WILSON & JEANS
[2015] FamCA 688
•20 August 2015
FAMILY COURT OF AUSTRALIA
| WILSON & JEANS | [2015] FamCA 688 |
| FAMILY LAW – PARENTING – Relocation Victoria to New South Wales. Child aged two years with health problems. Poor relationship between parents. Father’s truthfulness a significant problem. Mother permitted to relocate child. FAMILY LAW – PARENTING – Parental responsibility – parents unlikely to be able to make joint decisions. Relevance of s 65DAC. Sole parental responsibility orders. |
Evidence Act 1995 (Cth) s 142
| Family Law Act 1975 (Cth) |
| Allenby & Kimble [2012] FamCA 614; (2013) 49 Fam LR 15 Champness and Hanson [2009] FamCAFC 96 Collu and Rinaldo [2010] FamCAFC 53 Hayes v Marquis [2008] NSWCA 10 Malcher & Seares [2012] FamCA 643 McCall and Clark [2009] FamCAFC 92 MRR v GR (2010) 240 CLR 461 Roy v Sturgeon (1986) 11 Fam LR 271 Taisha & Peng & Anor [2012] FamCA 385 |
| APPLICANT: | Mr Wilson |
| RESPONDENT: | Ms Jeans |
INDEPENDENT CHILDREN’S LAWYER
| FILE NUMBER: | MLC | 8543 | of | 2014 |
| DATE DELIVERED: | 20 August 2015 |
| PLACE DELIVERED: | Melbourne |
| PLACE HEARD: | Melbourne |
| JUDGMENT OF: | Cronin J |
| HEARING DATE: | 20, 21, 22, 23. 24 and 27 July 2015 |
REPRESENTATION
| THE APPLICANT: | In Person |
| COUNSEL FOR THE RESPONDENT: | Ms Hession |
| SOLICITOR FOR THE RESPONDENT: | Davison Family Lawyers |
COUNSEL FOR THE INDEPENDENT
CHILDREN’S LAWYER Ms Wiener
SOLICITOR FOR THE INDEPENDENT
CHILDREN’S LAWYER Logie Smith Lanyon
Orders
That all extant parenting orders and consequential undertakings given to the Court previously are discharged.
That the mother have sole parental responsibility for B (the child) born … 2013.
That the child live with the mother.
That the mother may remove the child to live in New South Wales at C Town.
That whilst the child lives in Victoria, the father spend time with him as follows:
(a) On each Sunday and Tuesday from 9.00am to 5.00pm; and
(b) At such other times as the parties agree upon in writing.
For the purposes of all changeovers whilst the mother remains in Victoria, the parties meet and exchange the child at the McDonalds Restaurant in Suburb D.
Once the mother moves to C Town, the father spend time with the child for three consecutive days in each month (or for such further days as the parties agree) between the hours of 9.00am and 5.00pm on each of those days (unless the parties also otherwise agree to other times) and the handover of the child occur at a place to be agreed and failing agreement at the nearest contact centre.
For the purposes of paragraph (7) the mother nominate by text message, two occasions in each year that she will travel to Melbourne to partly fulfil the obligations set out in these orders.
That for the purposes of the father travelling to New South Wales, he shall give the mother a calendar of his proposed visits and the mother shall nominate two such visits where she will be responsible for the father’s return airfares and accommodation both of which she shall be at liberty to arrange.
From 1 December 2016, the time under these orders shall be varied to include one overnight time at the nomination of the father in the three consecutive days.
From 1 December 2017, the time under these orders shall be varied to be overnight for the entire three consecutive days.
Once the child commences school, the foregoing orders shall cease and he shall spend time with his father for five days and nights in each school holiday period with the father being responsible for the collection of the child at the commencement of the period and the mother being responsible for collecting the child from the father at the conclusion of the period. The costs of all such travel shall be at the parties own expense.
For the purposes of (12) hereof if the father intends to exercise the time provided for, he shall give the mother at least 21 days notice by text message of his intention to exercise the relevant contact.
Once the child commences the third year of his schooling, the father’s time shall be increased to one half of all school holidays by agreement, and failing agreement, the first half again providing that he gives at least 21 days notice of his intention to exercise such contact and the costs of all such travel shall fall upon the party doing the travelling.
For the purposes of the mother’s sole parental responsibility relating to major long-term decisions concerning the child, the mother shall advise the father of any proposed major decision and give him 14 days (if practicable) notice of her desired decision and thereafter consider any proposal put by the father and upon making such final decision, notify the father accordingly.
That as the mother has sole parental responsibility, the requirement for the father’s signature on any application for the issue of a passport for and in the name of the child B is dispensed with.
That no more than once per year, the mother is permitted to remove the child from the Commonwealth of Australia for the purposes of a holiday providing she gives the father at least 21 days notice of the dates of travel, locations and contact details.
That should any party seek costs arising out of these orders, such application be made by written submission and filed and served by no later than 11 September 2015 with such submission being endorsed with the fact that it has been so served on the other party and any recipient of such submission have until 25 September 2015 to file and serve any response and such response be endorsed with the fact that it has been so served on the other party and upon receipt of any such application for costs, it or they be determined in chambers.
That subject to any costs application, the Independent Children’s Lawyer is discharged from the proceedings.
That pursuant to s.65DA(2) and s.62B, the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders and details of who can assist parties adjust to and comply with an order are set out in the Fact Sheet attached hereto and these particulars are included in these orders.
That save as to issues of costs, the applications of all parties are otherwise dismissed.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Wilson & Jeans has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
| FAMILY COURT OF AUSTRALIA AT MELBOURNE |
FILE NUMBER: MLC 8543 of 2014
| Mr Wilson |
Applicant
And
| Ms Jeans |
Respondent
INDEPENDENT CHILDREN’S LAWYER
REASONS FOR JUDGMENT
The main focus of attention in this parenting case has been which parent is telling the truth. The pursuit of the truth has blurred the boundaries of the dispute. Here, virtually every question about parental capacity, child-focussed interests, the causes of the absence of trust, the perpetration of family violence and indeed, the very nature of the parties’ personal relationship, has been contentious.
The evidence in a parenting case must focus on a child’s best interests for the future. The Court is required by law to examine a number of factors which assist in determining what, if any, parenting orders will meet the needs of a child. In assessing those various factors, the Court is, as here, often met with diametrically opposed evidence from the respective parents. Absent clear and unequivocal evidence which corroborates one person’s version of what has happened, the Court is left to do the best it can. That approach is determined on what probably happened, that is, the balance of probabilities (Evidence Act 1995 (Cth) s 142).
In deciding what probably happened, the Court needs to be satisfied to a comfortable degree that its decision is right. Determining the general truthfulness of a person sometimes, but not always, helps that process. For example, courts can believe one person about one fact but not necessarily another fact. That was the position that was urged in this case by the Independent Children’s Lawyer who submitted that neither party should be found to be a truthful witness. Rather, it was submitted, on most matters but not all, one party stood out. For the reasons that follow, I disagree. Here, I can have no confidence in the truthfulness of the father.
Whilst the main focus of the case was about parenting, there was a collateral issue about whether the parents had even been in a de facto relationship. There had been extant financial issues when the case began but each withdrew those from the determination no doubt for different reasons. In the mother’s case, she submitted there was no jurisdiction because of the facts that she urged the Court to find. From the father’s perspective, he seemed to say that the financial issues were simply a distraction. Consequently, and to ensure there were to be no future financial proceedings, the mother sought a declaration that there had not been a de facto relationship at all. On the evidence before me, I agree with her position.
The main part of the reasons that follow concerns the parenting dispute. At its core is the mother’s desire to move to New South Wales north of Sydney.
B is aged just two. He has had a significantly disrupted start to his life. He was born at 32 weeks gestation but in the birth process, suffered a stroke. He survived but required specialist hospitalisation for weeks. He took a while to thrive and is currently small in stature. He has had feeding problems such that the introduction of solids has been difficult. He has been at risk of choking. There has been significant, and it would appear, excellent specialist medical treatment for the child.
In the midst of these difficulties, the child’s parents have been in serious conflict. Mr Wilson is the child’s father and Ms Jeans is his mother. The father is aged 45 years and does not have paid employment. He lives with his parents in their house and is financially dependent on Centrelink benefits. In a curious admission after being challenged about why he did not, for example, commence a “lawn mowing round” which he said was not practicable, the father volunteered that he “got $50” from his family for mowing lawns.
The mother is aged 39 years and holds qualifications as a psychologist although she seems not to have practised as such. Whilst she worked in what was described as an “industry” associated with that profession, it remains unclear to me just what roles and experiences she has had. That clouds the question of what prospects for employment she has. She too is dependent on Centrelink benefits and receives no financial assistance from the father notwithstanding she is, by far, the child’s predominant carer. The father’s view about child support is that the mother only has to register and some money will be taken from his benefits. The fact that he does not volunteer that money, is perplexing.
In his final submissions, the father said he would do his best to help provide for the child but his evidence gave no indication of how that would occur but he also gave the very strong impression that the impending financial dilemma of the mother was someone else’s problem. The mother was cross-examined about her estimate of future rental costs now that she has had to sell her house. Counsel for the Independent Children’s Lawyer put to her a whole raft of available rental properties at figures somewhat less than what she was anticipating. Even taking up those options, on a Centrelink benefit of $750 per fortnight, at the lower end of the rental market, there would be a minimal amount to live on and the higher range was just not in her price bracket.
B is the only child that the mother and father have together but the father also has a six year old child E with whom he spends time each week. He described his time with E as “40 per cent” of E’s time. Notwithstanding E is now at school, he is put forward as one of the reasons for the father’s inability to obtain work. The father now proposes to commence a course which will run for the rest of the year. If successful he will be accredited as a carer of people. There is no evidence of how such an accreditation would alter his financial position.
The “40 per cent” time with E was not easily obtained by the father from E’s mother. He litigated in the Federal Circuit Court with E’s mother for five years of E’s six years of life. Final orders were only made in August 2014 by consent of those parents. Even that litigation pathway became a significant feature in the present case because the father maintains that he lied to both a family consultant and also to the Federal Circuit Court.
The conflict between the mother and the father in this case together with the child’s health problems, has sadly led to significant involvement by the State Department of Human Services. There have been at least five interventions in the last twelve months as a result of “notifications”. Whilst notifications are, as a matter of law, protected by anonymity, the father readily acknowledged that he had made two and mandatory reporting by health professionals was largely responsible for others. Despite all of that, the Department saw fit not to remove the child from his mother nor intervene in these proceedings.
Indeed, a case manager from the Department of Human Services told the family consultant that both parents were “malicious” in making allegations about the other. The evidence does not support such a conclusion.
Thus, the current proceedings threw up many issues such as:
(a)Whether the mother or father were in a de facto relationship and if not, what sort of a relationship it was and for how long the father stayed with the mother;
(b)Whether the mother was so concerned about her personal safety from E’s mother during the Federal Circuit Court proceedings, that she encouraged and indeed “coached” the father to lie to the Federal Circuit Court and to a family consultant (as he maintained he did) about where he was living;
(c)Whether during the pregnancy of the child, the mother consumed alcohol and after the child’s birth, whether she drank alcohol to the point of drunkenness;
(d)Whether after the child’s birth, either parent was neglectful of the child’s daily needs;
(e)Whether during the post-birth period, there was any justification for concern about E being near the child because E is autistic;
(f)Whether in the hospital after the child was born, the mother threw a glass at the father, pulled out an intravenous drip from her arm and was then sedated by tablets provided by a nurse;
(g)Whether in September 2014, the mother used a knife to threaten the father whilst insisting that he sign papers (in her view) to acknowledge the father’s indebtedness to her;
(h)Whether before September 2014, the mother showed the father a DNA result for E which suggested, apparently quite falsely, that E was not the father’s child;
(i)During the pre-September 2014 period, the mother altered the child’s surname from his original birth registration documentation which included (according to the father) the father’s name as the child’s surname;
(j)Whether during the early months of the child’s life, the father was uninterested in him or more focussed on his relationship with E.
During the relationship, the mother told the father that she wanted to live in C Town in New South Wales. That is still the mother’s primary position which, if it occurred, would significantly alter the existing nature of the relationship between the father and the child.
In September 2014, the father left the relationship from the mother’s house where she was then the sole registered proprietor. He left a lot of personal items there including a cat. The father pointed out that if he was not then living at the mother’s house, why would he have brought the cat there to live. That sounded plausible and credible until the mother said there had been two cats at the father’s parents’ home and as they fought, they were separated. That too sounded plausible particularly when the father’s parents were not called as witnesses. As a litigant in person, one might think that the father overlooked such a forensic issue. However, as I soon learned, the paternal grandmother on his own version, lied for him in an affidavit in the Federal Circuit Court proceedings about E. I have concluded against the father therefore that he desired to keep his parents away from the Court. At the time the father’s affidavit material was filed, he had legal representation.
In respect of the father’s personal property, eventually, the police force had to assist in recovery. But even there, allegations of deliberate damage and destruction were made by the father against the mother. Nothing in the evidence, which included photographs, would enable a finding that the mother was responsible.
When the proceedings began in this Court, there was a hearing before the Senior Registrar who, in my view now justifiably, ordered that both the mother and the father undergo a psychiatric examination. The single expert witness appointed was Dr F. He is a consultant psychiatrist. He provided his assessments and was not required for cross-examination and no-one challenged his expertise. I find his evidence helpful.
Bearing all of that in mind, Dr F said that the mother told him that initially the father seemed to be a caring and affectionate father but over time became controlling and dominating. She asserted to Dr F that there was physical violence but that the father would not contribute financially. She said he made promises that he would work on the cars that he owned but that did not eventuate. She said that the father did not meaningfully involve himself with the child and was not involved in the major care operations of the child. She told Dr F of the father “dumping items on her property”. She told the psychiatrist that she should have left but she felt powerless noting that the father had already been through a difficult family law situation. She said that he did leave after they had a financial discussion in which she asked him for a plan about repaying some money to her. All of these assertions were repeated by the mother in her evidence.
The mother told the psychiatrist that the father had been diagnosed as suffering from bipolar affective disorder and attention deficit hyperactivity disorder. Whilst that was true, the diagnosis was challenged by the father. Thus the expert had a clear understanding of the facts in issue.
Dr F then set out his observations which could largely be described as unremarkable. He described the mother as well-oriented with no disturbance of concentration, memory, general judgment, insight or motivation. He thought she had considerable capacity for psychological reflectiveness.
Importantly, Dr F said this:
Upon the history available, this examiner is not inclined to state that [the mother] is at risk of any future behavioural or psychiatric issues related to a psychiatric disorder, unless it is in the future deemed that [the father’s] reports about [the mother] are indeed true. (My emphasis)
Dr F said that the father denied any ongoing difficulties with his mood or his level of interest in his usual activities. He acknowledged having been diagnosed by a psychiatrist with attention deficit disorder and bipolar affective disorder but that the psychiatrist had been “struck off” and that subsequently, two other psychiatrists had disagreed with the earlier diagnosis. He told Dr F that his sleep, appetite, energy and concentration levels were normal and he denied feelings of worthlessness or suicidal ideation.
There is no doubt the father was diagnosed in 2007 by a psychiatrist and that this person had been struck off. No evidence of the two contrary opinions was presented to the Court even though one of them (by Dr G) had been provided to the Federal Circuit Court in the proceedings about E. The father had initially intended to rely upon that report in this Court because he attached it to an affidavit but I ruled that he wanted to rely on its expert nature and its truth, it was not admissible in that form. Despite that, counsel for the Independent Children’s Lawyer cross-examined the mother about the fact that she knew of the Dr G report. Thus, some parts of it are now indirectly in evidence. It is obvious to me that Dr G queried the father’s diagnosis but he did not reject it out of hand.
The second psychiatrist to whom the father referred had also given a report and in the same way, I ruled it was not to be relied upon. The father said he intended not only to call this psychiatrist but also to obtain an affidavit from her. Neither eventuated. Accordingly, I remain unconvinced that Dr F was doing any more than relying upon the father’s history as detailed to him. Dr F certainly did not report that he had access to the assessments of Dr G and the second psychiatrist. He certainly referred to having read an affidavit prepared by the mother.
In his interview with the father, Dr F recorded the father’s perception that the mother had been “slightly depressed” throughout their relationship saying it got worse during her pregnancy when she became anxious, aggressive and violent. The violence was a reference to her throwing a glass at his head but he “thought” that it was “hormones”. The father reported to Dr F that the mother asked him to leave the relationship at a point when she was pointing a knife at him but then told him she wanted him to come back. He said he realised by then that there were so many lies one of which was that she had been in “some kind (of) relationship with a neighbour” and then that she had “altered” a DNA test in relation to E and “lied about calling” the child by his surname.
As earlier indicated, one of the factual disputes in this case on the question of parental capacity was about the mother’s consumption of alcohol. The father cross-examined the mother about it so it was obviously a live issue in his mind. At one point he asked her whether she had obtained advice about alcohol consumption during breast feeding. He seemed intent on ascertaining how much of a gap there was after consuming alcohol before the mother breast fed the child. That issue was raised by Dr F. The father told Dr F that the mother had been drinking twice per week “perhaps one and half glasses each time”. Dr F’s comment was that the father did not appear to know a great deal about foetal alcohol syndrome given that the medical literature indicated high-risk exposure being typically characterised by “a 55 kg woman drinking six to eight beers in one sitting”. I conclude from that that Dr F was dismissing the father’s concerns. I too dismiss them but they raise questions about the father’s focus.
In respect of his examination of the father, Dr F said that there was no disorder of the form and flow of the father’s speech and thinking and no indication of depression. In relation to parenting attitudes, Dr F recorded that the father appeared to demonstrate an appropriate understanding of his children’s needs and a desire to have an ongoing involvement in their development. The father told Dr F that he wanted “shared care…50/50…actually 51/49…because if its 60/40, in reality she can take him to Sydney and I want him to stay in Melbourne”.
Dr F opined that on the history available about the father, there was no evidence of family psychiatric history, major personal or past psychiatric history, alcohol or substance abuse, unresolved medical illness or personality disorder. However, Dr F then said this:
If the statements by [the mother] are deemed to be truthful, it would therefore follow that [the father] has indeed suffered from significant behavioural and personality issues, and there would therefore be concerns about his parenting capacities. (My emphasis)
The evidence of Dr F was unchallenged. It is powerful evidence because it is an opinion in respect of each parent dependent upon findings as to truthfulness. In this case I find that the mother is the truthful witness by a long way and I accordingly accept that Dr F’s opinion about the father’s capability ought be a matter of concern. But even so, it is necessary to question the relevance of all of that opinion and indeed my finding about the parties’ respective truthfulness, in the context of the pursuit of orders that are in the child’s best interests. I am assisted here by an examination of what the law requires.
The law
Part VII of the Family Law Act 1975 (Cth) (“the Act”) provides the framework in which the Court exercises any power to make parenting orders. Section 65D provides the source of the power to make a parenting order. Section 64B defines parenting order and sets out what sorts of orders can be made. Ultimately as s 65D indicates, subject to various other sections, the Court can make such parenting order as it considers proper.
In contemplating all of those legal issues however, s 60B sets out the objects of the legislation to ensure that best interests of children are met. Some of those objects are clearly repeated in the best interest principles considerations. It is important from the legislative point of view to try and ensure that children have the benefit of both parents having a meaningful involvement in their lives whilst protecting the children from harm. Orders need to be contemplated to ensure that children receive adequate and proper parenting so that they reach their full potential but also that parents fulfil their duties and meet their responsibilities concerning the care, welfare and development of their children.
Section 60CA requires that in deciding whether to make a particular parenting order, the Court must regard the best interests of the child as the paramount consideration. The use of the words “paramount consideration” means that it is legitimate as well as proper, to have regard to other considerations, such as, in this case, the mother’s desire to move interstate. It is where those considerations clash, the child’s best interests prevail.
Section 60CC sets out the matters that must be considered by the Court in determining what is in the best interests of a child. As the overwhelming issue is to find an outcome for the future for the child which is in his best interests, there is an attraction at looking at the various matters set out in s 60CC(3) before contemplating the philosophical questions in s 60CC(2) (see for example Collu and Rinaldo [2010] FamCAFC 53 at para 355). That is particularly so because s 60CA requires the Court to regard the best interests of a child in deciding whether to make a particular parenting order.
Running parallel with issues about the care of a child is the question of by whom and how, decisions are made about major decisions in the child’s life. In respect of the latter, s 61DA(1) requires the Court to apply a presumption that it is in the best interests of the child for the child’s parents to have equal shared parental responsibility. In this case, that is brought into sharp focus because the father not only sought orders that he and the mother share the responsibility for decision-making but also, he could not countenance the possibility that he would not be so involved. The mother’s position on the other hand was that negotiating with the father was impossible and it was appropriate that she make the decisions solely. The Independent Children’s Lawyer’s position was something of a hybrid. That was that if the Court permitted the child to live in New South Wales, the mother should have that responsibility subject to involving the father in negotiations but otherwise, if the mother remained in Victoria, the father should be equally involved. In my view, the proposal just mentioned would be unworkable. I turn to that issue below on the basis of the obvious difficulties in the communication between the parties.
The presumption in s 61DA does not apply where the Court finds that there has been abuse or family violence. Notwithstanding there was evidence of aggression, abuse and indeed pushing of the mother by the father and evidence by the father against the mother of her having been violent towards him, the mother submitted that there was no basis for the Court to not apply the presumption because abuse or family violence. In respect of the father, I do not accept his evidence that the mother was violent.
On any view of the evidence, there has been no communication of a constructive nature since September 2014 and whilst the father constantly cross-examined the mother about his hopes for the future, I have little confidence that things will change whether the child is in New South Wales or Victoria.
Section 65DAA focuses on the time that the child would spend with each of the parents. It has a specific legislative pathway under which the Court is required to contemplate equal time and if that is rejected, substantial and significant time. This particular provision however applies if the parenting order provides or is to provide that the mother and father are to have equal shared parental responsibility for the child. The focus of attention therefore is really about the capacity of the parents to fulfil their responsibility as parents and if the Court finds that there is evidence to satisfy it that a joint approach cannot work, the presumption earlier mentioned may be rebutted and s 65DAA becomes irrelevant. Again therefore, it is important to look very closely at how the parents have fulfilled their responsibilities and to look prospectively about how things might change in the future. The best way to make that assessment is to look at what has happened throughout the child’s life but then contemplate the mandatory factors in s 60CC.
To the extent that the Court makes an order for equal shared parental responsibility and s 65DAA applies, the observations of the High Court of Australia in MRR v GR (2010) 240 CLR 461 at para 15 are important. The High Court held:
15.Section 65DAA(1) is concerned with the reality of the situation of the parents and the child, not whether it is desirable that there be equal time spent by the child with each parent. The presumption in s 61DA(1) is not determinative of the questions arising under s 65DAA(1). Section 65DAA(1)(b) requires a practical assessment of whether equal time parenting is feasible. Since such parenting would only be possible in this case if both parents remained in Mount Isa, Coker FM was obliged to consider the circumstances of the parties, more particularly those of the mother, in determining whether equal time parenting was reasonably practicable.
In this case, time was as much the issue as was decision-making. In his original outline of case (and what had always been his position) the father sought that the child live with him and have limited time with the mother. He was cross-examined on the second day of the hearing about what his position was and he confirmed that he still wanted those orders. It was only in his final address that he clearly and reluctantly, adopted the position of the Independent Children’s Lawyer that the child should reside with the mother. There was no evidence that I could see that supported a proposal that the child be removed from the mother and placed on a full-time basis with the father. That unequivocal position was that of the family consultant. Her evidence is largely accepted.
At the moment, the child spends time with his father over a number of hours on three days each week. Common sense as well as expert advice indicates that a child of the age of two changes living patterns as he develops. The set times create difficulties as sleep patterns change and there is evidence from the mother, of the child not having a “nap” and the manifestation of his tiredness. The family consultant considered moving to overnight time between the child and the father was just not a consideration but equally problematic is the difficulty of the constant changeovers bringing the parties into contact with one another in their very unhappy circumstances. One question therefore is whether there ought be less number of days but longer hours. In my view, that should start to occur now. The expert evidence of the family consultant focussed on what was ideal for the child. As earlier mentioned, that is the primary consideration but in this case, there are other factors including the father’s other child E that need to be contemplated.
The factual dispute
To work out the answers to the questions raised by the considerations in s 60CC, it is necessary to look at the factual history of the parties with a focus on how they parented the child. That requires determinations of factual disputes and credibility therefore becomes important.
The “lies” admission
As the trial began, the mother sought permission to access the Federal Circuit Court file of proceedings between the father and E’s mother. The father opposed that. The mother produced an authority from E’s mother indicating she had no objections. It soon became apparent that in the Federal Circuit Court the father was emphatically saying that he was living with his parents. In this Court, he was emphatically saying that he had been living with the mother. His evidence in the Federal Circuit Court was corroborated by the paternal grandmother. It was most curious that the same lawyer had acted in both proceedings and, on the basis of the documents before the Court, prepared the affidavit material. It is significant that the Federal Circuit Court proceedings were being conducted around the time of the child’s birth and orders were only made as between the father and E’s mother shortly before the proceedings in this Court began. The flamboyant nature of the drafting of the allegations in the affidavit in this Court was very inappropriate. Objectivity was lost but little attention was paid to the ability of the father to prove what he was asserting.
In cross-examination in this Court, the father readily conceded that he had lied to a family consultant and to the Federal Circuit Court and so had his mother. He needed to say that because what he had told that court was completely inconsistent with his case in this Court. What was curious about that however was that he then went on to point the finger at the mother and said that she “coached” him. He went further and said that the mother had asked his mother to do the affidavit in which the paternal grandmother had lied. That particular allegation was not tested in this Court and as I have earlier mentioned, there was a remarkable silence from the paternal grandparents.
Throughout the period of this relationship which spanned from the parties meeting in December 2011 until its ultimate conclusion in September 2014, all of the evidence presented to this Court showed that the mother had been consistent in her version of facts. It was put to the father that his mail continued to go to his parents’ house. His response to that was that his mail had always gone there. There was a very strong hint of Centrelink issues including a reference by the father to the fact that the mother was receiving a single parent pension but no evidence supported that inference or assertion. Interestingly, in the Federal Circuit Court, E told a family consultant that he lived in three houses. That is, E lived with his own mother, his paternal grandparents and at times, with the mother in these proceedings. The father’s explanation for E’s statement was that he had stayed with his paternal grandparents during the post-birth period of the child and found it a very exciting experience and thus, that is what he was explaining to the family consultant. I consider the father to be disingenuous..
The maternal grandfather gave evidence and was cross-examined and he said that at the time of the child’s birth, the father was at the mother’s house. The purpose of this cross-examination by the father was clearly to show the inconsistency between the mother’s version and that of her own father. However, that evidence must be limited to the modest period of time involved and it remains unclear even during that period how often the father was there. During that same period, the maternal grandparents lived in the mother’s home. It was never seriously suggested that they were all living together as a happy family. When the mother was asked, she said that the father had gone to her house to feed the cat. I have already mentioned the evidence about the cat.
The absence of the paternal grandparents, the assertion by the father that he was lying to the other court and the plausibility of the evidence about the cat, the mail and the statements by E, all make me satisfactorily comfortable in making a finding that I cannot rely on the father’s version. In cross-examination of the father, he claimed that he had lied to the Federal Circuit Court to gain an advantage. That advantage related to his time with E. He was adamant that this was all the mother’s doing because she did not want E’s mother to know where she was living. None of that makes sense bearing in mind that if the father’s version about where he was living was true, E would have told his mother. The father’s position was that the mother was terrified of E’s mother but nothing in the evidence indicated a basis for such fear. In the circumstances, it is hard to believe anything that the father says.
As I earlier mentioned however, it is possible to make a finding that a witness is telling the truth in respect of one issue but not necessarily another and that the Court should be cautious about making a finding on the balance of probabilities just on a general assessment of truthfulness. In this case however when the various allegations are contemplated, the mother’s version generally seems more plausible. I turn to those issues.
The dietician
One of the simple complaints of the father was that he had not been provided information about professionals and their involvement with the child. Dr H was called to give evidence. Dr H is the child’s paediatrician. Notwithstanding an assertion by the father to the contrary, Dr H confirmed that the father was aware of the involvement of a speech pathologist in either January or February 2015. The speech pathologist was concerned about the child’s eating habits to avoid him gagging and choking which had been a problem. Dr H referred the mother with the child for the pathologist to deal with that issue. The father clearly knew of that person’s involvement. I find again that I cannot rely on the father’s sworn evidence.
The Early Learning Centre
In the same vein, the father conceded that he had not spoken to an Early Learning Centre. He said however that he had made four telephone calls and left messages and no-one had responded. He produced no other evidence and could not give any plausible reason why they would not respond to his calls. He did not issue a subpoena for them to produce their records. Leaving four messages over a period of weeks makes me wonder why he did not go up there and knock on the door.
Each of the issues associated with professionals was canvassed to indicate that the father was not as committed to the problems of the child as he was making out. When that was put to the father, his response was that if he was given more time with the child he would undertake those tasks. He said rather candidly, he had taken the view that it was more important to spend his dedicated time developing his relationship with the child. Interestingly, the father has a lot of time on his hands.
Dr H confirmed that prior to September 2014, he had attended upon both the mother and the father and that there was nothing unusual about their behaviour or their interest in the child’s development. The lack of interest after September 2014 however was obvious from the matters just mentioned.
The father’s devious nature
The father admitted that he recorded a conversation with the family consultant in the Federal Circuit Court proceedings. That occurred because the family consultant was highly suspicious of his statement about where he was living and indeed, her criticisms were well-founded. Just what the father was going to do with the recordings, escapes me.
The father also recorded a conversation with the mother immediately after their relationship came to an end in September 2014. He wanted to put to the mother that her version of facts was not consistent with the tape. The mother was unaware of the tape and in my view, as it could only have gone to credit, I ruled that he could not play it. He certainly had not provided it at any stage to the mother.
The father also attended at the mother’s house after not only the end of the relationship but the commencement of proceedings. He cross-examined the mother about the post-separation period in which she agreed that he had been given an invitation to come and visit the child. He used the word “invitation” as an excuse to say that he had a right to be on the property. The devious nature of his conduct can be seen in the fact that after September 2014, the father sought an intervention order against the mother and had also commenced proceedings in this Court. The proceedings in this Court were in November 2014 but there was nothing in that order that gave him specific time with the child during an intervening period of an adjournment. The father was also represented by a lawyer at that time.
The “invitation” was about coming to visit the child yet the reason given for the father’s attendance was something to do with property. The child was not mentioned.
The father wanted to play the video of his attendance at the house but for reasons that remain unexplained, the audio part of the recording did not work on the Court’s equipment. Initially, the father abandoned the issue of wanting to have the recording admitted into evidence but after his cross-examination of the maternal grandparents who were present at the house at the relevant time, he renewed the issue but then abandoned it. Even if he had produced it, having cross-examined the maternal grandparents, it is clear to me that they were credible witnesses. If he had made the statements that he said he had made and that were on the recording, they had not heard them. The evidence therefore on the video was of no probative value.
When challenged about the logic of these surreptitious recordings, the father observed that it was a magistrate at the Suburb D Magistrates’ Court who told him to do it as also had police. I would be surprised if that was the case. No transcript of any such discussion was provided. Importantly, there is no reason to criticise parents in a conflictual situation where they do record such things as handovers but it must not be done surreptitiously. If it is done in the open, it enhances the possibility that the incident will proceed without rancour.
I accept the mother’s evidence that she was fearful as a result of the father’s attendance unannounced that day. Nothing the father put to her dissuaded her from the position that she was frightened. The father was accustomed to using lawyers and no indication had been given to the mother by the father’s lawyers of any such attendance. It was the maternal grandfather’s evidence that he became aware of the presence of the father by banging on the door. The father endeavoured to say that he had not been banging on the door but rather knocking politely. I reject that assertion.
As an example of the father’s capacity to exaggerate, he said that he saw the maternal grandfather with a knife in his hand. This knife in the hand concept becomes relevant in a moment when I deal with the assertion that he made about the mother at the time that the parties ended their relationship. The grandfather conceded that he did have a knife in his hand because he was cutting up tomatoes for the purposes of preparing an evening meal as he always did at that time. The father’s assertion that the grandfather was threatening him with a knife (if that was what he was intending to assert), was mischievous because he was outside the house and the grandfather in it.
I find in the circumstances that the father’s attendance that day was unilateral, unwarranted and created an environment which caused consternation for the mother. I accept she called the police and that they attended. The fact that the father’s intention was apparently to obtain property does not excuse his behaviour.
The father’s criticisms of the mother
The affidavit material relied upon by the father, including affidavits filed in previous proceedings, contain a myriad of allegations against the mother. I shall deal with ten.
Drinking alcohol
It was the father’s evidence that the mother was drinking alcohol when she was breastfeeding. He conceded that there was no medical evidence to support his allegations notwithstanding that the mother had undergone various blood tests and he had not sought to issue any subpoenae about her medical records which might suggest that health professionals had detected a concern. When it was put to him by counsel for the Independent Children’s Lawyer that he still maintained that the mother drank to excess, he said that he did but then added, not during the pregnancy. He was asked how he knew when at various times he was not even in the home. He said he saw bottles in the “bin” and that she was drinking wine. He said that she had gone into the bedroom and consumed it there and he was away at times busy with the Federal Circuit Court proceedings. He described the glasses that she was drinking as full and for three to four months prior to the ending of the relationship in September 2014, she was drinking at least once per week. He said that she had “passed out”. He conceded he had not sought any help from health professionals. That was odd bearing in mind that the mother was caring for a very young and fragile baby. There was much pontification by the father about the fact that he had concerns based on medical research but the evidence of Dr F debunks that view. He conceded that he had contacted the Department of Human Services in December 2013 telling them that he had had to secretly feed the child because the mother was passed out “drunk”. The Department investigation into the mother’s parenting indicated that they had no concerns and indeed, described her as “pro-active”.
The father’s cross-examination of the mother was about what she had been drinking and what she drank now. He even queried her about how much time she allowed after consuming alcohol when she was breastfeeding. He asked her whether she had looked into the “time-safety” issues for the child about alcohol. She gave responsive answers to these questions including that she had asked for advice from the I Hospital and her general practitioner both of whom said that she could drink in moderation. I accept the mother’s evidence that alcohol is not a problem.
The father’s position was that money was so tight in this family that he went to the Salvation Army to obtain Coles vouchers to assist. In those circumstances, the sort of consumption that he would have been talking about could have easily been obtained from some sort of records. None of his allegations had any specificity. He required the maternal grandparents present for cross-examination purposes and nothing was put to them to indicate that the mother consumed alcohol to the point of drunkenness. I find his allegations unsupported by the evidence and indeed quite malicious.
Violent outbursts by the mother
In his evidence in chief, the father described an incident in the hospital at the child’s birth in which the mother pulled an intravenous drip out of her arm and threw a glass at him requiring him to get the hospital to sedate the mother. He conceded that what he had described in his affidavit as a number of incidents was only one but he then added there could have been others. He agreed that he did not have the hospital file records to indicate what steps the hospital had taken if any. He was questioned about the word “sedation” and described the hospital giving the mother “pills” regularly to keep her blood pressure down. No-one else apparently saw this fracas. The pulling out of the intravenous drip would surely have concerned the hospital and required them to note it. The mother denied all of this. I have evidence of other family members attending the hospital. No-one else raised it.
I find the evidence incredible bearing in mind the obvious sources of corroboration but more importantly, there was a clear equivocation from his original statement that this was a violent outburst. I do not believe any such incident occurred.
The mother is “disinterested” or “overly anxious”
I take into account that the affidavit material filed on behalf of the father had been prepared by his lawyer. In separate statements he described the mother as a disinterested parent but then changed that to the fact that she was overly anxious. A comparison of the two concepts readily points to the obvious. They are inconsistent. In the context of concerns about the child’s development and in particular, his feeding, he accused the mother of deliberately misleading the child’s paediatrician. Dr H saw nothing unusual about the mother’s behaviour. In evidence given corroborating his report of 7 July 2015, Dr H said that the child had been doing well overall from a developmental point of view. Nothing in his evidence indicated that he had any concerns such that the child’s progress was thwarted. When the father was cross-examined about why he had not challenged the paediatrician about these issues, he simply responded that he had not come prepared for that exercise. I reject that having regard to the nature of the questions that he asked Dr H. His focus with Dr H was on himself. I find his criticism of the mother part of a concerning pattern such that I accept that the mother does not want to communicate with him. Nothing indicated she has ever lost focus on the care of the child.
The mother’s capability
The father relied on an affidavit filed for the purposes of previous proceedings on 24 October 2014 and again, drawn by his lawyer. He made the statement that the mother had admitted to:
mental health issues (post-natal depression) being mentally and physically exhausted and sleep deprived. I believe it is [the mother] who is not psychiatrically competent at this time and should not have care of the child until her mental state can be properly assessed.
Apart from the fact that there was not one scintilla of evidence to support such an assertion, any such foundation would have been debunked by inquiring of the various health professionals involved with the mother particularly in relation to her care of the child. When he was challenged about what evidence founded this allegation, he conceded that there was none but that he had intended to get it but had not had time to do so. I reject that. When I asked him what conclusion he wanted me to draw from that material (bearing in mind that it was an affidavit from a previous proceeding but he wanted me to rely upon it) he said:
I should not have put it there. It was about her saying I was mentally ill
It was put to the father that he was saying that he was capable to care for the child but the mother was not. Rather than rejecting that concept bearing in mind all of the evidence that was now available including that of Dr H, his response was enlightening. He said that one of the factors was that he had the ability and the experience having regard to his care of E but the other factor was the mother’s “motivation” to return to the workforce. There was no evidence to support such an assertion.
Whilst the father maintained that E was doing well and the mother did not disagree, without some corroborating evidence from E’s mother or indeed the father’s own parents, I would not accept there was any foundation for his opinion about his ability to care for a child. I have taken into account that the father does not have E full time and has a limited time with the child. He is therefore untested despite the mother’s concession that the child is safe with him during that limited time.
Neglect by the mother
The father’s view was that the mother neglected the child. He made reference to her sending the child in undersized clothing and dressing him inappropriately for certain weather. The mother produced evidence to the contrary including a photograph to show the child’s size. The evidence of the mother was inconsistent with that of the father. In respect of her neglect, he said (at para 28 of his affidavit):
I say that the respondent is clearly unable to supervise or protect the child as shown by the increasing severity of the child’s injuries while in her care.
The last comment related to a specific incident of an injury in February 2015 to which I shall return but it is clear on the evidence that that allegation was not only outrageous but unsubstantiated by any of the authorities who examined the child.
When the father was cross-examined about all of these things and was pressed to be precise, he conceded he had no evidence that would support his allegations. Again, I find that his allegations were unfounded.
The “bite” and “chew” issues for the child
B has had significant difficulties with his development and one of those related to his capacity to consume solid foods. It was clearly of concern to Dr H because he handed the responsibility of sorting that problem out to the child’s speech pathologist. I have already dealt with the fact that the father had not contacted the speech pathologist. However, the father knew that there was a problem with what the child could eat. Whilst the father had taken the child to the hospital for an injury otherwise dealt with elsewhere in these reasons, he conceded he gave the child the middle part of a sandwich. He was quick to point out that the hospital gave him the sandwich and that it was an elderly doctor who did not have any concerns about that. The clear inference from the father’s evidence was that it was fine to do that because the child was hungry and if something had gone wrong, he was in a hospital. It beggars belief that a hospital environment with a catering service could not have done better, if they had been asked, than a sandwich. Again, the father’s evidence was not corroborated by any hospital source notwithstanding the incident that brought the child to the hospital in the first place was trawled over enormously.
The father said that he was aware that the mother had been given a model to help the child with his biting and chewing. The speech therapist had taught the mother how to use it. The father dismissed that saying that the child did not have a problem and was able to chew. Having conceded that he had not made any contact with anyone, he was asked whether there was a dietary or eating problem for the child and his response was that given more time with the child he would have been able to sort these problems out. I find again that the father’s evidence was exaggerated but more importantly, his dismissing of the concerns that the mother had about the child supported by health professionals, was very concerning.
Nappy rash
Attached to his voluminous affidavit were some photographs apparently taken by the father of the anus area of the child purporting to show severe nappy rash. It is not at all clear to me what the photographs show. No medical evidence was produced. The evidence indicates that the mother has been attending a maternal and child health centre and it was not suggested by the father at any time that that professional had expressed concerns about the mother’s capabilities. Pointing to photographs to indicate some form of nappy rash for a child like the child might have some probative value save for what happened with the father in his session with the family consultant.
Just prior to the conclusion of the conference with the family consultant, the father placed the child on the floor and changed his nappy. It was the very strong view of the family consultant that that was unnecessary and that there was no reason why the child needed his nappy changed. When that was put to the father, he indicated that the family consultant was not close enough to draw such a conclusion. It was the way in which the father had undertaken the task that caused the family consultant to query what he was doing. In cross-examination she described the father as something of an egocentric person. There was substance to the family consultant’s concern about the state of the nappy because she told the mother at the conclusion of the interview that the father had changed the child’s nappy. The mother in a responsive way replied that she had changed the nappy just prior to the commencement of the interview. That tends to support the conclusion that this was egocentric behaviour and deliberately designed to show the mother in a bad light as having not changed the child’s nappy before bringing him into the observation session.
There was significant other evidence presented by the father in his affidavit about inappropriate sized nappies and the mother leaving the child in wet and dirty nappies including an assertion that she changed the nappy only when faeces seeped from it. All of that evidence is inconsistent with all of the other evidence about the mother’s conduct as a parent. This particular issue relating to nappy rash overlaps the point I observed before about the mother’s capability and the father’s view that she neglects the child. These were unnecessary criticisms and deliberately designed to put the mother down. I find the allegations malicious.
The mother under investigation
In the affidavit filed by the father on 24 October 2014 and upon which he asked the Court to rely, (again prepared by his lawyer) he said (at para 3):
…whilst I do not dispute that the mother obtained a degree in 2005, to the best of my knowledge she has not been employed or practised as a psychologist for at least eight years, if at all. I understand that her registration is currently under investigation in relation to alleged misconduct. (my emphasis)
Leaving aside the evidentiary value of a statement that begins with “I understand” without indicating the source of the knowledge, to put that information in an affidavit when its clear meaning is that the misconduct related to the mother’s profession, was scandalous. When pressed about it, the father indicated that he should not have put it there. It was gratuitous and inappropriate because when the issue was canvassed, the father confirmed there was no evidence of any professional investigation or that the mother had done anything wrong in a professional sense. Again I find the allegation malicious.
The dummy in the cider
It was the father’s evidence that he attended a function with the mother and her parents at a brewery during which the maternal grandfather put the child’s dummy in alcohol and gave it to the child. In his affidavit filed on 13 March 2015 (para 34) he said that the grandfather “supplied alcoholic cider” to the child. All witnesses on the mother’s side gave evidence and all denied that any such event occurred. The grandfather was outraged by the suggestion that he would do something improper like that bearing in mind his past occupation as a school teacher. I found it disconcerting as well that the father then added that the grandfather took froth off a beer (as distinct from a cider) and gave it to the child. He went further and said that the grandfather had offered the child a beer. None of that latter evidence was before the Court in affidavit form.
What was also disconcerting about this evidence was that the father asserted that the mother was holding the child at the time. He said that therefore, the mother was a “party” to this supplying of alcoholic cider. On the balance of probabilities, accepting the maternal grandfather as a plausible witness, the father’s evidence must be rejected. What compounds the problem is what he then said in his affidavit:
Her denial of the events shows she is not remorseful and I fear it may happen again while the child is in her care and her parents are present.
Nothing in the father’s cross-examination of the mother which was specifically targeted and well-prepared, would suggest that the factual assertion by the father in his trial affidavit had any foundation for either the event or indeed more importantly, his fear. Consistent with his allegations about alcohol consumption by the mother during breastfeeding and her drunkenness to the point of unconsciousness, this indicates an obsession which the father will not let go of.
The car handover
The father had a car owned by the mother and when her other car became no longer useable, she requested that he hand over the one he drove. There was correspondence between lawyers and when the handover of the child occurred, the father did not produce the car as had been indicated by his lawyer. When the mother inquired as to where it was, he was dismissive indicating that she should make inquiries of her lawyers. That was an appalling situation. The mother had the child and no idea where the car was. That particular incident epitomises the level of communication between the parties. I find that most of the problem comes from the attitude of the father towards the mother. His cross-examination of the mother and his statement in court about his hope that things would change was unrealistic in the context of his affidavit sworn in March 2015.
The matters set out above relate to findings which are indicative of poor parental responsibility and questionable parenting capacity on the part of the father, to carry out any obligation under s 65DAC to which I shall return. In my view, the criticisms by the father were unwarranted and reflect badly on his parenting because he will not assist the mother with the problems the child faces.
Other allegations
The birth certificate
One of the other disputes in this case relates to the surname of the child. It transpires that his registered surname is only that of the mother. It was the father’s assertion that the mother altered documents after he had last seen them. When he was asked to produce the relevant documents he could not do so.
The mother denied any alteration of documents and nothing indicated that there had been any change. I therefore conclude that the father was mischievous. He desired a change of the child’s surname to include his own and the way in which he thought that might be achieved was to show that originally the idea was that his name would be on the birth certificate but the mother had manipulated or orchestrated the situation so that that did not happen. The evidence does not support his assertion.
Passport
A similar situation to the birth certificate arose in relation to the passport. Again, the father asserted that the mother had done something to alter either papers seeking the child’s passport or alternatively, had manufactured an official status so that she managed to get the child’s passport. That is a very serious allegation to make and one which might easily have been proved or disproved by formal documentation. Like so many other issues such as evidence from his parents, I would not accept the father’s assertions without some corroborating material and he did not provide it. The only conclusion I can draw is that he was mischievous for some ulterior purpose.
The DNA argument
The father alleged that whilst in the relationship with the mother, such was her dislike of E that she convinced him that E may not be his child. He said she encouraged him to obtain DNA results and later showed him results which on their face, established that he was not the father of E. He said he made inquiries later of the DNA company to be told that that was not the case and he therefore concluded that the mother had doctored the document upon its receipt.
The father’s evidence on this issue was extremely vague. He said that this discussion arose in the context of the mother’s statement (during the relationship) of her desire to go and live in northern New South Wales. He said that he told her that he was not prepared to abandon E and that is how the conversation arose.
The father conceded that he filled in all of the paternity test papers although he was unable to explain how the tests were undertaken but more importantly, he agreed that he had spoken to the company who, he said, told him that no such negative test result existed. That corroborative evidence was not called by the father although it quite easily could have been. The significance of this issue however lies in his assertion that the mother had perpetrated a fraud upon him. Absent corroboration, and there was none, I would not accept the father’s assertion. I can take notice that such a report would have comprehensively set out all of the relevant factors concerning the testing process and the relevant percentages as to the likelihood or otherwise of his paternity. To simply describe the result as negative or positive does not make much sense. In circumstances where the mother denied any such improper behaviour, I do not accept the father’s evidence.
Allegations of violence against the mother
I have already dealt with the issue of the incident in the immediate post-birth period at the hospital but there is a much more serious allegation made by the father. This incident relates to an allegation that the mother threatened him with a knife. This was important for a number of reasons including the family violence considerations under s 60CC, the rebuttal of the presumption under s 61DA and also what evidence was given in the Suburb D Magistrates’ Court where the father sought a family violence order against the mother.
In his trial affidavit, (at para 120), the father said that the mother demanded he sign documents relating to debts. He maintained that when he refused, she threatened him holding a knife saying that she would take the child away and he would not see the child again if he did not sign.
In the application for the intervention order that the father signed on 10 October 2014, the father repeated what I have just set out above. When these allegations were put under the scrutiny of cross-examination, the father’s evidence altered. He described to the Independent Children’s Lawyer that this was a butter knife and whilst he was somewhat equivocal about it, his description indicated that it was small. He then conceded that the blade was not “sharp”.
More importantly, this allegation was said to have arisen at the time that the relationship came to an end on 14 September 2014. Relevant to his credibility, the father filed an affidavit to commence the proceedings in this Court on 23 September 2014. That is, only days later. He clearly described the demand by the mother for her signature on papers associated with finances. No reference was made to the knife. He was asked why the knife was not mentioned in that affidavit particularly as it had been so recent. His unsatisfactory response was that he was not “going to use it”. When asked why he did not set that out, he said he really did not know. He said that if he had put it in there, it would have ended the relationship and that in any event, the case in the Court was really about his son. This affidavit was prepared by his lawyer who must have known the importance of factual accuracy. To suggest that the case was then about an unresolved relationship was nonsense.
My rejection of the father’s evidence on the knife issue was reinforced by the cross-examination of mother. She said that there certainly was a conversation about finances. She described in quite clear detail the fact that she had a meal in one hand she had prepared for the father and papers for him to sign in the other. Those papers concerned his responsibility for the indebtedness that she had incurred on his behalf.
In my view, on the balance of probabilities, the mother’s version is much more preferable.
E
In August 2013 in the Federal Circuit Court, the father swore an affidavit. It began by indicating all of the problems that E had including autism. He began the statement (which was a long narrative), by the words “I am told”. I have earlier been critical of the fact that there was no source of his information and again I am perplexed because this affidavit was prepared by a lawyer. Importantly, these concerns expressed about E were made only shortly prior to the proceedings in this Court commencing. The father’s explanation was that what he was describing was what he had been told and that he meant that E was not like that in his care. I could not detect that from reading what he was saying to the Federal Circuit Court. It seemed more about his desire to have E live with him on the basis that he could manage the child whilst E’s mother could not.
In an endeavour to justify his position, the father said that E had completely changed and that there was a world of difference now. Counsel for the mother put to the father that E had much improved as a result of the mother leaving. His response was that that was the case because he was no longer in a “hostile environment”. Photographs (Exhibit M4) were tendered by the mother to show that there was no indication of any antipathy on the mother’s part towards E and certainly nothing to show a hostile environment. Ironically, it was the father who took those photographs.
In my view, the father was deliberately misleading the Federal Circuit Court for the purposes of endeavouring to show that E’s mother could not manage E alone and that therefore, orders were necessary that he have the significant care role in the child’s life. There is an undeniable similarity in the father’s modus operandi in the case in this Court.
An accusation that the mother was not truthful
In a curious piece of cross-examination of the mother, the father produced a bundle of photographs to show that her answer in relation to a missing computer memory stick was not true. He asked how it was possible, if she did not have the memory stick, that she would be able to produce the photographs that he had in his possession. She simply responded by saying that he downloaded photographs on her laptop. A day or so later in the trial, the mother’s version was proved correct as she showed the date upon which the photographs were indeed downloaded to her laptop and it was during the time that the parties were in a relationship. The father did not challenge that statement. This incident shows again the father’s propensity to be critical and to run with allegations that had no substance. In my view, this may not have been malicious but it certainly showed his lack of trust in the mother.
Injuries to the child
Since September 2014, the child has been taken to doctors and hospitals not just for his development problems. He was taken by the father in February 2015 because the father did not accept the mother’s written advice that the injuries to the child’s face occurred when he fell off his trike. The mother did not know of the hospitalisation until called in by the doctors who had been told by the father that she had been negligent in their supervision. Nothing came of that and it would appear that the doctors and the Department of Human Services accepted that the child did fall from his trike. To this day, the father does not accept that. His view is that the injuries were inconsistent with such a fall.
There can be no doubt that the child was injured. The father described his injuries as “like a car crash”. The mother’s unchallenged evidence is that when the injury occurred, she immediately called the emergency number. Paramedics attended. She then took the child to a doctor. The doctor patched the child up. The mother’s lawyer virtually immediately advised the father’s lawyer of what had happened. It was at the handover thereafter that the father took the child to the hospital as I have just indicated. Whether the injuries looked like a “car crash” or not, the father made no attempt to sort the issue out with the mother and immediately thought the worst of her. He did not tell her what he was doing.
This particular incident was put under the microscope in cross-examination and he was asked whether the mother’s evidence about falling from the trike was plausible. He said it was. When asked whether he persisted with the allegation of the mother’s negligence, he said that he did not but then, I doubt he was telling me the truth.
The January car incident
In January 2015, the father accused the mother of leaving the child in a car asleep whilst she went for some minutes to open her house. His concern was that it was a very hot day. The police were in attendance at the time for the purposes of maintaining law and order when goods and chattels were to be handed over. The father maintained that the temperature was high such that he and the police officer had to stand under a tree to get out of the sun. The mother maintained the father had exaggerated both as to the time that the child was in the car and also the temperature. As I observed to the parties during the hearing, the meteorology records show the mother’s version to be the more probable. No-one produced any better evidence. No evidence from the police officer was called. This incident highlights the father’s capacity to exaggerate.
For all of the reasons associated with general acceptance of the mother’s evidence which I do, this is a good example of the father not only being untruthful but exaggerating and embellishing the circumstances to such an extent that this was not an issue about the child’s welfare but rather a clear criticism of the mother. I find that the child was not at risk at any time during that day. This was a malicious allegation by the father.
March 2015 – blood nose
On 20 March 2015, the child was taken by the father to hospital because it was said by him that there was blood “leaking” from the child’s nose. He said the child sneezed and blood came out. He said he was concerned not so much for the child’s welfare but that allegations were going to be made against him. He said he did not know what to do. He conceded that the situation between he and the mother was highly conflictual. Hence, his concern for himself rather than for the child.
The father conceded that at the hospital, the doctor could find no blood and thought that if there had been, it was because the child had picked his nose. The father’s concern was that a complaint would be made to the Department of Human Services.
In my view, this is evidence of the father’s poor parenting both as to capacity to handle situations of a child who has considerable difficulties but also his attitude to the responsibilities of parenting by thinking the worst of the mother and endeavouring to protect himself whilst using the child in that way. I find in the circumstances that the father has considerable problems as a parent.
The “broken hip”
In May 2015, the child was taken to the Royal Children’s Hospital because, after a contact visit, the mother described him as distressed, limping and having an unusual gait. The mother then attended upon a physiotherapist who began querying whether the child had a broken hip. It was ultimately established by the Royal Children’s Hospital that that was not the case but the father saw the mother’s action in going to the hospital and the subsequent involvement of the Department of Human Services as a “horrible” accusation against him. The evidence clearly establishes that the mother did not make the allegation of the child having a broken hip but that the possibility was raised by the physiotherapist. The Royal Children’s Hospital was obviously sufficiently concerned about the situation to do various examinations.
In addition to the “horrible” nature of the allegation, the father then went on to describe the mother as “evil”. There can be little doubt that when the Department of Human Services became involved they were concerned that this limp had occurred during the father’s time such that they advised the mother to deny the father’s contact. This sort of discussion with the Department of Human Services may give some indication of why the family consultant obtained from the Department of Human Services, a statement that both parties were malicious in relation to allegations against the other. In my view, that statement has no foundation in so far as it relates to the mother. There is every indication that the father was dealing with the Department of Human Services on the basis that he wanted them to take sides with him and be critical of the mother. The evidence does not support any conclusion that the mother had done anything wrong and had otherwise been a very competent and caring parent. Whilst the father claimed throughout his evidence that he was very child-focussed and competent in caring for E, physical care is only one part of parenting. In my view, he has failed in this case to contemplate the very important role of the mother in the child’s care.
The communication book
There were questions about the use of a communication book between the parties. I do not need to deal with this issue save to say that the mother made clear that she was endeavouring to impart information and the father disagreed that that was her motive. In his evidence, he made reference to her writing swear words and using such language as “fallacious” in the book. Nothing I read indicated that the mother was using pejorative language or was doing any more than requesting the father to assist in the care of the child.
Sexual abuse allegation
It has not been suggested by counsel for the mother nor by the Independent Children’s Lawyer that the Court should make any adverse finding of sexual abuse arising out of any incident involving the father. I accept those submissions.
Despite that, there was a factual dispute between the parties that requires a determination. The mother said that the child had returned home from a visit with his father where his foreskin was injured. In a conversation between the mother and the family consultant, the very clear inference to be drawn was that the father was implicated by the mother in some way. When the issue was put to the father by the family consultant he was suitably outraged. However, he then suggested that not only was he competent in looking after the child and specifically knew the importance of “leaving a young boy’s foreskin alone to self-clean” but he wondered whether an “older relative” on the maternal side might have unintentionally injured the foreskin when washing the child. The father’s inference was obvious that it was the maternal grandfather. Whilst the father might have “wondered”, there was absolutely no evidence of any person being involved in the washing of the child. Importantly, both grandparents submitted themselves for cross-examination and no such question was put to them. In my view, the allegation is simply consistent with the father’s propensity to be mischievous.
In respect of the statement made by the mother to the family consultant, there is no doubt she told the family consultant of the injury in the context of a statement about general concerns of the father’s care of the child. In cross-examination however, when constantly pressed by the father, all she would say was that she continued to have concerns. Rather than that being a mischievous approach as I have found in the father, I find that the mother’s approach is a natural one even though she tends to be very sensitive to any such inquiry. That is understandable having regard to the criticisms she has received from the father.
More concerning about this incident was a piece of information proffered by the mother to the family consultant immediately after the foreskin question. She said (in the context of the discussion about the injury to the child) that whilst E had spent some time with the father in her home prior to separation, she witnessed the father saying and doing “inappropriate” things to E in the bath. That was the description given by the family consultant in her report but the mother’s evidence in cross-examination was less significant. She said she walked into the bathroom when E and his father were in the bath together and E was seen to be moving towards touching his father’s genitals. She said the father turned away. More concerning however was the fact that she said that the father had an erection.
Indicative of a parent’s authenticity is their fulfilment of maintenance obligations. To say, as the father did, that all the mother had to do was register for child support, ignores the reality that it was the mother who was managing the support of the child. The father’s impecuniosity because of his obligations to, and desires about, E, have a hollow ring about them. He made no effort to financially support the child in circumstances where he has had the time to obtain the necessary finance.
Section 60CC(d) and (e)
The evidence is clear that the child’s fledging relationship with the father will suffer if a relocation occurs but I am not satisfied that it will cease or disappear. Much depends upon the father’s attitude and effort. He has the capacity with the mother’s financial and practical support to keep up the current limited relationship and to build on it over the years ahead. No doubt the child-E relationship will suffer but that can be ameliorated by regular visits as postulated by both sides. If the father continues his lack of employment status, he has the opportunity, albeit limited, to travel to see the child in his pre-school years. The next few years are critical from the perspective of the child’s memory of his father and E as much as the development of their respective relationships. The current relationship of the child and the father is, as I have said, limited and there are separation anxieties now. Those will have to be managed if the child goes to New South Wales but the mother impressed me as being supportive in a variety of different ways.
There are acknowledged practical difficulties and expense in any contact regime here. Obviously, interstate travel makes it harder but resolve can cure that here because of the mother’s financial commitment and that of the paternal grandfather. Even if the mother remained in Victoria, I have no understanding of how difficult it would be for contact to be continued because there is no clear indication of how far away she would have to move from her current location and from the father’s place of residence. The family consultant was reluctant to see the child travelling for more than 40 minutes in a car.
Section 60CC(f) and (i)
The Court is obliged to look at the capacity of the parents to provide for the needs of a child. The legislation does not limit “needs” but draws specific attention to emotional and intellectual needs. Time has not yet been of sufficient duration to tell just what the father can offer. The “quirky” behaviour, the poor impulse conduct of the father at the mother’s home and his malicious attitude towards her, enable me to conclude that his capacity as a parent of the child is questionable. He pointed to his role with E as evidence of his capacity with the child but to achieve just the time he has with E required two lots of litigation totalling five years with E’s mother.
The father proudly (and perhaps justifiably) pointed to his shared care arrangement with the child as being indicative of his parenting capacity but I am cautious about that because it was not something arising from a court-imposed order. The fact that E’s mother agreed to the arrangement also gives me little comfort because of the father’s capacity to lie to get what he wants. I just do not know what his future role in E’s life will be. Thus, I do not conclude that his time with E is indicative of his parental capacity in relation to the child.
I have no concerns about the mother’s capacity to provide for the needs of the child. She has been doing the necessary tasks since his birth and, I find, largely without assistance from the father.
Section 60CC(j)
It was common ground that the Court did not have to seek a finding about family violence despite my reservations about the conduct of the father.
Section 60CC(k)
Whilst family violence orders were made in this case, no evidence was produced that would satisfy me enough to draw inferences under the relevant sub-section as to their foundation. For example, the father sought an order based on the knife allegation. That was exaggerated at best. He was also more concerned about property issues in circumstances where he did little to remove his items from the mother’s property.
Section 60CC(l)
The father’s propensity to litigate is obvious. Final orders are needed in this case to stop what occurred with E. Indicative of the father’s approach is that he filed a contravention application in this Court even as this final hearing approached ignoring the fact that the issue could have, and should have, been included in the evidence at trial. There was no sense in that application as I accept that the mother is order-compliant.
Section 60CC(m)
“Other” factors and circumstances may be considered by the Court in determining what is in a child’s best interests. I rely heavily here on the practicalities of the present financial dilemma for the mother. It is best for the child if he has his mother in a secure location where job prospects are better than they are in Melbourne and her family’s support is available. That obviously has its downside but the best interests of the child are the paramount but not the only, consideration. Here, the child will benefit from his mother’s relocation to New South Wales.
B’s best interests must be examined in the light of the primary considerations set out in s 60CC(2).
Section 60CC(2) provides:
The primary considerations are:
(a)the benefit to the child of having a meaningful relationship with both of the child's parents; and
(b)the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.
Note: Making these considerations the primary ones is consistent with the objects of this Part set out in paragraphs 60B(1)(a) and (b).
As the note to the sub-section says, these are consistent with the objects set out in s 60B. It is the object of the legislation to “ensure” that the best interests of a child are “met” by having the benefit of both parents having a meaningful involvement in the child’s life. “Meaningful involvement” became “meaning relationship” in s 60CC(2). The terms appear to be used interchangeably.
In McCall and Clark [2009] FamCAFC 92, the Full Court said the following:
109The Act does not contain a definition of “meaningful”, nor does it provide any specific criteria to assess how parents either have, or should have, a “meaningful involvement” in a child’s life. It does not give guidance to the interpretation of the phrase “meaningful relationship”.
110.It is necessary we construe the language of the statute to determine whether the import of the legislation is clear without reference to extrinsic material.
111.The Macquarie Dictionary defines the adjective “meaningful” as “full of meaning, significant. Significant is defined as “important; of consequence”
112.The Shorter Oxford English Dictionary defines “meaningful” as “Full of meaning or expression; significant …” “Significant” is defined as “Having or conveying a meaning; Expressive; suggesting or implying deeper or unstated meaning … important, notable; consequential ...”
…
115.The phrase “meaningful relationship” in the context of s 60CC(3)(a) has, not surprisingly, been considered in a number of decisions since the introduction of the amending Act. In Mazorski & Albright (2007) 37 Fam LR 518 Brown J, after setting out the definition of “meaningful” and “meaning”, said at paragraph 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 one. Quantitive 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.
116.Kay J sitting in the appellate jurisdiction of the Court as a single judge in Godfrey & Sanders (2007) FamCA 102 (an appeal involving an application by a mother to relocate) agreed with Dessau J’s exposition in M & S (formerly E) (2007) FLC 93-313 of the effect of the amending Act and said at paragraph 33:
The Act sets out in s 60CC several matters for the Court to consider in determining what is in the child’s best interests but does not seek to mandate that any one or other matter becomes determinative in any particular case. For the purposes of this case the legislation requires that there be a primary consideration given to the benefit of the child of having a meaningful relationship with both of the child’s parents but it does not purport to prescribe how that meaningful relationship is best promoted in the circumstances of any one case.
and later at paragraph 36 said:
It seems to me that the final conclusion reached by the Federal Magistrate that the proposed relocation would jeopardise the relationship between the children and their father to an unacceptable extent was not at all consistent with the evidence that was before the Federal Magistrate. Even if the move results in a diminution of quality of the relationship, what the legislation aspires to promote is a meaningful relationship, not an optimal relationship.
…
118It appears to us that there are three possible interpretations of s 60CC(2)(a):
(a)one interpretation is that the legislation requires a court to consider the benefit to the child of having a meaningful relationship with both of the child’s parents by examination of evidence of the nature of the child’s relationship at the date of the hearing, to make findings based on that evidence, which findings will be reflected in the orders ultimately made (“the present relationship approach”);
(b)a second interpretation is that the legislature intended that a court should assume that there is a benefit to all children in having a meaningful relationship with both of their parents (“the presumption approach”); and
(c)the third interpretation is that the court should consider and weigh the evidence at the date of the hearing and determine how, if it is in a child’s best interests, orders can be framed to ensure the particular child has a meaningful relationship with both parents (“the prospective approach”).
…
120.We reject the interpretation in sub-paragraph (b). In our view if the legislature intended to elevate the benefit to a child of a meaningful relationship to a presumption it would have said so in clear and unambiguous language.
The Full Court said that Brown J’s interpretation should be adopted. That is, a relationship or involvement must be important, significant and valuable to the child. And, as Kay J observed above, an optimal relationship is not what is being considered. Obviously, a diminution in time when the relationship is forming such as would reduce one parent’s involvement is not ideal but it is only one of the various consideration required of the Court.
The family consultant in this case opined that face-to-face contacts between the father and the child were important if not ideal factors to build the foundation for a meaningful relationship in the future. A court has to be careful not to elevate the consideration to just an examination of one parent. Pursuit of the ideal for the child with one parent may (as I consider it would be here) have a detrimental effect on the relationship of the other. Again, the relationship between the child and the mother does not have to be optimal but it certainly has to be practical and as good as the Court can achieve bearing in mind the mother is to be the primary and significant attachment figure.
In Marsden and Winch (No 3) [2007] FamCAFC 1364, Warnick and Thackray JJ said:
77.The present case is not an appropriate vehicle in which to undertake a detailed analysis of the implications of the legislation prescribing certain matters as “primary” considerations. It is sufficient to say it is palpably clear that whilst the “primary” considerations should be accorded particular importance in determining what order will best promote the interests of the child, they cannot determine the outcome in every case. Not only must the “additional” considerations be taken into account, but the two “primary” considerations themselves may tend in different directions. That is to say, whilst there may be great benefit attached to a particular child having a meaningful relationship with both parents, that benefit may be outweighed by the need to protect that particular child from physical or psychological harm associated with maintaining such a relationship. (My emphasis).
Their Honours observation about the clash of the primary considerations was later resolved by an amendment to the Act but it is equally important to observe that while the benefits of a meaningful relationship should be given significant focus, they may be outweighed by the counter effect in causing a lesser standard of care in the primary carer’s role. In this case, in final address, observations were made about the fact that the mother had not produced any psychiatric or psychological evidence to show that she could not cope if she was to remain in Melbourne. I am not convinced that in this case it would be of much help. On a positive observation of the evidence, all of the factors point to the conclusion that the child will be much better off if his mother has secure accommodation, finance and family support.
In Champness and Hanson [2009] FamCAFC 96, the Full Court said:
103.The submissions of counsel for the father also appeared at times to be based on an assumption that it was obligatory for the trial Judge to make the orders most likely to ensure the children had a “meaningful relationship” with both parents. This is an incorrect assumption. The Court’s obligation is to make the orders most likely to promote the child’s best interests. In seeking to achieve that objective, s 60CC(2)(a) directs the Court to consider “the benefit to the child” of having a meaningful relationship with both parents. Even if such a benefit is established, it must still be weighed along with all of the other relevant factors. (See Bennett J’s analysis in G & C [2006] FamCA 994.)
Thus, the mother’s proposal provides the best environment for the child’s future whilst enabling him to benefit from the meaningful relationship with the father, if the father keeps up the contact which I find is possible and practicable.
But before leaving the subject however, the Court is required to consider time in the context of s 65DAA if an order for equal shared parental responsibility is made. That brings in the consideration of s 61DA(4). The Court is obliged to apply a presumption that it is in the best interests of a child for the parents to have equal shared parental responsibility. There are two circumstances under which the presumption can be rebutted. The first relates to family violence and that is not relevant here. The second concerns s 61DA(4) which provides;
(4)The presumption may be rebutted by evidence that satisfies the court that it would not be in the best interests of the child for the child's parents to have equal shared parental responsibility for the child.
The best interests consideration in s 60CC do not necessarily answer the question of what “best interests” are being spoken about. Such concepts as capacity, responsibility and opportunity do not really assist. The answer lies in s 65DAC. That provision says:
(1) This section applies if, under a parenting order:
(a)2 or more persons are to share parental responsibility for a child; and
(b)the exercise of that parental responsibility involves making a decision about a major long-term issue in relation to the child.
(2) The order is taken to require the decision to be made jointly by those persons.
Note: Subject to any court orders, decisions about issues that are not major long-term issues are made by the person with whom the child is spending time without a need to consult the other person (see section 65DAE).
(3) The order is taken to require each of those persons:
(a)to consult the other person in relation to the decision to be made about that issue; and
(b)to make a genuine effort to come to a joint decision about that issue.
(4) To avoid doubt, this section does not require any other person to establish, before acting on a decision about the child communicated by one of those persons, that the decision has been made jointly.
It is for example, in the best interests of the child’s health, education, residence and religion for his parents to have the responsibility to jointly make the decisions about those things. But can the requirements of s 65DAC be met without those concepts being affected by delay, acrimony and confusion?
The parents in this case tried a communication book and it failed. They do not speak to one another other than in perfunctory ways. There is good reason for that having regard to the findings that I have made earlier. The mother was reticent to accept communications except in writing. The writing in the future will be limited to emails and text messages. Text messages obviously have a very limited capacity and are often cryptic.
I have found the father to be malicious about allegations and complaints so it is unlikely there will be trust between the parents in the foreseeable future. These problems manifested themselves in the January, February and May incidents to which I have earlier referred. The child was accordingly exposed to unnecessary prodding by health professionals and whilst he does not seem affected by it at the moment, problems of that nature will continue in circumstances where his health is vulnerable. It is therefore not just delays that are prospectively likely in relation to health but I find also probable in relation to kindergarten and education generally.
The father’s response to problem resolution was mediation. However, he has shown no capacity to compromise or deviate from his desired path. I consider the child is at risk of harm because of this inability to communicate. It is clearly not therefore in the child’s best interests for the parents to have equal shared parental responsibility. Decisions just will not be made properly and without argument.
It is however important that the mother consult the father both before and after decisions but I am satisfied that the father’s approach to things requires the mother to have the ultimate control.
Section 61DA(4) is a discretionary matter. In my view the balance of convenience and probabilities requires that the presumption set out in s 61DA be rebutted because it is not in the best interests of the child for his parents to have that equal shared responsibility.
Section 90RD application
I have already set out the mother’s position seeking a declaration under s 90RD of the Act.
The father’s evidence albeit prepared by a legal practitioner was almost entirely unhelpful on the question of whether or not the parties were in a de facto relationship. I shall set out the law in a moment but I have trawled through the evidence of the father as set out in affidavits to see whether I can draw an inference from what he said to enable me to make a finding that he and the mother were living together in a de facto relationship on a genuine domestic basis as a couple. There is clearly no direct evidence that would support such a conclusion. The Court needs to look for inferences.
In an affidavit filed 6 July 2015, the father said that he met the mother on 23 November 2011 and that for the ensuing 12 months thereafter, the mother convinced him to move into her rented accommodation with his two cats and E. The mother’s view was that whilst the father did live there from time to time, he did not live with her on a full-time basis. As I have earlier set out in relation to the question of truthfulness, I accept the mother’s version of what occurred. The evidence that the father gave to the Federal Circuit Court was that he was not living with the mother. The evidence was that E told the family consultant that he had three houses. At paragraph 40 of the affidavit filed on 24 October 2014, the father made reference to the fact that he and the mother were engaged to be married, had agreed on a church and:
It was expected the respondent was to take my last name.
Even if that was so, it does not establish that he was living with the mother as a couple.
In his affidavit filed 13 March 2015 he talked about the role that the mother played with E and what he saw as the mother’s ill treatment of E. That, with indications that E hid things in the mother’s home such as a camera and had a room at the mother’s home, might enable the inference to be drawn that E lived there. I cannot accept the inference that I suspect the father wanted me to draw namely that it was evidence that he was there on a permanent basis and that E had a room there. I could not infer what period of time he was there nor how he established some form of coupledom. Clearly E was living predominantly with his mother and therefore was only there part-time.
The father gave significant evidence about what he thought was the mother’s poor relationship with E including making derogatory comments about E and damaging the child’s toys. The mother’s evidence was quite the opposite of that indicating that there was a good relationship with E. On the basis of the earlier assessment of credibility, I accept the mother’s version as the more probable.
The father also said that E referred to the mother’s home as “[Ms Jean’s] house”. That evidence suggests to me that E recognised that the mother’s home was not his. As I indicated, it would be hard for a court to accept that that was not right bearing in mind that E was only with his father on a part-time basis.
The father also gave evidence about giving the mother money. At paragraph 30 of his March 2015 affidavit, he referred to giving her “over 60 per cent” of his Centrelink income directly in cash. No evidence was led to the Court as to whether the Centrelink benefits were for the mother and the father as a couple nor why they did not jointly pool their funds if they were living together as a couple.
Other examples such as reference to a statue of a cat outside the mother’s home which E was attracted to and the various toys that he had at the mother’s home are simply indicative of the fact that E went there on a regular basis. In my view, that does not establish a domestic type of relationship by a couple.
Subsequent to the birth of the child, the father said that it was he who got out of bed to attend to the child as the mother was a heavy sleeper. I do not know how often that occurred, or where the child slept nor the physical layout of the home.
To the extent that the father may have had goods and chattels at the home, I know little about them. A significant portion of the case was around the father’s argument that the mother had damaged his personal property. The mother’s evidence was that the father started to bring items to the house and that they were dumped there. Despite all of the assertions of the father that the mother was damaging his property, nothing indicated that the mother’s version about his propensity to leave things at her home was not correct.
The father cross-examined the maternal grandfather about the period of time subsequent to the child’s birth when he saw the father there. The grandfather readily admitted that the father was there. Just what that establishes, I am not sure.
The mother’s evidence was that the father remained based at his parents’ property and that is where his mail went as well. She gave evidence that she rented a warehouse for him and he stored his various cars, parts and tools there over the entire period.
Section 90RD enables a court to make a declaration about the very existence of a de facto relationship. The section is in various parts. The fundamental requirement to establish such a relationship is that the parties had a relationship which in all the circumstances of it, was one of a couple living together on a genuine domestic basis (see s 4AA(1)). Section 4AA(2) is a provision which assists in “working out” whether the circumstances put before the court satisfy that earlier requirement.
In Taisha & Peng & Anor [2012] FamCA 385 I set out my view that the definition of a “de facto relationship” as set out in s 4AA(1) should be interpreted without the assistance of s 4AA(2) in the first instance. My statement on the matter at the time was that, at [9]:
Section 4AA(2) is prefaced by a heading which reads “Working out if persons have a relationship as a couple”. In my view, it is not necessary to look to s 4AA(2) unless there is some definitional uncertainty from a literal reading of s 4AA(1). The latter section has mandatory requirements but the wording of the former, indicates it is to be used as a guide for the purposes of s 4AA(1).
Because the parties dispute the nature of their relationship, it is necessary to examine the legislation carefully. Section 4AA(1)(c) is expressed in two parts, being a subordinate clause: “having regard to all the circumstances of their relationship”; and a main clause: “they have a relationship as a couple living together on a genuine domestic basis”. The main clause is capable of being read independently. Thus, the principal requirement is the finding that the parties have a “relationship as a couple living together on a genuine domestic basis”, and that this can be done by reference to “all the circumstances” in evidence of that relationship. I have set out what both parties but particularly, the father, asked the Court to determine that issue upon. Given the permissive language in s 4AA(2), it is open to not consider any of the circumstances there listed as long as due consideration is given to sub-ss (3) and (4).
Section 4AA(1) makes explicit reference to sub-s(5) but not to sub-s(2). The Court may have regard to the circumstances in sub-s(2) albeit there is no statutory obligation to do so where it can make a finding on the basis of sub-s(1)(c) alone.
It remains my view that the evidence should be interpreted as a whole in light of the need to find that a relationship existed between the parties to the proceedings “as a couple living together on a genuine domestic basis”, in accordance with the requirements in s 4AA(1)(c), rather than by dissecting it and fitting the pieces into the elective considerations under s 4AA(2).
Stevenson J, in Malcher & Seares [2012] FamCA 643 adopted that approach as did Murphy J on an issue-by-issue basis in Allenby & Kimble [2012] FamCA 614; (2013) 49 Fam LR 15.
In Hayes v Marquis [2008] NSWCA 10, McColl JA neatly summarised the authorities in this approach:
...definitions of relationships are not to be dissected into discrete elements, an approach endorsed by Mason P, Tobias JA and Davies AJA in Bar-Mordecai v Hillston [2004] NSWCA 65 at [86], [125]. What this means practically, is that it is necessary to consider the evidence as a whole, not under isolated headings: Barnes v De Jesus [2001] NSWSC 19 at [26] per Windeyer J.
Powell J at 274 in Roy v Sturgeon (1986) 11 Fam LR 271 expressed it in this way when discussing the De Facto Relationships Act 1984 (NSW):
...it seems to me that to attempt to dissect the phrase “living together as a husband and wife on a bona fide domestic basis” into discrete “elements” and then testing the facts of a particular case by reference to set of a priori rules in order to establish whether a particular “element” is, or is not, present, is to ignore the fact that just as human personalities and needs vary markedly, so, too, will the various aspects of their relationship which lead one to hold that a man and woman are living together as husband and wife on a bona fide domestic basis vary from case to case.
Ultimately, it is to the evidence that the Court must look to see whether s 4AA(1) is satisfied. Even on the inferences I have tried to draw from the evidence provided by the father, I remain unsatisfied that the parties lived together as a couple if that is intended to mean some form of committed relationship or expectation of longevity together. I do not know what sort of relationship the father thought he was involved in. Simply describing it as a de facto relationship is not sufficient if the respondent denies that the test is satisfied. The onus falls to the applicant father to establish the necessary criteria. Even if I was wrong about that approach, if I examined s 4AA(2), there is so little evidence that would satisfy any of the suggested factors that might enable the Court to “work out” whether there was a de facto relationship.
I find that the Court can make a declaration under s 90RD(1) that there never was a de facto relationship in this case.\
The passport issue
It would appear that there is also an unresolved issue in relation to the application for passports. The child already has a passport apparently in his own name. Having regard to the findings I have made in relation to the father’s approach to decisions and indeed, litigation, it seems sensible that as I will make an order for sole parental responsibility in favour of the mother, she have the right to apply for a passport without having to consult the father about it.
Overseas travel
There was considerable angst on the part of the father about the mother travelling to the United Kingdom or elsewhere overseas and not returning. No evidence that I heard indicated that there was any basis for such concern. I pointed out to the father (and he seemed oblivious of this), the United Kingdom is a signatory to the Hague Convention in relation to children. In my view there is no basis for the Court to consider that the mother would travel to an overseas country and not return. She has family and connections here and none overseas of any significance. On that basis, there is no reason for me to restrict the mother’s movement overseas. Indeed, she had sought specific orders for permission to be able to travel overseas for holidays and in my view, that order is appropriate providing she gives the requisite notice because it will otherwise interfere with the father’s time if he proposes to spend some monthly time with the child.
Skype
There was considerable debate during the hearing of the efficacy of Skype and it was largely rejected by the family consultant. There are undoubtedly problems particularly in relation to a child concentrating and participating at the age of the child but that is not a reason not to make the effort. Because there was some reticence on the part of the parties to make definitive orders in relation to this, I propose not to do so but it would make sense for the purposes of smooth changeovers and settled time between the child and his father that there is at least some form of communication in the intervening trips. As I said however, the parties were not particularly enamoured with the idea and I propose not to make any specific orders.
Independent Children’s Lawyer
As the Independent Children’s Lawyer will have no further role beyond these proceedings, I propose to make a formal order discharging her.
Other orders
The father in final form sought orders relating to restraint on travel, placing the child on the Airport Watch List and for the mother to provide the father with a list of all healthcare professionals relating to the child. In my view, none of those matters now requires any further attention in regard to what I have earlier said. I do not propose to make those orders in any event.
The father also sought orders that he be advised of various health matters concerning the child. I do not propose to make those orders on the assumption that the mother has indicated in evidence that she will keep the father abreast of all of the matters concerning the child’s welfare. It makes sense that she does so if the father is to spend time with the child in any event.
E
I have dealt with E in terms of the various aspects as he is a sibling of the child. I do not propose to make orders that E be permitted to participate in the contact with the child because I have no evidence as to how it would work bearing in mind the father’s position that E’s mother may not be cooperative. I say however for the purposes of the reasons for judgment that I am satisfied that E and the child have a relationship which required adult supervision because of the exuberance of E and the vulnerability of the child. To the extent that E’s mother agrees for E to travel with the father for the contact periods referred to in the orders I propose to make, I have the mother’s assurance that she would not thwart that relationship. To the extent that there are problems arising out of anything that might so occur, the mother can make a necessary application to the Court in the future.
Costs
The first day of this final hearing was effectively wasted by virtue of the father not being ready to proceed and indicating that he required the Court to rely upon documents that had not been indicated to the mother or to the Independent Children’s Lawyer. There was however, the question of the mother’s application for the release of the Federal Circuit Court file in relation to the parenting dispute involving E but that took little time. Thus, the mother who was privately funded had to bear the responsibility of paying her lawyer’s costs for that day. That gave rise to both the Independent Children’s Lawyer and the mother indicating that they would seek costs thrown away for that day. I indicated that that issue could be dealt with by written submissions and that is the order I propose to make.
I certify that the preceding Two Hundred and Forty (240) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Cronin delivered on 20 August 2015.
Associate:
Date: 20 August 2015
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