Father Seeks Order Increasing Time with Child

Amers & Amers [2021] FedCFamC2F 78 (23 September 2021)

The child lives with the mother and spends time with the father.  The father disputes the present arrangements and seeks an order that the child spend three days and three nights a week with him.  The mother alleges that the child was at risk of sexual abuse by the father.  On the other hand, the father has made claims that members of the mother's family have been the victims of sexual abuse or are perpetrators of sexual abuse.  The Court, in adjudicating this dispute, determined what would be in the child's best interests. 

Facts:

The parties met online in 2016 when the father lived in City J, USA and the mother in Darwin.  In 2017 the father moved to Australia and began working in mid-2018 when his visa conditions allowed it.  The parties separated in late 2019 when the child was about 16 months old. The father commenced proceedings in January 2020.  On 9 March 2020 orders were made by consent that the child X, who is now three years old, spend time with the father on alternate weekends from 9:00AM Saturday to 9:00AM Monday and every second Wednesday until Thursday morning.   Further orders were made by consent that the child live with the mother and spend time with the father on alternate weekends from Friday 4:00PM until the following Monday at 8:00AM along with special days. 

The father seeks an order that the child spend three days and three nights a week with him.  The mother originally sought an order that the child not spend overnight time with the father.  She changed her position to seek an order that the child spend one night each week with the father until early 2023 when she proposes a return to the current arrangements.  The mother alleged earlier in the proceedings that the child was at risk of sexual abuse by the father.  On the other hand, the father has made claims that members of the mother's family have been the victims of sexual abuse or are perpetrators of sexual abuse.  

The father also alleged that the mother's father is a “paedophile”.  He alleged that the mother was the victim of child sexual abuse.  He alleged that the maternal grandmother is a drug addict.  He alleged that the mother's sister is an alcoholic.  He seeks injunctive orders to limit the child's contact with the maternal grandfather and to prevent the mother taking the child to indigenous land E, which is the home of the Aboriginal side of the mother’s family.

Issue:

Whether or not the parties should have an equal shared parental responsibility over their child.

Applicable law:

Family Law Act 1975 (Cth) s 60CC - sets out the primary considerations in determining the best interests of the child which 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.

Family Law Act 1975 (Cth) s 65DAA - requires the Court to consider whether the child spending equal time or substantial and significant time with each parent is in the best interests of the child.

Hague Convention on the Civil Aspects of International Child Abduction -pursuant to which the mother sought a long airport watch list order and an order that the child not travel to the US with the father until she is approximately 11 years old. 

Analysis:

In relation to the father's claim that the maternal grandfather is a paedophile, he said he based this claim on one incident concerning a 13 year old girl, who was related to the mother and usually resided in indigenous land E. The girl had come into the parties’ household because of difficulties in her home area. The father said in his trial affidavit that he, the mother and members of the maternal family were at the mother’s sister’s house on one occasion. He said he saw the girl acting inappropriately with [the mother’s father].  When it was pointed out that that claim was different to the claim in the affidavit, in particular that he had said there that the girl “sat” between the mother’s father’s legs, he said his claim in the affidavit was incorrect. He acknowledged that he had instructed his solicitor that the girl had "sat" between the mother’s father’s legs but that because he was in a hurry when providing the instructions he had made a mistake.

The mother gave evidence about how sometimes leaves the child in her sister’s care. She said she does so only on the basis that the nephew is not present.   The nephew no longer lives with the mother's sister, but visits from time to time.  On 6 September 2020 at changeover of the child at the F police station, the father was subject to a domestic violence restraining order preventing him from approaching or harassing the mother, along with various other restraints.  The father alleged that after the changeover the mother had left her car and, unprovoked, assaulted him, in the course of which her phone was broken.  The mother said that after the changeover the father placed the child in a child seat on the back seat of his car but did not restrain her.  

She was concerned that the child may fall and be injured and thus left the car to go to the child while filming on her own phone.  She said when she did so the father took her phone out of her hands and threw it and it broke.  The father, despite asserting that he had film supporting his version of the incident, chose not to provide his film evidence.  The mother, on the other hand, showed the film from her phone, which supported her version of events.  The father's claims against the mother are unrestrained and extreme. At times they appear to have been harassing and intended to involve the police or the authorities in relation to the mother. 

The child is showing signs of anxiety upon separation from the mother.  The child has disturbed sleep, has sometimes regressed in her toilet training and has "toileting accidents".  It was put to the mother in cross-examination that an explanation for the child's behaviour, which was not challenged by counsel for the father, was that the child could be reflecting the mother's anxiety about the child spending time with the father.

Conclusion:

The Court discharged all previous parenting orders.  The Court is not satisfied that it is in the best interests of the child to spend equal time with each of the parents.  The child is ordered to live with the mother and spend time with the father.  Orders are made for an adjustment of the time the child spends with the father to increase its frequency and reduce its duration until the child is older. The child is permitted to travel intrastate and interstate with the mother for the purposes of Order 7(b) provided the mother notifies the father in writing not less than fourteen (14) days prior to the travel and provides itineraries, contact addresses and telephone numbers for the child whilst the child is intrastate or interstate so that the child can communicate with the father at all reasonable times.  The parents will undertake and complete the B Family Services ‘Circle of Security’ parenting program or with a similar program provider.  Upon the written request by either party, the other party shall undergo a hair follicle drug analysis process as soon as practicable with an accredited laboratory such as Mobile Drug & DNA nothing that the hair follicle drug analysis test be carried out with no less than 3cm of hair.  From January 2024, the mother and the father shall return to mediation if any increase or change in the child’s overnight time and school holiday time spent with the father is sought.