
In relation to the “school issue”, I note the following:
(a)I made final orders in December 2013 in relation to the school [X] should attend beginning in 2014;
(b)The Mother filed but later abandoned an appeal in relation to the 2013 school [and parenting] orders;
(c)On 22nd January 2014, the Father received written confirmation from [G] School that in the light of the Court’s December 2013 orders, [X]’s name had been taken off the enrolment list;
(d)Also noted in the “stay judgment” (referred to earlier in these reasons, which also recorded the email from [G] School of January 2014), is that the Mother’s then solicitor confirmed to the Father’s solicitors that, as at February 2014, there was no longer a place at the Mother’s preferred school, although it was possible that a vacancy might arise later in the year;
(e)At the hearing of the stay application on 17th February 2014, the Mother’s solicitor conceded that if there was no longer a place for [X] at [G] School “there’s not a lot of point me standing before you saying we need a stay.”[19]
[19] Transcript (17th February 2014) p.19.
Notwithstanding the above outline of procedural matters and substantive orders, the Mother’s indefatigable Counsel persisted in pressing an argument to the effect that “the school issue”, which he variously described (as I have already noted) as the Mother’s “obsession” and “the elephant in the room”, if resolved in the Mother’s favour, would ensure that all would be well - again.[20] Indeed, Counsel said very early in the hearing: “In my submission, it’s likely that if the school issue hadn’t arisen this matter – we wouldn’t even be here.”[21] This attack amounted to a submission that if the Father relented and gave the Mother what she wanted, all would be sweet and light between the parties.[22]
[20] See, for example, trial transcript, T 125
[21] T (17th February 2014) p.21.
[22] It also discounted or failed to take into account that the Mother gave evidence that if [X] could not go to [G] School, she would be agreeable to her attending either [B] School or [R] School because either would be academically better than the current school [X] attends. The Mother confirmed that she had not put anything before the Court about these other schools. Among other places, see the trial transcript, T 166-167.
Respectfully, to accede to such an argument would be tantamount to a parent giving in to a recalcitrant or ornery child, whereby the louder the child shouted, or stamped feet or held breath or otherwise threw a tantrum, the more urgent it must be to accede to the child’s bad and inappropriate behaviour.
Neither the independent children’s lawyer (“ICL”), nor the family consultant, agreed with the approach or argument advocated by the Mother. As both pointed out in different ways, and leaving aside any consideration of the principle in Rice & Asplund (given that the school matter had been the subject of an earlier order of the Court which was not, ultimately, the subject of any appeal)[23] (a) the so-called “school issue” had/has been overtaken by other more significant matters, and (b) it was almost inevitable that there would ultimately be another “big issue” at some time in the future which would again bedevil the parties. The parenting relationship was, in fact and in substance, completely fractured because of the lack of trust between the parents. In my view, in the light of the evidence, the cause of this deep fracture must be laid at the feet of the Mother.
[23] Rice & Asplund (1979) FLC ¶90-725. Early in the proceedings the Mother’s experienced Counsel again raised “the school issue” and contended that [X]’s range of issues at school were sufficient to overcome any Rice & Asplund obstacles. See T 5 – 8. The Father’s Counsel also commented on it, not least in the light of correspondence from the Mother’s then solicitor to the Father’s solicitor in April 2014, which referred to the issue of Rice & Asplund in the context of the “school issue.” See T 11 – 13, and further at T 21 – 26.
I record here that where-ever there is any conflict between the evidence of the parties (including that of the Father’s de facto Wife, Ms K) I should be taken to prefer and accept the evidence of or in support of the Father to that of the Mother. I found the Mother to be a most unsatisfactory witness. In my view, there is little that she would not say or do to achieve her own ends, especially to thwart the Father’s time with and care of the child. On the other hand, I found the Father’s evidence, and that of his partner in particular, to be measured, candid, and almost invariably supported by significant documentary evidence.
There is no doubt that the parties (and Ms K, as well as the maternal Grandmother) love [X] very much. However, the Mother shows very little insight into [X]’s proper need to spend regular and quality time with her Father. Nor does she acknowledge the importance of [X]’s relationship with Ms K.[24] Moreover, in the light of the evidence generally, in my view there is little doubt that [X], if not already, is at risk of taking on as her own the views of her Mother, such as the unwarranted hostility towards and disparagement of Ms K. Yet when observed discreetly by the family consultant, for example, there is a good and close relationship between [X] and Ms K. And further, as noted in detail later, issues surrounding [X]’s incontinence, and her very significant lack of punctuality at school, remain matters of importance. They are reflective of the high and unsustainable level of conflict between the parties.
[24] In the course of his oral evidence, the Father confirmed that, among other things, because of his shift-work with the AFP, his partner would obviously play a significant role on [X]’s care in the event that there was a change in residence. The Father confirmed however that his work gave him significant flexibility, which would enable him to be the person primarily responsible and able to drop off [X] to school. Otherwise his partner, Ms K, would assist in such matters. See T 55 – 56.
Among many tragedies, as noted in earlier judgments, at an earlier point in time, and subject to the Father’s evidence, the parties worked reasonably well together for the benefit of the children (this includes the Mother’s child, [Z], who is not the subject of these proceedings). However, once the Mother’s desire for [X] to attend the school of her choice was (from her perspective) thwarted, prompted in large measure by the Father’s refusal/inability to pay for the significant fees at that school, it became, in sporting parlance, a situation where ‘all bets were off’. The parenting relationship has since deteriorated alarmingly.
All such matters are considered in more detail in the reasons that follow. The evidence leads, ineluctably in my view, as requiring a change in residence for [X], and that henceforth she should reside primarily with her Father and spend rather more limited (but still regular) time with her Mother. Such a course, in my view, is decidedly in her best interests, in accordance with s.60CA of the Act. The responsibility for this necessary course must rest entirely with the Mother; it is the necessary consequence of her actions over the past year – and beyond.
Two further comments are necessary to conclude this section: the first in relation to the treatment of evidence in parenting matters; the second in relation to the operation of s.69ZT of the Act.
Findings in Parenting Matters
It is essential to record here the observations of the Full Court in dealing with evidence in parenting matters, and in the context of the current matter, a number of observations I make in the course of these reasons that are critical of the Mother’s evidence. I remind myself of the caution expressed by Kent J in Carlson & Fluvium, which was endorsed very recently by the Full Court (of which Kent J was a member) in Adamson & Adamson, at [89 – [90]:[25]
[25] Adamson & Adamson [2014] FamCAFC 232.
[89] In Carlson & Fluvium [2012] FamCA 32 (“Carlson”) at [165] to [169] Kent J made the following observations concerning the making of adverse credit findings against a parent in a parenting case:
a 165. As a general proposition, civil courts usually refrain from specific adverse credit findings against litigants if the disposition of the case can legitimately be achieved otherwise. There are good reasons for that approach. For example, a specific finding that a litigant has misled the court might be tantamount to a finding of perjury. Further, it can be accepted as a given that human beings have the capacity to reconstruct or rationalise or even misconstrue past events or conduct, or to engage in self-justification, particularly in recounting events in highly emotive settings or in respect of highly emotive issues. This may make the distinction between an honest, although wrong, account on the one hand, and a deliberate and calculated obfuscation on the other, difficult to draw.
b 166. To deny significant limitations in the capacity to use assessment of the demeanour of a witness as an entirely reliable guide to his or her truthfulness would be to deny the existence of plausible liars; or those who may be timid, uncertain or unconvincing, but nevertheless truthful, in relating events.
c 167. Moderation in this respect is also called for when it is recognised that adverse credit findings in arriving at a decision at first instance may present a significant hurdle to legitimate rights of review of that decision on appeal.
d 168. These observations apply with at least equal, if not greater, force in parenting proceedings such as these in this Court where the decision does not bring an end to the litigants’ relationship. These parties are, and will remain, the parents of D and K and adverse credit findings in this decision carry the inherent risk that, rather than bringing an end to long-standing conflictual issues, they may be embraced as vindication for the pursuit of further conflict in the future.
e 169. Moreover, the resolution of parenting proceedings in this Court usually requires consideration of not only the credibility of the parties as witnesses or litigants but appreciation of the characters and personalities of them as people whose future relationship, or the context of that relationship with their child, the Court has the responsibility to decide.
[90] We agree with those observations. It follows from them that in parenting proceedings an adverse credit finding against a parent should not only be necessary to determine the real issues joined between the parties but should be soundly based, with due allowance for the limitations referred to.
Later in Adamson, at [103], the Full Court said:
We interpolate here reference to the important difference, as referred to in Carlson, between, on the one hand, evidence of a witness, honestly given although unreliable because it is found to be wrong in fact, and on the other hand, founding an adverse credit finding against the witness, based upon that unreliability. Failure to make that distinction, or to assess where a real or honestly held perception might begin and end, is an obvious error if the evidence is to be used as a foundation for an adverse credit finding.
Section 69ZT FLA: Use of Transcript & Findings from Magistrates Court
The parties have been engaged not only in proceedings in this Court but also they have been before the Magistrates Court of the Australian Capital Territory. The proceedings in that Court were initiated by the Mother seeking and being granted protection orders ex parte; ultimately they were dismissed with an order for costs made against the Mother. The transcripts of the proceedings in that Court are sought to be relied upon by the Father in the contest in this Court. That course brings in to play the following provisions and case law. In my view, the clear result of the following analysis is that those transcripts may properly be relied upon and used in the current matter.
Section 91 of the Evidence Act1995 provides:
(1) Evidence of the decision, or of a finding of fact, in an Australian or overseas proceeding is not admissible to prove the existence of a fact that was in issue in that proceeding.
(2) Evidence that, under this Part, is not admissible to prove the existence of a fact may not be used to prove that fact even if it is relevant for another purpose.
Note: Section 178 (Convictions, acquittals and other judicial proceedings) provides for certificate evidence of decisions.
Section 91 is in Part 3.5 of the Evidence Act 1995.
Section 69ZN(1) and (5) of the Family Law Act1975 provide:
69ZN Principles for conducting child‑related proceedings
Application of the principles
(1) The court must give effect to the principles in this section:
(a) in performing duties and exercising powers (whether under this Division or otherwise) in relation to child‑related proceedings; and
(b) in making other decisions about the conduct of child‑related proceedings.
Failure to do so does not invalidate the proceedings or any order made in them.
(2) Regard is to be had to the principles in interpreting this Division.
…
Principle 3
(5) The third principle is that the proceedings are to be conducted in a way that will safeguard:
(a) the child concerned from being subjected to, or exposed to, abuse, neglect or family violence; and
(b) the parties to the proceedings against family violence.
Section 69ZT(1)(c) of that Act provides:
(1) These provisions of the Evidence Act 1995 do not apply to child‑related proceedings:
…
(c) Parts 3.2 to 3.8 (which deal with hearsay, opinion, admissions, evidence of judgments and convictions, tendency and coincidence, credibility and character).
And s.69ZX(3) provides:
(3) The court may, in child‑related proceedings:
(a) receive into evidence the transcript of evidence in any other proceedings before:
(i) the court; or
(ii) another court; or
(iii) a tribunal;
and draw any conclusions of fact from that transcript that it thinks proper; and
(b) adopt any recommendation, finding, decision or judgment of any court, person or body of a kind mentioned in any of subparagraphs (a)(i) to (iii).
In RCB (as litigation guardian of EKV, CEV, CIV and LRV) v The Honourable Justice Forrest, the High Court noted the plain fact that “as to the admissibility of … evidence, s.69ZT of the Family Law Act disapplies provisions of the Evidence Act 1995 (Cth) dealing with, inter alia, hearsay evidence. The Court has a discretion to apply such provisions.”[26]
[26] RCB (as litigation guardian of EKV, CEV, CIV and LRV) v The Honourable Justice Forrest (2012) 247 CLR 304 at [25]. Generally, see also the Full Court discussion in Maluka v Maluka (2012) 45 Fam LR 129.
There was further consideration of the terms and application of s.69ZT by the Full Court in McGregor v McGregor, notably at [83] and following, albeit in the context of “opinion evidence.”[27] The Court there said:
[27] McGregor v McGregor (2013) 47 Fam LR 498.
[83] Section 69ZT(1) of Division 12A of the Act provides that certain provisions of the Evidence Act do not apply to child-related proceedings. Those provisions includes 69ZT(1)(c):
a Parts 3.2 to 3.8 (which deal with hearsay, opinion, admissions, evidence of judgments and convictions, tendency and coincidence, credibility and character).
[85] But the application of s 69ZT(1)(c) is confusing….
Earlier, in Damiani & Damiani, Watts J noted the following, having earlier referred to s.69ZT:[28]
[28] Damiani & Damiani [2010] FamCA 217.
[22] I agree with the wife’s submissions that the approach regarding family violence in property and parenting proceedings can be broken down into steps, however I think the process should be broken down into three steps rather than two. Those steps are:
a make findings of fact about one party’s conduct;
b (if applicable) make findings about the physical or psychological effect of the conduct on the other party;
c make findings of fact about the effect of the conduct of one party upon contributions made by the other party.
[26] In both parenting and property proceedings where family violence is involved, the first step is the same, namely, making findings as to the circumstances in which any family violence took place.
[27] The second step is also the same, that is, to ascertain the effect of the family violence on the victim’s physical and mental health and well-being.
[28] The process only differs in the third step. In parenting proceedings the third step involves assessing the likely effect of the family violence on what is in the best interests of a child. This will involve a consideration of matters such as those described in ss 60CC(2)(b) and ss 60CC(3)(b), (c), (f), (j) and (k) FLA.
I also note, for the sake of completeness, that in Su v Chang, the Full Court commented in the following terms regarding a failure by a party’s legal representative to make formal objection to the admission of evidence.[29] At [70], the Full Court there said:
[29] Su v Chang (1999) 25 Fam LR 558.
Where parties are represented, the failure of a represented party to complain at the hearing that any of these "optional" rules of evidence was being breached would generally be fatal to any objection subsequently taken on appeal. The failure to actually formally pronounce such an order in circumstances where each party is competently represented would not, in our view, render the proceedings nugatory.
Against this legislative and jurisprudential background, I note the following from the submissions of the Father (I should note, in no way critically, that no case law regarding the following submissions was cited).
Earlier in the proceedings Counsel for the Mother sought and obtained a concession from the Father’s Counsel that the decision and the findings of fact in the Magistrates Court involving the parties in domestic violence proceedings on 27th May 2014 were not admissible in the current matter to prove the existence of a fact that was in issue in that proceeding. That concession was formally withdrawn in writing in the course of the Father’s submissions, and prior to the Mother’s submissions being filed.
It was then submitted that, pursuant to s.69ZT(1)(c) of the [Family Law] Act, s.91 of the Evidence Act 1995 (which is in Part 3.5 of that Act; Counsel submitted it was in Part 3.6, but nothing turns on this) does not apply to child-related proceedings. It was further submitted that, pursuant to s.69ZX(3) of the Act, in giving effect to the principles in s.69ZN, in parenting matters the Court may (a) receive into evidence the transcript of evidence in any other proceedings and draw relevant conclusions from that as it thinks proper, and (b) adopt any recommendation, finding, decision or judgment of any court mentioned in that section.
As well, the Father submitted that, pursuant to s.60CC(3)(k), if a family violence order applies, the Court is required to consider the nature of the order, and the circumstances in which the order was made, and the other matters set out in that sub-paragraph of s.60CC(3).
Respectfully, these submissions conform to the discussion in the case law to which I have earlier referred.
The Mother’s Counsel did not respond to, or otherwise make any comment on, any of the sections (either from the Evidence Act 1995 or the Family Law Act 1975) referred to in the Father’s submissions concerning the use of evidence from the ACT Magistrates Court. In such circumstances, and also having regard to the Full Court’s comments in Su v Chang, I accept the Father’s submissions in relation to the procedural issues and other matters relating to the use of the transcript from the ACT Magistrates Court.
For the above reasons, the transcripts (including any findings recorded in them) from proceedings in the Magistrates Court should properly be taken into account in the current matter.
These reasons proceed as follows: (a) the orders sought (and outline of issues in dispute); (b) the list of documents tendered; (c) the evidence of the parties (and others); (d) evidence of the family consultant; (e) consideration of the legislative scaffold (& submissions); (f) disposition.
B. Orders Sought (Plus Issues in Dispute)
Father’s Orders Sought
That the Father have sole parental responsibility for the child [X] (“the child”), born [omitted] 2008.
That the child live with her father.
That the child spend time with her mother as follows:
3.1. In Week 1: From after school on Friday (or 3.00pm if Friday is a non-school day) until 5:00pm on Sunday; and
3.2. In Week 2: From after school on Thursday (or 3.00pm if Thursday is a non-school day) until 7:00pm on Thursday.
That notwithstanding these orders, each of the parties take all reasonable steps to ensure that the child spends time with her parents as follows:
4.1 With her father for the first half of all school holiday periods commencing in years ending in an odd number, and the second half of all school holidays periods commencing in years ending in an even number;
4.2 With her mother for the second half of all school holiday periods commencing in years ending in an odd number, and the first half of all school holidays periods commencing in years ending in an even number;
4.3 With her mother from 9:00am until 5:00pm each Mother’s Day and with her father from 9:00am until 5:00pm each Father’s Day.
4.4 If the mother’s birthday or the father’s birthday falls on a day when the child would otherwise be living with the other parent, the following Orders apply:
4.1.1That if the mother’s or father’s birthday falls on a weekday, each of the parties take all reasonable steps to ensure that the child spends time with the parent having the birthday for a period of at least three hours at a time to be agreed between the parents, but failing such agreement from after school or 3:30pm (if a non-school day); and
4.1.2That if the mother’s birthday or father’s birthday falls on a weekend each of the parties take all reasonable steps to ensure that the child spends time with the parent having the birthday from 9:00am until 5:00pm on the birthday.
4.5 On the child's birthday each year, the parent with whom the child is living make her available to spend time with the other parent for a period of at least two hours at a time to be agreed between the parents, but failing such agreement from 5:00pm until 7:00pm;
4.6 In odd-numbered years, from 10:00am on Christmas Eve until 10:00am on Christmas Day with the mother and from 10:00am Christmas Day until 10:00am Boxing Day with the father;
4.7 In even-numbered years, from 10:00am on Christmas Eve until 10:00am on Christmas Day with the father and from 10:00am Christmas Day until 10:00am Boxing Day with the mother; and
4.8 Such further or other times as the parties may agree.
That for the purposes of Orders 4.1 and 4.2, in the absence of any written agreement between the parties to the contrary, the following Orders apply:
5.1 The first half of school holidays is deemed to commence at the end of classes on the last day of school;
5.2 The second half of the December/January school holidays is deemed to commence at 5pm on the Friday in January that falls approximately three weeks after the last day of the fourth school term of the previous year;
5.3 The second half of all other school holidays is deemed to commence at 5pm on the middle Saturday of the school holidays or the middle Wednesday of the school holidays if the relevant holiday period has an odd number of weeks; and
5.4 One half of the school holiday period be calculated by dividing the total number of days the children do not attend school by 2. If the number of days are not even, the Father is to have the extra day in even years and the Mother is to have the extra day in odd years.
For the purposes of Orders 2, 3, and 4 where handover does not occur at the child’s school, it occur at the [omitted] or at a location as agreed in writing by the parties.
That during the time that the child lives with her father, the father facilitate the child making a telephone call to the mother as follows:
7.1 In Week 1: On Monday and Wednesday afternoons between 5:00pm and 6:00pm; and
7.2 In Week 2: On Tuesday and Saturday afternoons between 5:00pm and 6:00pm; and
7.3 Any other reasonable time that the child requests to speak to her mother.
Neither parent change the child’s place of residence from the Australian Capital Territory/Queanbeyan area without first obtaining the written consent of the other parent or an Order of the Family Court or Federal Circuit Court.
In the event that either parent intends to change their place of residence within the Australian Capital Territory/Queanbeyan area or their contact telephone number, they provide the other parent with 14 days’ notice of the new address and/or telephone number.
Each parent notify the other immediately of any serious illness or injury affecting the child, and immediately provide the necessary authorities to entitle the other parent to obtain information from any doctor or hospital treating the child.
Each parent notify the other of the name of any general practitioner or paediatrician or other specialist who treats the child whilst the child is in that parent’s care.
Neither parent say unkind or uncomplimentary things about the other (or the other’s partner) to or in the presence of the child, nor cause or allow anybody else to do so.
Both parents be restrained from:
13.1 Discussing these proceedings with or in the presence of the child;
13.2 Enrolling the child in any extra-curricular activities which fall during the period that the child lives with the other parent without the prior written consent of the other parent;
13.3 Contacting the child by telephone other than the times set out in Order 7 unless in the event of an emergency.
During all times that [X] lives with her mother, the mother ensure that [X] is able to sleep in her own bedroom, and the mother do all things necessary to ensure that [X] sleeps in her own bedroom during any time she spends while in the home of her maternal grandmother, Ms D.
The mother ensure that she is present during any time that the child is in the presence of any member of the [G] family (including Mr G) during any time the child lives with her.
In the event that either parent wishes to travel out of the Canberra/Queanbeyan region with the child during their time with the child, they must provide the other parent with:
16.1 Written notice of the travel before the travel occurs; and
16.2A contact telephone number.
Pursuant to Section11(1) of the Passports Act 2005, the Court permit the child to travel internationally.
In the event that either parent wishes to travel overseas with the child, they must provide the other parent with at least two months’ notice of their intention to travel, along with copies of return tickets for the child at least 14 days prior to the departure, a detailed itinerary providing addresses and phone numbers for the accommodation in which the child will be staying at least 14 days prior to departure and the other parent will not unreasonably withhold his/her consent (which must be in writing) to the proposed travel.
The mother be restrained from taking the child to the [omitted] Medical Centre at any time for any reason without the prior written consent of the father.
Mother’s Orders Sought
That the Mother have sole parental responsibility for the child of the relationship, [X] born [omitted] 2008.
That the said child live with the Mother.
That the said child spend time with the Father as follows:-
a On alternate Thursdays from 3pm until 7pm.
b On alternate weekends from 10am on Saturday until 5pm on Sunday.
c For a period of no longer than three (3) consecutive nights each fortnight during the said child’s school holidays.
d From 9am until 5pm each Father’s Day, in the event that Father’s Day does not fall on a day when the said child is with the Father pursuant to (ii) and (iii) above.
e In even numbered years from 10am on Christmas Eve until 10am on Christmas Day.
f In odd numbered years from 10am on Christmas Day until 10am on Boxing Day.
g At such further times the parties may mutually agree.
That the Father be present at all times when the said child is to be in his care pursuant to Order 3 herein.
That the Mother be permitted to change the school of the said child from [S] School to the [G] School.
That in order to facilitate Order 3, if changeovers do not occur at the child’s school, such changeovers occur at the steps of the Mother’s mother’s residence at [G] School.
That the Mother and Father be restrained from removing the said child from the Commonwealth of Australia without the consent in writing of the other party.
That the Father within seven (7) days do all acts and things to enrol in and complete a recognised Anger Management Course.
That the Father have liberal telephone contact with the said child when she is not in his care and that the Mother do all acts and things to facilitate and permit such telephone contact.
That the Mother have liberal telephone contact with the said child when she is not in her care and that the Father do all acts and things to facilitate and permit such telephone contact.
That the Mother and Father notify the other as soon as practicable of any illness or injury suffered by the child whilst in their care and provide all necessary authorities to enable the other to obtain information from any doctor who may be treating the child or from any hospital where the child may be so treated.
That the Mother and Father each be restrained from denigrating the other to or in the presence of the child or permitting any third party from doing so in the presence or hearing of the said child.
That the Mother and Father do all acts and things and sign and execute all documents which may be necessary to enable the other to receive the said child’s school reports and all notifications of parent/teacher nights and other school related activities to which parents may be invited.
That the Father pay the Mother’s costs of and incidental to these proceedings.
Independent Children’s Lawyer’s Orders Sought
Parental Responsibility
The father has sole parental responsibility for the child [X] (“the child”) born [omitted] 2008.
Subject to Order 1 above:
a The father will advise the mother in writing of any proposed changes to the child’s schooling at least forty two (42) days prior to any change;
b The father will advise the mother in writing of any elective medical or dental treatments to be undertaken by the child at least forty two (42) days prior to the date for treatment;
c The father will advise the mother in writing of any proposed enrolment in extracurricular activities (not including school activities) to be undertaken by the child at least forty two (42) days prior to the commencement of the activity.
The father will advise the mother in writing of any school or extracurricular activities in which the child is enrolled and:
a Ensure that the mother listed as the alternate parent;
b Authorise them to discuss with the mother any issues involving the child;
c Direct them to provide to the mother at her request and expense a copy of all notices, reports, photographs and other documents relating to the child and normally provided to parents.
The father will advise the mother in writing of any medical practitioner, specialist, psychologist or counsellor upon whom the child attends and:
a Ensure that the mother listed as the alternate parent;
b Authorise them to discuss with the mother any issues involving the child;
c Direct them to provide to the mother at her request and expense a copy of all reports and other documents relating to the child and normally provided to parents.
Living Arrangements
The child will live with the father.
The father is restrained from changing the child’s place of residence from the Australian Capital Territory/Queanbeyan area without first obtaining the written consent of the mother parent or an Order of the Family Court or Federal Circuit Court.
To support the change in the living arrangements for the child:
a The father will enrol the child in confidential counselling within seven (7) days and provide the Counsellor with a copy of these Orders and be solely responsible for all arrangements regarding this counselling;
b The father will authorise the Counsellor pursuant to Order 7.a to discuss with each parent and their respective Counsellors, the dates for counselling with the child and any other issues considered relevant by the Counsellor;
c Each parent will enrol in a course of counselling with a Counsellor and authorise the Counsellor to discuss with the Counsellor appointed pursuant to Order 7.a any issues the Counsellor considers relevant;
d Each parent will enrol in a parenting after separation course within seven (7) days and provide the other parent with written evidence of completion.
The child will spend time with the mother as follows:
a School terms and holiday periods will be as gazetted by the school where the child attends;
b For first half of all school holiday periods commencing in years ending in an even number or zero;
c For the second half of all school holidays periods commencing in years ending in an odd number;
d During school terms from the conclusion of school Thursday until the commencement of school the following Monday commencing the first week of every school term;
e During school terms from the conclusion of school Thursday until the commencement of school the following morning in the second week of every school term;
f On the weekend including Mother’s Day at the times in Order 8.d above;
g At other times as agreed between the parties.
The mother’s time with the child will be suspended from the conclusion of school Friday until the commencement of school the following Monday on the weekend including Father’s Day.
The father will cause the child to communicate with the mother at reasonable times as requested by the child and other times as follows:
a Between 6pm and 7pm on Mondays, Wednesdays and Sundays that the child is not otherwise in her care;
b For the purposes of this communication the father will obtain Skype or FaceTime and facilitate the communication occurring by this means if requested by the mother;
c In the alternative the father will facilitate the child communicating with the mother by telephone.
Other Orders
Each parent will notify the other immediately of any serious illness or injury affecting the child, and immediately provide the necessary authorities to entitle the other parent to obtain information from any doctor or hospital treating the child.
Neither parent will say unkind or uncomplimentary things about the other (or the other’s partner) to or in the presence of the child, nor cause or allow anybody else to do so.
Both parents are restrained from discussing these proceedings with or in the presence of the child.
The Independent Child’s Lawyer will advise the child of the Orders made and the appointment is otherwise discharged.
C. Documents Tendered
Exhibit A – Audio Recording and transcript of Magistrate’s Court proceedings
Exhibit A.1 – Group of Emails starting with email from Father to Ms N on 30 June 2014
Exhibit B – Letter from Farrar Gesini Dunn to Nicholl & Co dated 3 July 2014 re GP & Psychologists visits
Exhibit C – Email from Father to Mother dated 4 July 2014 re wetting incidents and comment from [X]:- “Mummy said I can go to [G] School if I do it”
Exhibit D – School Report of [X] for Semester 1 2014 [S] School, [P]
Exhibit E – Travel Itinerary for Mr Wemple 5 November 2010, 6 November 2010, 11 November 2010, 2 December 2010, 3 December 2010
Exhibit F – Calendar of time with arrangements from August 2012 to December 2013
Exhibit G – Print of text messages re changeover for [X] for most recent school holidays – At Mother’s insistence it took place at [G] School
Exhibit H – Bundle of printed Photographs of [X] from Sept 2010 to June 2012
Exhibit I – Letter of referral from Dr M to Ms S dated 25 June 2014
Exhibit J – OCYFS material regarding the children playing on the road and the Mother’s allegedly abusive behaviour
Exhibit K – Family Report by Ms W
Exhibit L – Enrolment Application for [X] at Archdiocesan School
Exhibit M – Sign in/ Sign out sheet from [S] School
Exhibit N – Email from Mother to [name omitted] dated 19 June 2014
Exhibit O – Email from Mother to Canberra Family Law Courts Registry for attention of Ms W dated 19 June 2014
Exhibit P – Email from AFP to Mother re “DV incident occurring on 1 December 2010” and AFP Complaint details page re “DV incident occurring on 6 November 2010” and allegations re iPhone tampering
Exhibit Q – Statement of Proof of Evidence of Ms Dautry dated 9 September 2014
Exhibit R – Bundle of documents re: Mother’s employment with [U], Mother’s involvement in New Enterprise Incentive Scheme, Mother’s transcript of JD currently in progress; Copy of Mother’s Bachelor of [omitted] Certificate; Advice from University [omitted] confirming Mother can receive Master of [omitted] by Research.
Exhibit S – Bundle of documents from Child Support Agency being a series of date sequential assessments of child support to be paid by Father. Includes a transaction statement indicating no amounts outstanding as at 7 August 2014
Exhibit T – Mother’s Masters’ Thesis [omitted] to the University [omitted]
Exhibit U – Two academic papers: one by Vincent Papaleo & Tim Stefano and one by Bruce Hawthorn
Exhibit V – Document produced by [C] pursuant to subpoena being letter from Ms C of [C] Legal dated 4 September 2014 and addressed to the Registrar of this Court
Exhibit X – Bundle of documents: Mother’s Curriculum Vitae, Mother’s statement about location of the [omitted], [G] School and Maternal Grandmother’s residence & plans for re-partnering (excludes photos), Sessional Academic Checklist from [U], Position Description for Sessional Academic from [U] and Sessional Academic Timetable (also from [U]) and annexed documents.
D. The Father’s Evidence
The Father’s evidence may be summarised as follows.
Given that the Mother had only filed her trial affidavit very shortly before the hearing began, and upon granting the Mother leave to rely on it, leave was granted to the Father to provide an update, or correction (according to the Father’s view), to certain matters to which the Mother deposed.
Briefly stated, the Father’s updating evidence (which led to the tender of a number of documents) concerned the following:
(a)Email correspondence with both the Mother’s former solicitors, and the Mother directly, seeking either information or clarification regarding matters directly affecting [X] (e.g. details of a psychologist for [X] recommended by a general practitioner). No responses, or any relevant information, were ever received by the Father or his lawyers;[30]
[30] See T 31 – 36. The correspondence became Exhibit A1; other documents became Exhibits B & C.
(b)A school report for [X] for semester 1, 2014, was tendered (Exhibit D). It records that [X] was absent from school for 26 days as at 6th June 2014. The Father confirmed that when-ever [X] was in his care, she had not missed any school;[31]
[31] T 36 – 37.
(c)The Mother contended in earlier affidavit material, and in her most recently filed documents, that the Father had assaulted her in 2010. Although canvassed in the course of the Mother’s evidence and noted later in these reasons, the precise details of these very serious allegations were very blurry. Indeed, subject to what is said later, the Mother contended that this assault took place on either 6th November or 1st December 2010. In response to these allegations, the Father provided a copy of his itinerary in relation to his AFP posting overseas, which confirmed that on both of these days, he was not in Australia;[32]
[32] The travel itinerary for the Father became Exhibit E; see T 37.
(d)Further, this same allegation was ventilated in the Magistrates Court in AVO proceedings commenced by the Mother. In the course of dismissing them (with a costs order against the Mother) the Magistrate said, using obviously the higher criminal standard in relation to this particular incident that, at the time of the incident alleged by the Mother, she was “satisfied beyond reasonable doubt that the defendant [the Father] was [location omitted].” She confirmed that there was no challenge to the genuineness of the itinerary relied upon by the Father.[33]
[33] See Transcript of proceedings in the Magistrates Court of the Australian Capital Territory, DV No.157 of 2014 (27th May 2014) p.80. This transcript is Annexure A to the Father’s affidavit, filed 3rd July 2014.
(e)A little later the Magistrate said that while she would not find the Mother’s DV application to have been frivolous or vexatious, “There are certainly aspects of it that I have found to be dishonest.”[34]
[34] Ibid. p.83.
(f)For a significant period after the parties separated (in August 2010), the Father kept a diary of sorts, which recorded when [X] (and her brother [Z]) stayed with him, including for overnight time. Although it had previously been admitted into evidence in earlier interim proceedings, it was admitted again and became Exhibit F. In this regard, the Mother deposed that for more than 12 months after separation, the Father did not see [X] except for a few short occasions at the maternal Grandmother’s residence. The Father’s evidence was that during this period, he would see [X] on average 2 to 3 nights each week;
(g)A series of photographs was also tendered (Exhibit H), which showed [X] with her Father (and sometimes also with her brother), some of which were taken with the Father on holidays (e.g. a camping trip to the Central Coast, to Nambucca Heads, and to Coffs Harbour); notably, none of them were taken at the maternal Grandmother’s residence, as alleged by the Mother;[35]
[35] T 40. The photographs are date stamped. In later evidence, the Father confirmed that, for example, the trips to Nambucca Heads and to Coffs Harbour were with both [X] and [Z], and were for periods of approximately four to five nights. Another trip to Wollongong was for about three nights. See T 66.
(h)Various allegations were made by the Mother about [X] being bullied at school. The Father said that [X] had never raised such things with him, and he had also checked with the school. The school confirmed that there were no such issues reported.
In relation to things like organising medical appointments or health care matters for [X], in cross-examination the Father confirmed that he and the Mother do not have a particularly good relationship now. He also denied that, in any relevant respect, he was (as suggested by the Mother’s Counsel) trying to set up the Mother.[36]
[36] T 46.
Properly, the Father acknowledged that [X] and her brother, [Z], have a close relationship.[37] There is, of course, a different parenting relationship between the Mother in these proceedings and [Z]’s Father. Formerly, the Father regularly looked after both [X] and [Z]. I do not understand there to be any issue over this historical fact. The Father also confirmed that he was, and remained, open to having [Z] come and stay with him at any time [X] was with him. The Father confirmed that there is (and remains) a separate bedroom for [Z] at his residence.[38]
[37] T 58.
[38] There seemed no dispute that for most of the Father’s relationship with the Mother that her son [Z] called [X]’s Father “Dad.” See T 68.
The Father also accepted that [X] has a close relationship with her maternal Grandmother, with whom she has spent regular and significant time.[39]
[39] T 60.
Not for the first time, the Father denied categorically that he ever assaulted the Mother.[40]
[40] T 63.
In other evidence, which was consistent with SMS and email correspondence with the Mother referred to in earlier judgments in this matter, the Father confirmed that (a) he agreed essentially to what the Mother wanted in terms of when the children could spend time with him because if he did not agree he would not be able to see them, and (b) the Father felt very much like a “baby-sitter” for the Mother.[41]
[41] Otherwise, see T 67.
On one of many occasions when the Mother’s Counsel questioned the Father why he “reneged” on paying [X]’s school fees (which it was acknowledged at the time was in lieu of the Mother seeking either a ‘property settlement’ or child support from him) for the Early Learning Centre at [G] School (and thereafter) – all of which matters are traversed at some length in earlier judgments – the Father said that the reasons for not wanting [X] to go to that school were:
(a)his inability to afford the fees;
(b)the fact that it was not a Catholic school;
(c)that it was not a co-educational school; and
(d)his inability to pay for the extra-curricular activities associated with the [G] School.[42]
[42] T 72.
There was no dispute at the trial that one of a number of issues raised by the Mother about [X] attending the school ordered in December 2013 by the Court ([S] School, [P]) related to the child’s incontinence at school.[43]
[43] Among other places, see T 77 ff.
A large part of the Father’s oral evidence related to traversing how “intransigent” the Mother was/is about [X] attending the [G] School (the Mother’s preferred school of choice), and how much more relaxed [X] (and her Mother) would certainly be if only that circumstance would come to pass. In this context the Father agreed that the relationship with the Mother was now so poisoned that the parenting relationship was virtually irreparable. Indeed, even if someone else (e.g, the maternal Grandmother) paid all relevant fees, which he acknowledged would solve a range of issues, nonetheless the parenting relationship remained far too strained to work.[44]
[44] T 81. See also T 113 – 114 & 124 – 125.
He also agreed with the proposition put by the Mother’s Counsel that the Mother’s support for [X] attending her current school is “one per cent or minus per cent.”[45]
[45] T 81.
At the commencement of the second day of the trial, the Father confirmed that when he saw a psychologist (privately arranged), she had suggested to the Father that it would be further disruptive to [X] to change schools.[46]
[46] T 101.
Amongst much trawling through matters relating to (a) arrangements between the parties regarding payment of “school fees” in lieu of either a property settlement and or the payment of child support,[47] and (b) the time that both children ([X] and [Z]) spent with the Father, which the Father ultimately reconstructed from SMS and email messages and then recorded in the form of an electronic diary (later printed) (Exhibit F),[48] the Father confirmed that he prepared this “diary” essentially to have support in relation to child support because the Mother, he said, was claiming that she had the children “100 per cent.”[49]
[47] Among other places, see T 102 – 107.
[48] Matters from or related to the “diary” were the subject of record and comment in Wemple & Dautry [2013] FCCA 2376.
[49] T 107.
The Father also said that there were “issues” regarding “change-overs” with [X] because they had to occur “wherever [the Mother] wanted them to be.” He further said that change-overs at the boarding house (the maternal Grandmother resides in this house and works at this school) at [G] School was not suitable.[50] One such reason for the difficulty, he agreed, was that consistently going to the [G] School was a constant reminder to [X] (and her Mother) of the Mother’s desire for [X] to attend that school.[51]
[50] T 108.
[51] T 111.
The Father rejected any suggestion by the Mother that he (or anyone on his behalf) had interfered with or deleted any messages on her computer or mobile phone.[52]
[52] T 114 – 115.
Mr Wemple agreed that, notwithstanding the Mother’s attempts to undermine his relationship with [X], it remained close.[53]
[53] T 115 – 116.
He also said that he would be able to provide a more structured, regular routine at his residence for [X] than is the case with her Mother.[54]
[54] T 119.
Other than detailed reference to the Act (noted later), the Father’s submissions focussed on issues of the credit of witnesses, and a particular issue concerning s.91 of the Evidence Act1995 (as well as the operation of s.69ZT(1)(c) and s.69ZX(3) of the Family Law Act 1975) regarding the AVO proceedings that were instituted by the Mother (and later dismissed) in the Magistrates Court of the ACT, to which I have earlier referred.
In relation to matters of “credit”, on behalf of the Father it was submitted that (a) the Father demonstrated his capacity to place [X]’s interests above any other consideration, (b) Ms K’s evidence was clear and impressed as a person who understood both [X]’s needs and her responsibility to support the Father in his care of [X], (c) the maternal Grandmother’s evidence, while an honest and straight-forward witness, nonetheless supported the Mother’s approach to secure that [X] attend [G] School, and (d) the Mother’s evidence confirmed that she was not a credible witness whose evidence was, among other things, contradictory and evasive.
It was also submitted that the range of serious allegations made against the Father by the Mother (e.g. the alleged stalking of the Mother and [X], the alleged fabrication of documents, the alleged hacking of the Mother’s emails), all of which were established to be false, showed the lengths to which the Mother had gone, and would go, to discredit the Father. I will not detail other submissions regarding, for example, contentions that the Court can and should draw an adverse inference against the Mother arising out of an application relating for child support in 2008 when the parties were in fact living together.
I have already recorded that a range of matters were put to the Mother in the course of her cross-examination which, in my view, confirmed the false bases on which she brought proceedings in the Magistrates Court, and in relation to claims made in this Court that were established to be at least incorrect if not formally without foundation. In my view, the Mother must have known that her claims in this Court about her evidence in the Magistrates Court were without foundation.
The Mother’s submissions focussed on what her Counsel described as the co-operative relationship between the parties, prior to September 2013, the very close relationship between (a) [X] and her Mother, and (b) [X] and her brother [Z] and her Grandmother. He also submitted that a change in residence would have significant adverse consequences for [X], given that her Mother has been her primary carer since birth, and also in the light of there being no complaint by the Father about the Mother’s care of [X].
The Mother’s submissions also made much of the Father “reneging” on his agreement with the Mother to pay [X]’s school fees at [G] School, and that if [X] was “restored” to that school, all would be well between the parties. He also submitted that [X] attending [S] School imposed an onerous travel burden on the Mother, which accounts for the numerous times that [X] has been late for school.
The Mother’s submissions took issue with some of the comments of the Family Consultant (e.g. at [61] of the Report). It was also submitted that it could be inferred that the Father’s objection to [X] returning to [G] School was essentially because of financial reasons. This is not correct. The Father’s evidence confirmed that matters of finance were a consideration, but there were other factors, such as the faith tradition of the school(s).[164]
[164] Among other places, see the Father’s affidavit, filed 5th May 2014, par.253(a) – (i) where he outlines the range of reasons for [X]’s attendance at [S] School.
The ICL’s submissions may be summarised as follows.
First, she said that the oral evidence of the Family Consultant confirmed the “solidity of her recommendations and observations contained in the Family Report.” Secondly, she submitted that the Mother’s evidence was vague in certain respects regarding her employment and the child’s regularly late attendance at school.
Thirdly, the ICL submitted that the responses of each parent to the Family Report were instructive. She said that the Father and his partner demonstrated insight into the emotional and psychological needs of the child, and both acknowledged the challenges and steps necessary “to move forward.” On the other hand, the ICL submitted that the Mother showed no genuine willingness “to move forward”, and to place all blame for the poor parenting relationship on the Father and his partner. It appeared, the ICL submitted, that the recommendations of the Family Consultant had not resonated with the Mother which, in her view, showed that the Mother had little insight into the needs of [X], and that she remained inflexible to accept and to promote the school arrangements that had been ordered by the Court.
The ICL accepted the Father’s partner’s evidence as genuine, including her support of the Father in relation to parenting [X]. She expressed some concern about the maternal Grandmother’s negative attitude towards the Father.
Otherwise (and subject to dealing with the legislative scaffold noted below) the ICL supported the submissions made on behalf of the Father.
The Legislative Scaffold: Part VII of the Act
In the light of the evidence of the parties, and the comments already made in relation to it, I note the following in relation to the statutory scaffolding that must be negotiated to determine orders that are in the child’s best interests, pursuant to s.60CA of the Act.
Subject to what is said later in these reasons, a convenient jurisprudential touchstone for the following discussion is the summary of principle by Brown J in Mazorskiv Albright in relation to Part VII of the Act, noting, of course, that there have been significant changes to the primary and additional considerations in relation to “family violence”. Respectfully, and cognisant of the ‘family violence’ changes to the ‘pathway’, I adopt Brown J’s overview of relevant sections (and principles) of Part VII of the Act. Her Honour’s comments should, of course (as I have said), be considered in the light of relevant statutory changes, for example, to ss.60CC(2A) and 60CC(3)(c).[165] At [3] – [6] her Honour said:
[3] The provisions in the Family Law Act 1975 (the Act) relating to children rest on twin pillars. The first is the importance to children of having a meaningful relationship with both parents; the second is the need to protect children from physical and psychological harm. These are stressed in s.60B(1) which sets out the objects of the legislation relating to children and are reiterated as the primary considerations in s.60CC(1).
[4] When deciding what parenting orders to make it is the best interests of the children which are the paramount consideration. In determining where those best interests lie, the Court must consider the primary and additional considerations set out in s.60CC.
[5] There is a presumption that it is in a child’s best interests for his or her parents to have equal shared parental responsibility for him or her (s.61DA). The presumption relates to the allocation of parental responsibility, not the time a child spends with each parent. The presumption does not apply if there are reasonable grounds to believe that a parent has engaged in abuse of the child or family violence. The presumption may be rebutted if the Court finds that it would not be in the best interests of the child for it to apply.
[6] If the presumption applies, and there is an order for equal shared parental responsibility, the Court must consider whether spending equal time with each parent would be in the child’s best interests (s.65DAA(1)) and, if no such order is made, consider whether spending substantial and significant time with each would be in the child’s best interests (s.65DAA(2)).
[165] Mazorski v Albright (2008) 37 Fam LR 518. Her Honour’s remarks in relation to the “twin pillars” have been consistently cited with approval by the Full Court, for example in Moose & Moose (2008) FLC ¶93-375; McCall v Clark (2009) 41 Fam LR 483; Sigley v Evor (2011) 44 Fam LR 439; Shaeffer v Jacobs (2011) FLC ¶93-468; Maluka v Maluka (2012) 45 Fam LR 129.
Her Honour also made important observations about “meaningful” as that term is used in Part VII of the Act in the context of what is comprehended by a “meaningful relationship.” At [20] - [26], her Honour outlined a range of relevant considerations. I set them out below, and again respectfully (and gratefully) adopt Brown J’s observations, thus:[166]
[20] The Family Law Amendment (Shared Parental Responsibility) Bill Revised Explanatory Memorandum (2006) refers to the concept of a meaningful relationship on a number of occasions. At para 52 it noted that the primary factors mirror the first two objects set out in the new s.60B and that the objects are elevated to primary considerations as they deal with important rights of children and encourage a child-focused approach. The paragraph continues:
The elevation of the object relating to the benefit to the child of having a meaningful relationship with both parents is consistent with the introduction of a presumption in favour of equal shared parental responsibility.
[21] Here, the concept of a meaningful relationship is closely tied with the introduction of the presumption of equal shared responsibility, and the passage links the concept of a meaningful relationship with the objects of the Division. The objects use the words “meaningful involvement”.
[22] At para 128, discussion of a meaningful relationship is again linked to discussion of the presumption of equal shared parental responsibility, the explanatory memorandum noting:
The government considers that it is important to ensure that a child has a meaningful relationship with both parents and that both parents participate in decisions about the child. The presumption of equal shared parental responsibility is not a presumption of 50:50 joint custody. The presumption relates solely to the decision making responsibilities of both parents. New section 65AA inserted by Item 31 is the provision dealing with the time a child spends with each parent and the circumstances where the Court should consider equal time arrangements.
[166] Brown J’s remarks in this regard have been endorsed by the Full Court in Moose & Moose (2008) FLC ¶93-375 at [69], and by a differently constituted Full Court in Mulvany v Lane (2009) 41 Fam LR 418 at [90], and McCall & Clark (2009) 41 Fam LR 483 at [115] & [121]. More recently still, a further Full Court in Collu & Rinaldo [2010] FamCAFC 53 at [335] similarly approved Brown J’s remarks.
[23] When considering s 65DAA, the explanatory memorandum states (at [196]–[199]):
[196] Subsection 65DAA(2) recognises that an equal time arrangement will not be appropriate in some cases but that the Court must consider other arrangements that promote a meaningful relationship. This provision places an obligation on the Court in situations where there is equal shared parental responsibility and equal time is not appropriate, to consider whether it would be in the best interests of the child and reasonably practicable for the child to spend substantial and significant time with both parents. This is intended to ensure that in making parenting orders related to time that the Court focuses not just on the substantial quantity of time that is spent with each parent, but also on the significant type of time. The note in this section emphasises that the best interests of the chid remain the paramount consideration for parenting orders. This is set out in s 60CA by item 9.
…
[199] Section 65DAA (2) – (4) is intended to ensure that the Courts consider arrangements that are much more than “1 weekend a fortnight and half of the holidays” or an 80:20 arrangement. It is intended to ensure a focus both on the amount of time and the type of time. It would include both day time contact and night time contact. It recognises that what is important is that the focus be on ways that both parents are able to develop a meaningful relationship with their children and share important events including everyday time with the child. It recognises that in order to have a meaningful relationship and to share equal shared responsibility that this would generally involve “both” parents spending both substantial and significant time with their children.
[24] The New Shorter Oxford English Dictionary on Historical Principles, Clarendon Press, Oxford, 1993, defines “meaningful” as “full of meaning or expression; significant; amenable to interpretation; having a recognisable function in a language or sign system; able to function as a term in such a system”. “Meaning” is defined as “having intention or purpose; chiefly with a qualifying adverb (as well-meaning)”. A second definition is “conveying or expressing meaning or thought; expressive, meaningful, significant; suggestive”. These definitions are repeated and further fleshed out in the Oxford English Dictionary, 2nd ed, Clarendon Press, Oxford, 1989. It defines “meaning” (in generalised use) as “significance”. The examples provided take the matter no further.
[25] The Macquarie Dictionary, 4th ed, Macquarie University Press, Sydney, 2005, defines meaningful as “full of meaning; significant”. Within the definitions of meaning, the relevant one defines the word as “expressive or significant: a meaning look”.
[26] What these definitions convey is that “meaningful”, when used in the context of “meaningful relationship”, is synonymous with “significant” which, in turn, is generally used as a synonym for “important” or “of consequence”. I proceed on the basis that when considering the primary considerations and the application of the object and principles, a meaningful relationship or a meaningful involvement is one which is important, significant and valuable to the child. It is a qualitative adjective, not a strictly quantitive [sic] one. Quantitive [sic] concepts may be addressed as part of the process of considering the consequences of the application of the presumption of equally shared parental responsibility and the requirement for time with children to be, where possible and in their best interests, substantial and significant.
Without necessarily referring to each sub-paragraph, in the first instance, I should be taken to follow sequentially the order of matters set out in s.60CC(3).[167] As indicated by Brown J in Mazorski v Albright, the additional considerations in s.60CC(3) are required to have necessary interplay and be appropriately considered together with the objects and principles that are set out in s.60B(1) and (2), and the primary considerations set out in s.60CC(2) and (2A). The proper attendance to all relevant considerations is, of course, a means to achieve the ultimate end required by s.60CA of making orders that are in [X]’s best interests. Further, given the extensive consideration of the evidence in these reasons, the following should be taken more as a summary of relevant findings.
[167] Generally, regarding the order of addressing relevant “considerations” under the Act, see the recent Full Court discussion in SCVG & KLD (2014) FLC ¶93-582 42 at [71] ff.
[X]’s views were considered by the Family Consultant to be inconsistent and “incongruent” with her actions. Accordingly, there is little or no light there.
The Family Consultant observed [X] to have a good relationship with the maternal Grandmother, [Z] and Ms K. There was also a clearly observed that [X] had good and close relationship with both parents.
In relation to s.60CC(3)(c), it is clear that the Mother has not involved the Father in a number of significant decisions relating to [X], for example and notably taking her to see a psychologist, and refusing (despite many requests to do so) to provide relevant information regarding this engagement of a health care professional. The Mother’s long-standing intransigence in relation to her school of choice for [X] could also be taken to be another important instance of her failure or refusal to communicate in a responsible, meaningful way with the Father. In my view, the evidence is clear that at every opportunity the Father has spent time and communicated with [X] in an appropriate manner. The Family Report supports such a view.
With respect to s.60CC(3)(ca), notwithstanding various claims made by the Mother about financial support generally following the Father ceasing to pay [X]’s school fees for the [G] School in 2013, there is no evidence that the Father has not paid child support (as assessed).[168] Otherwise, in my view, no relevant issues or matters arise for separate consideration in relation to this paragraph.
[168] See the documents from the Child Support Agency that comprise Exhibit S.
In relation to the considerations embraced by s.60CC(3)(d), I accept the submissions of the ICL, which are to the following effect. The orders proposed by the Father will likely have a significant impact on [X], and notably her relationships with her Mother, the maternal Grandmother and her brother, [Z]. However, not only is there no evidence that her relationship with each of these persons is not secure; to the contrary, the evidence of the Family Consultant confirms that these are secure relationships for [X].
On the other hand, there is some risk to the Father’s relationship with [X] while-ever she remains living with her Mother, according to the Father’s evidence, that of Ms K, and that given by the Family Consultant. I formed the same view very clearly in the light of the Mother’s long stint in the witness box. As I have noted on a number of occasions, I found her evidence to be very concerning. For the Mother, attention to detail and truth was a disposable commodity. Further, she lacks significant insight into the consequences of her conduct, particularly with respect to proper, basic prudential parenting.
I have no confidence at all that the Mother would promote [X]’s relationship with her Father. Indeed, I consider that while-ever [X] attends her current school, the Mother will endeavour to disrupt her daughter’s schooling with a view to frustrating the Father until ultimately, he will succumb, out of fatigue and or exasperation of the contest, with the Mother’s wishes. Likewise, I have no confidence at all that the Mother will desist from making outrageous allegations against the Father (and possibly Ms K), which will continue to require the AFP to expend further resources on them. Indeed, as noted at the end of this judgment, the Mother has continued this appalling cycle of allegation, complaint and investigation.
There are no practical difficulties, in my view, about spending time with or communicating with either parent (or others) given the relatively close proximity of residence, school and the like in Canberra. When travel distance was raised at various times during the course of the trial, I noted particularly to the Mother’s Counsel (who very properly agreed or otherwise did not demur) that the parties (and the Mother in particular) should be grateful for such short car travel compared to much larger and much more congested travel in larger cities such as Sydney and Melbourne.
I accept the ICL’s submissions that there are no issues regarding the parents being able to provide for the physical and intellectual needs of [X]. I share the concern about the Mother’s ability to provide for the child’s psychological needs.
There are no relevant issues in relation to the considerations set out in s.60CC(3)(g) and (h).
In my view, in relation to s.60CC(3)(i), the ICL rightly expresses significant concern about the Mother’s attitude towards parenting, particularly in her having with-held the child from the Father, refusing to consult with him, and her general intransigent attitude towards [X]’s school. Moreover, little seemed to have changed in the Mother’s attitude on any of these matters following the release of the Family Report. And as noted a number of times in the course of these reasons, the Mother’s evidence at trial often showed significant lack of insight into the impact of her conduct on [X].
In relation to s.60CC(3)(j) and (k), there was in place a domestic violence order against the Father. It was obtained by the Mother in the ACT Magistrates Court, ex parte. It was later dismissed, with a costs order against the Mother. The Magistrate found some of Ms Dautry’s evidence to be dishonest, and did so on the higher criminal standard of “beyond reasonable doubt.”
In this Court, the Mother contended that her evidence in the Magistrates Court was incorrectly recorded, including her evidence (among other things) that there were no parenting orders in place. She knew that there were such orders in place when she gave this evidence in that Court. She also knew the instructions she gave in this Court, which were that the transcript from the Magistrates Court was inaccurate. When giving those instructions she must have known the evidence in the Magistrates Court was accurately recorded, and therefore her instructions that were then put before this Court were without foundation and improperly put.
I also agree with the ICL’s submission that the dysfunctional parenting relationship has a possibility of leading to further litigation. This is so even though both parents said they would undertake relevant counselling.
In my view, the Mother’s conduct, particularly in claiming (and continuing to claim) that she and [X] were stalked by the Father when he was clearly in Melbourne, and where he provided clear, cogent and incontrovertible documentary evidence that this was the case, is a matter of very grave concern to me. Her abject refusal to accept the evidence, and also to claim that it had been concocted by the Father, and that he has hacked her emails (with the Mother never having provided a jot of evidence to support this often-made allegation), is no less concerning. She exhibited an alarming inability to face any reality that did not suit her own purposes.
In the light of the detailed evidence before the Court, in my view it is clear that the parties are unable to communicate; they are unable to trust each other. The Mother has made, and continues to make, unfounded accusations against the Father. The parenting relationship is severely fractured, and to mix medical metaphors, it is severely poisoned. While-ever the Mother continues with conduct that she has exhibited over the past 12 months or so, I have the gravest doubts that the parenting relationship can or could be repaired. As such, the presumption of equal shared parental responsibility, pursuant to s.61DA of the Act, is clearly rebutted. An order for sole parental responsibility must be made in favour of the Father. In my view, the actions of the Mother have decidedly led to this result. I fear that, in the light of her evidence, she will not accept such a judgment. As she has done with almost everything else, it will be sheeted home to someone else, particularly the Father and his partner, Ms K. She will not accept any responsibility for either her actions or the consequences that must necessarily flow from them.
With such an order having been made, it is unnecessary to consider the terms and operation of s.65DAA.
In my view, the orders as sought by the Father are in [X]’s best interests.
In the light of such orders, it is unnecessary to consider any of the submissions regarding Rice & Asplund and “the school issue.” And in the light of the evidence before the Court, in my view it is unnecessary to consider any of the academic literature relied upon or referred to by the Father in relation to the separation of siblings.[169]
[169] That literature became Exhibit U.
Disposition
I remarked early in these reasons that the Mother is a person of some accomplishment. I need not repeat the diverse areas in which she oscillates. A person with such talents only makes the Court’s decision in this matter all the more regrettable. The Mother seems entirely unable (and unwilling) to come to grips with, or have any relevant insight into, her conduct, and its impact on the Father (and his partner) and in turn the risks it poses for [X]. Unfortunately, this is the reality. The evidence of the Family Consultant is clear regarding the risks to [X].
It is also very unfortunate that in two courts her evidence has been found to be dishonest and unreliable. Indeed, in my view, her evidence was capricious, inaccurate and untrustworthy. I could not rely upon or be certain about any relevant part of her evidence.
Further, if she were to continue to make such outrageous allegations against the Father (which also involve Ms K) as she has done to date, and her prosecution of action in a court that was found to be dishonest (to the requisite criminal standard) and therefore untenable (which led to an adverse costs order), together with my own adverse assessment that her evidence was misleading, dissembling and without foundation, not only could it continue to have adverse implications for [X] and the parenting relationship with her Father, but no less damaging, it could have very serious implications for some of her other endeavours, not least her [omitted] studies and any [omitted] career. I hope that it is unnecessary to spell out in any more detail what some of those possible implications might be.
The orders of the Court that are in [X]’s best interests are those as sought by the Father.
The matter will be listed for directions on 6th February 2015 at 9.15 for direction regarding the property proceedings between the parties.
Postscript
Unfortunately, it is necessary to record one further matter. It was almost inevitable that the Mother would make further complaint to the Court and to the AFP against the Father. This is precisely what she has done.
On 5th December 2014, the Mother filed a Form 4 (Notice of Child Abuse, Family Violence or Risk of Abuse) and further affidavit. In this material, the Mother deposed to her belief that the Father was/is causing the child “psychological harm by subjecting and exposing her to the family violence occurring on multiple occasions.” This is elaborated by contending that the abuse is constituted by the Father’s “controlling behaviour.”
The Mother says that the Father’s abuse comes from “mostly inappropriately preventing medical care and assessment [of the child],” his “financial control”, and that the Father is “using [the] current orders to intimidate service and vocational activity providers.” The Mother contends that the Father is “disallowing [X] to contact family whilst [she is at] in residence.”
The events to which the Mother deposed took place in relation to [X]’s attendance at hospital in mid September. The Mother outlined also her attempts, she said, of trying to get a dental appointment for [X], and a number of other matters. In relation to all of them, the Mother asserted that the Father had vigorously inserted himself either to seek information and or to countermand the Mother’s action.
The Mother said that she had made another report to the Professional Standards section of the AFP against the Father. She contended that there was now an active investigation into the Father’s conduct.
Finally, the Mother deposed to her financial difficulty (at least this is what I infer from her material) arising out of her previous legal representation. She says that her former solicitor has reduced his account from $60,000 to $30,000 “due to his handling of the Domestic Violence Order, as well as my complaint that my instructions were not followed.” No further explanation was given of this rather elliptical comment.
No application to re-open has been filed by the Mother.
Upon receipt of the Form 4, which was not provided to the Father’s solicitors or to the ICL, the Court provided the documents filed by the Mother and sought written submissions from both parties and the ICL as to what the Court should do in the light of the allegations and contentions of the Mother.
The Father submitted that the Notice of Risk should be struck out. In the submissions, the Father denied all of the allegations made by the Mother. He would do so on oath if required.
By reference to authority, such as Smith v NSW Bar Association and Suell & Suell (Re-Opening), there was no basis upon which the matter could or should be re-opened.[170] The Father says, in effect, that the same issues, in substance, were canvassed during the trial, and that the best course (including it being in the child’s best interests) is to deliver final judgment as soon as possible, as the Court had indicated. In short, the Notice, it was submitted, should be struck out.
[170] Smith v NSW Bar Association (1992) 176 CLR 256; Suell & Suell (Re-Opening) [2009] FamCA 55.
The ICL adopted the submissions filed by the Father.
The Mother’s submissions, in short order, contended that, since the final hearing, the Father had been seeking to “flex his paternal muscles” and countermand decisions made by her. Unfortunately, the submissions, in large measure, repeated what was set out in her affidavit, filed on 5th December. The Mother’s submissions were not provided to either the Father or to the ICL.
Also unfortunately, the Mother did not refer to the delay in filing the Form 4. This is to observe that if the Mother was so concerned about the Father’s behaviour surrounding events said to have taken place in mid September, why did she wait until early December to file the Form 4?
At the conclusion of her submissions, the Mother said that she sought leave from the Court to file an application in a case to re-open the matter. Putting to one side that leave is not required to file such an application, to date, no such application has been filed.
In my view, the Mother’s Form 4 and affidavit may be dealt with somewhat summarily.
First, the matters that she raised in those documents are of a very similar kind to those that were traversed at great length in the course of the trial.
Secondly, as I have already remarked, the Mother gives no explanation why events in September all of a sudden are urgent in December. She gives no reason for the delay.
Thirdly, as the High Court said in Smith v NSW Bar Association, the power to re-open is discretionary, it should be exercised with some caution having regard to the important consideration of finalising matters in dispute between parties. The Court also referred to considerations of prejudice and embarrassment.[171]
[171] (1992) 176 CLR at pp.265 & 267.
Added to these considerations is the more recent High Court instruction about the Court being a public resource and the careful, proper use of same.[172] The proper use of the Court’s resources is, in my view, a further and important consideration in this matter, which has consumed very significant resources, in every respect. It requires the Court to bring the litigation to finality at the earliest possible time. It therefore requires the Court not to allow any relevant consideration of the Form 4 and affidavit recently filed by the Mother. I note again that there is no application to re-open. If there were, and the only material relied upon is what is contained in the Mother’s most recent affidavit, I suggest (without making any formal ruling) that it would be insufficient to warrant the matter being re-opened.
[172] AON Risk Services Australia Ltd v Australian National University (2009) 239 CLR 175. See, for example, the comments by French CJ at [17] and [25], and those made in the plurality judgment (Gummow, Hayne, Crennan, Kiefel and Bell JJ) at [112] – [113].
The Form 4 filed by the Mother will be struck out.
I certify that the preceding three hundred and six (306) paragraphs are a true copy of the reasons for judgment of Judge Neville
Associate: SS
Date: 18 December 2014
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