ZAVALA & ZAVALA
[2019] FCCA 338
•7 March 2019
FEDERAL CIRCUIT COURT OF AUSTRALIA
| ZAVALA & ZAVALA | [2019] FCCA 338 |
| Catchwords: FAMILY LAW – Parenting – unacceptable risk – family violence – consideration of equal time for child between parents. |
| Legislation: Family Law Act 1975 (Cth), ss.60B, 60CA, 60CC,61DA Evidence Act 1995 (Cth) |
| Cases cited: PST & CPR [2006] FMCA fam 36 M & M (1998) FLC 91-979 A & A (1998) FLC 92-800 Re: L (contact – domestic violence) (2000) 2 FLR 334 Napier & Hepburn (2006) FLC 93-303 Harridge & Anor & Harridge [2010] FamCA 445 Champness & Hanson (2009) FLC 93-407 |
| Applicant: | MS ZAVALA |
| Respondent: | MR ZAVALA |
| File Number: | BRC 12551 of 2016 |
| Judgment of: | Judge McGuire |
| Hearing dates: | 26 & 27 November 2018 22 & 23 January 2019 |
| Date of Last Submission: | 23 January 2019 |
| Delivered at: | Melbourne |
| Delivered on: | 7 March 2019 |
REPRESENTATION
| Counsel for the Applicant: | Mr Bunning |
| Solicitors for the Applicant: | Best Wilson Buckley Family Law |
| Counsel for the Respondent: | Mr Selfridge |
| Solicitors for the Respondent: | Rhodes Kildea Lawyers |
ORDERS
That all extant Orders in respect of the child [X] born … 2013 (“the child”) be discharged.
That the parents have equal shared parental responsibility for the child.
That the child live with the father.
That the child spend time and communicate with the mother as follows:-
(a)Each second weekend between Friday at 5.00 p.m. and Sunday at 5.00 p.m. but such time to continue until the Monday at the commencement of school should the mother permanently relocate her residence to a point within 30 minutes of the child’s school;
(b)For one half of each gazetted New South Wales term school holiday as agreed between the parties but failing agreement then for the first half of such holidays being from the first Friday at 5.00 p.m. until the second Saturday at 12.00 noon;
(c)On a week about basis in the New South Wales gazetted summer school holidays as agreed between the parties but failing agreement then from the first Friday at 5.00 p.m. until the second Friday at 5.00 p.m. and in alternate weeks thereafter;
(d)By telephone or other media at any reasonable time;
(e)At such other times or variations of the above as agreed between the parties from time to time;
(f)In any event, the child spend time with the mother at Christmas in 2019 and each alternate year thereafter from 5.00 p.m. Christmas Eve until 5.00 p.m. Christmas Day and from 5.00 p.m. Christmas Day until 5.00 p.m. Boxing Day in 2020 and in each alternate year thereafter;
(g)In any event, the child spend time with the father in 2019 from 5.00 p.m. Christmas Day until 5.00 p.m. Boxing Day and in each alternate year thereafter and in 2020 from 5.00 p.m. Christmas Eve until 5.00 p.m. Christmas Day and each alternate year thereafter;
(h)That should Mother’s Day not fall on a weekend in which the child is otherwise with the mother pursuant to these orders then the child spend time with the mother from 5.00 p.m. Friday until 5.00 p.m. Sunday on the Mother’s Day weekend and the father’s time with the child be suspended accordingly but should the child be with the mother pursuant to the above orders on the Father’s Day weekend then the child’s time with the mother be suspended on that weekend; and
(i)That weekend time for the child with the mother be suspended during all gazetted school holidays.
That each of the parents be and is hereby restrained from denigrating the other parent to or in the presence of the child or permitting any other person to denigrate the other parent to or in the presence of the child.
IT IS NOTED that publication of this judgment under the pseudonym Zavala & Zavala is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT BRISBANE |
BRC 12551 of 2016
| MS ZAVALA |
Applicant
And
| MR ZAVALA |
Respondent
REASONS FOR JUDGMENT
These are proceedings in respect of the parties’ one child, [X] born … 2013 (aged five years).
The orders sought by each parent have been something of a moving feast including throughout the trial.
The applicant is the mother. She initially sought orders inter-alia as follows: –
a)That she have sole parental responsibility for [X];
b)That [X] live with her;
c)That [X] spend time with the father 'as determined by the Court' and apparently dependent upon findings of the Court in respect of the mother's allegations of the father's propensity for family violence including alleged possible sexual abuse of [X].
On day three of the trial the mother’s position changed dramatically. Firstly and significantly she no longer urged the Court to make findings that the father posed an unacceptable risk to the child on the basis of the mother’s claims of sexual abuse of [X] and/or physical violence. Nevertheless, she does not retreat from her evidence in these respects. Suffice to say that whilst this leaves the Court in an interesting quandary of consideration of the mother’s case, it is, of course, for the Court to consider all of the evidence and to apply weight and then to make appropriate findings regardless of the positions of the parties. Nevertheless, it is inevitable that the mother’s credit and even her parental capacity will now need to be considered in light of her changes in position throughout the trial.
The mother currently lives and works near Town A in New South Wales. The father lives on a farming property at Town B and some two hours distance from the mother. Nevertheless, the mother proposes, should the Court be inclined towards a shared parenting arrangement, then she would move to a residence near to the father and there be a week-about or similar arrangement. At the other end of the spectrum the mother proposes that [X] live with her at Town A and spend time with the father for three out of four weekends. The mother did, but no longer, asks that such time be supervised. She no longer pursues sole parental responsibility for [X].
The father also sought an order for sole parental responsibility and that [X] live with him. He proposed that [X] spend alternate weekends with the mother together with time on special days such time to be supervised. In the course of the trial the father has moved to a more equivocal position on parental responsibility. He maintains that [X] live with him and spend each second weekend and half the school holidays with the mother. He says that the weekends could extend to Monday morning if the mother was to relocate reasonably proximate to the child’s current school at Town C.
The Issues
The Court must, of course, determine whether [X]'s best interests are served by living primarily with the mother or with the father.
Each of the parties sought an order for sole parental responsibility in that the presumption at section 61DA of the Family Law Act (1975) ('the Act') either does not apply or, alternatively, is rebutted as not being in [X]'s best interests. Nevertheless, during the course of the evidence both parents moved considerably in this respect whilst maintaining their evidentiary platforms.
The mother raises issues as to the father's propensity for domestic violence. She asserts that she is the victim of physical, emotional and coercive violence at the hands of the father.
The mother also makes an allegation, albeit at times equivocal, that Mr Zavala perpetrated sexual abuse on [X] in about the first week of November 2016 being approximately one week prior to the parents’ separation and, secondly, a more vague allegation of possible abuse in or about March 2017. In respect of this second incident and when the child was medically examined at a hospital, the father's Counsel in cross-examination of the mother put to her to ascertain that she herself had sexually abused [X] in the hospital toilets prior to the child’s medical examination and with motive to incriminate the father.
The father raises issues as to the mother's mental health generally and with a specific reference to a possible diagnosis of post-natal depression in or about 2014 and ongoing symptoms in the form of volatile behaviour and hence his assertion that [X] would potentially be subjected to physical, psychological and/or emotional abuse in the care of the mother. He accuses the mother of having a violent disposition.
Each parent challenges the general capacity of the other to care for [X]. The mother says that the father works extraordinary long hours on the farm and effectively delegates [X]’s care to his mother including getting the child off to school. The father says that the mother’s own employment precludes her from actual care of [X] and she adduces no evidence of support. The father says that the mother’s alternative proposal of her living in Town D each second week is neither practical nor properly particularised or corroborated in its particulars.
There are numerous and significant issues of credit and disputed fact between the parties.
Background
Both parents are 38 years of age. They began a relationship in the 2006 and commenced cohabitation and were married on … 2010.
For the duration of the marriage the parties lived on the father's family farm.
[X] was born on … 2013.
In early April 2014 the father asserts that the mother's behaviour became irrational and that she was assessed at the Town B Hospital and referred to a psychiatrist with a possible diagnosis of post-natal depression. The mother was prescribed medication. The mother denies the diagnosis of any mental illness history.
In or about late 2015 the parties saw a counsellor. The mother asserts that this was marriage guidance counselling. The father says that the counselling was in relation to the mother's irrational and unpredictable behaviour.
The mother alleges that in or about the first week in November 2016 she came across the father masturbating in the shower and the child present in the bathroom. She says that she saw the child with 'white substance' on her mouth and hands but is unsure as to whether the substance was semen or soap.
The parties separated on 8 November 2016. The mother says that separation occurred following a domestic violence incident perpetrated on her by the father. The father says that he determined to separate when the mother was acting irrationally and not providing proper care to the child. He denies family violence save and except that he says he reasonably 'walked out’ the mother from his parent’s home on that evening when she refused to leave.
In or about late November 2016 an interim apprehended violence order was made against the mother naming the father as a protected person although apparently after the mother had made complaints to the police that she had been assaulted by the father.
[X] has lived primarily with the father since separation.
On 14 December 2016 the mother commenced proceedings for parenting and property orders.
On 19 December 2016 interim orders were made confirming that [X] was to live with the father and spend time with the mother such time to be supervised.
On 19 December 2016 his Honour ordered a report pursuant to section 11F of the Family Law Act and child inclusive interviews took place on 14 March 2017.
From 11 April 2017 [X]'s time with the mother was to be formally supervised as opposed to supervision by the paternal grandmother. Orders were also made on that day for Dr E to prepare a psychiatric report in respect of the mother and for Mr F, psychologist, to prepare a family report.
On 20 September 2017 Dr E swore an affidavit annexing his psychiatric assessment of the mother.
The family report of Mr F is dated 15 October 2017.
On 6 November 2017 the substantive applications were set down for trial.
On 2 May 2018 the parents entered into final consent orders in respect of financial matters. The parenting matters were listed for trial on 19 September 2018 but not reached.
The trial in respect of children's issues commenced in the Federal Circuit Court at Brisbane on Monday 26 November 2018 and continued over four days.
The father continues to live and work on the family farm at Town B in NSW. The mother works as a labourer at Town A in NSW. The distance between Town B and Town A is about 180 km.
There is no evidence before me that either party has re-partnered.
The Expert Evidence
The affidavit of Dr E and annexed psychiatric assessment on the mother was read into evidence without the doctor being required for cross-examination.
Dr E interviewed the mother on 31 August 2017.
Dr E reports the mother as being positive as to her own demeanour and mental/emotional health. She reports a history of domestic violence roughly consistent with her evidence to this Court.
The mother reports seeing a psychologist and counsellor 'because my solicitor said I need to do as much as I can'. She said that she had seen each of the therapists on 6 to 8 occasions.
The mother denied having previously been diagnosed with any psychiatric condition and/or being prescribed any psychotropic medications. She said she had never been admitted to a psychiatric hospital.
Dr E reports the mother's version of the events leading to separation on 8 November 2016 roughly consistent with the mother's evidence to this Court.
Significantly, in my view, Dr E does not report the mother asserting any sexual abuse on the child by the father in the week prior to separation. At page 23 of 26 of his report Dr E states:
When I enquired as to what ongoing concerns she had about the welfare of the child in the care of the father, ‘I am obviously extremely concerned for her safety because of his violence.' ‘'The paternal grandmother is protecting the father, I don't know if she will be able to protect the child, and I know her husband is domestically violent towards her.’
In respect of mental state examination, Dr E says on the same page:
Her mood was euthymic and her affect was reactive, and there was no evidence of any formal thought disorder. Although she was over inclusive at times, she was able to be redirected generally. She did describe some fixed ideas, in particular that the father had assaulted the child to the degree that she was unconscious, and was unable to consider other explanations for the child being unconscious at that time. There were no ideas of reference or passivity phenomenon and she denied any perception abnormalities. She was alert and oriented to time and place and her insight and judgment appeared fair.
Under the heading ''Conclusions” Dr E says inter-alia:
On cross-sectional assessment, I note the mother did describe a number of fixed ideas with respect to the father including his infidelity, as well as that he had rendered the child unconscious by assaulting the child. It is not my view that these beliefs are psychotic in nature as they appear to have arisen within the context of the relationship, as well as the alleged incident that resulted in their final separation, and that the mother did not display any other features suggestive of an underlying psychotic illness such as Schizophrenia. Whilst the mother was over inclusive there was no evidence of any formal thought disorder and there was no evidence of any disturbance of affect consistent with an underlying psychotic illness. The mother's concerns that the father had followed her to the child's childcare also appear to have occurred in the context of the conflict between the parties, rather than evidence of any persecutory delusions, and one suspects represent hypervigilance around these issues.
Dr E opined that there was no evidence 'consistent with a hypomanic or manic episode', and that the mother did not present with any features of a Major Depressive disorder. He preferred the ''Acute Stress Reaction or an Adjustment disorder'.
Dr E observed the mother as anxious and distressed when discussing her alleged assaults by the father and her separation from [X].
Dr E noted indicators of 'somewhat perfectionist traits in the mother, or obsessive-compulsive personality traits…'
Dr E noted the limitations of his report in having not interviewed the father or having had the benefit of his material filed with the Court.
Dr E recommended that the mother 'continue to seek treatment with a suitably qualified mental health practitioner' together with the recommendation that the mother would benefit from advice from her general practitioner in respect of antidepressant medication.
Significantly, Dr E stated at page 25 [v]:
On the information provided by the mother it would not be my concern that the child would be at risk of significant harm in the care of the mother, on either a supervised or unsupervised basis, except insofar as the mother may struggle to protect the child from her own anxieties and fears with respect to the father or the father's family. If the mother was demonstrating an ability to appropriately contain her views and anxieties, with respect of the child in the care of the father during the supervised contact, I would be inclined to recommend unsupervised contact should commence.
Mr F – family reporter
Mr F is a psychologist and a Regulation 7 consultant in private practice. He conducted interviews with the parents, [X], the paternal grandparents and the maternal grandmother and maternal uncle as well as making relevant observations on 18 September 2017. Further, Mr F had the benefit of the parties’ pre-trial affidavits together with subpoenaed documents from the Town B doctors and hospital and New South Wales police.
Mr F’s report is comprehensive and of great assistance in both its general reporting and in the evaluation and recommendations.
Mr F observed [X] 'as a child who is developing well in all respects. There were no signs from her presentation of any emotional disturbance'. [12.1].
The mother reported to Mr F a version of history roughly consistent with her evidence to this Court, including at [6.23] the allegation of potential sexual abuse by the father on [X] in the first week of November 2016. Notably, it is clear that Mr F had the benefit of the mother's preliminary affidavit material prior to the interviews whereas Dr E apparently did not have such material.
Dr E observed the mother to present as anxious but not hyper-aroused, hyper-vigilant or hyperactive. He saw her as neither aggressive nor excessively timid and that she exhibited normal perceptual processes.
Mr F’s report notes the father giving a version of history consistent with his evidence to this Court noting his concerns as to the mother's behaviour and apparent delusional or grandiose statements in or about 2014. Mr Zavala denied domestic violence save and except in self-defence and, in particular, denied the allegation of inappropriate sexual behaviour with [X].
The family reporter interviews with the other adults are unremarkable save and except in respect of some corroboration and their respective support for the mother or the father.
Mr F interviewed [X] and noted her as a willing and spontaneous participant with some evidence of probable adult coaching and perhaps from both the paternal and maternal sides.
[X] was observed to be comfortable and engaging with her father and the paternal grandparents and at [9.13] Mr F observes:
[X] appeared entirely secure with her father and paternal grandparents and appeared to have a particularly secure attachment to her paternal grandmother.
Similarly, [X] was observed to be affectionate and comfortable with her mother although 'a little more challenging in her behaviour with her mum'. She was observed to be comfortable in engaging with the maternal grandmother and uncle at [9.25] Mr F says:
[X] appeared secure with her mother and maternal family in this setting.
Mr F had the benefit of subpoenaed material from New South Wales police and notes as follows: –
a)That the altercation between the parents on the date of separation of 8 November 2016 resulted in the police applying for a AVO with the father identified as the protected person;
b)That since separation the mother has made a number of allegations about the father in respect of domestic violence including a report on 19 December 2016 in respect of the above-mentioned allegation of sexual abuse by the father on [X];
c)That ‘police have documented their concerns that the mother's allegations appear vexatious and that the mother has mental health difficulties. A welfare check on 2 December 2016 revealed [X] to be very well-cared for and happy in the care of her father and paternal grandparents'.
Mr F also had the benefit of subpoenaed material from the Town B hospital and Mental Health Service Town B. He notes the following: –
a)The mother took [X] to the hospital for examination on 21 March 2017. Such examination revealing 'a resolving nappy rash together with spotting to groin area with her labia majora being extremely red and inflamed together with her vaginal opening being large and red but nil trauma/redness noted to anus or urethra.’;
b)A record of admission of the mother on 5 April 2014 for observation in relation to anxiety and discharged on the same date with a final diagnosis of anxiety with the registration noting problem as post-natal depression;
c)A post-natal depression assessment score of 19 suggesting 'PND is present' and the mother being prescribed Zoloft.
At [11.7] the family reporter records the notes from Mental Health Service Town B as follows:
There is a record of the surgery consultation on 21/03/17. Prior to examination of [X], the mother had gone to the toilet with [X] to change her out of her swimwear. She was in the toilet for approximately 15 minutes. The mother was concerned that [X] had bruises on her bottom and a nappy rash that had been present for several months. [X] was noted to be toilet trained in the day and only wearing nappies at night. The mother also expressed concerns about potential domestic violence. [X] was seen by community health nurse, Ms G, who conducted the examination. After noticing vaginal abnormalities, she called in Dr H to see [X]. There was one bruise on the left posterior lateral thigh. It was approximately 10m.?? and 3 mm wide.
On her labia majora, there was an erythematous area which was approximately 30mm long and 2mm wide. It was bilaterally in the middle part of the labia majora. Rather than the labia major touching each other, they were open, particularly proximally. [X] was very comfortable being examined and was happily lying with her legs spread open. The doctor comments, 'I have not seen a child who is so compliant with this examination'. The vaginal appearance was abnormal compared to other vaginas I have seen when looking for nappy rash. The appearance was inconsistent with nappy rash. [X] also had a heat rash on her neck and the superior part of her back. After consultation, the doctor had a discussion with the nurse who was concerned about the appearance of [X]’s vagina and also about [X]'s behaviour, especially how comfortable she was with the examination. The doctor and nurse telephoned Ms J at sexual assault because the doctor was uncertain about what she had seen. Ms J advised them to call JERT.
Mr F observed from the notes a surgery consultation for the mother on 21 October 2014 with Dr K after which the doctor 'encouraged her to think about a mental health plan for the future'.
In his conclusions, Mr F sees [X] as a child who is developing well in all respects with no presentation of any emotional disturbance. He suggests that there is no substantiation from his process or the subpoenaed material of [X] being harmed by either parent. In respect of Mr Zavala’s allegations of domestic violence, Mr F opines at square [12.3]:
With respect to Ms Zavala’s allegations of domestic violence perpetrated by Mr Zavala, there is some evidence in the form of reports to doctors that during the course of the marriage after [X]'s birth and during the child's infancy, she was struggling to cope and she felt unsupported by Mr Zavala and considered him to be controlling and verbally abusive. Beyond that, there is no independent substantiation by authorities that Mr Zavala has ever perpetrated violence against her.
Mr F suggests that Ms Zavala appears not to have taken the medication (Zoloft) prescribed by her in April 2014 and 'did not avail herself of treatments that were recommended in the form of counselling, at least to not any great extent'.
At [12.9] Mr F opines:
In my opinion, the psychiatric history of Ms Zavala is consistent with a person with temperamental anxiety who is likely suffered from some symptoms consistent with an adjustment disorder with anxiety, particularly since the events of 8 November 2016. There does not appear to be evidence of a pervasive mental health condition that would disqualify Ms Zavala from making day-to-day parenting decisions with respect to appropriate care of her child.
Mr F notes no independent or objective evidence supporting the father's claim of Ms Zavala being neglectful of [X]'s care although there is some evidence of Ms Zavala 'struggling to cope' and experiencing a lack of support.
At [12.15] Mr F concludes:
Of the two parents it appeared to be Mr Zavala who enjoys the more stable mental health both historically and currently. That is not to say that Ms Zavala’s mental health is so problematic that it would impair her capacity to care for her daughter.
Mr F suggests that there is no evidence that [X] is at risk in the care of either of her paternal grandparents 'who appear to be significantly involved in her day-to-day care, particularly her paternal grandmother'.
Mr F notes a risk of emotional harm for [X] if it is found that Ms Zavala is a 'temperamentally anxious person with an inclination towards hypervigilance about the father's and the paternal grandparents’ care of the child'.
Mr F seemed inclined towards, in any event, the removal of the supervision condition in respect of the mother's time with [X]. At [12.27] he says:
There appear to be sound pragmatic reasons to consider removing the supervision provision because of the limited availability of supervisors in the Town L/ Town B area. That, in and of itself, is not sufficient reason to remove the supervision provision but it could be a consideration for the Court noting that Ms Zavala essentially appears able to meet the child's needs.
Mr F continues that, should the supervision provision be removed, the consideration of a 'level of shared care' might remain open for the Court.
Mr F gave evidence and was cross-examined. He expressed a “reasonable level of comfort” as to these parents being able to work an equal time arrangement but volunteered, even if they were to be geographically proximate, a preference for a primary home base for [X] and four or five nights per fortnight with the other parent. Mr F again in his oral evidence noted the mother’s generally anxious demeanour but opined that this “may not be indicative in respect of her ability to co-operatively parent in the future”.
The Mother's Case and her Credit
The mother initially argued that the father presents as an unacceptable risk to [X] if he is to be her primary carer but does not now urge me to make any such findings. The mother still says that Mr Zavala has perpetrated physical family violence on both her and [X] and has a disposition to violence. She says that he has also inflicted coercive and psychological/emotional violence on her during the relationship.
The mother says that the father delegates his care of [X] to others and mainly his mother and prioritises his own work commitments to the farming property over a commitment to the care of [X].
The mother says that she has historically been [X]'s primary carer, at least until the making of interim orders following separation.
Although equivocal in her position, the mother has made allegations consistent with the father perpetrating sexual abuse on [X] in a period shortly prior to separation but, whilst not retreating in her evidence, she no longer asks me to make particular findings of fact or of unacceptable risk.
The mother denies any mental illness or that she is not emotionally stable so as to be able to care for [X].
The mother says that she would be the parent more able and willing to promote [X]'s relationship with the other parent relative to Mr Zavala.
The mother relied on two affidavits filed 14 December 2016 and 23 August 2018. She was cross-examined at length.
Even noting the experts’ observations as to Ms Zavala being of anxious personality type and also taking into account her assertions as to being the victim of family violence, I did not consider the mother to be an impressive witness. She was subjected to lengthy, cross-examination but, in large part, by reason of her tendency to be non-responsive, selective and deflecting of questions in her responses. Ms Zavala seemed at pains to shore up her own case by repetition and emphasis rather than being direct and responsive in cross-examination. At times her responses and, indeed, her case were vague and uncertain in respect of the orders she sought and the assertions she made. Of particular note, is her evidence in respect of what she says was her coming upon the father and [X] in the family bathroom only days prior to separation in circumstances which could only give any reasonable mother great concern as to the possibility of her daughter having been sexually abused. Nevertheless, her reporting in respect of this matter has been neither timely nor consistent and it seems that she no longer prosecutes an argument that her daughter has been subjected to sexual abuse by the father whilst at the same time seemingly maintaining her allegation.
Secondly, the mother relied to a large part on a tape recording that she made surreptitiously on the night of 8 November 2016 which was the day of separation. Ms Zavala maintains that she was the victim of family violence of various types at the hands of the father throughout the relationship. On this particular evening she visited and entered uninvited to the home of the paternal grandparents and where the father and [X] were staying given the separation that day. The tape, made without the father’s knowledge, is replete with statements/allegations/assertions made by the mother to the father asserting family violence. To that end they are simply self-serving and of little or no evidentiary or probative value. Significantly, however, and despite the obvious tension of the occasion and the father being oblivious to the recording process, he makes no admission as to any of the numerous and frequent allegations made by the mother. Secondly, the mother asserts that the audio tape records an instance of physical violence on her by the father. I do not agree. I prefer the father’s explanation that he “walked out” the mother from the home where she entered without invitation and had belligerently refused numerous calm and reasonable requests of her to leave. If of any evidentiary value at all, the tape conveys only the father’s calm demeanour relative to the mother’s aggressive, argumentative and confrontational bearing. Further, any other material on the tape supposedly to be recorded the same night and of conversations with a person or persons other than the father are simply self-serving.
The Father's Case and his Credit
The father says that he can provide [X] with continuing stability in the home in which she is familiar. He has continuing family support.
Mr Zavala denies the allegations of domestic and/or sexual violence.
Mr Zavala raises the mother’s mental or emotional health. He cites examples of the mother’s historical, unusual and delusional behaviour. He suggests that she has been prescribed medication and recommended for psychiatric assistance but has not adopted these recommendations. He says a consequence for [X] has been the mother's lack of vigilant care for the child and placing [X] into situations of danger and the father gives examples. Similarly, he describes the mother as volatile and at times aggressive in her personality.
Mr Zavala was cross-examined as to his understanding of the need for ongoing supervision of [X] in the mother's care. He is open to that condition being lifted but hesitates in respect of the mother's current capacity in respect of the matters set out above and suggests that his consent to the removal of the condition might be assisted by the mother acknowledging her historical mental health difficulties and her lapses in care for [X].
Like the mother, Mr Zavala did not present as an overly sophisticated person. I observed him, however, to be a far more impressive, honest, responsive and candid witness than was the mother. He gave answers under intrusive cross-examination in a calm, considered, objective and child focused fashion. The calmness of his demeanour in the witness box was striking as opposed to that of the mother.
Other Witnesses
The mother relied on an affidavit from Ms M affirmed 21 August 2018. Ms M is the mother’s psychologist/therapist. Ms Zavala was referred by a domestic violence service. The initial consultation was on 20 December 2016 with a number of subsequent appointments the majority of which seem to have been by telephone. Ms M concludes in her final report prepared for the mother’s lawyers dated 19 August 2018:
Ms Zavala has made considerable progress regarding her anxiety in dealing with her distress regarding her domestic violence experiences. She has demonstrated commitment to the therapy process and followed suggestions and ramifications. On self-report measures, Ms Zavala continued to be in the normal range for depression, anxiety and stress and demonstrated some improvement on trauma related symptoms with less intrusion and avoidance symptoms. She continues to present as cautious in her interactions with her ex-husband and is protective and concerned regarding [X]'s well-being while in his care. This would be considered a normal and adaptive reaction to her past experiences.
…
Ms Zavala on clinical interview at the present time does not demonstrate any serious mental health issues which would preclude her from providing ongoing care and having custody of her child. Given the past history of issues with her ex-husband there will be ongoing stresses and anxieties regarding co-parenting, however, Ms Zavala is insightful and aware of these and I believe she has coping strategies which will support management of this. In pursuit of this she has chosen to continue psychological support during the Family Court process.
Ms M is clearly supportive in her therapeutic relationship with Ms Zavala. Her objectivity, however, suffers by reason of her post-modernist approach in simply accepting the version of history given to her by her client without forensic challenge or investigation. Ms M was cross-examined and was not inclined to objectively consider possibilities other than that version given by Ms Zavala. Ms M was clearly not appraised of all of the material before this Court. As such, Ms M’s evidence is of little probative value given its therapeutic rather than forensic basis.
The mother also adduced evidence on affidavit from her parents, Mr N and Ms O. They are understandably supportive of their daughter but their evidence was unremarkable in any objective sense save and except that Ms O did confirm that Mr Zavala had expressed his concerns to her during the course of his marriage in respect of the mother’s mental health. Neither Mr N nor Ms O were aware that their daughter had been admitted to hospital in 2014 in respect of mental health concerns. It seems that they were advised that the admission was in respect of a physical ailment.
Similarly, the mother's sister, Ms P, gave evidence and was cross-examined. Like Ms O, she did not appear surprised to learn that the mother may have suffered post-natal depression but had previously been unaware of any such a condition or diagnosis. She too understood that the mother had been admitted to hospital because of a physical ailment. She gave evidence supportive of the mother and corroborated some of the mother's evidence in respect of contemporaneous complaints by Ms Zavala of family violence.
Somewhat surprisingly, none of Mr N, Ms O, or Ms P seem to have acted in any positive or pro-active way in what they say were their daughter’s/sister’s serious complaints of family violence.
Ms Q provided an affidavit in support of the mother and was cross-examined. Her evidence was unremarkable in that it simply related events in a hearsay fashion from the mother herself. Whilst the evidence is therefore not of primary value it does offer some corroboration for the mother in the form of contemporaneous complaint.
Ms R gave evidence for the mother in an affidavit of 22 August 2018. She was cross-examined. Ms R claims to keep meticulous diary records and chronicled numerous conversations with the mother, including assertions of domestic violence. She conceded that she had not witnessed any such behaviour herself but relayed only Ms Zavala’s allegations.
Ms R agreed that the mother spoke and/or visited her frequently despite the mother's allegations of controlling behaviour by the father.
Ms R confirmed that she contacted the police after the alleged incident of violence at separation on 8 November 2018 being, on my understanding, the complaint made by the mother to the police but which resulted in an intervention order with the father as the protected person.
Ms S gave evidence for the father and an affidavit of 20 August 2018. She has been an occasional nanny for [X] and employed by Mr Zavala following separation. She noted positive aspects of [X]'s demeanour whilst being in the care of the father and his family. She has attended some changeovers for [X] and noted Ms Zavala’s relatively aggressive attitude towards her which, in all of the circumstances, is of little surprise and I make no negative findings against the mother accordingly.
Mr T gave evidence for the father. His affidavit was sworn 16 August 2018. He is a former employee of the father’s farming enterprise. Mr T did not present as an overly sophisticated young man. Yet his evidence was given in a straight forward and seemingly honest way. He was consistent in his evidence when confronted with stringent cross-examination about his honesty. He was recorded by the mother on tape where the mother complains to him about being assaulted by the father. I again find such self-serving statements to be of little corroborative value. Specifically, Mr T maintained against strong cross-examination that the mother, on more than one occasion, had offered him $10,000 to provide an affidavit for her. Whilst I accept this evidence, the fact that Mr T eventually chose to provide an affidavit for the father and not the mother is of little consequence.
The father’s parents Ms U and Mr V gave affidavits and were cross-examined. They confirmed the father’s long working days but also their ongoing support. They offered support for the father’s evidence that he had historically contributed to [X]s’s care.
The Relevant Law – Unacceptable Risk
Despite significant moves by both parents during the course of the evidence, the underlying theme of each parent’s case remains that the other presents as an unacceptable risk to [X] if that parent be primary carer. The mother says that the father has a propensity for serious family violence. Significantly she also raises an assertion of sexual abuse on [X] by the father shortly prior to separation. The father says that the mother may be suffering the residual effects of a mental illness, and presents as an unacceptable risk to [X] emotionally and psychologically and in her propensity to be neglectful in her daily care of the child.
Underlying any such consideration are the insightful observations of Federal Magistrate Walters (as he then was) in PST & CPR[1] where his Honour said:
In my opinion, that which converts an unacceptable risk to an acceptable risk is often little more than confidence on the part of the Court that the contact parent will comply with such orders as it is minded to make in order to protect the child.
[1] [2006] FMCA fam 36
These Courts have over some years developed a set of principles in dealing with issues of 'unacceptable risk' and perhaps highlighted by matters concerning alleged sexual abuse but, in my view, generally applicable. The High Court in M & M in 1998[2]:
Efforts to define with greater precision the magnitude of the risk which will justify a Court in denying a parent access to a child have resulted in a variety of formulations… This imposing array indicates that the Courts are striving for a greater degree of definition than the subject is capable of yielding. In devising these tests, the Courts have endeavoured, in their efforts to protect the child's paramount interests, to achieve a balance between the risk of detriment to the child from (sexual) abuse and the possibility of benefit to the child from parental access. To achieve a proper balance, the test is best expressed by saying that a Court will not grant custody or access to a parent if that custody or access would expose the child to an unacceptable risk of abuse.
[2] (1998) FLC 91-979
As a previous Full Court in A & A[3] observed:
… the primary question which the Court should have addressed was, looking at the whole of the evidence whether the contact (or contact which was not strictly supervised) might expose the children to an unacceptable risk because, although it is almost impossible to quantity in any precise way, it may place those children in circumstances of potential jeopardy in the future in their father’s care.
[3] (1998) FLC 92-800
Relevantly, in the English judgment of Re: L (contact: – domestic violence)[4] stated:
In cases of proved domestic violence, and in cases of other proved harm or risk of harm to the child, the Court has the task of weighing in the balance the seriousness of the domestic violence, the risks involved and the impact on the child against the positive factors, if any, of contact between the parent found to be violent and the child. In this context, the ability of the offending parent to recognise his past conduct, to be aware of the need to change and make genuine efforts to do so, will be likely to be an important consideration.
[4] (2000) 2 FLR 334
Murphy J in Harridge & Anor & Harridge[5] provided a helpful list for trial judges determining matters where unacceptable risk is raised and being the following:
[5] [2010] FamCA 445
a)What harmful outcome is potentially present in this situation?
b)What is the probability of this outcome coming about?
c)What risks are probable in this situation in the short, medium and long term?
d)What are the factors that could increase or decrease the risk that is probable?
e)What measures are available whose deployment could instigate the risks that are probable?
The parents here make allegations of varying seriousness in respect of each other. A party making an assertion of fact carries an onus to prove that fact. A recipient of each an assertion carries no onus to prove to negative. The requisite standard of proof is one of “on the balance of probabilities” with reference to s.140 of the Evidence Act 1995 (Cth) which provides at sub-section (2):
Without limiting the matters that the Court may take into account in deciding whether it is so satisfied, it is to take into account:
(a) the nature of the cause of action or defence; and
(b) the nature of the subject – matter of the proceeding; and
(c) the gravity of the matters alleged.
The Full Court in Napier & Hepburn[6] emphasised that it is not for the Court to find a solution which will eliminate any chance of serious harm. Rather, it is to balance the harm that will follow if the risk is not minimised or removed, as against a normal, healthy relationship between a parent and a child not being permitted to prosper.
[6] (2006) FLC 93-303
General Relevant Legal Principles
Fundamental to my consideration are [X]'s best interests as my paramount consideration pursuant to section 60CA of the Act.
I determine those best interests with reference to the objects and principles of Part VII of the Act provided in section 60B and then by a more pragmatic reference of the probative evidence and the parties’ proposals to the mandatory considerations set out in section 60CC of the Act.
Section 60B provides:
a)The objects of this part are to ensure that the best interests of children are met by:
i)ensuring that children have the benefit of both of their parents having a meaningful involvement in their lives, to the maximum extent consistent with the best interests of the child; and
ii)protecting children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence; and
iii)ensuring that children receive adequate and proper parenting to help them achieve their full potential; and
iv)ensuring that parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of their children.
b)The principles underlying these objects are that (except when it is or would be contrary to a child's best interests):
i)Children have the right to know and be cared for by both their parents, regardless of whether their parents are married, separated, have never married or have never lived together; and
ii)Children have a right to spend time on a regular basis with, and communicate on a regular basis with, both their parents and other people significant to their care, welfare and development (such as grandparents and other relatives); and
iii)Parents jointly share duties and responsibilities concerning the care, welfare and development of their children; and
iv)Parents should agree about the future parenting of their children; and
v)Children have a right to enjoy their culture (including the right to enjoy that culture with other people who share that culture).
Section 61DA of the Act provides a presumption that parents have equal shared parental responsibility for their children. That presumption does not apply if the Court is satisfied that there has been family violence or abuse of a child within the broad definitions in the Act. Alternatively, the presumption may be rebutted by evidence satisfying the Court that it would not be in the best interests of the child for the parents to exercise equal shared parental responsibility.
The significance of an order for equal shared parental responsibility is that a Court must then enter into a mandated pathway of statutory and intellectual consideration being, firstly, whether it is both in the best interests of the child and reasonably practicable for the child to spend equal time between the parents or, if the answer to either of those questions is in the negative, then, secondly, to consider whether the child spending 'substantial and significant time' between the parents is both in the child's best interests and reasonably practicable. 'Substantial and significant time' is defined in the Act and provides that a child would spend both weekend and weekday time with each of the parents and be able to participate fully in the parents lives and conversely, for the parents to participate fully in the child's life and activities.
In the matter now before me each of the parents initially asked for an order for sole parental responsibility of [X]. Whilst the mother seemingly has retreated from wanting an order for sole parental responsibility, the father still leaves this option open to my consideration. Whilst the father's proposal is for orders in a traditional form whereby [X] live primarily with him and spend weekend and holiday time with the mother (initially supervised), the mother’s alternative proposal offers a regime of equal time for [X] between her parents although her primary position remains that [X] live with her at Town A and spend weekends and holidays with the father.
Section 60CC factors
S60CC(2)(a) – the benefit to the child of having a meaningful relationship with both of the child's parents
The evidence satisfies me that these parents have for some time endured a conflictual and antagonistic relationship which has only increased following their separation. Nevertheless, that evidence also satisfies me that [X] has an established and relatively successful relationship with each of her parents. Mr F's Family Report confirms [X] as being affectionate, engaging and secure with each of her parents.
The mother's alternative proposal of equal time for [X] with each of the parents, would superficially maximise [X]'s ability to maintain and flourish those relationships. Nevertheless, it is notable that [X]’s successful relationships with each parent has occurred and continued despite, not because of, the nature of the parent’s inter-personal relationships. Further, this consideration of 'meaningful relationship' is not determinative of my consideration but, rather, simply one factor among many to weigh and balance in the ultimate determination of [X]'s best interests[7].
S60CC(2)(b) - the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence
[7] Champness & Hanson (2009) FLC 93-407
The mother grounds her case for primary care of [X] in a large part to what she says is the father's propensity for family violence and as perpetrated on her throughout the relationship. It is trite to say that a party making an assertion of fact carries an onus to prove that fact on the balance of probabilities. I am not satisfied in this matter that the mother has proven her allegations of family violence. Certainly, she has endeavoured to obtain admissions from the father by way of surreptitious recordings and made during times of high conflict. The father made no such admissions despite the mother’s efforts. Indeed, the recording tendered to this Court shows Mr Zavala to be of a calm and the non-reactive demeanour during a time of some high conflict. The mother's assertions otherwise in the recordings are self-serving and of little probative value. The mother does, however, adduce evidence on affidavit from various people to whom she made contemporaneous complaint against the father during the course of the relationship. On balancing the entirety of the evidence, I am not satisfied that the mother has made out her case of the father having a high propensity for violence and having anger-management issues although I am comfortably satisfied that the relationship between these two parents was a tense, volatile, argumentative and conflicted one.
Secondly, the mother leaves open to the Court the possibility that the father has perpetrated sexual violence on [X]. The mother's allegations in this respect are disturbing in their lack of consistency. She does not retreat from her evidence but no longer urges the Court to make a finding of fact or unacceptable risk in respect of this situation. It is difficult to reconcile the mother's positions in this regard. Suffice to say in all of the circumstances, I am not satisfied that the father poses an unacceptable risk to [X] in respect of sexual abuse or in the particulars of the assertion made by the mother.
I am satisfied generally, however, that the relationship between these two parents was highly conflictual and argumentative. The mother asserts coercive and controlling violence at the hands of the father and I expect that this may constitute an honest but subjective view of the relationship by the mother.
The father also asserts that the mother is of volatile and violent disposition. Similarly, the father's assertions must be seen within the context of the relationship between the two parents. I note, in any event, that the father now effectively retreats from asking for orders for ongoing supervised time between [X] and the mother and, whilst there is evidence to suggest that the mother can be emotional and temperamental, I am not satisfied that she poses a risk to [X] by way of any propensity family violence. Specifically, the mother was cross-examined about her taking [X] to a hospital and spending some 15 minutes in a changing room with the child prior to her medical examination. Whilst noting the apparent concern of the nurse and doctor, I am unable to make any findings in this respect.
S60CC(3)(a) – any views expressed by the child
[X] is just five years of age and not of sufficient maturity so as to rationalise her own preferences, views and best interests.
S60CC(3)(b) – the nature of the relationship of the child with each of the child's parents and other persons in including grandparents
Mr F's observations suggest that [X] has a comfortable and established relationship with both parents. Notably, [X]’s time with the mother has been limited and supervised since separation in 2016. She has lived with her father since separation and in a family unit that generally includes her paternal grandparents. [X] was just three when her parents separated and I expect that her only recollections are of this arrangement.
S60CC(3)(c) – the extent to which each of the child's parents has taken, or failed to take, the opportunity to participate in making decisions about major long-term issues in relation to the child and to spend time and communicate with the child.
Despite the father's criticisms of the mother being inconsistent with telephone contact, I note the mother's work arrangements and the animosity between the parents and am generally satisfied that the mother has been consistent in pursuing her relationship with [X]. Similarly, and despite the mother’s criticisms of the father effectively delegating his responsibilities to the paternal grandmother, I am satisfied that the father has accepted and discharged his responsibilities in respect of [X] whilst negotiating his own onerous work life.
S60CC(3)(c) – the extent to which each of the child's parents has fulfilled, or failed to fill, the parents obligations to maintain the child
Not relevant.
S60CC(3)(d) – the likely effect of any changes in the child's circumstances, including the likely effect on the child of any separation from either of her parents or other person
[X] has lived all of her life in the paternal family unit at Town B. The mother's proposal would substantially change that status quo. Nevertheless, and again, the observations of Mr F are that [X] appears to be an open and robust young child with an already strong and established relationship with her mother. However, the tenor of Mr F's report suggests that he places some store on [X]’s secure and established routine in respect of her best interests. At [12.11] he observes:
She is very familiar with the farm environment at Town B and that is the place she has grown-up and she feels entirely secure. I observed that [X] has close relationships and secure attachments to her father, paternal grandfather and particularly her paternal grandmother.
And more pointedly at [12.21] Mr F says:
If the Court determines that [X] should live with her father… [X]'s best interests would be served in that she would be living in an established home environment in which she is very familiar with routines and care arrangements.
S60CC(3)(e) – the practical difficulty and expense of the child spending time with and communicating with a parent and whether that difficulty or expense will substantially affect the child's right to maintain personal relations and direct contact with both parents on a regular basis
The primary positions of each of the mother and the father are that [X] live with them and spend alternative weekends and half school holidays with the other parent. There is some distance between Town A and Town B although neither parent seems unduly concerned with this practicality.
The mother’s alternative position is that [X] live in a shared care or week-about arrangement between the parents and that she move from Town A to Town D which is closer to both the father's residence and the child's proposed school. Importantly, however, the mother's evidence is lacking in particulars or any detail as to this proposal. Ms Zavala says that she works as a full-time as a labourer on a roster of five days on and five days off followed by four days on and four days off. She says that she works from 6.00 a.m. until 6.00 p.m. Prima facie, such a roster does not fit comfortably with a shared care arrangement for [X] or one with any certainty of routine. Similarly, the mother offers no probative evidence as to her proposals to care for [X] out of hours. The Court is left with the impression that the mother’s alternative proposal is something of an afterthought made without informed consideration.
S60CC(3)(f) – the capacity of each of the child's parents and any other person to provide for the needs of the child, including emotional and intellectual needs
The father comes to Court with the benefit of stability in [X]’s life. She has lived with him, albeit with the necessary assistance of his own the parents, since November 2016. There is no indication that [X] has suffered from this arrangement and indeed the Family Report suggests that she has flourished.
The mother says that the father is reliant upon his mother to care for child. Whilst such a criticism might have some validity, again, the mother's proposals, even in the alternative, are lacking in particulars as to her own support network which appears necessary given her work hours.
The father has insisted on [X]'s time with the mother being supervised since separation and he remains equivocal in this respect. In cross-examination he suggested that supervision was needed because of the mother's 'neglect' of [X]’s hands-on care. I am not persuaded by the father's argument in this respect and note, in any event, that the mother most likely assumed the primary care role during [X]'s infancy and prior to separation. Having said this, there are aspects of the mother’s emotional stability that might have caused concern to the father. I note, however, that she now holds a responsible job which I expect requires a degree of personal and emotional stability. Despite her volatility at separation, the evidence generally satisfies me that [X]’s time with the mother, albeit supervised, has progressed successfully. I also note that the father has retreated to a large degree in his requirements for supervision.
Generally, I find each of these parents to be capable in their day-to-day care for [X] although both quite obviously require a relatively high degree of assistance and support given their work commitments.
S60CC(3)(g) – the maturity, sex, lifestyle and background of the child and either of the child's parents and any other characteristics of the child that the Court thinks are relevant
[X] is just five years of age. She has always lived in the environment of the family farm at Town B and her experience of the last two years has been of her father and paternal family as her primary caring unit.
S60CC(3)(h) – if the child is aboriginal or Torres strait Islander
Not relevant.
S60CC(3)(i) – the attitude to the child and responsibilities of parenthood demonstrated by each of the child's parents
The evidence suggests that both of these parents have to a degree involved [X] in this dispute by way of inappropriate comment in respect of the other parent. Whereas each parent has generally been responsible in respect of their parental obligations, the pity is that their own highly conflicted and toxic personal relationships would inevitably had some impact on [X]. Notably, a formal supervision arrangement for the mother and [X] seems to have been terminated because of the mother’s tendency to make inappropriate comments in respect of the father.
S60CC (3)(j) – any family violence involving the child or a member of the child's family
Violence in its broadest of forms highlights both this case generally and, in particular, the separation of the parents. I have not found that the father is of violent disposition in the sense argued by the mother. Indeed, it has not escaped my attention that it was the mother on or about the date of separation made complaint to the New South Wales police of family violence perpetrated by the father with the apparent result being that the police did take out a Family Violence order but with the father as the protected person. I expect from reading the material that this mother is on occasions capable of high levels of emotional reaction and response. This, however, does not to lead me to conclude that she is of violent disposition or propensity in respect of [X]. I prefer that the relationship between these two parents was rarely a happy one and was one highlighted by circumstantial tensions. I am generally satisfied, however, that [X] would be safe from physical violence in the care of either of them. There is some evidence that the mother can be emotionally and inappropriately critical of the father in the presence of child and as evidenced by the report from a mobile Contact Centre. I am satisfied, however, that this is just a factor of the mother's personality and unhappy relationship with the father but does not make her innately dangerous to the child.
S60CC(3)(l) – whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings in respect of the child
It is, of course, the aim for this Court in making prospective orders that the parties move forward armed with those orders and the reasons which ground them so as to cooperatively parent their children. For this to occur the mother and the father need to desist from emotional responses to each other. They do not at this stage present as having any reasonable degree of co-operation, trust, respect or communication and such will always lead to the possibility of further proceedings.
Secondly, I remain concerned as to the lack of particular and detail in the mother's alternative proposals for her care of [X]. If I am correct in assuming a lack of informed thought in the mother's proposals then there also remains a possibility for further litigation.
S60CC(3)(m) – any other fact or circumstance that the court thinks relevant
Not applicable.
Findings and Conclusions
Taking the evidence as a whole, I accept the observations of the family reporter [12.1] that [X] is a child who is developing well in all respects. I am satisfied that she has established, comfortable and happy relationships with each of her parents. This finding in itself argues against the allegations made by each parent against the other of significant family violence including to the child. I am, however, easily persuaded that the personal relationship between the parents was, and remains, antagonistic, suspicious, and essentially non-communicative. Consequently, it seems that [X] is a robust child and able to have developed these relationships with each of her mother and her father despite, rather than because of, the nature of the parents’ personal relationship.
I am not satisfied to the requisite standard of proof that the father has harmed [X] in the terms of the mothers' assertions. In particular, I retain serious concerns as to the veracity of the mother's evidence in respect of the suggestion/allegation of sexual abuse perpetrated by the father on the child. The mother's reporting is, at best, inconsistent. Frankly, the mother's retreat during the course of the trial in maintaining her factual assertions in respect of possible sexual abuse by the father on the child whilst no longer urging a finding of fact or even a finding of 'unacceptable risk' is simply incongruous in respect of the protective obligations of a mother over a young child. This mother was not a good witness. Her evidence was in many ways unsatisfactory and this is a prime and disturbing example.
Similarly, I am unable to make findings of fact in respect of the mother’s allegations of family violence perpetrated on her by the father. Her attempts to obtain admissions from the father by way of clandestine recordings was singularly unsuccessful. Indeed, that evidence served more to demonstrate a relatively calm demeanour of the father. I note again, but without any particular findings, that the police took out an intervention order with the father as to the protected person and despite the complaint being made by the mother.
Similarly, however, I am unable to make findings to the requisite standard of proof in respect of the father's allegations against the mother of family violence. The mother maintained her denials. There is no corroboration of the father's assertions of any persuasive for probative value.
I am able to find, however, that these two parents endured a high level of conflict, animosity and argument during the course of their relationship. I suspect that this was in a large part caused by their personality differences. I am satisfied generally from the evidence given and adduced and from my observations of the mother in the witness box that she is of highly emotional and, at times, volatile temperament. There is persuasive evidence to suggest that she endured emotional/mental health difficulties following [X]'s birth and received some treatment albeit that she did not disclose the nature of these conditions to even her own family. I am satisfied that the mother’s temperament has contributed to her acting inappropriately in respect of [X] at times and notably when a mobile child care facility felt obligated to cease contact with the mother, due to inappropriate comments about the father.
I note, however, that the mother continues her association with the psychologist who, despite my concerns as to the objectivity of her evidence, is positive as to the mother's mental and emotional health. I note also that the mother holds down responsible the employment. Consequently, and whilst there remain historical concerns in respect of the mother's emotional health, temperament and the veracity of her evidence accordingly, I am generally satisfied that she is currently capable of caring for [X]. I also note the father's current position being that the long-term supervision of [X] in the mother's care is no longer necessary.
The evidence easily persuades me that the mother and the father each remain critical, vigilant and suspicious of the other. This is not a good recipe for any co-parenting regime.
The mother’s proposal for a shared-parenting arrangement also suffers by reason of lack of detail and particulars. She adduces no evidence from her employer. Her work hours in Town A sit uncomfortably with [X]'s school hours. Even more pointedly, the mother’s alternative proposal of spending her off-work-days in Town D are devoid of particulars and of any support network and her roster does not seem to coincide with the five-day school week.
I am generally satisfied as to the capacity of the father. He has cared for [X] since the parties’ separation in November 2016. I accept the mother's assertions that he requires the assistance of his own mother due to his work commitments. I am not satisfied, however, that he delegates to the paternal grandmother other than out of necessity because of that work. In any event, the family report easily satisfies me that [X] has a comfortable relationship with both her paternal grandparents and this is a situation in which she has apparently flourished now for more than two years.
Despite my concerns in respect of the parents’ ongoing antagonistic and untrusting relationship, I am of the view that there should be an order for equal shared parental responsibility regardless of whether the presumption at section 61DA applies. That is, I am easily satisfied that there has been a form of violence mutually between these parents within the broad definition of the Act but I am not satisfied as to the extent or particulars of the assertions made by each of the parties. Nevertheless, [X]'s relationship with each of her parents is positive and dependent. The fact that the parents are currently unable to easily communicate, does not, in my view, relieve them of the obligations of parental responsibility. That is, they have a duty towards their daughter to compartmentalise their own residual personal difficulties and attempt to co-operatively parent [X]. I am gladdened by the fact that each of the mother and the father in the witness box expressed some hope that they are able to move forward in this regard. Parental responsibility is a consultative process. It requires a prima facie commitment to a child's best interests. I have no doubt that each of these parents, in his and her own way, exhibit that commitment. As such, I consider it in [X]’s best interests that there be an order for equal shared parental responsibility and expect the parents to maturely discharge those obligations accordingly.
Given that I intend to make an order for equal shared parental responsibility then I must consider whether it is in [X]'s best interests and reasonably practicable for there to be an equal time arrangement between the parents? This is, of course, the mother’s fall-back position. I am not so satisfied. Despite my comments as to the parents consulting and exercising equal shared parental responsibility, the day to day care of a child is an entirely different proposition and presents different challenges to parents. It is trite to say that Courts are loath to make an order for equal time for a child between parents unless those parents show a high level of co-operation and communication. These parents do not demonstrate these capabilities. They remain mutually critical and distrustful. The mother's evidence in Court, in particular, suggests to me that she remains entirely antagonistic towards the father and his family with little or no inclination towards co-operative parenting.
[X] is still a young child and negotiating the important milestone of her first years of school. She has lived with the father within that broader family unit all of her life. She has thrived on the stability and routine offered her rather by that family.
The mother's primary proposal would bring a significant change for [X]. She would move to live with the mother without any evidence of a support network for the mother in Town A. The mother’s work commitments are prima facie inconsistent with the easy management of [X] from home to school. [X]'s relationship with the father would change dramatically from she being in his primary care to one of visits each second weekend and school holidays. The mother remains overtly critical of the father with relatively recent evidence of her propensity to publicly criticise him. My observations of the mother in the witness box cause me to retain some concerns as to her emotional stability and despite the positive report from her psychologist.
The mother’s proposal for her to move to Town D in her non-work roster time is devoid of particulars and, as such, leaves me with concerns as to its reasonable practicability.
In all of those circumstances, I am not satisfied that a regime of equal or even 'substantial and significant' time for [X] with the mother is in the child's best interests or reasonably practicable.
As such, I am satisfied that [X]’s best interests are served by her remaining living primarily with the father and spending time with the mother at Town A. The geographical factors and [X]’s schooling preclude any regime other than [X] living primarily with the father and spending each second weekend and school holiday time with the mother. Consequently, there will be orders for equal shared parental responsibility of [X] and that [X] live with the father. There will be an order that [X] spend time and communicate with the mother for each second weekend and for one half of school holidays. I will make provision for time between the parents on Christmas Day, Mother's Day and Father's Day. There was a suggestion that I order the mother to continue with counselling. I note, in any event, that she continues to engage with her own counsellor and where I maintain some concerns as to the objectivity of that particular counsellor, I do not intend to make any actual orders obligating the mother. There will be an order restraining each of the parents from denigrating the other to or in the presence of [X].
I certify that the preceding one hundred and fifty three (153) paragraphs are a true copy of the reasons for judgment of Judge McGuire
Date: 7 March 2019
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