FAMILY COURT OF AUSTRALIA
| Cartwright & Wilson | [2011] FamCA 939 |
| FAMILY LAW – CHILDREN – Equal Shared Parental responsibility; Substantial and significant time; With whom a child lives; With whom a child spends time; Family violence; Allegations of child sexual abuse not substantiated. |
| Family Law Act 1975 (Cth) |
| Briginshaw v Briginshaw (1938) 60 CLR 336 McCall & Clark (2009) FLC 93-405 Mazorski & Albright (2007) 37 Fam LR 518 G & C [2006] FamCA 994 Blair & Blair [2007] FamCA 253 Kennedy & Kennedy [2007] FamCA 1221 Goode & Goode (2006) FLC 93-286 |
| APPLICANT: | Ms Cartwright |
| RESPONDENT: | Mr Wilson |
| Independent children’s lawyer: | Ric Gonzalez |
| FILE NUMBER: | PAC | 6495 | of | 2007 |
| DATE DELIVERED: | 14 December 2011 |
| PLACE DELIVERED: | Parramatta |
| PLACE HEARD: | Parramatta |
| JUDGMENT OF: | Collier J |
| HEARING DATES: | 22, 23, 24 and 25 November 2010; 10, 11, 12 and 19 May 2011 |
REPRESENTATION
| COUNSEL FOR THE APPLICANT: | Mr Lloyd, Mr Wong |
| SOLICITOR FOR THE APPLICANT: | Kasey Pearce |
| COUNSEL FOR THE RESPONDENT: | Ms Harris, Mr Gersbach |
| SOLICiTOR FOR THE RESPONDENT: | Cathy-Ann Grew |
| COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: | Ms Barnett |
| SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: | Gonzalez & Co |
Orders
That all previous Orders be and are hereby discharged.
That the parents, Mr Wilson and Ms Cartwright, have equal shared parental responsibility for the child, B born … 2005.
That each parent is to have responsibility for making decisions as to the day to day care, welfare and development of the child whilst the child is in that parent’s care.
That the said child live with the mother.
That the said child spend time with the father as follows:-
a.If the time is to be spent in Canberra:-
i.During school term each alternate weekend from after school on Friday until 6.00 pm on Sunday, extending to 7.00 pm during E.D.S.T.
ii.The father is to collect the child from school at the commencement of each such period and return the child to the mother’s place of residence at the conclusion of each such period of time.
iii.The first period of time shall commence on the second Friday after the commencement of the first school term in 2012.
b.If the father acquires accommodation and his time with the said child is to be spent in the C Region:-
i.During school term from after school Friday to before school on Monday, extending to Tuesday in the event of a long weekend, for the first two weekends in every three week cycle.
ii.The father is to collect the child from school at the commencement of each such period of time and return the child to school at the expiration of each such period of time.
c.For the purpose of the immediately preceding Order, that the first period of such time shall commence on the weekend next falling not less than seven (7) days after the father notifies the mother in writing of the address of the premises in the C Region where he will spend time with the child.
d.During school holiday periods falling between terms 1 and 2, 2 and 3 and 3 and 4, the father is to spend time with the child for one half of all such school holiday periods as agreed between the parties, and failing agreement, for the second half in even numbered years commencing in 2012 and the first half in odd numbered years commencing in 2013.
e.During the December/January school holiday periods, the father is to spend time with the child for one half of all such school holiday periods as agreed between the parties, and failing agreement, for the second half in the 2011/2012 holiday period and each alternate holiday period thereafter, and for the first half in the 2012/2013 holiday period and each alternate holiday period thereafter.
f.For the purpose of the immediately preceding Order, the father shall collect the child from the mother’s place of residence at the commencement of each such school holiday period and return the child to the mother’s place of residence at the conclusion of each such period of time.
g.That the father’s time with the child during school term shall recommence:-
i.On the first weekend of school term where the father spent time with the child for the first half of the immediately preceding school holidays; and
ii.On the second weekend of school term where the father spend time with the child for the second half of the immediately preceding school holidays.
h.For the purpose of these orders:-
i.The first half of school holiday periods shall mean the period commencing at 10.00 am on the morning immediately following the last day of term, and concluding at 6.00 pm, extending to 7.00 pm during E.D.S.T., on the day marking the midpoint of that holiday period; and
ii.The second half of school holiday periods shall mean the period commencing at 10.00 am on the day marking the midpoint of that holiday period and concluding at 6.00 pm, extending to 7.00 pm during E.D.S.T., on the Saturday immediately prior to the commencement of the next ensuing school term, extending to Sunday in the event that Monday is a pupil-free day.
i.In the event that the child’s birthday falls upon a school day then the father shall spend time with the child from after school until 7.00 pm.
j.For the purpose of the immediately preceding Order, the father shall collect the child from school and return the child to the mother’s place of residence at the conclusion of such period of time.
k.If the child’s birthday falls upon a weekend or during a part of school holidays when the father is not spending time with the child, then the father shall collect the child from the mother’s place of residence at 3.00 pm and return the child to the mother’s place of residence at 7.00 pm.
l.In the event that Father’s Day falls on a weekend when the father would not otherwise spend time with the child, then the father shall spend time with the child, otherwise in accordance with these Orders, on the weekend during which Father’s Day falls and will not spend time with the child on the next occasion that would otherwise be his time with the child.
m.In the event that Mother’s Day falls on a weekend when the mother would not otherwise have the child with her in accordance with these Orders, then the father shall not spend time with the child on that weekend but shall spend time with the child, otherwise in accordance with these orders, on the next immediately following weekend.
That the parent with whom the child is not living, or spending time, on the 25 December in any year, shall spend time with the child from 7.00 pm on 25 December until 7.00 pm on 26 December.
That the parent with whom the child is to spend time pursuant to the immediately preceding Order, shall collect the child from the other parent’s place of residence at the commencement of such period and shall return the child to that place of residence at the conclusion of the period of time.
That the child shall have telephone contact with the party whom she is not living with or spending time with, as follows:
a.When the child is living with the mother, telephone contact between the child and the father shall occur each Tuesday and Thursday; and
b.When the child is spending time with the father, telephone contact between the child and the mother shall occur each Saturday.
That, unless the parties shall otherwise agree, the child shall remain enrolled at, and attend, C Region School. The father shall pay school fees in respect of the child’s schooling at that institution promptly as they fall due and payable.
That the parties each sign all documents and give all authorities to ensure that the father receives all documents that would normally be received by a parent of a child attending that school. Any additional costs thereby incurred shall be borne by the father.
That both parties shall be entitled to attend upon all school functions normally attended by parents of children at that school.
That both parties shall at changeovers, at any school function or in any situation when they shall find themselves in the company of each other deal with the other in an appropriate, non-abusive and non-threatening manner.
That, save and except for the purpose of collecting and returning the child from and to the mother in accordance with these Orders, the father shall not approach or enter upon any premises from time to time occupied by the mother.
That the mother shall not discuss with the child or any other person the father or members of his family in the presence or hearing of the child.
That whilst the child is in the household of either party, that party shall not denigrate the other party, or family members of the other party, in the presence or hearing the child, nor permit, cause, allow or encourage any other person to do so.
That the mother shall not in any discussions with the child or in the hearing or presence of the child make any reference to the sexual abuse allegations nor shall she refer to the prospect of the father being imprisoned.
That each party shall keep the other informed of their residential address or residential addresses and telephone numbers, both landline and mobile as the case may be. In the event of any change, the party affecting such change shall notify the other party in writing within seven (7) days of such change.
That the mother shall not permit, encourage or allow the child to refer to any person other than the father as “Daddy” or “Dad” or any other diminutive or nickname for father.
That the mother commence, undertake and complete an appropriate course of therapy with a counsellor or psychologist. If referred by a medical practitioner, the mother shall consult a psychiatrist for assistance in dealing with her fears.
That both parties enrol in, participate in and complete a program, Parenting after Separation, or such similar course or program as soon as can be arranged, and in the event such a program is not available, then such other course as recommended by the Independent Children’s Lawyer. This order does not require the parties to attend upon the same course at the same time.
That if either party is to remove the child from their current residential address, and in the father’s case this would include either his Canberra or C Region address, for a period of longer than seven (7) days, that party shall notify the other party of such intention together with an itinerary.
That each of the parties shall ensure that a photograph of the other party is kept and maintained in the child’s bedroom or room occupied by the child in that parties’ home.
That the mother make the child available to the Independent Children’s Lawyer within seven (7) days of the date of these Orders for the purpose of the Independent Children’s Lawyer explaining the nature and effect of these Orders to the child.
That all outstanding applications and cross applications be and are hereby dismissed.
That all issues be removed from the pending cases list.
That all material produced upon subpoena be returned not before fifty-six (56) days from the date of these Orders.
IT IS NOTED that publication of this judgment under the pseudonym Cartwright & Wilson is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
| Family Court of Australia at Parramatta |
FILE NUMBER: PAC 6495 of 2007
| Ms Cartwright |
Applicant
And
| Mr Wilson |
Respondent
REASONS FOR JUDGMENT
INTRODUCTION
This matter concerns the parenting arrangements for the child, B, born in 2005, currently 6 years of age. The matter is one of some difficulty. The mother asserts a belief that the child has been sexually abused by the father. However she asserts that there should be different orders in the event that the Court is satisfied that abuse occurred to orders that might be made where the Court is not so satisfied. Additionally the mother asserts there has been domestic violence in the relationship between herself and the father.
As I have said, the mother’s application is in the alternative. That which the mother seeks is dependent upon the findings the Court makes in relation to her allegations of sexual abuse.
The mother seeks that the child live with her and, if the Court finds that the father has sexually abused the child then the father should spend time with the child only on a supervised basis. Alternatively, the mother seeks to resume previous orders if the Court is not of the view that abuse has occurred or that there is a risk of abuse that would require supervision.
The father seeks that the child live with him. He had indicated that he sought sole parental responsibility for educational matters, and that otherwise the parties have equal shared parental responsibility. He subsequently resiled from this position and sought that he have sole parental responsibility in all respects for the child.
There were proceedings between these parties in the Federal Magistrates Court. On 9 May 2008 Chief Federal Magistrate Pascoe made orders to the effect that the child live with the mother and spend time with the father on a graduated basis, that the mother have sole responsibility for making decisions about the long term care, welfare and development of the child.
The mother asserts that the child made statements to her which indicated to her that she, the child, had been sexually abused by her father. The mother thereafter refused to allow the father to spend any time with the child.
Subsequently, interim Orders were made for the child to spend time with the father, supervised by his parents.
BRIEF BACKGROUND
The mother was born in 1980 in Australia. She is currently 31 years of age.
The father was born in 1979 in Country D. He is currently 32 years of age.
The child, B, was born in 2005. She is currently 6 years of age.
The parties separated on 30 November 2005.
On 9 May 2008, final parenting Orders were made by Chief Federal Magistrate Pascoe. The Orders required the child to live with the mother and time to be spent with the father on a graduated basis.
On 20 November 2008, the mother received a call from the child, while the child was spending time with the father. The mother stated that she could hear the child crying hysterically. The mother then contacted the father, and believed the father was intoxicated due to the father’s slurred speech. The mother contacted the police and the police found the child to be safe and the father appeared to be sober.
On 4 May 2010, the mother asked the child in regards to why the child’s vaginal area is “always red and sore”. The child stated that “Daddy plays with my fanny” and that “(h)e pokes me with his dick”.
On 5 May 2010, the mother made a statement at the E Town Police Station.
On 7 May 2010, the child was interviewed by the Joint Investigation Response Team at F Town. The police officer and an officer from the Department of Community Services informed the mother that the child did not make any disclosure about any form of abuse.
On 8 May 2010, the mother and the child had a conversation about the claim, with the child reiterating that the claims were true. Similar conversations were recorded on 10 and 20 May 2010.
On the evening of 20 May 2010, the mother contacted the father and informed the father that the child will not be spending or contacting the father anymore, as a result of the child’s claims. This was the first time the father learnt of the sexual abuse allegations.
On 28 May 2010, the mother videotaped the child and the maternal grandfather discussing the allegations.
On 26 August 2010, Justice Stevenson made interim Orders which provided the father to spend time with the child on weekends and on Wednesday afternoons on the provision that his parents supervise.
On 29 August 2010, the child, following questioning from the mother, suggested that she was joking about the allegations.
THE PARTIES’ APPLICATIONS
The mother filed her Initiating Application on 22 June 2010. She filed an Amended Initiating Application on 18 November 2010.
The father filed his Response to Initiating Application on 25 August 2010. He filed an Amended Response on 9 November 2010.
THE PARTIES’ DOCUMENTS
The mother relied upon the following documents in support:
•Affidavit of mother sworn 16 November 2010 and filed 18 November 2010;
•Affidavit of Mr G Cartwright sworn 18 November 2010 and filed 22 November 2010;
•Affidavit of Ms H sworn 18 August 2010 and filed 24 August 2010. In any event, Ms H was not called and her affidavit not relied upon.
•Affidavit of Mr J sworn 19 August 2010 and filed 24 August 2010;
•Notice of Child Abuse filed on 22 June 2010.
The father relied upon the following documents:
•Affidavit of father sworn 25 February 2011 and filed 28 February 2011;
•Affidavit of father sworn 5 November 2010 and filed 9 November 2010;
•Affidavit of father sworn 5 November 2010 and e-filed 12 November 2010;
•Affidavit of Ms K sworn 1 November 2010 and filed 9 November 2010;
•Affidavit of Mr L sworn 16 November 2010 and filed 18 November 2010. In any event, Mr L was not called and his affidavit not relied upon.
•Report of Dr M dated 29 October 2010;
•Magellan Report dated 5 August 2010 and released to the parties on 6 August 2010.
The Independent Children’s Lawyer relied upon the following documents:
•Report of Dr M dated 29 October 2010.
THE MOTHER’S CASE
The mother sought parenting orders for the child to live with her. The mother sought that the father have supervised time with the child if the Court finds that the father has sexually abused the child. If the Court is unable to make that determination, then the mother seeks the previous orders be reinstated (which, in effect, was unsupervised time).
The mother asserts her belief that the child has been sexually abused. She believes that the father interfered with the child’s vagina and dealt with her inappropriately. The mother asserted that on various occasions, from February 2008 to May 2010, the child returned from the father’s residence with a red and sore vaginal area. The mother also recorded an occasions when the child returned from the father’s care with stained underpants, which the mother asserted was “unusual”.
The mother asserts that the child first disclosed allegations of sexual abuse on 4 May 2010 to her. According to the mother’s affidavit, the child told her that “Daddy plays with my fanny”. Despite the fact that the child did not make a disclosure when interviewed by the Joint Investigation Response Team, the mother still believed that the father did “something” to the child and is a risk to the child’s wellbeing.
According to the mother, the child would display signs of reluctance and stress before spending time with the father. The mother also believes that the child’s attitude towards the father is one of fear. The mother has noted times when the child would contact her from the father’s residence and she would be crying or screaming. The mother does concede that after March 2009, the child’s attitude towards the father appeared to be more “positive”. However, there were still recent instances of when the child showed dislike towards the father. The mother claims the child said she does not want to spend time with the father.
The mother is concerned about the child’s safety, based on the relationship of the parties. The mother claims that their relationship was violent, particularly after the mother became pregnant. The mother alleges that the father would abuse her both physically and verbally.
She claimed the violent nature of the relationship was further escalated by the father’s consumption of alcohol. She reports that the father would choke her and throw her to the floor. The mother is concerned as to the father’s behaviour if he were to spend time with the child.
THE FATHER’S CASE
The father, as I have said, sought at the conclusion of the hearing to have the child live with him.
The father proposes that he and the child would live in Canberra. However, he will return to the C Region area at weekends if the child remains with the mother, and there is an order for him to spend time with the child. He considers that his primary application that the child live with him is the best solution for her.
The father denies the allegation of sexual abuse. He asserts that there has never been any improper conduct of any sort by him towards his daughter.
The father asserts that the mother has influenced and “poisoned” the child, and the child’s behaviour, in an attempt to weaken and destabilise the father’s attempts at building a solid relationship with the child. He alleges the mother informed the school about the parties’ current issues and disputes, which he believes has further tainted his relationship with his daughter.
Despite recent history, the father claims that the relationship of father and daughter is quite positive. Notwithstanding this, the father believes the child is alienated against him. The father does concede that at changeovers the child would display signs of distress and fretfulness, but he says these signs ease once changeover is completed. The father asserts that the mother’s constant animosity towards him has escalated the child’s behavioural difficulties.
As a result, the father is deeply concerned about the welfare of the child, including the child’s distress and disobedience. The father believes that because the child is a single child, she has been spoilt. If sole parental responsibility was given to the father, the father intends to manage the child’s behaviour with the assistance of a counsellor or by undertaking a certificate course in child psychology.
The father did not spend any time with the child from 3 May 2010 until late August 2010.
THE HEARING BEFORE ME
In the first part of the hearing before me, I heard evidence from the mother, her father Mr G Cartwright, and from the father whose evidence was not completed on that occasion. The matter had been listed for four days from 22 November until 25 November 2010, however at the commencement of the fourth day, counsel for the mother became ill and could not continue to appear. Thus, on the last day of that part of the hearing, I heard evidence from Dr M, the Chapter 15 Court Expert, on the issue of interim orders. On that day, I made interim Orders.
The matter was then adjourned to 16 March 2011. Again, by reasons of unavailability of counsel through illness the matter was not able to proceed on that day. The matter was fixed for hearing on Tuesday 10 May 2011. It proceeded on the 10th, 11th and 12th of May and was finalised on 19 May 2011. Counsel for both of the parties changed between the two sets of hearing dates. Mr Wong commenced to appear for the Applicant mother and Mr Gersbach for the Respondent father. Ms Barnett continued to appear on behalf of the Independent Children’s Lawyer.
In addition to submissions made on the last day of the hearing, the parties were given the opportunity, upon receiving a transcript, to make further submissions in writing as they chose. In fact, each of the parties and the Independent Children’s Lawyer did provide written submissions.
When the matter proceeded on the second occasion of hearing I heard evidence from the father, Dr M, the mother, Mr J, Mr G Cartwright and Ms K.
As identified, a very significant issue in this case is whether or not the Court can make a positive finding, or a finding of unacceptable risk, in respect of the allegations that the mother makes concerning the father’s alleged sexual abuse of the child. Indeed, this is the corner stone of the mother’s case.
THE EVIDENCE BEFORE ME
The mother
The mother’s evidence before me in chief was that the child had spoken to her about her father playing with her fanny, and poking her fanny with a toy frog. The mother says the child reported telling the father to stop but he did not.
She indicated that she sought from the Court a finding that the sexual abuse she alleged had occurred. Her position was, by the time her evidence concluded, that if there had been sexual abuse, any time with the father should be supervised and if it (sexual abuse) had not happened then there should be a reversion to existing orders. She said that she now realised that the Court may not be able to make a positive finding one way or the other. She said that if the Court could not make a finding that it had not occurred there should be time, but not overnight. She thought that some supervision would be appropriate.
It was put to her that Chief Federal Magistrate Pascoe had found that she removed the child without the father’s consent and that she had limited the father’s time. She said that she had not read His Honour’s Judgment.
She went on to assert that she had done all she could to encourage the father/daughter relationship, that she did not “bad mouth him”. She said that she was now convinced that the father was genuine in having a relationship with their daughter.
It was put to her she was not happy with Chief Federal Magistrate Pascoe’s Orders and she said she was. Nonetheless, she still kept a diary just in case. She said she was not trying to interfere with the father/daughter relationship. She asserted that the child was toilet trained at 3½ years of age.
She said in May 2010 the assertions made by the child were that “Daddy played with my fanny” and “poked me with his dick”. She said the child was sad. She did not involve any medical practitioner up to the 3rd of May as she thought the father was not cleaning the child properly. Now looking back, she believes there may be some indication of abuse. She said in respect of some stained panties of the child’s that she took photos of everything. She thought that the stains may have been indicative of something because little girls do not have discharges. It was suggested that it may have been thrush, she said that she had never investigated that prospect.
She said she had been documenting the father’s lack of parenting skills, which she had done just in case.
She asserts that when the child said adverse things about the father, she said to the child that this was not true. She said the child said on one occasion that she does not know what occurred. She went on to assert that the child had difficulty distinguishing between the truth and a lie.
Before May 2010, the mother was concerned about the different parenting styles of the father and herself. She said that when the child said “Daddy was naughty”, she responded “I’ll sort it out”. She said that she had formed the view that the father had abused the child. She does not agree with the contents of Mr Wong’s notes. She said that she did not ask the Dr M to physically examine the child. She never rang the Department of Community Services. When asked about the difference between a diary entry and paragraph 94 of her affidavit, she said she recalled she did ask the Department about the truth.
She concedes this was not recorded in the diary and says that she has recalled things that were not recorded in the diary. She said that there was a report from the Joint Investigation Response Team, however, she was sure that something had happened and that the child had been inappropriately touched by the father. She asserted that the Joint Investigation Response Team had said the case was suspended and they were seeking to establish if the allegations were true.
She said she wanted someone else to hear the child’s disclosure. The child spoke about it most days. She thought if the child wanted to tell her the child would. She said she filled in the blanks.
She said she made excuses for the child not seeing the father such as the child being sick so as to give herself time to prepare. When there was no contact from the father on 21 May, she thought this may have been a confirmation of guilt.
She said that she had childcare qualifications. She was consumed with worry. It was put to her that she was consumed with obtaining evidence, which she denied. As to the video, she now understands that stopping the video affected the integrity of it. As to the first stop, she said this was because she told the child to stop being silly. The video was stopped because the child was not disclosing. When the videoing continued, the child was saying she was poked.
When the child first told the mother “Daddy was naughty”, the next day the child went to school then to the medical centre then the police. It was suggested to the mother that this was not what appeared in her diary.
To the Independent Children’s Lawyer, the mother said that a possible explanation for the stopping and resuming of the taping was that she had said something to the child in the break. She said that she now realised it was an error on her part to ask questions in that way. She did not take the tape to the police. She agreed it was taken for the purpose of showing it to police but this was never done. The video was something to show that the child had said it. It was put to her that the video had been obtained to bolster her case and she denied this. I do not accept that to be so.
She said she had been in touch with a lawyer before that time. A friend had told her to video the child. She said it made sense to her at the time. She said she had no expertise.
She said that she was aware that members of the Joint Investigation Response Team had special qualifications.
The mother said her child was making a thrusting motion and that the child was speaking of a toy frog. She conceded that this was open to interpretation and was not necessarily indicative of sexual abuse.
The mother said at the time that she believed there should be no contact between daughter and father, but she has changed her mind. She said that father and daughter need to see each other and that there had been some good times for them together recently. She did not know if the allegations of abuse or the fact of abuse were true or not.
She said she would continue to keep a diary. She said she uses a notebook and the entries she puts in it are selective. The diary is kept only in relation to child and father and was kept in case anything went wrong. She believed the Court would read the diary.
She read from the diary “Daddy punched me in the fanny. Nanny was there and said “Stop [Mr Wilson]”. She thought that this was a possible scenario. She did not think that the grandmother would have allowed it. She did not think that her daughter was saying it to please her. She said she thought there may have been a previous episode. She had not discussed the episode with her daughter.
It was put to the mother that she has developed a negative view of the father. She said she has formed a dislike of him and the child now has a view that daddy did a naughty thing. It was put that in her view the father’s time with the child was not a priority and she said that she had done all she could. She said that the child had a surprisingly good time with the father.
On 17 October 2010 the child had said she was punched on her tummy, not on her fanny. She said she is one little confused girl and knows what her grandfather and grandmother have said. The mother indicated that she believed that the child’s paternal grandparents had brainwashed her. She said it was just curiosity that made her ask the child what she had said to Dr M. She said that the child holds the belief that her father is naughty. It was put to the mother that Dr M had found she had an anxious attachment with the child. She was asked about paragraphs 82 – 87 of her affidavit. The child had said that she hated her father (paragraph 88 of the mother’s affidavit). It was put that this was inconsistent with the child’s observed behaviour.
The mother said that she can only go on what the child tells her. It was put to her that nothing could shift her view. The mother replied she doesn’t know if it happened or not referring to the sexual abuse. She said she would always have a suspicion but will move on, she needs to be positive. She said she had no suspicions until the disclosures was made. It was put to her that the language employed was beyond that of a 5 year old.
She indicated that the father’s silence when the accusation was put to him indicated guilt. The father had tried to respond but the mother hung up the telephone call.
It was asked what would satisfy her that it didn’t occur, she replied that for the Court to say nothing happened would satisfy her. She said she would be able to cope if the Court could not make a specific finding. She said that the father took the child to his girlfriend’s clinic to have her breathing tested. She could not recall if he had asked to have the child examined about a red vaginal area. It was put that he had asked her and that the mother had said that she did not take the child for such an examination. She said the child did not have dermatitis. It was put that as at 16 January 2008, the child had the history of a rash. It was put that when she and the child saw Dr M on 7 April 2009, she did not raise with Dr M anything to do with the child’s rash.
She spoke of allowing the father and grandparents to see the child and some changes or rearrangements made to times. It was put to her that a document annexed to her affidavit, namely annexure D, was a threat to involve the Department of Community Services and the Court. She said it was to scare the father in a way to take proper care of the child.
As to the child’s underwear it was possible but not likely the child had had a small accident. She said that she had telephoned a friend who had told her about staining. She said that the parties cannot communicate; they use email only. If the child were to attend C Region Grammar, which is the father’s choice, he must pay the fees. Asked if she had ever told the father that she had been sexually abused, she said this never happened. When asked if the father was living locally whether there could be week about time with the child, she said that she hoped the parties could be successful in communicating but did not think it would work for the child, she could not cope. If the father were to live locally she thought the arrangements would be probably the reverse of what they are now.
If the father was to remain in Canberra, she said that the child should not live with him. She was asked about school reports and suggestions that the child was slightly immature and it might be best for her to repeat a school year. She said that she did not know that the father was not aware of this. She said he could have had his own letter from the meeting with the teacher. The decision has now been made for the child to repeat, as the Principal and her class teacher think that she should. The child’s school report for semester 1 was a good report. The mother said stuttering came and went but it was getting better. She said that she did not believe that she had allowed the child to see her stressed.
To the Independent Children’s Lawyer, she agreed that the child had missed some 9 days of school. It was put that the mother had withdrawn the child from school on days that the father would normally collect the child and that she had continued to withhold the child until the allegations were proved or disproved. She conceded that they possibly did not happen. Her reference was made on 14 October to the father punching the child. She agreed this was not in her affidavit and could not provide an explanation for this. The mother said if the child were not at C Region Grammar School, she would go into Kindergarten at her new school.
She thought that undertaking a parenting course was a good idea, but she had taken no steps in this regard.
She said the father was resistant to “changing” the child and that he had only bathed her once with the Midwife and he had been awkward.
The next witness to give evidence was the mother’s father Mr G Cartwright.
Mr G Cartwright
He said he recalled the DVD and did not need to see it again. He had spoken to his daughter about her concerns and he said that he was aware the child’s undies were dirty and had not been changed for the entire weekend. He said the mother was concerned at the clothing of the child not being returned. He knew that his daughter had photographed the child’s undies but did not know why.
He said he had made notes on his computer. He said he had no entry for 15 February 2008 and the dates had become confused. He said when he heard what the child had said and said that he was a bit shocked, he did not want to believe it and was uncertain as to the truth of the allegations. He said between 6 May and 25 May nothing of substance was discussed. He was told things were not going well and the child was not disclosing and still would not talk. He said the purpose of the video was to have the child make a disclosure.
He said that he had been a public servant before retiring. Asked if he thought he was qualified to do what he did, he said he did it the best way he could.
He said that something had happened but the child would not say. Asked if looking back he had formed the view that the child being clingy was an indicator of abuse, he said not necessarily. He said the child would not go in his spa and that it all adds up, there was something there. He formed this view whilst speaking to the child. He said the child was aware the statement she had made was important. He said he was not aware what the mother told the child in his absence. He said the purpose of the video was to show her telling her story to other people. He said it was his ignorance that led to filming not being continuous for the whole of the period they were in the bedroom. He said we told her to tell the truth and no one would be angry if she told the truth.
It was put to him that he was requiring the child to tell him what she had told her mother. He said he knew the child would not tell her story to Child Protection. He agreed they are specialist workers with specialist skills. It was put to him that he told the child while the tape was running that he would not play with her until she had said what had happened. He wanted her to tell the same things that she had told her mother. The witness then agreed that he was totally unqualified to conduct such an interview.
As to the videotaping, he said that the child wanted to play so they had stopped and then the child had started to talk so they resumed filming. He thought the video was off on that occasion for about 20 seconds. It was pointed out that when the video stopped she was in one position and in a completely different position when filming resumed. It was put to the witness that he had been selective in his affidavit so as to establish the allegations truth, which he denied. It was put that he does not, in his affidavit, disclose what was said before filming, during the breaks in recording and what occurred after the filming.
The witness said he had made a judgment call as to what he should put into his affidavit. He did not agree that the video was of no value. He had endeavoured to get the child’s story across. He did it so that evidence would be available.
He then went on to say that he was naïve and did not do it properly. He was asked to think of the effect upon the child of making the video and he said it would have no effect on the child. This comment causes me to believe that he has little perception of what indeed the effect on the child of being involved in such a production would have been.
He said he had a conversation on 28 May with Mr O.
He said we wanted to hear the child’s story. He wanted to hear it to determine whether she was being truthful or not. He did not know what to make of it when the child said nothing happened.
He then agreed that if nothing had been done by the father, the interview would have had a negative impact upon the child. The witness conceded that if nothing happened then her relationship with her father needed to be rectified. He said he had accepted what the child had told him.
He said he wants to hear the father’s testimony. He has never spoken to him about the incident. If the Court cannot make a positive finding he said he can work from that point on. He said he will be listening very carefully to what the child says but he would not be looking for something that was not there.
He said he supports his daughter. He had never heard her bad mouth the father to the child. He agreed that the mother said tell Poppy what Daddy did. He said he wanted a semblance of truth.
To the Independent Children’s Lawyer, he said that after the video was made it was never made available to the police. The Department of Community Services were not notified that the video had been made. He agreed it may have helped if he had shown the DVD to the Joint Investigative Response Team. The video had been left with the mother. He did not think he had pressured the child. He agreed that the child knows her parents do not get along. She knows her mother is angry with her father.
The witness said that the child and her mother have a strong attachment. He said the child does not understand the repercussions of making allegations, and that the child’s reaction was a factor in forming his belief that abuse had occurred.
In relation to a changeover in June 2009, he said that the father had said “we are going now”. The child had been upset at changeovers before this time. It may be a case where changeovers should be quick. He said the child may be trying to back away when there are difficulties at changeovers. He said that he believed the child may have been swayed by her paternal grandparents.
He then said he believed the child had made the disclosures and could only believe what the child had told him. He said the child could have been coached. He again said he stopped the videotaping because the child did not want to talk. The child then started to talk so we resumed filming. He agreed that he and the mother had had a conversation but could not say if this occurred before the video commenced, or during a break in the videoing.
He said the child had become aware that attention had shifted away from her when he and the mother were talking to each other. He would not agree that the child likes to be the centre of attention. He agreed that in the video the child said when asked about the allegations “I don’t know”. There was a break because she wanted to play. The break lasted about 2 minutes and we turned the video back on when she was comfortable. He referred to the child moving her hips in a thrusting motion on the camera. He could not remember what had happened to start filming.
The next witness called was the father.
The father
He agreed there were difficulties in his relationship with his daughter and that she was telling him that she hated him, that she did not like him and he had done naughty things. His response was to say to her “I don’t think so, please don’t say that”. Alternatively, he ignored what the child has said. He has not discussed the matters with her and does not consider it appropriate to do so. He said the child had first said she hated him before the May disclosure, in around March or April. She had said that he had been naughty for the first time after the allegations were made, he thinks around 28 August 2010.
Order 10 of a previous set of orders reinforced his own belief that he should not discuss the child’s statements with her. He said he had no capability or opportunity to contact the child after the disclosures were made. He said he could have made contact before the disclosures but cannot remember if he did. He said following the disclosures he thought he would receive an angry email from the mother. This did not happen.
He said on 21 May he wrote a letter. He said he did not raise the allegations as he saw no point. He believed there was a concerted effort to remove him from the child’s life.
He had contacted E Town Police who said they would ring back.
He said that, as at the date of his evidence, his relationship with the mother was strained.
He said that the child needed both parents. He said he had acted so as to patch the relationship by giving her extra time. He said he can patch the relationship with the child and to this end he has experts on stand by. He has considered what he would tell her and had said that he would speak to a child psychologist.
He spoke of the last weekend when he had time with the child, and with both his parents present.
Questioned about the expert’s report, he said he did not know if he believed what was set out.
He was taken to the report where a reference was made to washing the child and those kinds of things. He could not remember what those kinds of things were. He had received an email from the mother saying the child should wear more clothes and acted upon it. He said the child had become sunburnt but it was not intentional.
He was asked questions as to the names given to the child’s private parts. The mother had sent an email referring to the vagina as “fanny” and “bottom”. He said the word fanny upset him and upset his girlfriend at the time. He said the word poo caused him concern.
I found this part of the father’s evidence very difficult to understand. Whilst he indicated that he was disturbed at the use of those words, he was not able to advance any reason why this was so.
Asked what if the child had used such language at school, he said he would brush it off and then seek help. Again, he said “fanny” was not acceptable. He said that the expression or description should be “private parts”. Further, he said he preferred that the expression “bum” not be used.
Asked about a time in the pool when he put her legs around his neck, he indicated that he removed the child and did not think it was necessary to give any explanation. He did not want to talk about these matters.
He thought that the mother was engaged in a campaign against him. He said it was a campaign by the mother to alienate him and to remove him from the child’s life.
He said he had consulted a psychologist following his brother’s death to help him deal with the loss, and later the sexual abuse allegations.
He said he had been told by the Joint Investigation Responsive Team that the allegations were that he put his hand in her genital area and poked her with his penis, that he played with her vagina with a toy frog.
He said he had been given advice by his psychologist to get a job and get legal representation. He said the allegation of putting his hands in the child’s vagina was complete rubbish. He said all allegations against him were rubbish.
He said the child had got out of the bath and dried herself. He was not in the bathroom. He made reference to his then girlfriend Ms P. Their relationship had finished in August 2009.
He did not know what would happen if the child got out of the bath and tried to give him a cuddle.
He said the child used to come into his bed before the allegations were made. He said the child had slept in a top bunk. He could not get up to be with her. He said the child had complained of a red vagina and his then girlfriend had applied cream. He said she was red on only one occasion.
The father said he trusted his then girlfriend’s judgment. He was not able to get in to see a Dr M. He described the mother as a “good mum” so far as her day to day care was concerned. However, he believes she puts her own desires first, particularly her desire to extract the father from the child’s life. The father alleged that the mother has psychologically abused the child. He spoke of the mother shamelessly leading the child into false allegations. Asked what he would do if the child was with him and complained of a sore vagina, he said he would take her to a Dr M and obtain a prescription.
He said in the situation if the child lived with him, the mother would first have one weekend in three and then most weekends as well as two thirds of school holidays with the child. He said that he would have the child apply her own cream.
He said that he was sensitive to sexualised behaviour. He was concerned at the dress of younger girls, the use of make up and jewellery and the fact of them showing too much of their bodies. He did not believe girls should wear make up. He was concerned about hairstyles and body piercings.
He had said that the mother’s boyfriend had tried to “stare him out” and that he had been holding onto a balcony rail in a confrontational manner. He said that the boyfriend was trying to get me to overact in numerous ways.
He described both the child and himself as being victims of this situation. The child as a victim of emotional abuse by her mother. He said this was because of the mother continuing to tell the child that her father is bad. He is concerned about being alienated from the child.
He said that Mr J had hit him in 2006, that he had called the police and was told to ring local police. He said his confidence had been affected and that he had rung the Minister about departmental action. He said he did not know why.
He spoke of working in a very specialised field. He said that if the child stays living with her mother in E Town that he would come back to spend time with her. Initially, he would stay at the Q Hotel and then he would obtain a property.
He says he earns $87.00 per hour and works five days a week. He said that in the last fortnight prior to him giving his evidence, he was paid after tax $4,700. He said there was no maximum or minimum as to time he could take off. He said if the mother was to have two thirds of the holidays, he would be available for the balance. He said he had signed an employment contract in about September and the type of work he does is available in the Australian Capital Territory or the Sydney Central Business District. He has been offered a job in Suburb R but said the Canberra job was more in his field of expertise.
He said his was a responsible job and he may need to work on weekends. However, he said he worked from home and the child would be with him at those times. He said his contract was for twelve (12) months with an employer’s option to renew. He said that if need be he could spend up to $250,000 to buy a two bedroom home at E Town.
He said he had discussed his brother’s death with the child. He said he was aware that the mother had complained about his drinking. He said he does not believe he has a problem with alcohol. He has used cannabis since 16 and has smoked with friends. At the time of giving his evidence, he last smoked two and a half months prior at a friend’s home in the C Region. He said that as at the date he gave evidence, he had no desire to return to using cannabis.
Asked if there were any difficulties of religious upbringing, he said yes. He said he was the more conservative of the two and more structured. He said he was a Christian and does not know the mother’s belief system. He did not want the child raised in any particular faith. He raised the suggestion that the parties attend Relationships Australia. He said that the mother had been verbally abusive to him and he had locked himself in the bedroom. He said he does not want to take the child from her mother. He said he was confused as to what was contained in his Application. He said he now wants the mother to have three weekends in four and two thirds of the holidays.
He said he wanted sole responsibility for the child’s education. He would intend that she attend S School, and he has spoken with that school. He has not discussed that school with the mother. He said if there were a major physical problem he would telephone the mother and hoped she would take the call. He still wanted supervision. He does not see the drive from Canberra to E Town and return as any problem. The drive is approximately two and a half hours.
Asked why he thought supervision was required for two months, he said he would be displeased if alienation continued. The child is hurting. He cannot answer why but he can observe she is hurting. He said the child feels the conflict around her.
That concluded the evidence on that day. On the next day, counsel for the mother was unable to continue due to illness. On that occasion and notwithstanding counsel’s absence, evidence was taken from Dr M in respect of the question of interim time as the matter had to be adjourned in any event. I do not propose to set out that evidence at this point.
The matter was then stood over until March. It was again not able to proceed because of the illness of counsel. The matter was then stood over until May and on that occasion continued with a change of counsel, Mr Wong now appearing for the Applicant mother and Mr Gersbach appearing for the Respondent father. The father continued his evidence. He was re-examined by his new counsel.
The father gave short evidence that he had spent time on four occasions with the child since the last hearing date and that they had spoken on the phone. He said that he had taken the child overseas at Easter to Country D for a week spent with his parents. He said that he was to attend a parenting course. He said his employment had changed and he now had a contract with the Australian Government. His hours of work were 9.00 am to 5.00 pm. However, he could take half of Monday or Friday off as required.
When cross-examined by Mr Wong, he said that he started work only the week before with the Australian Government. He did not have a copy of his work contract and did not know where a copy could be obtained. He said his employment is through T Recruiting. General hours were 9.00 am to 5.00 pm and that he could apply for time off by speaking to a Mr U.
He said he was not aware of the requirements for termination of his contract, he thought two weeks notice. He said there are plenty of places where he can work in Canberra but that there are not the same opportunities in Sydney. He was presently earning $82.00 per hour. He said in his affidavit he had been incorrect and the figure should have been $80.00 per hour.
He said he has compared Sydney and Canberra in this current year, that being 2011. He does not know if he could get a job in Sydney. He said that if the child lives with her mother, he will stay in Canberra and he will have a place in the C Region to spend time with the child. He had spent time with the child in Canberra each weekend, picking her up after school and returning her on Sunday night. He said he has returned her some Mondays and he thinks on one occasion, he was unwell. He said that in the future, if the child remained with her mother, he would not take her to Canberra but would rent a home for weekends. He would want most weekends with the child and would facilitate weekend time with the mother. He said that he had been to Country D twice with the child this year and the time in Country D was good. He asserts that the child and he are closely bonded but it is very strained. He said that the child has kicked and hit him when he had picked her up. She had screamed in the car and called him a liar.
He said that he had been told by a child psychologist that he should tell the child that he was not going to gaol. He said he did not know what she was talking about when she called him a liar.
He said that when the child is with him she gets upset when talking to her mother on the phone and will say “I love Mum best” and “I hate you”. He agreed it was natural for the child to miss her mother and says she misses her mother terribly. He said that an underlying element is the mother’s attempt to exclude him from the child’s life. He said the time is not improving.
He said that on the Friday prior, that is, to giving his evidence in May 2011, the child was extremely upset and said she did not want to go with him. She hid and run around. When he picked her up, she had kicked him. He said, however, that within two to three minutes of putting her in the car, she was fine. They then drove to Canberra.
He said the child finds the drive to Canberra difficult. It is approximately three and a half hours duration and the child finds it a long time but it is time spent together. He said the child likes things in Canberra. He said he has lived in WA and worked in Sydney. He said he was fixed in Canberra and would like the child with him up to the end of her high school. He lived alone. He was working for the Australian Government in Suburb V, which was a fifteen minute drive from his home.
He said that if the child was ill, he would take time off work or call his parents. He would consider the mother caring for the child in those circumstances. If he was unable to look after the child, he conceded she would be best with the mother. He said he would need the advice of a child psychologist. He said he has pushed so hard on the issue of co-parenting that he has lost sight of the objective. He said he is sick to death of the mother’s attitude. He said he saw value in joint therapy and indeed had asked the mother to participate in this for some five and a half years.
He acknowledged the difficulty for the child was that her parents could not get on as her parents. He said that whilst his Amended Response did not mention therapy, it was something that he would want. He was concerned that the situation of therapy would not be followed by the mother. He does not know whose fault this is but says that he is very little to blame. He said that he wanted the Court to order the mother to participate in therapy. He said the mother should have weekends and half school holidays. He said he would allow more if a therapist was satisfied. He is concerned that the false allegations of the mother will keep happening and sees Court as a waste of time and energy. He is concerned that the risk is that there will be more false allegations and he will have to spend money. It is wasteful. He cannot describe how he feels. He said he had heard the mother in cross-examination and heard her say it was no longer her view that there should be no contact with the father. He said this provided him with no comfort for the future.
He said he believed the mother wanted him out of the child’s life. He did not know what her attitude was towards his parents, he thought her dislike was only towards him. He said he does not know what was behind the mother’s actions when allegations were made. Parental relationship had been bad since separation. He again said that the mother wanted him out of the child’s life.
The father said he disagreed with the mother’s method of education. He said that informing a child of a name for a body part is an educational or sexual issue. He discourages use of the words fanny, poo and bum. He said his issue is the use of the words.
He said the parties cannot communicate by phone. He had endeavoured to communicate by phone but there had been few phone calls. He said that he has done nothing wrong. He said the child having her legs around his neck was not provocative. He perceived this as an attempt to set him up. He said in relation to this, he would use a child psychologist and counsellor to assist him. He said during phone calls the mother would divert the child’s attention.
He said he currently wanted to have the child live with him and spend restricted time with her mother. He agreed the child would find it really tough moving to Canberra and seeing her mother on a supervised basis. He said in relation to this, he would have professional help from a counsellor and child psychologist. He said he went to see a Ms W monthly and the child saw her ever 2-3 months on average. He says he has support from X School. He said he was concerned at the involvement of the mother’s parents and said that the mother has chosen to involve them.
He said he does not want the allegations against him repeated and he does not want the child probed again. He said there appear to be no consequences for allegations being made. He is seeking orders to prevent the mother’s family from making allegations. He was unable to say if there was anything the mother could say or do to reassure him.
To the Independent Children’s Lawyer, he said he fears further allegations will be made if the child lives with him and sees the mother and her family.
He was asked what would happen if the child was unhappy and made similar allegations to school authorities. He was unable to answer. He conceded the child has a strong attachment to her mother, an attachment stronger than the child’s attachment to him.
Asked if the child was with him and had limited time with the mother, he said he did not know how the child would be affected. He said when the child is with him she knows she will go back to her mother.
He said the mother has made the expense of telephone calls an excuse. He said he has tried to overcome difficulties, he has suggested the use of Skype but the mother says it is not needed. He said he has used Skype with his parents. He said he has spoken with the child about cleaning her vaginal area referred to as “down there”. He said that he has no difficulty discussing vaginal discharge with the child. Asked about a rash he had observed, he said he could not get an appointment with a medical practitioner and had spoken to a pharmacist and was supplied a cream. This was a cream that his then partner’s child had used.
He did not tell the mother what he had applied. He said if he had to answer the child’s questions, he would consult an expert. He said there will be difficulties which he will overcome.
He said when the child is upset and missing her mother, he has the child write a letter to her mother.
He said courses he had undertaken had improved his time with the child. He said the time was much better since November. He said he had new skills to manage her behaviour.
He sees himself as a soft and loving father and the courses had brought out the best in him. He said the relationship the father and child had improved. He said the child’s attention span is increasing. Notwithstanding his time with the child had improved since November there was still a lot of problems, particularly at the point of pickup.
He said that he had thought he might get Ms W to be with him.
School pickups would mean that the child does not see her mother before going with the father.
The mother he believes tells the child that he is going to gaol and the child said “It is my fault”. The child further said that she was to blame because she had said those things and that is why she can’t see her father.
He tells the child that it is not her fault. He said that Joan, a counsellor or psychologist, told him not to go into great detail until some time after the hearing concludes.
He said that he has looked at properties in the Z Town area. He said he would have a place in the mountains and have a bedroom in Canberra.
He did not recall that he had told Dr M that he may have to return to Sydney. He said it was no longer viable that he return to Sydney and in that respect, he had changed his mind. He said that he has to repay his parents and he is financially drained. He said he was better off earning money that he could earn in Canberra to repay his parents and support the child. He agreed the change to Canberra would be tough for her. He said that in Sydney he would only be able to work part time. He said the jobs outside the Central Business District are hard to come by.
He said he had told Dr M of his concern of the child repeating Kindergarten. He said in the second half of 2010, the child had more than one in five days off when she was with her mother. He said that the mother had agreed with him as to the child repeating and this was dealt with by email.
He had spoken to a teacher and the Principal and that then agreed that it was appropriate for the child to repeat. Communication to the mother had been entirely by email.
After it was suggested perhaps the mother was extending an olive branch, he said no she does one thing then another. He believes her actions have been done for her to use and rely on in Court.
He said he had sent the mother an email about additional school fees and the mother had told him not to pay them. The mother said she was taking the child out of school and the father paid the fees as he wanted the child to remain at the school. He said that the mother has made it difficult for him to have a relationship with the child. She would not agree that he would pick the child up from preschool. Asked if he held a grudge, he said it was a very mild one more in respect of the mother’s actions and the effect of those actions rather than towards the mother as a person. Asked how he could promise the child’s relationship with the mother would continue if the child were with him, he said that the child could ring the mother as she wants.
He agreed that Dr M spoke of alcohol and drugs. He said that he had complied with the November 2010 Orders and whilst it was not difficult, he found it to be an infringement of his liberties.
He said he had Mr O ring the mother’s father about the allegations. He said his brother had died and he wanted to take the child to his brother’s funeral. Mr O had said he might be able to arrange something.
He had not noticed if the cream that had been applied had marked the child’s underpants. He said he had never inappropriately touched the child.
On re-examination he said he was unable to produce credit card statements. He said the contract for his employment was on the way. He said he has difficulties with the mother’s father and asserts that that person had followed him on the previous day.
Dr M was then called and affirmed.
Dr M
He was asked about the father’s alcohol consumption as referred to in paragraph 36 of his report. He said that the score of 16 obtained on the questionnaire indicated that the father was drinking more than he should and this was hazardous alcohol use. He said the father should be careful, that it was to be taken as a warning sign. He observed that the father was hypomanic and not hypermanic, that he was self-absorbed and that he may have an inability to complete tasks. He observed that the father was anxious. He said that the death of his brother was undoubtedly a stressful time. He reported the father as being fragile. He said a real concern was as to the father’s expression of anger, which could sometimes be explosive. He said the father did not hold a mild grudge but was really very angry towards the mother. He said this would not necessarily react upon his relationships.
As to the mother, he said she was upset, her attachment with the child was an anxious attachment. What caused him concern was that this could lead to dependency. It was difficult to separate the needs of the mother and child.
He observed there was difficulty in the child transitioning between parents.
Dr M said that the parents developed their own parenting styles.
As to paragraphs 136 and 162 of his report he said that the mother has to reconsider her situation as to the child being with the father. He said this was not required if there was some moderation of the mother’s position and attitude. Dr M said that if the mother cannot achieve this then there would have to be consideration given to the child living with her father.
Asked generally, he said his view was that it was more likely that the sexual abuse the mother fears did not happen. He said it was necessary for the mother to move on and the manner in which the child passes to the father must be supported by the mother.
The father he says has said that at pickup the child has displayed anger and even violence. Dr M saw telephone calls as a positive. He said that if there were to be pickups from the school the mother should not be present for perhaps a year.
He said that the child’s fears need to be settled, which he defines as a hard task.
There should be a photo of each parent in the other parent’s home.
He said that he was not keen for the parties to undertake therapy together that mediation may be of more use in the circumstances of this case.
He said the mother needed to acquire insight that for the child’s sake she must promote a workable relationship with the father.
Dr M said that both parties must endeavour to put a boundary around their feelings towards each other.
If the child were to move to live in Canberra, the losses which would occur would be difficult for her for at least six months. He said that if the child were with the mother and the father obtained premises in the C Region, it could be two weekends in three. He said the child needed to maintain her daily routines and activities. He said that if the mother can’t adapt then it may be necessary for the child to live with the father and once she goes to the father that would be an end of it. He said that if there were such a change to take place the mother’s anger would be overwhelming and supervision would be needed. Her parents would not be suitable. There would need be a period of approximately six months for the child to settle in.
He said that the child has a good time with her father and it is odd to observe the manner in which the child denies that. He said that he observed the father and daughter on 17 October at Suburb AA. He said the child’s statements were contradicted by her observed behaviour. He said that it could have been when the child first spoke to him that she may have been fearful because of her prior questioning by officers of the Joint Investigation Response Team. He was aware Joint Investigation Response Team found the child had no concepts of truth or falsehood. He agreed the Joint Investigation Response Team officers have some training.
He was concerned that when assessing the child that those officers found she did not know the difference between truth and a lie. He said that the child is a five year old child. Her response to the Joint Investigation Response Team is irrelevant to his (Dr M’s) investigation. Her statement was a deliberate distortion of reality. He said that it was quite possible that she was reluctant to discuss her relationship with her father. She was concerned as to consequences, that was the reason why she made a denial. The Joint Investigation Response Team officers asked about events that may not have happened. Dr M’s interview was concerned with events that did happen. It was easy for the child to deny that she had a good time with her father. As to paragraph 48 of his report, he indicated that each party had tried to present themselves in the best possible light and the other party in the worst possible light.
He said that the child has a distorted view of her father which could come from either parent. Most likely in this case that it is due to the influence of her mother and the mother’s agents. As to paragraph 134, the mother’s belief predated the allegations. She was concerned as to what he described as the father’s drinking and violence. He had regard to what the mother had said, as reported at paragraph 126 of the report.
The father told the child he was not going to gaol on advice from a child psychiatrist and he said this was unnecessary if the child had not raised the issue but appropriate if the child did raise it.
If a finding were made that the father has a tendency to blame the mother for the child’s behaviour, that will of itself be a cause for concern.
The father says he is not concerned that the Court awards or allocates proper retribution to parties who are untruthful.
Dr M said that both parties need to get some sense of the child’s needs and the father needs to get over his anger.
The Court could find there is a great deal of enmity between the parents, each as in his or her own mind reasons to dislike the other.
Dr M indicated that he had been shown and read affidavits by the father. He was asked if he held concerns that the mother had not embraced the need for change in her attitude. It was put to him the child was still saying negative things that could well come from the mother’s attitude. The child still asks “is Dad going to gaol”. Dr M said that the mother needs to dispel this image. The more drawn out this is the harder it is for the child. As to paragraph 104 of the report, Dr M was asked if the mother still believes sexual abuse occurred it would be very difficult for her to assist in promoting the child’s time with the father. It is very difficult for her to divorce her views. Her anxious attachment causes her to be overly protective. If untreated, it will lead to an enmeshed relationship.
Asked what could be done to assist the mother, Dr M said she needs educational and therapeutic components. Dr M described this as hard and taking a long time. Asked about paragraph 136 of his report, he said he thought at the time of interview the mother lacked insight and if this continues it will impact upon the child.
Dr M confirmed that the mother’s parents hold beliefs of abuse and this requires a change.
As to paragraph 155 of his report, Dr M said that it is inevitable, if the child’s belief set continues, she will see herself as a victim. It seems that the child is denying pleasurable feelings for her father. This may have a significant effect on her later in life. This may manifest in a number of ways.
As to paragraph 160 of his report, he said he did not observe anything to indicate sexual abuse by the father upon the child.
As to paragraph 162, he said the mother, at the time of interview, could not or would not change her views of sexual abuse.
Asked if there was to be a change in residence, he said it would be six months of supervised time with the mother then move to weekends and school holidays. He thought six months was a reasonable time to establish a good relationship with the father. To the Independent Children’s Lawyer in re-examination, he said that if the present situation continues and the mother continues to hold her beliefs this would further expose the child to risk.
The mother was then re-called by her counsel.
The mother
She said since the Orders of November 2010, the father had seen the child in accordance with those Orders and that extra time had been offered. The mother said she had suggested by email that the father have extra telephone time, but agreement could not be reached.
Asked about the father’s statement that he heard the mother say in the background to the child “tell him you don’t want to talk to him”, she said that the child sometimes did not want to talk to him.
She was asked about an episode when the child was making cupcakes. She said she made no attempt to ice those cakes while the child was on the phone. The phone call was expected. She said she had a limited time to make the cakes and that’s why it was being done at the time of the phone call.
She said she was not aware of the child hitting and kicking the father. She said she had never heard the child say that her father would go to gaol and said she has never mentioned this to the child. I find this aspect of her evidence somewhat difficult to believe and I will return to it later in these reasons for Judgment. She said that she never actually says anything bad about the father. This I also find hard to accept.
She said that the child can become upset about going to see her father despite her seeing the value in it. She said she definitely sees value or benefit in appropriate counselling and she has done a PPP course.
She referred to a telephone call by the child from Country D when the child became upset, which she believed was because the child was missing her. She denied she sent an email to the school and said it had been the school that had contacted her about school fees. She had told the school that the father was to pay the fees.
It was put to her that during the giving of her evidence, she had laughed and cried. She said that she found the experience stressful and emotional. She said she had not made any icing at the time of the cupcake episode. She said that she had not counted down to her daughter indicating she should get off the phone and come and assist her with the cupcakes. She did not recall the child talking about there being only so many left to be iced. She asserted the father made this up.
Shown a particular letter, she said she had never seen it before but had seen over the period a lot of lawyers’ letters. She was not made aware of letters of 15 and 17 March. Originally there had been a agreement about overnight time Fridays to Saturdays. She was not made aware of an affidavit of 25 February. She agreed that her partner was on affidavit. She confirmed that she and Mr J do not live together. She was at home when the school phoned. She said that Mr J comes to changeover from time to time as he is very much in the child’s life and has been since the child was two and a half years old. She said she and Mr J were looking to live together. She said when the child told her about what was said to have happened she went to the Dr M and took his advice and spoke to police. She said Mr J and her had discussed the episode after the child had gone to bed. She said she took the child to the Joint Investigation Response Team and Mr J was there. She described Mr J as mild and gentle, and said he has been alone with the child. He picks the child up from school. She doubted that he (Mr J) had spoken to the child about gaol. She said she and Mr J were very concerned about the allegations. She then went on to say neither Mr J nor she had mentioned gaol. She said her father was angry. She said she has now accepted that it probably did not happen and has spoken to her father.
The video was taken to obtain evidence. Ms H may have said something to her about a video. Despite being on affidavit, she had decided not to call Ms H as a witness.
She said that after the first part of the hearing she began to waiver. She said “I don’t think it probably did happen” when instructing lawyers. She had formed the view that the child not been the subject of sexual assault. This had occurred in the last month or so, that is before giving the final part of her evidence in the proceedings. It was put to her that she had not changed her view and she said she did not agree. In December 2010, he was taking the child for the weekend and said he was taking her to Canberra. The mother had indicated she believed she should be informed if he was taking the child out of the State. As to the contents of paragraph 9 of the father’s affidavit, she said that either he is making it up or the child is, and that she was not there. Asked by the Independent Children’s Lawyer if she believed the child was at risk of harm, she said she thought the father had issues of anger. She then said there was no risk of sexual misconduct. I record that this was the first occasion when she had said that there was no risk. She said that she had already made a decision when she heard Dr M’s evidence. She said she saw the value of therapy. She said that there were issues at the time of changeover, the child does not like Daddy and wants to stay with me. She agrees that she was highly anxious at early changeovers.
The mother said she had no clear recollection of the changeover on 27 November. She said the last time that the father collected the child from her at Easter, the child had responded well. She said on that occasion the father was on time, whereas he is often late.
She said that she had allowed the father extra time on a birthday. She said that she could not afford the set up costs for Skype. Asked why she had not notified the father before a specified date, she said it had just slipped her mind. In relation to the school fees she conceded that the father had paid the fees by a lump sum in March. The mother then conceded that the child support payments were in order, a payment having been made the day prior to her giving this part of her evidence. That payment was due on the 10th.
The video has not provided any assistance whatsoever. It is of no probative value.
The father has at all times denied any improper conduct, actions on his part.
Thus, in this present case, I am not satisfied that the mother has made out her allegation of sexual abuse.
Moreover, in the particular circumstances of this case, having regard to the evidence, and having regard particularly to the concessions made by the mother at the conclusion of the evidence that she is satisfied that sexual abuse has not occurred, I am satisfied that there is no unacceptable risk to the child if she were to be with the father with the father alone and unsupervised. By that I mean that I have no concern that the father would in any way deal with the child in a sexually or improper fashion.
The evidence of the mother’s partner did not assist me to any great extent. He is clearly supportive of the mother. I express some little concern that whilst they describe themselves as partners, they choose not to live together.
The father’s mother gave evidence in support of her son. She clearly supports her son in all things. I found her evidence, like that of her son, marked with long silences before giving answers to what were quite straight forward questions. Her evidence is that she will support her son in all matters. A difficulty in this regard is that the paternal grandparents of the child live in Country D.
The evidence of Dr M, and his very carefully prepared report, were of real assistance in determining this matter. In his report, Dr M at paragraph 88 made reference of the child telling him she hated her Dad and did not like him. Dr M indicates that this was despite an observation of exactly the opposite behaviour but a few seconds before.
At paragraph 93, he again commented upon the child speaking of her father and saying that she did not like him, that he smacked her even when she was not naughty. The child denied she had played with her father, notwithstanding Dr M’s observations of what had occurred.
At paragraph 123 of his report, Dr M speaks of his discussions with the mother concerning her daughter. He makes reference to a test he administered, the Achenbach Child Behaviour Checklist. Dr M interpreted the results of this test as the mother reporting no obvious behavioural concerns with the child other than a concern about her stuttering.
At paragraph 127, he reports that the mother feels that she and her parents are supportive of the father and his relationship with the child. She feels that it is the father who is disrespectful. At the time of interview, it was clear (paragraph 134 of the report) that the mother believed that the father had done something wrong with the child. As I have said, as the evidence in this matter has progressed, I am satisfied that this view has changed.
Reporting of the mother at paragraph 136, Dr M records that the mother believes that she is well-balanced and understands all issues, and further, that she has no need to undertake any further courses. Dr M records that he suspects that she has no insight into how her anger and desire to exclude the father from her life is impacting on the child.
At paragraph 154 of his report, Dr M records that the child has emerging behavioural difficulties. She has an avoidance relationship with her father and an anxious attachment to her mother, although a very strong attachment. Dr M records his view that there has been a constant legacy of argumentativeness, bitterness and probably family violence from a very early age that has had a profound effect on the child’s ability to develop. At paragraph 157 Dr M records that what is of concern is that there have been so many rehearsals in the investigation of this matter, i.e.., the sexual abuse that any attempt to try and resolve the matter through discussion with the child would only cement what is potentially a false memory or belief.
At paragraph 159, Dr M records an additional concern is that the child’s current spoken attitude to her father is in such contrast to behaviour, that real concern about the degree of influence she is subjected to and the effect this will have on her development has to be considered. At paragraph 162, Dr M records that if the Court concludes the sexual abuse did not occur (and I am satisfied that this is so) then the mother will need reconsider her position in a fundamental way. If the mother cannot do this then it will be necessary for a change in residence to occur.
Dr M’s evidence in this regard did not change any of the observations or conclusions appearing in his report.
I turn then to the law to be applied.
THE LAW TO BE APPLIED
I turn to consider firstly the considerations both primary and additional set out in s 60CC of the Family Law Act 1975 (Cth). Section 60CC(2) deals with primary considerations and is in the following terms:-
(2) 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.
There is a note to the section which refers back to the objects set out in s 60B of the Act. Object (a) of that section is in these terms:-
(a) 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
There is to be found in s 60CC the expression “meaningful relationship” and in s 60B(1)(a) the expression “meaningful involvement”.
As their Honours of the Full Court in McCall & Clark[2] made clear at paragraph 109, “the 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”.”
[2] (2009) FLC 93-405
Having reviewed a number of decisions by single Judges their Honours accepted as appropriate the interpretation of meaningful relationship of Brown J in Mazorski & Albright[3]. Their Honours also indicated they agreed with the reasoning of Bennett J in G & C[4].
[3] (2007) 37 Fam LR 518
[4] [2006] FamCA 994
Their Honours of the Full Court indicated there were three possible interpretations of s 60CC(2)(a)[5]. The first is that the legislation requires the Court to consider the benefits to the child by examination of the evidence of the nature of the child’s relationship at the date of the hearing and to make findings based on that evidence.
[5] Op cit at paragraph 118.
Their Honours indicated a second interpretation is that the legislation intended that a Court should assume there is a benefit to all children at having a meaningful relationship with both parents. Their Honours, however, at paragraph 120 of their Judgment rejected that interpretation. Their Honours stated that “if the legislature intended to elevate the benefit to a child of a meaningful relationship to a presumption it would have said so in a clear and unambiguous language.”
Their Honours, at paragraph 118, then considered the third interpretation, which was that the Court “should consider and weigh the evidence at the date of the hearing and determine how, if it is in the child’s best interest, orders can be framed to ensure the particular child has a meaningful relationship with both parents.” This was referred to as the prospective approach and was the approach their Honours found to be the preferred interpretation.
Thus, I am satisfied that I must apply the prospective test favoured by their Honours, but I must at all times have in mind that there is to be balanced against it the need to protect the child from physical or psychological harm or being subjected to, or exposed to, abuse or neglect or family violence (see s 60CC(2)(b)). In this case, the matter commenced on the basis that there was a risk to the child of abuse at the hands of the father, which I had to examine. I have already indicated, I trust clearly, in these reasons for Judgment that I am not of the view that there has been any abuse by the father to the child, of a sexual nature, or that there is an unacceptable risk in the future that the father will involve himself in such activity.
Rather, I am concerned about the abuse that the child needs be protected against, which I identify as the possibility of becoming totally enmeshed in the difficulties that these parties experience for the future.
I am then required to deal with the additional considerations set out in s 60CC(3). Subsection (a) is in the following terms:
(a) any views expressed by the child and any factors (such as the child's maturity or level of understanding) that the court thinks are relevant to the weight it should give to the child's views
In this case, it is clear that the child has been saying to her father that she hates him and that she thinks or believes that he will go to gaol. She has reported to Dr M that the father hits her even when she is not naughty. Dr M has, however, spoken of the episode where he interviewed the child and observed her to be relaxed and cheerful in the father’s presence. The father himself gives evidence that within minutes of a changeover being effected the child ceases to act out and becomes co-operative and friendly.
I am satisfied that, whether done intentionally or unintentionally, the mother and members of her family, specifically her father and to a lesser extent her partner, have spoken of things with complete disregard as to whether the child could hear what was being said in relation to the father. I am satisfied that the mother took absolutely no care when speaking of what she initially believed the father to have done. I am satisfied that this behaviour by the mother and those in her camp have had the effect of influencing what this child has said, and her actions towards the father.
Subsection 60CC(3)(b) is in these terms:
(b) the nature of the relationship of the child with:
(i) each of the child's parents; and
(ii)other persons (including any grandparent or other relative of the child)
I am satisfied that the child has a close and loving relationship with her mother upon whom she relies for her care and nurture. I am satisfied that she is aware of her mother’s dislike of her father and because of her close relationship with her mother, has said things which would undoubtedly find favour with the mother.
I am satisfied from reading Dr M’s report (in particular paragraph 154) that the child has an avoidant attachment to her father.
From the same paragraph, I glean that the child has an anxious attachment to her mother. That attachment, however, is a very strong one.
Thus the relationship with her father is one where a good deal of work by both parents is required to ensure the father’s relationship is not damaged irreparably by what has occurred. I am satisfied that the father loves the child and, on the one hand, would do anything for her and, on the other, would not harm her.
I am satisfied the father has a good deal to offer the child. He can provide her with the love and affection which she is entitled to have of or from a parent. Further, I am satisfied that the father can be of assistance to her in respect of her educational needs.
I accept that the mother also loves the child dearly and would not intentionally harm her. However, I am satisfied that the mother does not see the damage to the child’s wellbeing that has been done by involving her in the present situation. I am further satisfied that the mother has allowed the child to become aware of her mother’s attitude toward, and her dislike of, her father.
I turn then to the willingness of each of the parties to facilitate and encourage a close and continuing relationship between the child and other parent. (See s 60CC(3)(b)).
Clearly to date, the mother has not encouraged the father and child relationship. I am satisfied that up until the commencement of the hearing, she was fixed in her idea that the father had in some way inappropriately dealt with the child. As the hearing progressed, her attitude changed from one of certainty that something had occurred to uncertainty, and by the conclusion of the hearing she had come to the view that there had been no sexual abuse against the child. Whilst I am prepared to give the mother credit and say that I am satisfied that, at least initially, she believed something had happened, I am still not satisfied that the manner in which she endeavoured to deal with this problem and the way in which she seemed content to use her purported belief to exclude the father from the child’s life was other than a determination to advance her own wishes. She has said now that the father must have a part in the child’s life.
I am prepared to accept that the mother genuinely believes this, and will endeavour to act upon it. I am aware that the learned Chief Federal Magistrate reached a very similar conclusion in his Judgment. Thereafter, the mother’s actions in relation to these current proceedings might be seen to have contradicted his Honour’s view. However, I accept that the mother has now realised that her actions are such that they cannot continue without having a severe detrimental effect on the child she dearly loves.
The father, for his part, made it clear in his evidence that he appreciates that the mother is a very important figure in the child’s life. He was unable to adequately answer how he would deal with any separation anxiety that might occur if the child were living with him. He says that in such a situation he would seek professional assistance.
The next subsection of the Act deals with the effect of separation of the child from a parent and other significant persons (see subsection 60CC(3)(d)). In this case, the father’s primary application is for the child to live with him in Canberra and after a period of time to enable the child to adjust to that situation, for the child to spend time with the mother for every alternate weekend or perhaps two weekends in three together with a portion of school holidays.
Such a change I am concerned would present very significant difficulties for the child. However, if it were necessary to change the parent with whom the child lived to overcome the difficulties for the child in future of continuing a belief she has not, such a change would be necessary.
I have concerns as to the father’s capacity however to deal with such a situation. He has not indicated to me any strategy that he would employ other than he would seek the assistance of professionals, in the event of any difficulty arising. Whilst his willingness to seek and engage professional assistance does him credit, my concern is that he has no real insight into how difficult a change would be for his daughter. He has no strategies, other than the involvement of others, to deal with what would be a distressing and psychologically and emotionally testing time for his daughter.
The child would be living alone with him as he no longer has the support of any partner and the support that his parents (who clearly love the child) could offer is very much curtailed because of their residence in Country D. I am satisfied on what I have read and heard that if the child were to live with the father, there would be a great deal of resentment, anger and distress on her part. If such a change were to occur as a result of my orders it would, I am satisfied, it would be necessary to consider the mother not seeing the child for a period of time to enable the child to settle in to the father’s household.
To leave the child with the mother would clearly cause the child less distress. However, if the child is to remain with the mother, an immediate and significant change is required on her part. She needs to overcome her distrust of the father, and her examination of his actions with a view to finding fault at every turn. Not only does she need to accept that the child requires and needs her father in her life, she (the mother) needs to do everything in her power to reassure the child that this is so.
Subsection 60CC(3)(e) deals with the practical difficulty and expense of spending time with each parent. If the child remains with the mother, the father has indicated (and I accept) that he will obtain suitable accommodation in the C Region area where he can spend time with his daughter. He would continue work in Canberra where he would obtain what I accept would be lesser accommodation and would thus spend the bulk of his recreational time with his daughter in satisfactory premises in the environs of the C Region.
If the child were to remain with the mother, I am satisfied that he would be able to collect the child and return the child to the mother.
If the child were to live with the father there would be very real difficulties for the mother in spending time with the child. Transportation would be difficult and I am satisfied that the mother would find it hard to obtain any suitable accommodation in the Canberra area where she could spend time with the child. Recognition must also be had of the mother’s other commitments to her family as it presently exists. It would thus appear that if the child were living with the father in Canberra, the mother would need to travel to Canberra to collect and return the child or the father would need to make the child available to the mother and collect the child from the mother in respect of each period.
I turn then to examine the capacity of each of the child’s parents and any other significant parties to provide for the needs of the child (see subsection 60CC(3)(f)).
I have no doubt that the mother has provided at a high level and standard for the child’s needs of accommodation, clothing, feeding, health and education. I should record here that there was considerable evidence regarding whether or not the child was to repeat a school year. The father indicates that this was done without his consent or knowledge and in fact was a decision unilaterally made by the mother. Whilst Order 8 of the Orders of the Chief Federal Magistrate dated 9 May 2008 awarded the mother sole parental responsibility for the long term care and welfare and development of the said child, it is to my mind a matter of concern that the mother in no way sought to involve the father in this particular decision.
The father is untested as the parent with whom the child would spend the majority of the time in accordance with his proposal. He has not had to balance the requirements of full time employment and care of a child. Whilst it could be said that this would not present him with a problem as he would work from home and the child would be attending school, I remain concerned that on any extended basis, he has not established his ability to do this. He has indicated that he has little idea of how he would deal with difficulties in the child’s behaviour other than to say that he would seek the help of professionals.
I am satisfied the father sees little or no difference between what would be required of him spending time with the child on weekends and during holidays as against having responsibility for her on a day to day basis. I do not believe he has given proper thought as to how he would manage tasks such as ensuring the child attended school on a daily basis and what it would mean to be involved in appropriate extracurricular activities for his daughter.
I am satisfied the mother has little knowledge of the effect of what has happened upon her child. I am satisfied that her capacity to care for the child has been compromised by her strong dislike of the father. However, I am satisfied that she now has the knowledge that her behaviour in the past is unacceptable and that if the child remains with her she must deal differently with the father’s relationship with the child than she has in the past. She must nurture and promote that relationship.
I am satisfied that the father for his part maintains a dislike of the mother principally, if not solely, because of what he perceives as the unjust and improper way in which she has dealt with him in the past. I am satisfied that his dislike of the mother must have an impact upon his capacity to recognise the needs of the child to have, if she were to live with him, an ongoing relationship with the mother at some point in time. For his part, he must manage his dislike of the mother and his anger towards her, for the child’s sake.
The next of the matters to which I believe I should have regard is the attitude to the child and the responsibilities of parenthood demonstrated by each of the child’s parents (see subsection 60CC(3)(g)). I have said much of what I would say here under the heading the parents’ capacity. Each of these parents dearly loves their only child. Each of these parents cordially dislikes the other. I am satisfied that both would be happy to have the child live with them and spend little, if no, time with the other parent. I am satisfied that neither parent has recognised the effect of their ongoing conflict upon their daughter.
The mother alleges that there has been violence in the parties’ relationship. The mother relates a number of episodes where she says the father was violent towards her and was affected by alcohol. Each of the parties seems to have been involved in forwarding texts and emails to the other that do the author little credit. I am satisfied, however, that these matters occurred prior to the Judgment of the learned Chief Federal Magistrate on 9 May 2008. The amendments to those Orders on 28 May 2008 do not affect this. His Honour dealt with the issue of violence in paragraphs 165 to 167 of his Judgment. He found that family violence was a factor in the parties’ relationship. On the evidence I have heard and read, there is nothing that leads me to make any differential finding to that of his Honour.
Subsection 60CC(3)(l) indicates I should consider whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings. I am of the view it is always very difficult to make a prediction in this regard. In the present case, I am not satisfied that I can say with any real certainty which situation, that is leaving the child with the mother or placing the child with the father, is least likely to lead to the institution of further proceedings.
This concludes the matters that I believe that I am required to examine under the sections and subsections I have set out.
I am next required to give consideration to s 60CC(4). In this regard, I have dealt with the matters that I have taken into account when dealing with earlier subsections.
I then go to s 61DA which raises a presumption of equal shared parental responsibility. This section is in the following terms:
(1)When making a parenting order in relation to a child, the court must apply a presumption that it is in the best interests of the child for the child's parents to have equal shared parental responsibility for the child.
Note: The presumption provided for in this subsection is a presumption that relates solely to the allocation of parental responsibility for a child as defined in section 61B. It does not provide for a presumption about the amount of time the child spends with each of the parents (this issue is dealt with in section 65DAA).
(2)The presumption does not apply if there are reasonable grounds to believe that a parent of the child (or a person who lives with a parent of the child) has engaged in:
(a)abuse of the child or another child who, at the time, was a member of the parent's family (or that other person's family); or
(b)family violence.
(3)When the court is making an interim order, the presumption applies unless the court considers that it would not be appropriate in the circumstances for the presumption to be applied when making that order.
(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.
It is made clear by s 62DA(2) that the presumption does not apply where either parent is engaged in abuse of the child or family violence. Further s 61DA(4) indicates the presumption may be rebutted by the evidence in the case.
I have found that family violence is a factor. That, of itself, is enough to have the presumption not apply. In addition, the evidence of the parties clearly indicates that their level of co-operation and communication is poor, almost to the point of being non-existent. When the parties have communicated in the past, it appears that the majority of those communications have been acrimonious and at times offensive. Neither party emerges, in my view, with particular credit in this regard. Thus, it would appear on the face of it, that if this is a matter where to allocate equal shared parental responsibility to these parents would be to impose upon them an onerous regime.
However, it occurs to me that the parties, if not placed under some requirement of the Court, whichever parent the child lives with, will not see that they both have an important part to play in the child’s life.
Their own personal feelings and animosities must be put to one side for the benefit of the child.
It seems to me that in the minutes that each party has presented to me they have taken a “winner take all” attitude to this most important aspect of the child’s life. Each has proposed that if the child lives with them that they should have sole responsibility.
I am not satisfied that the circumstances of this case are on all fours with those in Blair & Blair[6] where the parties, notwithstanding family violence, had indicated and demonstrated that at the time of trial they could communicate properly and appropriately about their children. I am further satisfied that this present case is also not on all fours with Kennedy & Kennedy[7]. In that case, the Appellate Judge said that equal shared parental responsibility was not appropriate where it was not possible to reasonably expect people at the current stage of development in the breakdown of their relationship would be able to rationally come together to discuss serious issues relating to the welfare of children. His Honour expressed that to have that expectation was moving towards an unattainable goal.
I do not accept that goal is unattainable in the present case. I believe that these parties must be made to realise that they have, each of them, an important part to play in this child’s life and in discharge of that responsibility they must learn that it is necessary to communicate and co-operate with each other for the child’s benefit.
I am satisfied that even if the presumption is found to be displaced, as it has here, their Honours of the Full Court in Goode & Goode[8] have made it abundantly clear that the Court may still consider it to be in the best interests of the child for the parents to share equal parental responsibility. It is my view that in this case, notwithstanding all that has occurred in the past, that it is in the best interests and for the welfare of the child that her parents are required by Order to deal co-operatively with each other for the purpose of making decisions that need be made concerning her long term care, welfare and development.
[8] (2006) FLC 93-286
Having determined that the parties should have equal parental responsibility for the child, I am required by s 65DAA to consider making an order that the child spend equal time with each of the parents. I must consider whether or not such an order is practicable. In my view, the practical considerations are against the prospect of the child spending equal time with each parent. The mother has made it clear she cannot move from her present address in the C Region area. Indeed, so far as I am aware, there is no suggestion that she do so.
The father for his part has indicated that he has given thought to moving from Canberra to live closer to where the mother lives. He has given the matter thought and concluded that this is something he cannot do because of his employment. Rather, he has indicated that the child should either move to live with him in Canberra, or, if the child remains with her mother, that he will acquire accommodation which will be used at weekends and during holidays for him to spend time with the child. Accordingly, I am satisfied that it would be impracticable for me to endeavour to make any order for the child to spend her time equally between her parents.
I turn then to the requirement to consider substantial and significant time. The Act at s 64DAA(3) sets out in effect what matters must be at least taken into account in determining whether time is substantial and significant. The matters set out are whether days fall on weekends and on holidays and do not fall on weekends and holidays allowing the child to participate and be involved in the child’s daily routine and occasions that are of particular significance to the child and of significance to the parent.
DISCUSSIONS & CONCLUSIONS
In the circumstances of this case, there is the geographical distance between the parties. There is no suggestion, as I have already said, that that distance is to be overcome by either party moving closer to the other. Thus, what must happen here is that the child live with one parent and see the other parent mainly on non-school days and holidays.
Whilst I have expressed my concern as to the mother’s attitude and actions in this matter, I am of the view that she will take away from these proceedings a deal of knowledge and a clear indication that she and the father must work co-operatively regardless of where the child lives, for the child’s future.
The father for his part, whilst demonstrating a love for the child, has shown that he dislikes the mother as much as the mother dislikes him. He has not satisfied me that he has a capacity to care for the child in a manner equal to the level of care that the mother has, subject to the criticisms that I have recorded, provided for the child to this point.
In all the circumstances of this case, I have come to the view that the proper order is that the child live with her mother. However, it is equally apparent to me that the father needs to spend such time as he can with the child having regard to the matters I have endeavoured to set out.
The Independent Children’s Lawyer has indicated in a minute of order that there should be differing regimes dependent upon where the father resides. There is some merit in that proposition. I accept that if the father remains in Canberra, the travel for the child to spend time with him will be significant. If the father has premises in the C Region area, then I am satisfied that travel will be significantly reduced. In these circumstances, I am satisfied that the periods of time he spends with the child can be more frequent. This I am satisfied would be in the best interests of the child. Further, I am satisfied that the periods of time can be extended if the child is not required to travel to and from Canberra.
I am not convinced that a changeover at a Police Station is either appropriate, necessary or desirable. I am not satisfied that a changeover at such a place is necessary for the protection for either party or the child. Further, I am concerned that if changeovers are to occur at such a place, the child may see it either as punishment for herself or punishment of the father.
I am satisfied that a proper arrangement would be that the father would pick the child up from school on any occasion he has her, other than during school holidays, and return to the mother’s home on Sunday night if he has spent the weekend with her in the Canberra area and to school on the Monday morning if he has spent the weekend with her in the C Region area.
I am satisfied that it would be important for the father to have at least Friday afternoons and, if possible and subject to the foregoing, Monday mornings where he could attend the school and be involved with members of the school staff and the general school community.
As a parent exercising equal shared parental responsibility he would expect that he would be informed of all school activities. However, it may well be that the difficulties of distance would not make it possible for him to be involved in school activities that fall mid week. Equally, if he remains working and living in Canberra as he has indicated he will, then even if he maintained premises in the C Region area, it would be difficult for him to spend time after school with the child because of his work commitments.
Accordingly, I propose to order that the father, until he has premises in the C Region area, have time with the child each alternate weekend from after school Friday to 6.00 pm Sunday, extending to 7.00 pm during Eastern Daylight Saving Time. Once the father obtains accommodation in the C Region area, and notifies the mother of the fact that he has done so and provides her with an address, then the father shall have the child with him for the first two weekends in each three week cycle from after school Friday to before school Monday. This will give the father an increased opportunity to be involved in the child’s schooling and school activities so as to enable him to discharge the responsibility imposed upon him in the exercise of equal shared parental responsibility.
I propose to order that school holidays be shared with the parties to endeavour to agree upon which half of each school holiday period they will have with the child and failing agreement, I will define the periods as being the first half in odd numbered years and the second half in even numbered years. I will make orders for particular days such as birthdays.
I will order that the child have telephone contact with the party with whom she is not living or spending time. In the case of the child living with the mother, each Tuesday and Thursday with the father, and in the case of the child spending time with the father, each Saturday with the mother.
It has been urged upon me by the Independent Children’s Lawyer that I make orders prohibiting the parties from consuming excessive amounts of alcohol or non-prescription drugs for a period before and whilst the child is with them. Notwithstanding I have had concerns as to the father’s consumption of alcohol, I do not propose to make such an order. I accept that both parties from this point on will make every endeavour to protect and advance the best interests of the child. This would include, of course, being in the very best condition possible to enjoy their time with the child whilst she is with them, unaffected by any intoxicating substance.
It is also put to me by the Independent Children’s Lawyer that there should be an order that the parties inform the other of their intention to remove the child from New South Wales or the Australian Capital Territory. What I propose to do is make an order that if either party intends to take the child away from their current residential address and in the father’s case, that would include either his address in Canberra or the C Region, for a period of longer than seven days they shall notify the other of that intention together with an itinerary.
The Independent Children’s Lawyer proposes an order that the child remain at C Region Grammar. I do not propose to make an order in quite those terms. I do propose to order that the child remain at that school unless the parties otherwise agree, and I do intend to make an order for payment of school fees by the father.
I have given the parties, or perhaps more correctly, imposed upon the parties equal shared parental responsibility. This requires them to consult and negotiate about matters such as the school the child attends. If they cannot reach agreement then there are means of assisting them to do so, such as a Family Dispute Resolution Centre. In the event that the parties cannot discharge their responsibilities even with the assistance of mediation, then it is inevitable the matter will be returned to this Court.
I do propose to make orders that neither party discuss the other party with the child or do so in the hearing of the child and indeed I propose to take that further and say that whilst the child is in their household that party will not permit any other person to do so.
The evidence I have is that the child does not refer to Mr J as Dad. I am satisfied that the mother and Mr J propose to enter into a domestic relationship. In the circumstances, I believe it is appropriate and for everyone’s protection that I make an order that the mother shall not encourage nor permit the child to call or to refer to any other person other than the father as “father”, “dad” or any other diminutive or familiar name to that effect.
The parties shall keep each other advised of addresses and in the father’s case, that shall mean both in Canberra and in the C Region. They shall keep each other advised of a current telephone number, be it landline or mobile.
The Independent Children’s Lawyer has indicated in her minute of order that there should be therapy and engagement in a program for the parties. I intend to order that the mother will commence therapy with a properly qualified counsellor or psychologist and if referred by a medical practitioner, a psychiatrist for assistance in dealing with her fears concerning the father’s care of the child and her attitude towards him. I will order that both parties engage and complete a parenting after separation program or if such program is not available such other course or program as may be recommended by the Independent Children’s Lawyer.
I will order that each party display at least one photograph of the other in the child’s bedroom or room to be occupied by the child in their home.
The father in his proposed minute of order seeks that the maternal grandfather is to spend time with the child only under supervision. Whilst the Independent Children’s Lawyer indicates some concern, I am concerned as to how this order could meaningfully be carried out.
I have come to the conclusion that an order preventing the mother discussing the matter with any person or allowing them or encouraging them to do so in the presence of the child or whilst the child is in their house is sufficient. In any event, one would have hoped that the mother’s father has learned from his experiences in the course of this trial that good intentions are simply not enough.
The Independent Children’s Lawyer has particularly addressed the use of the word “gaol”. I am satisfied that I should restrain the mother and others as best I can, from making any mention of the likelihood of the father being imprisoned. Again, I do not believe I can do more than restrict discussions about the other party whilst the child is in the household of that party. To particularly highlight the inappropriate use of the word “gaol” to my mind is not necessary.
Finally, I propose that the mother is to make the child available to the Independent Children’s Lawyer within seven days of the making of these orders for the purpose of the Independent Children’s Lawyer explaining the nature and effect of these orders to the child.
I certify that the preceding three hundred and sixty-four (364) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Collier delivered on 14 December 2011.
Associate:
Date: 14 December 2011
- AGLC
- Cartwright & Wilson [2011] FamCA 939
- Case
- [2011] FamCA 939
- Decision Date
CaseChat Overview and Summary
The court was required to determine the extent of equal shared parental responsibility, the specific arrangements for the child to live with and spend time with each parent, and to address issues of family violence and the communication between the parents. The court also had to consider the child's schooling and the parties' conduct towards each other and in the presence of the child.
Collier J discharged previous orders and made new orders establishing equal shared parental responsibility for B. The child was ordered to live with the mother, Ms Cartwright, while detailed provisions were made for the child to spend time with the father, Mr Wilson, including during school terms, school holidays, and on specific occasions such as birthdays and Father's and Mother's Days. The court also made orders regarding communication, school enrolment and fees, and prohibited denigration of either parent in the child's presence. Specific orders were made concerning the mother's therapy and both parents' participation in parenting programs, as well as provisions for the child's contact with the Independent Children's Lawyer. All outstanding applications were dismissed.
Orders
Orders of the court
1.
That all previous Orders be and are hereby discharged.
2.
That the parents, Mr Wilson and Ms Cartwright, have equal shared parental responsibility for the child, B born … 2005.
3.
That each parent is to have responsibility for making decisions as to the day to day care, welfare and development of the child whilst the child is in that parent’s care.
4.
That the said child live with the mother.
5.
That the said child spend time with the father as follows:-
a. If the time is to be spent in Canberra:-
i. During school term each alternate weekend from after school on Friday until 6.00 pm on Sunday, extending to 7.00 pm during E.D.S.T.
ii. The father is to collect the child from school at the commencement of each such period and return the child to the mother’s place of residence at the conclusion of each such period of time.
iii. The first period of time shall commence on the second Friday after the commencement of the first school term in 2012.
b. If the father acquires accommodation and his time with the said child is to be spent in the C Region:-
i. During school term from after school Friday to before school on Monday, extending to Tuesday in the event of a long weekend, for the first two weekends in every three week cycle.
ii. The father is to collect the child from school at the commencement of each such period of time and return the child to school at the expiration of each such period of time.
c. For the purpose of the immediately preceding Order, that the first period of such time shall commence on the weekend next falling not less than seven (7) days after the father notifies the mother in writing of the address of the premises in the C Region where he will spend time with the child.
d. During school holiday periods falling between terms 1 and 2, 2 and 3 and 3 and 4, the father is to spend time with the child for one half of all such school holiday periods as agreed between the parties, and failing agreement, for the second half in even numbered years commencing in 2012 and the first half in odd numbered years commencing in 2013.
e. During the December/January school holiday periods, the father is to spend time with the child for one half of all such school holiday periods as agreed between the parties, and failing agreement, for the second half in the 2011/2012 holiday period and each alternate holiday period thereafter, and for the first half in the 2012/2013 holiday period and each alternate holiday period thereafter.
f. For the purpose of the immediately preceding Order, the father shall collect the child from the mother’s place of residence at the commencement of each such school holiday period and return the child to the mother’s place of residence at the conclusion of each such period of time.
g. That the father’s time with the child during school term shall recommence:-
i. On the first weekend of school term where the father spent time with the child for the first half of the immediately preceding school holidays; and
ii. On the second weekend of school term where the father spend time with the child for the second half of the immediately preceding school holidays.
h. For the purpose of these orders:-
i. The first half of school holiday periods shall mean the period commencing at 10.00 am on the morning immediately following the last day of term, and concluding at 6.00 pm, extending to 7.00 pm during E.D.S.T., on the day marking the midpoint of that holiday period; and
ii. The second half of school holiday periods shall mean the period commencing at 10.00 am on the day marking the midpoint of that holiday period and concluding at 6.00 pm, extending to 7.00 pm during E.D.S.T., on the Saturday immediately prior to the commencement of the next ensuing school term, extending to Sunday in the event that Monday is a pupil-free day.
i. In the event that the child’s birthday falls upon a school day then the father shall spend time with the child from after school until 7.00 pm.
j. For the purpose of the immediately preceding Order, the father shall collect the child from school and return the child to the mother’s place of residence at the conclusion of such period of time.
k. If the child’s birthday falls upon a weekend or during a part of school holidays when the father is not spending time with the child, then the father shall collect the child from the mother’s place of residence at 3.00 pm and return the child to the mother’s place of residence at 7.00 pm.
l. In the event that Father’s Day falls on a weekend when the father would not otherwise spend time with the child, then the father shall spend time with the child, otherwise in accordance with these Orders, on the weekend during which Father’s Day falls and will not spend time with the child on the next occasion that would otherwise be his time with the child.
m. In the event that Mother’s Day falls on a weekend when the mother would not otherwise have the child with her in accordance with these Orders, then the father shall not spend time with the child on that weekend but shall spend time with the child, otherwise in accordance with these orders, on the next immediately following weekend.
6.
That the parent with whom the child is not living, or spending time, on the 25 December in any year, shall spend time with the child from 7.00 pm on 25 December until 7.00 pm on 26 December.
7.
That the parent with whom the child is to spend time pursuant to the immediately preceding Order, shall collect the child from the other parent’s place of residence at the commencement of such period and shall return the child to that place of residence at the conclusion of the period of time.
8.
That the child shall have telephone contact with the party whom she is not living with or spending time with, as follows:
a. When the child is living with the mother, telephone contact between the child and the father shall occur each Tuesday and Thursday; and
b. When the child is spending time with the father, telephone contact between the child and the mother shall occur each Saturday.
9.
That, unless the parties shall otherwise agree, the child shall remain enrolled at, and attend, C Region School. The father shall pay school fees in respect of the child’s schooling at that institution promptly as they fall due and payable.
10.
That the parties each sign all documents and give all authorities to ensure that the father receives all documents that would normally be received by a parent of a child attending that school. Any additional costs thereby incurred shall be borne by the father.
11.
That both parties shall be entitled to attend upon all school functions normally attended by parents of children at that school.
12.
That both parties shall at changeovers, at any school function or in any situation when they shall find themselves in the company of each other deal with the other in an appropriate, non-abusive and non-threatening manner.
13.
That, save and except for the purpose of collecting and returning the child from and to the mother in accordance with these Orders, the father shall not approach or enter upon any premises from time to time occupied by the mother.
14.
That the mother shall not discuss with the child or any other person the father or members of his family in the presence or hearing of the child.
15.
That whilst the child is in the household of either party, that party shall not denigrate the other party, or family members of the other party, in the presence or hearing the child, nor permit, cause, allow or encourage any other person to do so.
16.
That the mother shall not in any discussions with the child or in the hearing or presence of the child make any reference to the sexual abuse allegations nor shall she refer to the prospect of the father being imprisoned.
17.
That each party shall keep the other informed of their residential address or residential addresses and telephone numbers, both landline and mobile as the case may be. In the event of any change, the party affecting such change shall notify the other party in writing within seven (7) days of such change.
18.
That the mother shall not permit, encourage or allow the child to refer to any person other than the father as “Daddy” or “Dad” or any other diminutive or nickname for father.
19.
That the mother commence, undertake and complete an appropriate course of therapy with a counsellor or psychologist. If referred by a medical practitioner, the mother shall consult a psychiatrist for assistance in dealing with her fears.
20.
That both parties enrol in, participate in and complete a program, Parenting after Separation, or such similar course or program as soon as can be arranged, and in the event such a program is not available, then such other course as recommended by the Independent Children’s Lawyer. This order does not require the parties to attend upon the same course at the same time.
21.
That if either party is to remove the child from their current residential address, and in the father’s case this would include either his Canberra or C Region address, for a period of longer than seven (7) days, that party shall notify the other party of such intention together with an itinerary.
22.
That each of the parties shall ensure that a photograph of the other party is kept and maintained in the child’s bedroom or room occupied by the child in that parties’ home.
23.
That the mother make the child available to the Independent Children’s Lawyer within seven (7) days of the date of these Orders for the purpose of the Independent Children’s Lawyer explaining the nature and effect of these Orders to the child.
24.
That all outstanding applications and cross applications be and are hereby dismissed.
25.
That all issues be removed from the pending cases list.
26.
That all material produced upon subpoena be returned not before fifty-six (56) days from the date of these Orders.
Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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