ADAMSON & FORST

[2014] FamCA 669

FAMILY COURT OF AUSTRALIA

ADAMSON & FORST [2014] FamCA 669

FAMILY LAW – CHILDREN – Best interests – with whom the child shall live and spend time with – where the child has a meaningful relationship with both parents – where the mother has significant difficulty in giving priority to the child’s needs over her own – where the child wishes to live with the father – where the father has a better insight into the emotional and developmental needs of the child – child to live with the father – child to spend substantial and significant time with the mother

FAMILY LAW – CHILDREN – Parental Responsibility – where the parties’ relationship has been characterised by family violence – where the parties cannot communicate and consult in the way that is required for them to share parental responsibility – the presumption of equal shared parental responsibility rebutted – where whichever parent the child was to live with should have sole parental responsibility – father to have sole parental responsibility – where agreement between the parties required in relation to a change of school and/or medical practitioner

Family Law Act 1975 (Cth) ss 60CC, 62B, 64B, 65DA

APPLICANT: Ms Adamson

RESPONDENT: Mr Forst

INDEPENDENT CHILDREN’S LAWYER: Jennifer Blundell & Associates

FILE NUMBER: NCC 641 of 2013

DATE DELIVERED: 21 August 2014

PLACE DELIVERED: Newcastle

PLACE HEARD: Newcastle

JUDGMENT OF: Cleary J

HEARING DATES: 27, 28, 29 and 30 May 2014

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Graham

SOLICITOR FOR THE APPLICANT: Hannaway Lawyers

COUNSEL FOR THE RESPONDENT: Mr Davies

SOLICITOR FOR THE RESPONDENT: Flintoff Lawyers

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: Mr Mooney

SOLICITOR FOR THE INDEPENDENT CHLDREN’S LAWYER Jennifer Blundell & Associates

Orders

1. All prior orders in relation to B born … 2009 (“the child”) are discharged.

2. That subject to Orders 3, 4 and 5 the father shall have sole parental responsibility for the child and in that regard whenever a long term issue arises (including but not limited to education, specialist medical treatment and religious instruction) the father shall contact the mother in writing identifying the issue and his proposal and seeking her response within a defined time and in the event that the mother responds, shall take her proposal and ideas into account and further shall thereafter advise the mother in writing of the decision he has taken.

3. Each party is restrained from changing the enrolment of the child away from C Services (“the pre-school”) and FURTHER shall ensure that the child continues to attend on three days per week (Tuesday, Wednesday and Thursday) for the balance of the pre-school years.

4. Unless another school is agreed on between the parties, the father shall enrol the child at D School and FURTHER shall ensure that the contact details of the mother are included in the enrolment application in the ‘other parent section’ and also as a contact in the case of emergencies.

5. Unless the parties agree on a general practitioner for the child, the father shall provide to the mother the name, address and contact details of a treating general practitioner/medical practice for the child and thereafter each party shall ensure that the child attends that medical practice (and the particular GP whenever possible) other than in the event of a genuine medical emergency.

6. That the child shall live with the father.

7. That the child shall spend time with the mother as follows:

   (a)       Until the child commences school in 2015:

   (i)each alternate weekend from after pre-school Thursday to before pre-school on Tuesday with the mother or her nominee to collect and deliver the child from pre-school;  and

   (ii)for one-half of any period when the pre-school is closed in the 2014/2015 pre-school year.

   (b)       From the commencement of school in 2015:

   (i)each alternate weekend from after school Friday until before school Monday with the mother to collect and deliver the child to and from school;

   (ii)for one week of each school term holiday from 9.00 am Saturday until 9.00 am on the middle Saturday;

   (iii)for one-half of the Christmas school holiday periods being alternating weeks in the 2015/2016 and 2016/2017 school holiday periods and thereafter half each period; commencing on the first Saturday of the holiday period in even-numbered years and on the mid-point day of the holiday period in odd numbered years.

   (c)At Christmas, if the mother is not otherwise spending time with the child, from 2.00 pm Christmas Eve until 2.00 pm Christmas Day AND if the child is with the mother pursuant to these Orders time is to be suspended from 2.00 pm Christmas Eve until 2.00 pm Christmas Day.

   (d)       At such other and/or additional times as agreed between the parties.

8. For any changeover not occurring at the pre-school or school, unless the parties agree otherwise, the father or his nominee shall deliver the child to the mother or her nominee at McDonald’s Restaurant C Town and the mother shall return the child to the father at the same venue.

Communication

1. During 2014 and thereafter during term time commencing from 2015, the mother may have telephone communication with the child at 6.00 pm each Wednesday with the mother to telephone the father to initiate the communication and the father to facilitate and encourage the child to speak to the mother on such occasions.

2. Commencing in 2015 during school holiday periods, each party may have telephone communication with the child at 6.00 pm each Wednesday when the child is living/spending time in the other household.

3. The father shall make enquiries through his treating psychologist for a suitable source of therapeutic counselling for the child in relation to the child’s exposure to family violence and in that regard may provide the psychologist with a copy of these Orders and Reasons for Judgment and shall ensure the child’s attendance for that counselling and FURTHER shall:

   11.1shall provide the child’s therapist with contact details for the mother; and

   11.2participate in counselling for the benefit of the child if requested by the child’s therapist to do so.

4. The mother shall participate in counselling for the benefit of the child if requested by the therapist pursuant to Order 11.

5. Each party shall advise the other party and keep the other party advised of their current address and contact telephone numbers (including both landline and mobile phone numbers if applicable) and advise the other party of any changes to those details within seven days of such change occurring.

6. In the event of the child being hospitalised or receiving medical attention for a serious illness or injury, the party then spending time with the child shall notify the other party as soon as practicable after the first contact with either medical practitioner, medical centre or hospital.

7. That both parties shall do all such acts and things necessary to authorise all medical practitioners or health professionals who may treat the child from time to time with irrevocable authorisation to discuss and/or provide to both parties information relating to the child and provision of a copy of these Orders shall be sufficient authority for that purpose.

8. Each party shall be at liberty to attend any school function to which parents and/or caregivers are normally invited, irrespective of whomever the child is at that time living or spending time.

Restraints

1. That each party is restrained from denigrating the other party, or members of that parties’ family; verbally, electronically, by telephone and/or text or on social media, in the present and/or hearing of the child and/or accessible by him electronically.

2. The father is restrained from further questioning the child about past allegations raised in these proceedings regarding inappropriate conduct towards him by J and further shall make his best efforts to ensure that third parties are similarly restrained.

3. Each party is restrained from discussing past allegations relating to the child and J in the presence or hearing of the child or permitting any other person to do so.

4. Pursuant to s 65DA(2) and s 62B of the Family Law Act 1975 (Cth), the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders and details of who can assist parties adjust to and comply with an order are set out in the Fact Sheet attached hereto and these particulars are included in these orders

IT IS NOTED that publication of this judgment by this Court under the pseudonym  Adamson & Forst has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

FAMILY COURT OF AUSTRALIA AT NEWCASTLE

FILE NUMBER: (P)NCC641 of 2013

Ms Adamson

Applicant

And

Mr Forst

Respondent

And

Independent Children’s Lawyer

REASONS FOR JUDGMENT

Introduction

1. These are competing applications for parenting orders in respect of one child, B (‘the child’), now aged five.  The applicant is the mother, Ms Adamson.  The respondent is the father, Mr Forst.

2. The parties now both live in F Town, in Region G of New South Wales.  Each party seeks similar orders, that is, sole parental responsibility, residence with that party and substantial and significant time for the child with the other parent.  Despite that acknowledgement of suitability of the other parent to be fully involved in the child’s life, there are numerous serious complaints made by each parent against the other.

3. The mother alleges that there was physical violence and verbal abuse directed at her by the father during the course of the relationship, which the child and her two older children, H and J, were exposed to.  She also asserts that there were numerous verbally abusive statements and communications made by the father towards her post-separation.  The mother alleges that the father has a dependence on drugs and alcohol.

4. The father alleges that the mother was aggressive and abusive towards him, that she has failed to properly supervise the child with his older siblings and that that has led to intrusive behaviour by J towards the child, which has caused both the child and the father concern.  The father also alleges that the mother is dependent on alcohol, to the detriment of her capacity as a parent.

5. The mother’s household consists of herself and her two children from a previous relationship with Mr E. The mother’s children are H, aged almost eleven, and J, aged seven. The children spend regular substantial time with their father, Mr E. The mother has developed a relationship with a long standing friend, Mr I.  Mr I lives in K Town and has four children aged between 18 months and 12 years.  He is an irregular member of the mother’s household at this stage.

6. The father’s household consists of himself and the child.  He has recently had an association with Ms L, a long standing friend.  Ms L has three children from a previous relationship, aged six, four and two.  Ms L describes the relationship as having been an intimate relationship, mutually agreed as casual, since around August 2013.

7. At the conclusion of the hearing, the Independent Children’s Lawyer put forward a proposed Minute of Order.[1]  The Independent Children’s Lawyer submitted that the child should live with the mother and that she should have sole parental responsibility for him.  I have come to a different view.

   [1]Exhibit 19

Short history

1. The parties began a relationship in approximately mid-2008, with pregnancy for the mother occurring almost straight away.  The parties began living together either within a couple of months of meeting, according to the father, or in December 2008, according to the mother.  Nothing turns on the difference.

2. The child was born in 2009.

3. Accordingly, the relationship began with a household consisting of the parties, the mother’s two children, then aged five and one, and soon after, the new baby.

4. By late 2009 the relationship was under strain.  The father alleges regular weekday drinking by the mother, with heavy drinking on weekends defined as passing out or vomiting as a result of intoxication.

5. The mother concedes drinking but denies her abuse of alcohol.  She alleges family violence, including the father throwing objects at her, punching her in the chest, standing on her foot, pushing and slapping her and the use of derogatory language

6. Between mid-2010 to early 2011, the father worked driving trucks interstate, thereafter intra state.  The parties disagree about the extent to which each was responsible for the care of the child.  However, clearly the mother cared for the child when the father was away working.

7. During 2011, the father raised a complaint with the mother about behaviour by J in the bath with the child, which the father was concerned about and interpreted as sexual misconduct.  J was then almost five and the child almost three years old.[2]  The father set out with particularity the conversations between them, including an assertion by the mother that J, and perhaps also H, had been “touched” by a named person at the home of their father.

   [2] Affidavit of father filed 11/04/2014, pars 53-57

8. In February 2012 the mother sought assistance from Community Partnerships Against Domestic and Family Violence.[3]

   [3] Affidavit of mother filed 04/04/2014, Annexure C5

9. On 18 October 2012 there was a violent incident between the parties. 

10. On 29 October 2012 an Apprehended Violence Order (AVO) was taken out by police for the protection of the mother. This is described in police records as a non-urgent AVO.

11. On 27 January 2013 there was a prolonged and furious argument between the parties over an accusation by the father of infidelity by the mother; all the children were present during this episode.

12. On 28 January 2013 the parties separated.  The child remained in the mother’s care in the home and the father left the home to live with his parents.  After two weeks there was a further change.

13. On 5 February 2013 the mother attended C Town police station and reported receiving abusive text messages and threatening phone calls from the father.  The mother was unable to tell the police what had been said, “I can’t really remember what he had said.”  The mother denied that there had been any threat towards her life or the life of her children.  Police records indicate that a police officer looked at the text messages sent between the parties, which were classified as “arguing and bickering between the pair.”  Police expressed the view to the mother that the text messages were not threatening and they amounted to only an argument.

14. On 11 February 2013 there was an incident which led to the child leaving the mother’s home and going to live with the father, where he has remained for the 18 months since.

15. The mother alleges that the father forcefully took the child without her consent. The father agrees but asserts he did so for the child’s safety. He alleges that the mother was intoxicated. Police were called.  Whilst police were present, the father and his parents left with the child. During the course of these events, Mr E, the father of the mother’s older two children, arrived and also removed them from the household (temporarily).

16. The father alleges that the police allowed him to take the child for the night because the mother was intoxicated.  The mother asserts that the police told her that because there were no orders in place, it was not a matter for them to become involved in. Police records[4] support the mother’s version.  Police advised both parties to get legal advice about arrangements for the child and the division of their property. However, the records do not refute the father’s version either.  The father left with the child whilst police were present.

    [4]Exhibit 9, police records green tag F2

17. On 19 February 2013 the mother filed an Initiating Application in the Local Court at M Town, seeking orders for the child to live with her.  The father filed a Response, also seeking residence.

18. On 22 February 2013 interim orders were made in the Local Court providing for equal shared parental responsibility, residence with the father and time with the mother, although not overnight time, for two days each week and each alternate weekend.

19. On 28 February 2013 the mother attended C Town police station and reported that she had seen the father driving past her place of work in C Town.  Police explained to the mother that the actions of the father did not constitute a breach of the interim AVO due to the father likely having a legitimate reason for crossing the CBD of the town.  The police records indicate, “The victim appears to be over-reacting to this incident as well as a number of prior incidents.”  However police urged the victim to add a new clause to the AVO prohibiting the father from attending her address, as she expressed concern about the father being able to come to her house whenever he felt like it.

20. Hostility between the parties deepened.  The father alleges that he continued to receive comments from the child that J was touching his genitals, which the child referred to as “playing the doctors game”. 

21. On Sunday 1 April 2013 there was an incident at changeover, when the child was moving into the mother’s care, according to the interim orders.  There was a dispute between the parties over whether it would be suitable for the child to be outside all day as he was apparently unwell. 

22. Police records indicate that when the mother lent into the car towards the child and opened her arms to take him from the father, the father used his left hand and pushed the mother’s left shoulder.  The force of the push is reported to have made the mother to take two steps backwards.  The mother told the police she felt a slight pain to her left shoulder.  The child was then handed over to the mother.  Ten minutes later, the mother made a report to C Town police station advising she had been assaulted.  The father had also attended at the police station.  He was arrested and charged with assault.[5]

    [5]Exhibit 9, police records blue tag 04.01

23. The father was charged and convicted of common assault and breach of AVO; he was sentenced to a good behaviour bond. The father appealed that sentence and although the conviction was upheld, the charges were dismissed pursuant to s 10 of the Crimes Act 1900 (NSW).

24. On 9 April 2013 the mother alleges that the child came to her with a large bruise on his head, crying and asserting that the father had thrown a phone at him which hit him on the head.  The father denied he had hit the child or caused injury to his head.

25. The conditions of the AVO were increased to restrain the father from coming within 100 meters of the mother’s residence or workplace.

26. Changeovers became increasingly problematic. The mother began attending changeovers with a friend, about whom it is alleged made hissing sounds at the father and/or his parents.  The paternal grandparents began attending changeovers instead of the father.

27. On 4 June 2013 the mother filed an Application in a Case and a Notice of Abuse.  The Notice of Abuse included allegations of physical abuse on the mother causing psychological harm to the child and conduct by the father including driving with the child without proper restraints and driving whilst intoxicated.

28. On 1 July 2013 the parties saw a family consultant for a Child Inclusive Conference.  The family consultant noted that the parties had an acrimonious relationship and that the child had been exposed to ongoing parental conflict and family violence.  The recommendation was that both parties would benefit from attending a Parenting after Separation course.

29. On 24 September 2013 a final AVO was made for the protection of the mother from the father.  

30. On 12 December 2013 the proceedings were transferred to this Court. 

31. The hearing commenced on 27 May 2014 and proceeded over the four days allocated.

Issues

1. The issues in this matter are:

   a)Whether the capacity of either party to meet the child’s needs is restricted or impaired;

   b)Whether there has been family violence; and

   c)The significance of the relationship between the child and his older half-siblings, with particular reference to past behaviour by J towards the child.

The evidence

1. The following documents were relied upon:

   Mother:

   (a)Amended Initiating Application filed 20/02/2014;

   (b)Affidavit of the mother filed 04/04/2014;

   (c)Affidavit of Ms N (friend of the mother) filed 03/04/2014;

   (d)Affidavit of Ms O (friend of the mother) filed 03/04/2014;

   (e)Affidavit of Ms P (friend of the mother) filed 03/04/2014;

   Father:

   (f)Amended Response filed 26/02/2014;

   (g)Affidavit of the father filed 11/04/2014;

   (h)Affidavit of Mr Q (paternal grandfather) filed 10/04/2014;

   (i)Affidavit of Ms R (paternal grandmother) filed 16/04/2014;

   (j)Affidavit of Mr S (cousin) filed 15/04/2014;

   (k)Affidavit of Ms L (friend of the father) filed 16/04/2014;

   (l)Affidavit of Mr T, Psychologist, filed 24/04/2014;

   Independent Children’s Lawyer:

   (m)Family Report, Dr U, dated 09/12/2013;

   (n)Memorandum to Court, Ms V, dated 01/07/2013.

[Ms Adamson] Adamson, the mother

1. The mother is 29 and is employed as a home care worker.

2. During her cross-examination, the mother’s presentation was one of extreme distress.  She very often became tearful; her voice rising and becoming louder and harder to understand as she spoke through her tears.  On each occasion she quickly recovered and moved on, without the need for a break.  It is consistent with the opinion of Dr U, the family report writer, that she is a person suffering from stress and anxiety.

3. The mother’s memory appeared to be unreliable.  An incident was raised from the child’s infancy where the mother’s grandmother became concerned that the child might have taken one of her tablets.  When asked about it the mother said yes she remembered the incident; she and the child had been with the maternal grandmother, who had her tablets lined up on a table ready to take.  There was one missing and issue was raised as to whether the child had picked one up.  The mother’s response was, “At the time I thought he probably didn’t take one.” She then asked counsel for the father, “Did I take him up to hospital?” 

4. Referring to the notes from the hospital, counsel told the mother that the records stated she had taken a tablet out of the child’s mouth and part of it was missing.  Her response was, “Honestly I don’t know.  It could have been like that.  I’m not sure.”  There is no current criticism of the mother for that incident and nothing to be lost or gained by giving responsive answers.  It was purely one of several occasions where I wondered whether the mother was suffering from significant memory loss, for some undetected reason.

5. The mother moved from her previous home in C Town to F Town in about February 2014.  This is somewhat inconsistent with her evidence of continuing fear of possible future assault by the father.  She now lives, by choice, about five minutes from his home.

6. I have no doubt that the mother loves the child very much and has been endlessly upset by the fact that he is not living with her and that the time she spends with him now is day-time only.  She longs to have the child back with her and is genuinely concerned about the disruption of the relationships between the child and his two older half-siblings.

7. The mother resiled from her application that there be extended weekends, holidays and other times with the father, should the child return to live with her.  She said she was not happy about the proposal, but that she was trying to be reasonable.  In truth, the mother preferred that somebody be present whenever the child was in the father’s company.  She considered that the child was not safe in the father’s home because he was a violent man, particularly to partners, “he will be violent to [Ms L] as he was to me”. 

8. The mother is also mistrustful of the paternal family and believes they would not tell her if something adverse happened to the child whilst in the father’s care.  That belief does not accord with my view of the paternal family.

9. When the mother saw a psychologist on the recommendation of C Town Domestic Violence Services, she was concerned to outline her fears and beliefs about the father’s care of the child, rather than using the opportunity to seek help for herself and to understand why she had remained in that relationship.

Ms N

1. Ms N is one of three friends called by the mother to give evidence in support of her application.  In the case of Ms N, that was the tenor of her evidence; supportive of her friend of some five years and defensive of her also.

2. Ms N lived next door to the parties until they separated.  She spent time in their home.  They have clearly been supportive friends. They now work together, they have looked after each other’s children and they drink together on social occasions. Ms N is supportive of the mother and has been strongly so since the parties’ separation.  I had the impression that Ms N is offended by the suggestion that the mother is an alcoholic, or dependent on alcohol, and is contemptuous of the allegation that J has in any way represented a threat to the child.

3. Ms N said that she heard the allegation against J from the mother, but had heard nothing at all about it before the parties separated.  I take from this that although the mother knew what the complaint of the father was at the relevant time, that is, at the end of 2011, she did not confide in her friend Ms N: “[The father] did not raise any concerns about the alleged incident until they separated”[6] is factually incorrect.  However, I have no reason not to accept the evidence of Ms N; that she did not know anything about the alleged incident until after separation.

   [6]Affidavit of Ms N filed 03/04/2014, par 41

4. I accept the evidence of Ms N that she encouraged the mother, as a friend, to give a statement to the police in October 2012, but that the mother would not do so. 

5. It seems likely that Ms N has observed quite a bit of conflict between the parties and it seems to me that the father reposed some confidence in her.

6. In February 2012 there was an incident in which there was screaming, yelling, anger and threat between the parties. The father called on Ms N to “just get rid of her - get her out of my sight”. 

7. In October 2012 there was another incident, more fully discussed later in these reasons.  Ms N spoke up in support of the mother and the father is said to have asked Ms N to get the mother out of the house “before I kill her”.

8. I consider that both parties felt free to use foul and abusive language towards each other whenever they were upset and that this was not unusual.  It must have been frightening for the child and may represent some explanation for why the pre-school reports that the child is an angry child who has hurt and confronted other children.

Ms O

1. Ms O is employed as a home care worker, as is the mother.  She too was defensive of the mother.  She also stated that the allegation about J touching the child’s genitals in the bath was not something she had heard about until after the parties separated.  She was definite that she had been told nothing at the time.

2. Ms O, it seems to me, as with Ms N, feels considerable contempt for the father attributing sexual misconduct to a child who was aged four at the time and she has bought a hostile attitude to bear towards the father and the paternal grandmother.  Ms O conceded that she had hissed at them when they, in her words, brushed past her. She wanted to show them that she was not intimidated and also, I think, to show support for the mother.

Ms P

1. Ms P was the third of the mother’s witnesses, also a work colleague, who was straight forward, honest and not an angry person.  She was supportive of the mother, defensive about the mother’s levels of drinking and unchallenged on her statement that she had seen the father extremely intoxicated on several occasions. 

2. Ms P’s affidavit, which I accept she volunteered to make, was supportive both of the mother and J.

Mr Forst, the father

1. Mr Forst is aged 33.  B is his only child. He is a less experienced parent than the mother, which may be the explanation for his level of vigilance in relation to the child.  It probably explains his decision to take the child to the hospital in May 2014, where he presented with minor burns to the tips of his fingers.  However, it cannot be the complete explanation for why he has continued to be enormously concerned about the possibility of sexual abuse of the child, aged two and a half, by his four year old half-brother, J

2. The father was taken to the fact that he is seeking an order restraining the mother from allowing the child to be in the presence of J, unless she is present.  The father confirmed that he continues to be worried about the safety and wellbeing of the child, if he is left alone with J.

3. As the father of a then two and a half year old, it is easy enough to understand that he may have felt concerned when he observed J touching his younger half-brother’s genitals and be interested in genital play in the bath.  This is particularly so as the father has disclosed some early childhood sexual abuse perpetrated upon him by an older brother, which has in his view, adversely affected his life.

4. An affidavit by Mr T, Psychologist, is relied upon in the proceedings.  In relation to those matters, Mr T says this:[7]

   [Mr Forst] did touch on the matter of early childhood sexual abuse by a member of his family.  From all accounts and in [Mr Forst]’s understanding as well, this amounted to little more than childish pranks and play and investigative or experimental childhood games.  In my firm opinion there has been very little else that has taken place in [Mr Forst’s] own childhood of this nature.  It is also clear to me that there are very few, if any residual effects of such childhood pranks/behaviour [emphasis added].

   In connection with the above, there has also been a suggestion in [Mr Forst]’s own mind that his son the child may have been similarly interfered with by older children in the family unit when [Mr Forst] was residing with his previous partner, the child’s mother, [Ms Adamson].   [Ms Adamson] has older children and I believe that [Mr Forst] showed some concern that the older boy or boys may have been similarly interfering with the child such as he, [Mr Forst] had experienced in his own childhood.  It is my strong opinion that none of this is possibly on the serious end of the spectrum, nor could even be described as abuse, if in fact it take place; but the fact that it is in [Mr Forst]’s mind is of course what is relevant at this time.  Possibly because of [Mr Forst]’s own earlier experience he is somewhat protective of the child with older children in the household.

   [7]Affidavit of Mr T filed 24/04/2014,  Annexure B, p 11 of 23, pars 2-3

5. The father agreed that he had sought Mr T’s opinion and respected it, but his reference to Mr T “being entitled to have his own opinion” suggests to me that whatever was advised to him, in his own mind, the risk could be ongoing.

6. There is also the allegation of the father having punished J.  The mother refers to him having hit J with a belt. The father denied the allegation. There is no corroborating evidence for that having happened. If he had done that, the father would need to undertake a course of instruction, not only in the normal developmental interest of children in their own bodies and the bodies of other children of the same age, but also in the area of appropriate discipline and the impact on children of severe punishment for normal developmental play.

7. The focus of the father is exclusively on the child and he is determined to protect him from all possible sources of risk.  However, accepting his denial about hitting J, he should still consider seeking out information about child development.

8. The father has underestimated the significance of the relationship between the child and his two older half-siblings.  When these parties began living together, H was almost five and J was less than two.  The child was raised, until February 2013, in the family home with H as his sister and J as his brother.  Indeed, the evidence suggests that the father treated H and J in a fatherly way. 

9. Assuming that all of the genital touching described by the father in his affidavit took place, the father’s assumption that the children should thereafter be kept separate is a negative sign, reflecting the father’s inability to help the child understand his world and to meet his needs for information and emotional support. However, the father’s concession that supervision would be adequate was a more positive sign.

10. There is certainly a strong suggestion in the evidence that the child has developed a habit of reporting to the father about J, especially reporting that J is “playing the doctor’s game with me again”.  It is most unfortunate.  The father clearly believes that the child is at risk and feels powerless to protect him.  The child understands that his father is most interested in hearing this particular complaint about J and therefore continues to repeat it.

11. The father gave evidence that the mother had promised to send J to live with his own father, Mr E, and that that was the basis on which he proposed parenting arrangements; that is, without reference to J.[8]   The father gave a second contradictory explanation that he had forgotten to include the restraint that he wanted on J and the child being left alone.

    [8]Affidavit of father filed 11/04/2014, Annexure B

12. It is possible that the mother made such a promise to the father, although it is entirely inconsistent with her evidence that she is committed to having the three children live together with her, but the mother was not cross-examined on whether she had made such a promise and it was not contained in the father’s affidavit.

13. I unhesitatingly accept that the father has been interested and involved with the child since he was born.  However, I also accept that the mother is a committed mother and that she bore the majority of care of the children, including the child, day to day during the relationship and in the absence of the father during periods when he was either working interstate as a truck driver, or working shifts which caused him to be asleep when the children were awake.

14. The father denied all allegations of throwing things, using insulting language towards the mother, smashing her phone, or even becoming upset when he believed that she was having an affair with another man, although it was that argument that ended the relationship.

15. The father presented as an intense and tense individual, who is committed to giving the child the best future he can.  His capacity to meet the child’s emotional needs is adequate, although affected by underestimation of the importance to the child of his relationship with the mother and older half-siblings.

16. On the morning of the third day of hearing, when the father returned to the witness box, he was asked whether he had sent a text message to the mother on the previous night.  He agreed he had and it had been in response to a request from the mother for him to organise someone to look after the child on Friday, the final day of this hearing.  It was the one hopeful sign of parental cooperation throughout the four day hearing

17. The parties apparently also discussed events for the following Sunday, where the father had told the child that he could race his motor bike on Sunday; then asked the mother if she would agree to a change of time. The mother had already arranged events for Sunday and said no.  The father told the child that the motor bike racing was off.  The father said the child reacted: “Yeah, he was in tears at not going”.

18. It was not unreasonable of the mother to say no, given that she had organised something else for the time that the child was to be with her.  The father was thoughtless in encouraging the child to think that he would be able to do that, without first having cleared it with the mother.

19. This was another incident where the child was the victim of the parties’ competition over him.  One parent, on this occasion the father, acting unilaterally in order to impress on the mother who was in charge.

20. On Christmas Day 2013 the child did not see his mother.  This was raised as a criticism of the father.  Whilst both parties could be criticised for their intransigence, the orders did provide for the child to be collected from the paternal grandmother’s home and the mother simply refused to do so.  She wanted to collect the child at the police station.  The father thought the police station was a bit grim on Christmas Day.  Neither of them would give way and the child missed out.

Ms L

1. The relationship between the father and Ms L is described by both of them as simply a “casual sexual relationship.”  Nevertheless, the child told Dr U, during the family report interviews, that Ms L and her children have stayed some nights in the father’s house and that he shared a room with one of her children. 

2. There is no evidence of how the presence of Ms L was explained to the child, or whether he was protected from developing an attachment to Ms L and her children in the context of a relationship with the father.  It seems to me very little thought was given to protecting the child, until there was either an end to the relationship or a development of it.

3. In much the same way, the mother has developed a relationship with Mr I, who has four children.  There would be somewhat less significance for the child, because he does not stay overnight in the mother’s home.  Nevertheless, there is no evidence as to how the significance of the presence of Mr I in the mother’s home was explained to the child.

4. The father explained his proposal to the Court, including three week holiday periods for the child with the mother, as they need to develop a strong relationship: “You only get one mother and one father.”  However, the need to be respectful of the child’s independent relationship with the mother does not appear to be so well understood.

5. Ms L has had a casual relationship with the father since August 2103.  She was the child’s pre-school teacher and knows him reasonably well.  Ms L has her own three children aged six, four and two; she has spent time in the home of the father, two or three times per week, and the children have got to know each other and have played together. 

6. Ms L minds the child for the father and has assisted him when his parents have been away with getting the child to pre-school and at other times.  The father has also assisted with the care of her children.

7. Ms L conceded that one outcome of her relationship was permanence and commitment, but the relationship which has developed out of a long standing family friendship was too new to categorise.

8. Ms L was able to give quite a description of the child in the following way: 

   He likes to get his point across; he’s quite opinionated; he’s very sociable; he has maintained a group of friends; he’s a bit of a leader amongst that group; he enjoys his motor bike; going to the beach, fishing, trucks, sports and football.

9. Under cross-examination, Ms L conceded that she did not like the mother, and that there had been aggressive gestures, at least on her part, and certainly no friendship between the two.  However, there is nothing to suggest that she has in any way been critical of the mother or behaved in an aggressive or unpleasant way in the child’s presence in relation to the mother.  It seems likely that she is a positive influence in his life and that the child probably enjoys her involvement in the father’s life.

Ms R, paternal grandmother

1. Ms Forst is 59.  She lives with her husband, the paternal grandfather, in W Town.

1. Ms Forst was cross-examined about a photograph showing her at an event holding a full wine glass in front of her.  There was no allegation that Ms Forst was a user of alcohol to any extent.  It seemed to me that this cross-examination of the father and Ms Forst by the mother’s counsel, which must have been on the mother’s instructions, was only provocative.  I accept that Ms Forst does not take alcohol.

2. Ms Forst was heavily criticised for the critical nature of her own affidavit and her statement to Dr U.  She is loyal and supportive of the father, but I do accept that there was good relationship between herself and the mother, at least in the early stages.  Ms Forst met the mother for the first time when she was pregnant with the child.  No doubt this was a strong motivation for Ms Forst to be on good terms with the mother of her future grandchild.  However, now that the parties have separated, all of those things of which Ms Forst was critical, have freely flowed into the proceedings.  Some of them are of significance; for instance third parties being allowed by the mother to discipline the child, such as her current partner Mr I and a woman known as “nanna X”.  Others are minor matters such as placement in the car, smelling of cigarettes and cutting the child’s foot.

3. I have no doubt that Ms Forst is a supportive mother to the father and a loving and devoted grandmother to the child, “We are there for him whenever he needs help”.

4. Ms Forst appears to genuinely share the father’s view that J is a sexual menace, “He’s being doing things to [the child].  He’s chased other kids around at our house with his pants down”. 

5. The first allegations about J relate to a time when he was pre-school age in late 2011.  It is hard to understand why the father and the paternal grandparents regard the conduct of J, touching the child’s genitals and his own in the bath and later perhaps playing a “doctor’s game”, which also involved genital play, as abusive.  That is not to say that a discussion with both children and some direction was not needed, it was.  It is even harder to understand why their attitude was that the child should be kept away from his half-brother, or that their time together be entirely supervised.

6. Ms Forst raised the conduct of J with Mr E on 11 February 2013, which suggests that it was a very live issue for her and she regarded that the child was as at risk, even at that time.  I am concerned that in the Forst household, not only is J unwelcome, but the child has been encouraged to report negatively about J, although he misses him and regards him as his brother.  J has begun to hurt the child and the child has begun to hurt J.  The relationship between the brothers needs protection.  The subject should now be dropped.

7. Ms Forst has taken over the changeovers on behalf of the father.  It is hardly pleasant to be collecting the child from the mother at the police station.  She described on one of those occasions that the mother was reluctant to let the child go, “kissing and cuddling and whispering into his ears about seven times.”  Ms Forst lost patience, took hold of the child and said, “It’s time to go.”  I accept that that is as abrupt as she has been in the child’s presence and that even then it was in the child’s interests to end a prolonged farewell.

8. Significantly, there is no evidence that Ms Forst has been critical or derogatory about the mother on any occasion in front of the child.  She described the child as sometimes behaving aggressively when she picked him up, “He’ll tell me he hates me, that his mother said she hates me.”  Her response was, “Don’t worry about it darling, it’s alright”, which was an appropriate and reassuring response.

9. Ms Forst works fulltime as a Program Administrator.  I am satisfied that if she needed to modify her hours, or even cease taking her annual leave where she and her husband go away travelling, she would do so for the child’s sake.  I am also satisfied that she would protect the child, even if that meant disagreeing with the father.

10. Ms Forst would prefer that the changeovers took place at her home, as the orders provided for.  It is certainly not a very positive message for a child to be changing between family members at the police station. 

11. My impression is that Ms Forst does not intrude into the father’s life, does not ask him questions or cross-examine him about his conduct.  That includes his use of alcohol, his relationships with women and his attendance on Mr T, his psychologist.  But that is not to say that she is not concerned and committed in relation to the father.

Mr Q, paternal grandfather

1. Mr Forst is 60.  He met the mother before Ms Forst did and he has had an easier relationship with the mother from the beginning, “Quite good.”  I suspect the mother finds him easier to talk to.

2. Mr Forst apparently shared the view of Ms Forst and the father that events involving J and the child were serious, but neither of them had observed anything themselves.  It is difficult to know what they had been told or what they have come to believe.

3. In his affidavit, Mr Forst relayed his observations of the mother’s drinking patterns on a daily basis.  I have no reason not to accept what he said.  For a period of time, the father and mother lived opposite to the paternal grandparents, and Mr Forst in particular, would call in on the child most afternoons.  It was at that time that he regularly saw the mother drinking.  He does not appear to disapprove of drinking, but was probably conscious of the potential risk to the child.

4. Mr Forst described the child as “a strong little boy who loved his sports, fishing, playing and working in his vegetable garden.”  He said he loves his pre-school, the new one, he likes the atmosphere there a bit better and enjoys being able to take his own lunch.  He has made friends at pre-school and one of those children has been to the home of the paternal grandparents.  He said he eats and sleeps well.

5. This picture suggests that despite everything, the child is developing well.  His main problem is an emotional one; that is, being torn apart by his parent’s conflict.

6. I am satisfied that Mr Forst will be a good support to the child. 

Dr U, family consultant

1. Having considered all of the material, particularly from JIRT, Dr U was clear that unless evidence produced in Court suggested otherwise, the child had not been abused by J.  His evidence was that it would represent more pressure for the child if the father and paternal grandparents continued to hold fears about him in the presence of J. 

2. Dr U’s concerns were mainly about the acrimony and conflict between the parties and the exposure of the child to that, which could cause long term emotional disturbance for him. 

3. Dr U had no reason to feel that the mother had an alcohol problem, having found nothing in the subpoenaed material which indicated as much.  However, there had been no exploration by Dr U with the mother of her use of alcohol.  Dr U had picked up the statement made by the mother in her affidavit of May 2013; that she had ceased drinking and there had been no further discussion about it.  However, the information that she had resumed drinking in August 2013 did not represent a source of particular concern for Dr U.

4. Dr U recommended that the father should continue consulting with Mr T; that the mother should reconsider the need for psychological counselling for herself, perhaps particular cognitive behaviour therapy; and that both parties should undergo family violence counselling in order to learn different ways of dealing with conflict and also learning about the impact on others of their certain behaviour.  The parties should consider taking up that recommendation to undergo family violence counselling for the child’s sake alone.

5. Dr U raised the possibility of the child having access to some counselling, which would be a valuable means of monitoring him and adjusting him to whatever orders were made by the Court.  Dr U sounded a note of caution in relation to Mr T’s testing, which is a computer test that is analysed overseas.  I accept that note of caution, but it does not diminish the observations made by Mr T in relation to the father.

Mr T, psychologist

1. Mr T has seen the father on five occasions, with an anticipation of ongoing therapy after the conclusion of these proceedings.  The father sought a referral to a psychologist on the recommendation of Dr U.  Mr T refers to the father as follows:[9]

   [The father] engages well in the counselling process.  He attends regularly and appears to be earnestly listening and coming to sessions for the right reasons, i.e. to learn as much as he can to improve his parenting style and to give [the child] the best living conditions that he is able to prove.  I earnestly believe that [the father] is making very good progress in counselling therapy.  He listens, asks intelligent questions and definitely engages in the counselling process.

   [9]Affidavit of Mr T filed 24/04/2014, Annexure B, p 12 of 23 , par 5

2. Mr T arranged for the father to have personality assessment infantry done.  However, it is his own observations of the father that I have taken into account.

3. There is significance in the fact that the father was willing to engage with a psychologist and although there is some indication that he may have attempted to put his best face forward for the purpose of having a report prepared for these proceedings, I also consider that the father has genuinely engaged in therapy to understand why there is such continuing animosity between himself and the mother and whether there is something about himself that he could change.

4. Mr T conceded that the father had not mentioned having been charged and convicted for an assault on the mother.  He reflected, “Most people have the tendency to play down negative aspects of themselves.”  He expressed the view that although he thought it was likely that there was a great deal of antagonism in the relationship between the father and the mother and that lots of frustrations and other feelings had come to the fore, in his view in normal circumstances, the father “does not have an aggressive nature, but may have acted aggressively in the context of that relationship.”  I consider that evidence is consistent with the evidence given in these proceedings.

Consideration of Identified Issues

(A)     Capacity of the parents

Mother’s use of alcohol

1. It is likely that the mother depends on alcohol and is unwilling to acknowledge that to others and perhaps to herself.  Her evidence is that she gave up alcohol sometime between February and May 2013 and resumed drinking in August 2013.  There was no particular explanation for why she felt the need to give alcohol up, other than “to prove she was not an alcoholic and that she could do it.”  The mother did not concede dependence on or abuse of alcohol.

2. In her affidavit, Ms Forst says that over the course of the parties’ relationship, she had seen the mother drinking wine and spirits on more than 50 occasions, that she had seen her intoxicated, that her speech was slurred and at those times she refused to do things for the children.[10] The mother dismissed the whole of that paragraph as “a lie”.

   [10]Affidavit of Ms R filed 16/04/2014, par 13

3. Likewise in the affidavit of the Mr Forst, he sets out his observations over the last five years of the mother’s drinking pattern in the mid-afternoons and from early morning at the weekends, which the mother again comprehensively dismissed as “all lies”.

4. The photographs uploaded to the mother’s Facebook page suggest that the mother is a regular, steady drinker, sees nothing unusual about it and cannot understand what she perceives as people’s “over-reactions” to it.

5. I do not accept that the paternal grandparents were lying about the mother’s drinking.  Her total rejection of their evidence casts doubt on her willingness to concede problematic drinking to any extent.

6. The mother appears to have no insight at all into the impact it might have on her capacity as a parent.  However, she has come to understand that for the purposes of these proceedings, her use of alcohol is a matter of concern and she has defended herself by underplaying the extent of her drinking.  I cannot be confident that the mother has been frank on this topic.

Mother’s tendency to be defensive

1. I was left with the impression that the propensity of the mother to react to events impulsively, often with anger, is not helpful to her children, including the child.  However, she is a diligent and affectionate mother in relation to the children’s day to day care.  At times she has focused on preserving her relationships with partners, rather than on the real needs of the children.

2. The incident in late 2011, where J played with the child’s genitals and perhaps his own in the bath, has assumed the significance it has, to some extent, because the mother was concerned to protect herself from criticism by the two fathers (of J and of the child).  Similarly, the recent incident when the child burnt his fingers assumed greater significance than it should have.

Focus of the father

1. The father is highly critical of the mother.  He posted a derogatory statement about the mother on his Facebook page[11] without any thought to the impact on the child of the mother’s likely reaction and the possibility of the child reading the post in future or being shown it.

   [11]Exhibit 16

2. It is immature conduct.

Incident on 17 January 2014

1. There was an incident on 17 January 2014 when the child was asleep in the father’s home. A man who had become angry with the father sent a threatening text message.  The father responded with a phone call.  The man in question arrived at the house yelling threats outside the house and whether deliberately or accidentally, drove his wife’s car, which he was driving, into the garage door on the father’s property.  The police were called. 

2. The man in question was the husband of a woman that the father had had a brief sexual encounter with.  After the threatening text, the father might have anticipated that there was going to be trouble.  When it was suggested to him that it might have been wise to let the mother know that there was a situation that the child might be exposed to, the father seemed genuinely puzzled when he said no.  My impression is that the father takes pride in managing situations himself and not conceding to any extent that he is fearful for himself or the child, or does not have the situation under control.

3. The father has focused on the consumption of alcohol by the mother and I accept that she does depend on alcohol and is by no means an occasional social drinker.  However, the father himself is assessed by Mr T as having a use of alcohol verging on heavy use. The father took comfort from the fact that the report describes that matter in this way:[12]

   It is clear to me that [the father] does not indulge in using any illicit substance and that his alcohol use, which may be at times verging on heavy, is in fact not a serious issue. 

   Mr T went on to say that the father should contemplate one or two days per week alcohol free.

   [12]Affidavit of Mr T filed 24/04/2014, Annexure B, p 11 of 23, par 3

4. I am quite satisfied that the father enjoys alcohol, is a regular drinker at hotels and at home, just as the mother is.  That is entirely a matter for their choice as adults.  Neither of them appeared to fully recognise the risk for very young children in the care of a parent affected by alcohol or even more so, intoxicated. However, my impression was that the father was more conscious of the risk than the mother because her focus is on self-protection.

5. There is some suggestion in the testing done of the father that, at least to some extent, he attended on Mr T because it had been recommended by Dr U and he wished to present as compliant with that recommendation.  However, he must be given credit for having attended on five occasions with an intention to continue to attend. 

6. Dr U also recommended that the mother consider some psychological counselling and assessment with some indications in her presentation of Post- Traumatic Stress Disorder (PTSD).  The mother dismissed that suggestion.  Neither party has undertaken a Parenting After Separation course as recommended, although each of them would benefit enormously if they attended and put into operation some of the skills that could be learned.

7. The father has completed the Parents not Partners program.[13]  

   [13]Exhibit 18

(B)  Family violence

1. It is uncontested that the parties have had arguments where they yell and hurl insults.  In the lead up to separation in 2012, there was more than one occasion when the child was present during such arguments and threats.  It is probable that for one of these arguments, the child was in the shower with his father and saw the mother punch the father in the face.  It is also probable that the father punched the mother in the chest, or at least pushed her with the child standing behind.

2. Post-separation, those incidents have diminished as a result of the parties no longer being in contact, but the allegations have continued.

Incident on 18 October 2012

1. The father alleges that the mother punched him in the face and that he retaliated by slapping her in the face and pushing her away. 

2. The mother alleges that the father grabbed her, shoved a towel in her face, pushed her head up against a wall and that she then slapped him in the face to get free of him and he retaliated by punching her in the chest with two fists causing bruising. 

3. Police records refer to attendance at the home on that evening.  The mother reported to police an argument having become heated and that she had been “grabbed by the shoulders and pushed up against the wall” by the father.  There was no reference to punching or injury for either party.

4. Despite encouragement by the police and the provision of a domestic liaison representative who gave information and advice, the mother declined to make a statement.[14]

   [14]Exhibit 9, tag F4

5. A witness for the mother, her then next door neighbour, Ms N heard the argument.[15] She said the mother ran to her house for help.  She opened the front door, presumably to let the mother in, although that is not stated in her affidavit.  Ms N then walked over to the parties’ home and spoke to the father about the child, who was inside.  The paternal grandfather (who lived opposite) came over.  Ms N’s 12 year old daughter also arrived and was sent home again by her mother.

   [15]Affidavit of Ms N filed 03/04/2014, pars 12-24

6. Ms N says she then saw the father punch the mother in the middle of the chest and the mother fell backwards.  If this is so, the mother must have left the sanctuary of Ms N’s home and returned with Ms N to re-engage with the father and the argument.  Ms N reports that when she told the father to “get his hands off” the mother he said, “I never touched her.”  It is an odd remark to make to Ms N if she had just witnessed an assault.  It would be consistent with an accusation by Ms N after being told something by the mother or hearing it from someone else.

7. In cross-examination the proposition was put to Ms N that “the punch in the chest was not true.”  Ms N asserted it was but she was not asked if she had actually seen the incident.  It is possible she was repeating something the   mother had told her when she ran to her front door.  

8. Ms N has continued as a close friend of the mother, although they are no longer neighbours.  She was a strongly partisan witness, part of a group of supportive friends of the mother who travelled together to give their affidavits for these proceedings.  Ms N had discussed the relationship between the parties with the mother and had read the other affidavits.  I am not confident that her wish to help and support the mother was outweighed by her commitment to truth and accuracy.

9. Ms N says she took photographs of the injuries of the mother next day. They were not annexed as asserted.   A photograph was tendered[16].  It is impossible to identify the part of the body presented and to have any certainty that bruising is present.

   [16]Exhibit 5

1. I am unable to determine which version of events is more accurate.  I conclude that each party assaulted the other.  It is more probable than not that the father pushed the mother in the chest.

2. It is highly probable that the child witnessed events involving the parties whatever they were.

Incident of 11 February 2013

1. At this time, the parties had been separated from each other for about a fortnight.  Looking at the evidence of the father, the mother and both paternal grandparents, events on this day reflect the tendency of each parent to react and over-react to the detriment of the child.

2. The father received a letter in the post which he opened, since it did not have the name of the addressee.  He discovered it probably involved the mother and a bank.  He phoned to tell her he had the letter.

3. On the mother’s version of events, she went straight around to the home of the paternal grandparents and confronted the father in an accusing way from the front door, about having opened her mail.  She was also rude and insulting to Ms Forst.  I accept that she said the words alleged by Ms Forst. 

4. In her affidavit, the mother made no reference to where the children were when she made that impulsive trip.  In her oral evidence, she said they were with her in the car.  I do not accept that evidence.  The evidence of the father and Ms Forst is that the mother arrived alone and that they became concerned that the children might be on their own.  They promptly followed the mother back to the house and saw the children; the two boys outside of the house on their bikes with H emerging with her phone in her hand.

5. Whichever version of events is accepted, the mother put her own need to respond in an aggressive way to an insignificant matter, that is the opening of a letter, without giving any thought to either leaving her children unattended, (the child then being aged just four); or bundling them into the car in order to be exposed to a violent and confronting argument between herself, the father and Ms Forst.  Either way the children were at risk.

6. Ultimately the Mr Forst was called to the house and the police attended.  The father left with the child and the mother was obliged to leave the home.  She had been intending to move out of the house which was owned by the father, but by arrangement she was staying there until she could find suitable accommodation.  It also involved Mr E coming to collect his children and take them away.

7. It is a perfect example of the unwillingness of either parent to take a step back, their self-righteousness when roused to anger and their indifference to the child’s exposure to those attitudes and consequences.  The proposition was put to the father that he had gone to the house with two goals; to get the mother out of the house and to take the child away.  He denied this and I accept his denial.  Both parties were simply angry and determined to prevail over the other one and the consequences unfolded as they did.

(C)     Sibling relationships: J and the Child

The allegations of inappropriate touching of the child by J

1. In late 2011 the father says that he observed J touching the child’s private parts in the bath.  He says he spoke to the mother about it later that night.  The mother denies that he did and says it was a week later and that the father had then belted J. 

2. The father denied hitting J with a belt or at all.  It seems unlikely that he did.  The mother did not report his conduct to any authority nor mention it to any of the close friends who gave evidence on her behalf.  They uniformly attested to the mother having no knowledge of any allegations of “sexual abuse” until after separation.

3. In cross-examination the mother said she observed the belting and did not immediately tell J’ father what had occurred.  She was anxious that Mr E would remove their two children from her household.  She was also anxious that the father would continue to make complaints about J.  She gave those reasons for saying nothing to authorities.

4. If either parent had taken their concerns to appropriate authorities, they might have been assisted to understand that the conduct itself was probably quite developmentally normal and to speak to both children in a way that they would understand and to reassure them that neither of them was doing anything wrong. Explanations could then have been given to both children about respect for privacy of others and the behaviour expected of them.

5. The needs of the children appear to be the last thing on either of the parties’ minds.  Instead accusation, complaint and defence feature in the reaction of the adults.

The law

1. The objects of the Act in relation to parenting Orders are to ensure that:

   a)   Children have the benefit of both of their parents having a meaningful involvement in their lives to the maximum extent consistent with their best interests

   b)     To protect children from physical and psychological harm

   c)     To ensure that children receive adequate and proper parenting to help them achieve their full potential

   d)     To ensure that parents fulfil their duties and meet their responsibilities concerning the care welfare and development of their children

2. These are applications for parenting orders pursuant to s 64B(2) of the Family Law Act 1975 (Cth). In deciding whether to make a particular parenting order in relation to a child, a Court must have regard to the best interests of the child as the paramount consideration. The way a Court determines what is in a child’s best interests is by considering the matters set out in s 60CC(2) and (3).

3. There is also a presumption when making a parenting order, that it is in the best interests of the child for the parents to have equal shared parental responsibility for the child. The presumption may be rebutted by evidence that equal sharing of parental responsibility would not be in the best interests of the child in question.

4. I have contemplated the issues of parental responsibility, residence, time to be spent and communication between child and parent as well as any other specific issues.

5. I have considered the mandatory factors and conclude that the following matters are relevant to the best interests of this child.

Parental responsibility

1. Each party sought parental responsibility.  The Independent Children’s Lawyer described the case as finely balanced, but certainly took the view that whichever parent the child was to live with, should have sole parental responsibility.

2. In making an 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. The presumption does not apply in certain circumstances, that is, where there has been abuse of a child or family violence.  The presumption may be rebutted by any other evidence that satisfied the Court that it would not be in the best interests of the child for the parents to share parental responsibility.

3. In this matter the parties’ relationship has been characterised by family violence.  There have been numerous incidents where the police have been called, some of them more serious than others.  Each of the parties concede that they have hit or pushed the other.  There has been an AVO in place for the protection of the mother.  The parties have been abusive to each other, have competed with each other for authority over the child and have generally been unable to speak civilly at changeovers.  They have disagreed about decisions for the child and have been overtly critical of each other to third parties. 

4. There is abundant evidence to rebut the presumption, even without the consensus between all parties that only one parent should have parental responsibility and I will make that order accordingly.

5. The difficulty is that the parties do each have a genuine interest and commitment to the child and want to be involved in his education, maintaining good health for him, obtaining appropriate medical treatment and in all the other long term issues for him.  What holds them back from sharing is that they cannot communicate and consult in the way that is required for equal shared parental responsibility.

6. The Independent Children’s Lawyer took the view that the child should return to live with the mother, in large part because of the need to restore relationships between himself and his older half-siblings.  However, I am persuaded by the submission made on behalf of the father, that the mother’s tendency to prioritise her own needs over the needs of the child, and in the event of there being a problem with the child, the mother would not be candid about it with the father or other relevant parties. However, that is not to say that he does not need more time with his older half-siblings in his mother’s home.  He will benefit from that.

7. The more appropriate course is for the father to have sole parental responsibility and residence for the child.  In terms of his pre-school, his school and his medical practitioners, all those matters will be subject to order, such that agreement is required to change those settled arrangements.  What will benefit the child most, unless there is a complete shift in attitude by each of the parties, is for them to stay away from each other and that is inconsistent with shared parental responsibility

Primary considerations

Section 60CC(2)(a) - the benefit to the child of having a meaningful relationship with both of the child’s parents and (2)(b) the need to protect the child from physical or psychological harm from being subjected or exposed to abuse or family violence

1. In applying these considerations the Court must give greater weight to the second consideration; that is, the need to protect the child from harm.

2. The child does have a meaningful relationship with both parents, which needs to be preserved.  Each of the child’s parents love him; although their hostile and physically aggressive encounters have exposed the child to family violence on several occasions.  I accept the evidence of Ms N that the child was screaming in October 2012 when his parents engaged in one of their violent arguments.

Section 60CC(3)(a) - any views expressed by the child and any factors that the Court thinks are relevant

1. The child presented to Dr U as a child whose speech, physical development and behaviour on the day of assessment appeared developmentally appropriate for his age.  The child is now five.

2. The child expressed a view that he would like to spend more time at night with the mother and would be alright spending time in her home overnight.  He spoke about wanting to play more with J and that was consistent with the observation Dr U made of him with his brother and sister; that he was more interested in and played well with J.  The child went on to say that he would like to live with the father, but to go and spend time with the mother.

3. At the time of the interviews for the family report, the child had been living with the father for about 11 months.  He had previously lived more with the mother and spent time with the father, so despite his young age, he has had the opportunity to live in both households and I give some weight to his views.

Section 60CC(3)(b) - the  nature of the relationship of the child with each of their parents and other persons

1. The mother was the child’s primary carer until separation, although the father was fully involved in his care and supervision when he was not at work.  The child also has important relationships with his half-siblings, more particularly J who is closer in age to him.  H is almost 11 and therefore it is not surprising that the observations are that the child did not particularly engage with H.

2. The child also has an important relationship with the paternal grandparents.  They have been a steady source of love and affection for him through the tumultuous years of the parties’ relationship and separation.

Section 60CC(3)(c) – the extent to which each of the child’s parents has taken or failed to take the opportunity to participate in making decisions, to spend time with the child and to communicate with the child

1. Both parties have been interested in decision making in relation to the child, but have failed to involve the other parent in that process.  Each party lacks skills in communicating what they want in a clear, calm fashion, at least in relation to each other, and they appear to be unable to compromise or concede for the benefit of the child. 

2. Where the child was to go to school has been a major issue between them.  His half-siblings attend the local school and the parties’ respective residences permit for the child to also attend that school, which will provide the benefit of being in contact with his half-siblings.  The child and H will only overlap for 12 months and he is unlikely to see very much of her. He will however be able to see them both at school and come home with them during periods of time with the mother.

Section 60CC(3)(ca) - the extent to which each of the child’s parents has fulfilled or failed to fulfil the parent’s obligations to maintain the child

1. The mother has been paying a modest amount of child support as assessed, consistent with low income.  The father has willingly taken on the financial obligation to provide most of the child’s financial needs.

Section 60CC(3)(d) - the likely effect of any changes in the child’s circumstances including the likely effect on the child of any separation from either of his or her parents, or any other child or other person

1. The child has now been living with the father for 18 months.  He appears to have been doing well in the father’s care.  On behalf of the mother, it is submitted that the likely effect of the child returning to live fulltime with the mother will be positive; that Dr U had recommended that if there was family violence in the father’s household and no risk of sexual abuse in the mother’s household, the child should live with the mother.  Indeed that is what Dr U said.[17]  However, I do not consider that the child is at risk of family violence in the father’s household, nor do I consider that the child is at risk of sexual abuse in the mother’s household.

   [17]Family Report dated 09/12/2013, par 65

2. The child has been exposed to family violence by both parties, in repeated violent and aggressive incidents, and no doubt large numbers of angry abusive arguments.

3. Dr U expressed the opinion that there was little evidence that either the mother or father demonstrated any awareness or acceptance of the impact of this environment on the child or his older half-siblings and what experiencing family violence first hand may have had on their development.  However, there were some signs in the father’s oral evidence that he has begun to understand that impact, perhaps through his attendance in a therapeutic relationship with Mr T.  The father’s opposition to the child changing over to the mother on Christmas day at the police station is supportive of some insight, despite the fact that that might have been preferable than the child spending no time with his mother at all.

4. There will be in my view, a positive impact on the child in spending substantial and significant time with the mother his half-siblings.  Presently he does not stay overnight, which must create a rather artificial environment of visiting, rather than truly being a member of the mother’s household. 

5. H and J spend regular substantial and significant time with their own father, but the children will overlap sufficiently to improve their relationships.

Section 60CC(3)(e) - the practical difficulty and expense of a child spending time with and communicating with a parent

1. The parties now live quite close together and there is no practical difficulty in changeovers between the households.  It would be the safest course if the parties did not meet for changeovers and that on those occasions that changeover was not at school, nominees for the parties affect the changeovers, until such time as there is a better relationship, if that time comes at all, between the parties.

Section 60CC(3)(f) - the capacity of the child’s parents and any other person to provide for the needs of the child, including emotional and intellectual needs

1. Capacity has been a central issue in this matter.  Each of the parties lack insight into the child’s needs in important ways.

2. The mother is defensive of herself and fearful of criticism.  She was unwilling to confront the evidence that she is at least dependent on alcohol and that day time drinking is inconsistent with the safety of young children.  The mother herself is stressed and anxious and that is reflected in the observation of Dr U.  At the end of his observation between the child and the mother he said this:[18]  

   The child showed extreme clinging and protesting behaviours during separation from the mother at the end of the observation.  The mother was unable to manage her own or [the child’s] distress.  The mother’s friend [Ms N] and the report writer had to help the child with separation.

   [18]Family Report dated 09/12/2013, para 46

3. This is a minor example of a significant issue, that the mother has difficulty giving priority to the child’s needs over her own at the present time. 

4. The father also has restrictions on his capacity.  He has failed to understand the significance of the child’s relationship with the mother and his half-siblings in his unrelenting focus on the child’s safety. 

5. Safety is of course important, but if the father had been less critical of the mother and more open to cooperative dialogue, the child might have been spending more time with the mother and her children and be less pressured about J.  His behaviour at pre-school, the fact that he reports as having no friends  and is an angry child, are warning signs for the parties that they need to prioritise his needs for stability and connection with the people who matter most to him, that is, his parents, his half-siblings and his grandparents.

Section 60CC(3)(g) - the maturity, sex, lifestyle and background of the child and either of their parents that the court thinks are relevant

1. The child is a five year old boy. He is interested in outdoor pursuits and motor bike riding, which he enjoys with the father.

Section 60CC(3)(i) - the attitude to the child, and to the responsibility of parenthood, demonstrated by each of the child’s parents

1. Both parties are committed to their responsibilities as parents.  The mother has mismanaged the situation between the child and J.  I am satisfied that the father communicated his concerns to the mother about what he saw between them in the bath.  What he saw does not seem exceptional, given the young age of the children at the time; that is, that the older child was touching or playing with the younger child’s genitals.

2. Either the mother told the father that she would do something about it in conversation with Mr E, or she didn’t.  On balance, I consider it is likely that she did say that to the father.  However, there was no evidence from Mr E to throw light on what was discussed, if anything, between himself and the mother; he was not called as a witness.

3. The mother was self-protective and tried to minimise discussion on the topic so that there would be no trouble for her in relation to either of the fathers.  Unfortunately the father, who is a less experienced parent, became more and more focused on the statements that the child was making to him and both he and his parents became concerned that something was seriously wrong.  The mother was dismissive.  Post-separation she confided in her three friends who gave evidence.  They became strongly supportive of her dismissive attitude and as a result, there is now a real risk that there could be a rift between the two children as they grow up.

4. The father has been keen to impress on the mother that now that the child lives with him, he is the person with authority. The father focuses on her deficiencies as a mother, without drawing on her strength and experience as a mother.  The father needs to do all that he can to understand the child’s perspective.

Section 60CC(3)(j) - any family violence involving the child or a member of the child’s family

1. There has been family violence which the child has been exposed to since he was a baby.

2. Provision has been made for the child to have therapy with a psychologist to help him overcome the effects of exposure to family violence.  Provision has also been made for both parents to participate in that therapy for the child as requested by the psychologist.

Section 60CC(3)(k) - if a family violence order applies, or has applied, to the child or a member of the child’s family – any relevant inferences that can be drawn from the order

1. There was an interim AVO and a final AVO which was extended to restrain the father from going within a stated distance of the mother’s home.  The mother then chose to move into the same suburb as the father and is a five minute drive away.

2. Each party will need to be especially careful to stay from each other to avoid the need for further orders or fears that give rise to such orders.

Section 60CC(3)(m) - any other fact or circumstance that the court thinks is relevant

1. Both parties would benefit from a Parenting after Separation course.  The mother has apparently not connected with the therapeutic assistance that she would apparently benefit from, as recommended by Dr U.  She has been focused on the dispute.  There is a new relationship in the offering for her, with the possibility of a move to K Town if that relationship develops.  The mother will need to give careful consideration to how to negotiate an adjustment in time between herself and the child if that is what she chooses to do.

2. Orders have been made in accordance with these Reasons.

I certify that the preceding two hundred and three (203) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Cleary delivered on 21 August 2014.

Associate:

Date:  21 August 2014