WHITE & LOCKHART - [2011] FMCAfam 690

FEDERAL MAGISTRATES COURT OF AUSTRALIA

WHITE & LOCKHART

[2011] FMCAfam 690

FAMILY LAW – Parenting dispute – case listed for final hearing – evidence of family counsellor indicating interim orders necessary rather than final orders – significant factual dispute – consideration of child’s best interests.

Family Law Act 1975, s.60CC
Evidence Act 1995, s.140

Goode v Goode [2006] FMCA 1346

Applicant:

MR WHITE

Respondent:

MS LOCKHART

File Number:

MLC 7583 of 2009

Judgment of:

Burchardt FM

Hearing date:

17 June 2011

Date of Last Submission:

17 June 2011

Delivered at:

Melbourne

Delivered on:

17 June 2011

REPRESENTATION

Counsel for the Applicant:

Ms Baczynski

Solicitors for the Applicant:

Roger O’Halloran

Counsel for the Respondent:

Mr Whitchurch

Solicitors for the Respondent:

Altavilla Vessali Barristers & Solicitors

ORDERS

The child [X] born [in] 2008 (“the child”) live with the mother.
The mother have sole parental responsibility for the child but she is required to consult with the father about any significant medical treatment for the child.
The child spend time with the father:
(a)Each alternate Saturday commencing 9 July 2011 from 9.00 am to 5.00 pm with the changeover at [address omitted];
(b)on each Tuesday and Thursday commencing 5 and 7 July 2011 respectively from 9.00 am to 6.00 pm with changeover at [address omitted];
(c)on Fathers Day from 10.00 am to 5.00 pm with changeover at [address omitted]; and
(d)as otherwise agreed between the parties.
The father is not to leave the child alone with the father’s adopted son [T].
Neither party is to take the child to their place of work.
In the event the father is not available to spend time with the child pursuant to order 3(b) the child is to remain at the [address omitted] Early Learning Centre with the father to be responsible for any additional fees.
The parties are to communicate with one another about the child by

e-mail or text.
The Watch List Order previously made in respect of the child is to remain in full force and effect.
Each of the father and the mother is to enrol in and complete a post-separation parenting course and to provide proof of same to the solicitors for the other party.
Both the father and the mother are restrained from denigrating the other in the hearing and/or the presence of the child.
The father pay the mother $25.00 each week into the mother’s nominated bank account (to be characterised as Child Support).
The father and the mother shall forthwith notify the other in the event of the child suffering serious accident or illness and provide to the other the child’s doctor’s name and hospital details including telephone numbers and both shall be permitted to liaise with the child’s doctors and they shall advise each other of any medical issue in respect of the child.
The matter be adjourned to this Court for final hearing on 31 January 2012 at 10.00 am, with an estimated hearing time of one day.
The party responsible for the payment of any fee including a setting down or hearing fee pay or cause to be paid such of the Fees as shall be payable by that party in accordance with, and within the time specified in, the Federal Magistrates Court Regulations 2000.
Pursuant to s.62G(2) of the Family Law Act 1975, the parties and the child of the relationship attend upon a Family Consultant namely Dr O as previously nominated by the Dispute Resolution Coordinator of the Federal Magistrates Court of Australia on a date and at time/s in December 2011 to be advised for the purposes of the preparation of an up-dated family report, such report to be released 21 days prior to the final hearing date.
The Family Report deal with the following matters:
(a)Any views expressed by the said child and any factors (such as the said child’s maturity or level of understanding) that would affect the weight that the court should place on those wishes;
(b)the matters set out in ss.60CC, 61DA and 65DAA of the Family Law Act 1975; and
(c)any other matters that the Family Consultant considers important to the welfare or best interests of the said child.
Any further affidavit material be filed and served on or before

24 January 2011.
Otherwise, all extant children’s orders be discharged.

AND THE COURT NOTES THAT:

Pursuant to ss.65DA(2) and 62B of the Family Law Act 1975, the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders are set out in Attachment A and these particulars are included in these orders.

IT IS NOTED that publication of this judgment under the pseudonym White & Lockhart is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).

FEDERAL MAGISTRATES
COURT OF AUSTRALIA
AT MELBOURNE

MLC 7583 of 2009

MR WHITE

Applicant

And

MS LOCKHART

Respondent

REASONS FOR JUDGMENT

This judgment is given orally on the last day of hearing, 17 June 2011. It became clear that the Court should make interim orders and review the situation in six months. Given that I go on leave on 22 June 2011 and return on 1 August 2011, it is clearly necessary to give judgment urgently or a large part of the six months would disappear before things got going. This is not my preferred practice. I prefer to draft my reasons and revise them. The judgment will necessarily reflect the haste of preparation. It should be noted that I will not mention all the matters raised by the parties but I have considered all the material put before the Court.
This judgment is unusual. Interim orders only are now contemplated but they follow a full final hearing. They are only interim orders because of Dr O’s evidence. I will endeavour to steer a sensible course between these two competing circumstances. I note that there are considerable lacunae in the evidence. I have taken into account matters told variously to Doctors A, K and O as concessions against interest where appropriate.
I turn now to the positions of the parties. These, as finally articulated, should be understood in the light of the pleadings and material filed. Separation took place on 21 August 2009 when the mother left with [X], who was born [in] 2008. The father’s application was filed on

27 August 2009. It sought that [X] live with the father and that the mother spend time with [X] at a contact centre. Also pressed was a recovery order and a watch list order. In his supporting affidavit filed also on 27 August 2009, the father asserted that he had been the primary carer of the child and that the mother had been reluctant to undertake this function. It was these concerns that he said led to his application. On 4 September 2009 orders were made by consent. The child was ordered to live with the mother and spend time with the father at crèche supervised.
The mother filed a response on 1 October 2009. She sought that the child live with her and that the father undertake certain courses with time to be reserved. The mother’s affidavit of 1 October 2009 refuted all of the father’s criticisms. She said she was the primary carer. She made allegations of violence and jealousy. She referred to an intervention order. The mother also filed a notice of abuse on

1 October 2009. It should be noted that almost all of the matters raised in it were not about abuse of [X] but about abuse of her.
On 6 October 2009 O’Dwyer FM made orders for the father to have supervised time. On 12 February 2010 the father filed an application in a case seeking to add a Ms E as a supervisor. On 19 February 2010 the mother responded seeking supervision by the Home Access Network. On 21 February 2011 the mother filed an amended response seeking supervised time for six months and then unsupervised time and on 3 March 2011, a further amended response was filed proposing unsupervised time and that the father be in substantial attendance.
During the hearing the father stated that the mother had a narcissistic personality and this is part of ongoing attacks he has made from time to time about the mother’s mental health. He said he did not accept that the mother was able to care for the child and his final position was that the child live with him from Monday to Friday and for one day each weekend. He is prepared to accede to an order that he not leave [X] alone with [T], who is his adopted child. That was his primary position. If I were not prepared to accept his primary position, counsel submitted that the father should spend at least three days per week with [X] and, in any event, that there be joint parental responsibility; that the parties communicate by text or emails in emergencies, which I understand to be agreed; that his daughter be a fallback person for changeover, which I understand is also agreed; and that [X] remain in crèche on any date when he would otherwise spend time with his father that the father is not available.
The mother’s final position is that the father should spend 9.00 am to 5.00 pm on alternate Saturdays with [X] with changeover at [address omitted] and two days per week with changeover at [address omitted]. She also sought an order that the father not take the child to his workplace when he is spending time with him.
Dr O, the Family Consultant, recommended alternate Saturdays and three times per week of some four to six hours. She said that she would not like to see much less time than that ordered. She did, however, say that there are real benefits to [X] from spending time in crèche. She recommended that there was no necessity for supervision but she recommended, as I have indicated earlier, that these orders be interim only. The issues were so ingrained between the parties that it was necessary to remove them as best was possible from the conflict they are in and to revisit the matter in six months. I set out this history at some length as it puts the case in its proper context. I would make the following points at this stage: First, the father has consistently asserted he was the primary carer until separation on 21 August 2009. Second, he has consistently asserted mental ill-health on the part of the mother and that she is not fit to look after [X]. Third, notwithstanding the father’s views, the mother has been the primary carer apart from issues to do with crèche since separation.
I turn to the history of the parties. The father was born [in] 1955 and is therefore 55 years old. His father’s employment or circumstances are not, as far as I can see, revealed in the materials. His mother was a [omitted]. The family owns a farm in [omitted] which I understand to be held in some trust. This is obviously a fairly well-off family. The father was sent from Papua New Guinea to [school in Melbourne omitted] and the paternal grandmother was apparently able to send other children to [school omitted] also.
The father’s family moved, as I have just indicated, to Papua New Guinea. After leaving [school omitted], the father had a child in 1973 or 1974, and I note that both dates are given at various points. That child was conceived with a native woman, if I can so describe it without any insult intended at all, whose name appears to be [Ms B] and, although it is not entirely clear, it appears that the child may be a [occupation omitted] in New York.
In his affidavit filed on 8 September 2010 the father says he married his first wife Ms T in 1972. That date is probably wrong given, first of all, the relationship with [Ms B] and the birth of the child from that relationship, and also because the father was only 17 in 1972. There are three children of that relationship; one is in London, the other two are university students in Australia.
The father says that Ms T was violent and manipulative and that they separated in 1989. He moved, however, to [omitted] in 1990 and looked after the three children of the relationship during which time, the father adopted their cousin [T]. Towards the end of 1992, the father said he met Ms W, his next wife, who was a [occupation omitted]. They were married in 1993 in [omitted] and there are two children of that relationship: [Y], born in 1993, and [Z], born in 1996. The father says that Ms W was also violent and manipulative and that they separated in 2001.
I note, however, that the father assaulted [Y] in June 2007 and according to what he told Dr A, he was the subject of a CVO as a result on 27 March 2008. In 2008 Ms W took the children to Papua New Guinea and the father recovered them from there in February 2010. On 3 September 2010 the father hit [Y]; he said this was in self defence. The DHS report says that [Y] had a sore jaw, a broken tooth and a bloody nose. The two younger children are now in care.
I turn to the mother. She was born [in] 1976 and is, therefore, now almost 35. She is from Tanzania and from a middle class family. Her father is [occupation omitted]. She has various siblings, all of whom are tertiary educated and I think, unless I misunderstand the materials, all in what would reasonably be described as good employment. The mother is well educated. She has a degree and is a [omitted]. She met the father through the internet in 2004 when she was working in Uganda. The father and mother actually met in person, although it is not clear exactly when, some time in 2005 in Tanzania. At that stage, the mother was working [occupation omitted]. They married [in] 2005. At some subsequent point, the mother got a job with [omitted] before she came to Australia in August 2006. In 2007, she enrolled in a master’s degree at [university omitted]. She stopped in the ultimate because she was assessed for fees on the basis that she was an international student. This occasioned her some distress and she underwent counselling as a result. She passed her driving test in December 2007 and worked part time for an organisation which I will refer to by the acronym of [omitted]. At that time in December 2007, she became full time as an employee.
The parties had seen a counsellor in 2007. The counsellor made various recommendations including that the father be referred to a men’s group. There was a planned pregnancy and [X] was born [in] 2008. The mother had three months’ unpaid maternity leave and in January 2009, she recommenced work. The father took two weeks off to look after [X]. From that point onwards, it is common cause that [X] has spent most of his days in crèche. I note, according to the father’s first affidavit filed on 27 August 2009 at paragraph 6:
“[X] was placed into crèche from 8.30 to 6 pm every working day and that pattern has continued, not only until separation in August 2009 but from then till now.”
On 21 August 2009, as I have indicated, the mother left the home and appears to have gone to a refuge. The police served the father with an intervention order the same night. On 24 August 2009 there was a hearing at the [omitted] Magistrates Court and an interim intervention order was made until 8 December 2009. On 31 August 2009 the father filed an application for intervention order. Both intervention order applications were ultimately dismissed. Hearsay accounts of Magistrate [omitted] reasons are not compelling, and I have not seen the transcript.
This history is relatively, if not highly, uncontroversial but it is now necessary to deal with the serious controversies that have obtained between the parties. The father says, inter alia, that the mother is unwell and not capable of caring for [X] and refused or was not capable of doing so before separation. He says that the mother is violent and verbally abusive. He says that the mother got him to sell land and property so that she could buy property in Tanzania. The father says that the mother tried to make him sell the family farm in about January 2009 and ultimately left him when he would not or could not. The father says that the mother planned it all along. This was at the core of the father’s views of the mother as I find. In summary, he believes that the mother married him to come to Australia, pressured him into selling property so that she could sell buy land or property in Tanzania, kept all her own pay to the amount of some $50,000, invented domestic violence including rape to foster her visa status, and then left him.
In effect, he says all this was pre-planned, in other words, before she even came to Australia. Little wonder he said in evidence he wants nothing to do with her. The mother denies all these assertions. She insists she came to Australia because she loved the father. It was, after all, a planned child. She says the father used his money from the sale of the various properties referred to for his business. She does not deny that she kept her salary but says that she contributed to the household expenses generally. She refers to the father’s psychiatric problems and repeats her concerns about his parenting skills.
I will make some findings about credit. The father in part was unbelievable. This is partly a question of demeanour. In other words, what he said and the way that he said it. While I am keenly aware that there is extra-curial writing by very eminent authors cautioning against over reliance upon demeanour, Fox & Percy is still good law.
Furthermore, and I emphasise these as illustrative only, I would make the following points.
The assertions in the father’s intervention order application are inconsistent with the note he sent to the mother’s friend. Exhibit BF3 and 4 to the mother’s affidavit filed on 1 October 2009 - I shall read out BF4:
“[Ms Lockhart] attacked me about a month ago at about 2 am over feeding the baby. She caused physical injury to my left arm. She is extremely controlling and has been turning up at my work keeping an eye on me. She has continually abused me both verbally and physically during the course of our marriage.

I now feel I must go into hiding so she cannot find me.”
This document is dated 31 August 2009. BF3 is undated but clearly from its terms is roughly contemporaneous with BF4. I will read that out. It is to a friend of the mother, [name omitted]:
“I have found out through the Court on Friday that [Ms Lockhart] has been suffering from post-natal depression. This explains almost everything that I have not been able to understand up to now. After seeing [Ms Lockhart] in court on Friday and listening to what she said, I think it is very important that the people she is with are made aware of this. It was so sad to see her in such a mess. Please tell her that I am praying for her and [X] and that I love them both. Thanks, [Mr White].”
As I say, those two documents are simply not readily reconcilable.
The proposition that the mother had planned it all along, to use the father’s words, must be approached in the light of s.140 of the Evidence Act 1995. The mother is well educated. She had a good job in Tanzania. She had good family relationships in Tanzania, as I find, and the child who was born was planned and not born until the mother had been in Australia for two years. So far as the money from the father’s property is concerned, he said himself he was working very long hours in 2009. [X] was placed in crèche two weeks after the mother went back to work. The father said his former manager had caused losses in his business. He was clearly working long hours to make things better. The mother says he put the money into his business, not property in Tanzania, and I accept that. If the mother was just out for what she could get and if she had got large amounts of money to buy properties within her own homeland, she could simply have left him. I further note that there are no bank records to support the father’s assertions. If the mother had planned everything, she could have arranged to leave Australia forthwith in August of 2009 and nobody could have stopped her. Instead, she applied for an intervention order.

The father has not paid periodic child support. His denials and explanations in this regard I found unconvincing. The father also admits he has a temper; he told Dr A so. The father was convicted of assaulting [Y]. His denials and explanations were not convincing. He hit her more recently. The DHS report is convincing and the father’s denials are not. The father denies stealing [X]’s clothes but admitted in evidence giving such clothes to the Salvation Army. He has an excuse, but there is no obvious reason why he did not give them back to the mother and tell her that they were too small rather than simply throwing them out. The father was depressed in February when he saw Dr A. Counsel on his part told the Court on 8 March 2011 that the father was unable to continue with the trial as he was depressed.

He denies this but his evidence about his visits to his doctor were not convincing. The father stole a pram belonging to the mother, or at least in her care. I agree with Dr O that this was an extraordinary piece of conduct and I do not accept the father’s explanation. The child centre assistant director, Ms L, whose correspondence is BF1 to the mother’s affidavit of 19 February 2010, supports the mother’s criticisms of the father’s conduct. In interview with Dr K in April 2011, exhibit A2 paragraph 19, the father said of the mother, “She is African from Tanzania and comes from one of the higher tribes there.”
This last observation, made only recently, is as offensively condescending as it is extraordinary. The mother is an extremely well-educated, urban-bred woman from an educated middle-class family. Counsel for the father urged me not to make findings without independent corroboration. There is more than sufficient evidence for me to find that the father is not a reliable witness.
The mother was not a perfect witness by any means either. She had some tendency to exaggeration. I refer first to what I will describe as the birth incident. It is clear that this incident has left a profoundly distressing memory with the mother; that is perfectly natural. She was distressed at the time, her blood pressure was up and the child’s health was at risk. I will not ever know in an absolute sense if the father slapped her deliberately or whether it was an accident. Bearing in mind the terms of s.140 of the Evidence Act 1995, I incline to the view that was more probably an accident. The mother also alleged an incident of rape; I am quite unable to make any finding as to that. So far as the slide incident is concerned, I simply do not accept that it is probable that the father would put the health and wellbeing of the child he clearly loves at risk in the way the mother asserts.
There are only four other areas of evidence I will deal with:
i)The father failed to prevent [X] from scalding himself with a hot drink. Accidents do happen but this suggests a lack of proper supervision, although all professionals now agree that supervision is not required.
ii)To the extent that each party raises issues of bumps and scratches, these are part and parcel of normal life for a child and in my view, nothing turns on the various assertions to this effect.
iii)The father abuses the mother. I leave aside entirely, as I have said I would, an alleged incident at court, but I accept the mother’s evidence of the other instances. It was given with considerable conviction and I believe her.
iv)So far as the final issue is concerned, that of violence, I do not accept that the mother assaulted the father; she is small and slight. I think, however, that the father probably did choke the mother and made threats to her. I approach, however, these matters with some caution as they are merely conclusions based upon what the party said and the way they said it.
I move on to findings about [X] and his parents. [X] was born by a caesarean section on 26 July 2008. The mother had maternity leave for six months. She then went back to full time work, it appears, in January 2009. The father took some time off and he puts that at two weeks. [X] has been in child care since the mother went back to work. He was in pre-crèche from July 2008 till January 2009 for about six months. It is understandable that after a caesarean, the mother was not easily able to attend to all maternal duties. Both parents presumably chipped in to look after [X] at this stage. It is, however, clear that [X] was breastfed, indeed, for quite some considerable time. It is also clear that he has lived with his mother since separation on 21 August 2009, despite the fact that he spends a lot of time in crèche. It is clear that [X]’s primary attachment is to his mother, that is Dr O’s evidence and I accept it. But it is also clear [X] has a good relationship with his father. It is clear supervision is not required, that is the conclusion of Drs A, K and O. It is also clear, I am afraid, that the relationship between the two parents is terrible. All the evidence in this case supports Dr O’s conclusion to that effect.
I should say the findings that I have made about credit were arguably unnecessary given the parameters of the dispute. I think it is necessary, however, for the parties to have the Court tell them what the position is. The parties will not like my conclusions but will have to understand that the future evaluation of their behaviour will proceed from this base.
I turn now to the legislation and the pathway mapped out at paragraph [75] of Goode v Goode [2006] FMCA 13496. I am first required to consider the question of sole parental responsibility. There is a presumption of joint parental responsibility unless it is rebutted because of family violence or a need to protect the child. Here there clearly has been family violence. The sort of abuse to which the mother is subjected by the father is clearly within the definition in the Family Law Act 1975 (“the Act”) and there has been some physical violence, albeit not as much as I find the mother asserts. I will provide sole parental responsibility to the mother for the next six months and order that the mother is to consult with the father if any major health issues emerge. There is no capacity for education issues to emerge in the next six months. [X] is to stay at the [omitted] Kindergarten until further order.
That brings me to the question of the best interests of the child.

As things stand, no-one suggests equal time. Substantial and significant time within the meaning of the Act will occur whosever regime I adopt. I will, therefore, proceed through the consideration of the child’s best interests pursuant to s.60CC. Turning to s.60CC(2), it is desirable and in [X]’s best interests for him to have a meaningful relationship with both parents; both parties agree. So far as the necessity to protect from abuse or violence is concerned, while I have made an interim order for sole parental responsibility the fact is that the father loves [X]. All the professionals agree that supervision is unnecessary. I do not think that the father will harm [X].
Turning to s.60CC(3)(a): given his age, [X] has expressed no views. Section 60CC3(b): [X] has a secure relationship with his mother who is his primary attachment. He also has a good and well-developed relationship with his father. He has no relationship with either of his extended families. The father wants to go overnight to [omitted] to see his extended family. I note that according to what the father told

Dr A his relations with his family are, however, generally poor. Subsection 60CC(3)(c): both parents are open to question in this regard. The father loathes the mother. He attributes the worst motives to her. The mother by way of contrast is at the best very qualified in her views about the father. She struggled to say anything good about him in the witness box. She does, however, at least tell Dr O that it is good that there be a relationship between the father and [X]. Also under cross-examination, the mother acknowledged that [X] loves his father and should have a relationship with him.
Subsection 60CC(3)(d): the likely effect of change in circumstances.

If the father’s proposal is adopted and [X] is with him from Monday to Friday, it would be a massive change. Dr O opposes this and opposes overnight time on the footing that [X] is still too young. Alternatively, it is either a matter of two or three full days as the father seeks and that is also a major change. Dr O emphasised real benefits for [X] at crèche; he has, after all, been there almost all his life. She recommended three days but four to six hours and said she would not be happy with much less than that. The father says, “Why leave him in crèche when he can be with me?” I should note that there is clearly a cost at crèche despite the father’s denials.
Subsection 60CC(3)(e): matters of practical difficulty and expense. There is no expense with [X] being with his father. The father says he can take off as much time as is necessary because, in effect, his business sufficiently runs itself. But 9.00 am till 6.00 pm is longer than

Dr O suggests and 9.00 am till 6.00 pm is clearly the only workable outcome. Subsection 60CC(3)(f): the capacity of each parent to care for the child. Each can do so; that is quite clear. I would doubt the father’s capacity, however, over five consecutive days; despite his success as a parent, he has also had his failures. Subsection 60CC(3)(g): the maturity of the parents and/or the child. In my view, this subsection adds nothing in the context of the findings I have already made. Subsection 60CC(3)(h) is irrelevant. Subsection 60CC(3)(i): the attitude to parenting. Both parents have perfectly appropriate attitudes towards the child but both, I regret to say and I repeat, have a terrible attitude towards one another. Subsection 60CC(3)(j): family violence. I have nothing to add to my earlier remarks. Subsection 60CC(3)(k): as I understand it, there are no orders now in place but I note the involvement of the DHS with the two other children. Subsection 60CC(3)(l): there will be a review in six months.
The issues remaining are really whether it is two days, which is the mother’s proposal, or three days which is the father’s proposal plus Christmas. Dr O said that three days per week and not much less was appropriate, but for some four to six hours. Her views appeared to waver under cross-examination and she appeared at one point to accept two days per week. Clearly, it must be 9.00 am to 6.00 pm. The mother says two days per week is enough. These are not areas of precision.
I have prepared draft orders to give effect to these conclusions. I will hand them down now. I will give the parties an opportunity to consider them in case it is felt that I have omitted something that I should have included in the light of my decision, or in case there is any dysfunction between what I am ordering and what I have just said.

I certify that the preceding thirty-seven (37) paragraphs are a true copy of the reasons for judgment of Burchardt FM

Date: 17 June 2011