Albert and Addison

FEDERAL CIRCUIT COURT OF AUSTRALIA

ALBERT & ADDISON

[2016] FCCA 62

Catchwords:
FAMILY LAW – Parenting – equal shared parenting responsibility – care arrangements for a child with severe disabilities – whether the father’s own health issues affect his ability to care for the child – whether the father’s past criminal history poses any risk to the child – what restrictions if any should be placed on the father’s time with the child.

Legislation:

Family Law Act 1975 (Cth), ss.61DA, Part VII, 60B, 60CA, 60CC

Family Violence Protection Act 2008 (Vic), s.53

Mazorski v Albright (2008) 37 FLR 518

Tait & Dinsmore [2007] FamCA 1383
Godfrey & Sanders [2007] FamCA 102

Applicant:

MR ALBERT

Respondent:

MS ADDISON

File Number:

MLC 3928 of 2013

Judgment of:

Judge Small

Hearing date:

4 May 2015

Date of Last Submission:

4 June 2015

Delivered at:

Melbourne

Delivered on:

18 January 2016

REPRESENTATION

Counsel for the Applicant:

Mr Albert in person

Solicitors for the Applicant:

None

Counsel for the Respondent:

Ms Addison in person

Solicitors for the Respondent:

None

Counsel for the Independent Children's Lawyer:

Ms Boymal

Solicitors for the Independent Children's Lawyer:

Barbayannis Lawyers

ORDERS

All previous parenting orders in relation to the child X born (omitted) 2009 (“the child”) are hereby discharged.
Subject to the provisions of paragraph 3 hereof, the mother shall have sole parental responsibility for the child.
The mother shall inform the father in writing (which includes by text message or email) at least 21 days before making decisions about the following matters:
a.      Any change to the child’s school;
b.      Any religious instruction the child receives, whether at school or otherwise;
c.      Any non-emergency surgery or serious medical treatment the child is to undergo;
d.      Any proposed relocation of more than 20 kilometres from her present residence;
and the father shall provide his views, if any, in relation to all such information within ten days of receipt.
To avoid confusion, all final decisions in relation to the matters set out in paragraph 3 hereof shall rest with the mother.
The child shall live with the mother.
The father shall spend time and communicate with the child as follows:
a.      If the child is hospitalised for any reason, the mother shall immediately inform the father and the father shall be permitted to visit the child on each day of his hospitalisation by agreement and failing agreement for a period of no more than 2 hours, the proposed times of such visits to be notified to the mother by text message the night before.
b.      Until the Cerebral Palsy Education Centre (CPEC) or like organisation has assessed each property in which the father resides at any given time as appropriately accessible for the child and provided a written report of that assessment to the mother (“the assessment”) stating that the father has all necessary equipment to care for the child:
(i)For 2 hours each alternate Sunday by agreement between the parties and failing agreement from 10:00 a.m. to 12:00 p.m. for four visits;
(ii)Thereafter, for three hours each alternate Sunday by agreement between the parties and failing agreement from 10:00 a.m. to 1:00 p.m. for four visits;
(iii)Thereafter for four hours each alternate Sunday by agreement between the parties and failing agreement from 10:00 a.m. to 2:00 p.m.
(iv)From after school until 6:00 p.m. each Wednesday with the father to collect the child from school at the commencement of the time and deliver him to the mother, or the maternal grandparents or either of them at the conclusion of the time, such time to commence in the first week of the second school term in 2016;
(v)For no more than four hours on any one day for the festivals of (omitted) and (omitted) on days to be agreed between the parties, with the father to advise the mother of the dates he seeks to spend time with the child at least 14 days in advance;
(vi)From after school to 6:00pm on the day before the child’s birthday should his birthday fall on a school day;
(vii)From 2:00 p.m. to 6:00p.m on the child’s birthday in even-numbered years and from 10:00am to 2:00pm in odd-numbered years should it fall on a weekend day when the child would not usually be spending time with the father pursuant to these orders;
(viii)From after school until 6:00 p.m. on the father’s birthday should it fall on a school day, and from 2:00 p.m. to 6:00 p.m. should it fall on a non-school day;
(ix)Subject to the policies, practices and decisions of CPEC, when the child is attending at CPEC for treatment and/or education;
(x)At other times by agreement between the parties in writing.
c.      Once the assessment has been provided to the mother:
(i)From 10:00 a.m. to 3:00 p.m. on each alternate Sunday for four visits;
(ii)Thereafter from 10:00 a.m. to 4:00 p.m. on each alternate Sunday for four visits;
(iii)Thereafter from 10:00 a.m. to 6:00 p.m. on each alternate Sunday for four visits;
(iv)Thereafter on each alternate weekend from 6:00 p.m. on Saturday to 10:00 a.m. on Sunday for six visits;
(v)Thereafter on each alternate weekend from 6:00 p.m. on Saturday to 2:00 pm on Sunday for two visits;
(vi)Thereafter on each alternate weekend from 6:00 p.m. on Saturday to 6:00 pm on Sunday for two visits;
(vii)Thereafter on each alternate weekend from 2:00 p.m. on Saturday to 6:00 p.m. on Sunday for two visits;
(viii)Thereafter, and until the commencement of the 2017 school year,   on each alternate weekend from 10:00 a.m. on Saturday to 6:00 p.m. on Sunday;
(ix)For the festivals of (omitted) and (omitted), by agreement between the parties, with the father to advise the mother of the dates he seeks to spend time with the child at least 14 days in advance, and such time shall include overnight time provided that the child has commenced to spend time overnight with the father pursuant to paragraph 6c(iv) hereof;
(x)From after school to 6:00pm on the day before the child’s birthday should his birthday fall on a school day;
(xi)From 10:00 a.m. to 2:00 p.m. in even numbered years and from 2:00 p.m. to 6:00p.m in odd-numbered years on the child’s birthday should it fall on a weekend day when the child would not usually be spending time with the father pursuant to these orders;
(xii)From after school until 6:00 p.m. on the father’s birthday should it fall on a school day, and from 2:00 p.m. to 6:00 p.m. should it fall on a non-school day;
(xiii)Subject to the policies, practices and decisions of CPEC, when the child is attending at CPEC for treatment and/or education;
(xiv)At other times by agreement between the parties in writing.
d.      From the commencement of the 2017 school year, but only if the assessment has been provide to the mother:
(i)During school terms on each alternate weekend from after school on Friday to 6:00 p.m. on Sunday;
(ii)For three days in each of the school term holidays in 2017 by agreement and failing agreement from 10:00 a.m. on the first Monday to 10:00 a.m. on the first Thursday;
(iii)for five days in each of the school term holidays by agreement and failing agreement from 10:00 a.m. on the first Monday to 10:00 a.m. on the second Saturday commencing in 2018;
(iv)For three days in each of two weeks in the long summer holidays 2016-2017 by agreement and failing agreement from 10:00 a.m. on 2 January to 10:00 a.m. on 5 January and from 10:00 a.m. on 19 January to 10:00 a.m. on 22 January 2017;
(v)for five days in each of two weeks in the long summer holidays 2017-2018 by agreement and failing agreement from 10:00 a.m. on 2 January to 10:00 a.m. on 7 January and from 10:00 a.m. on 19 January 2 to 10:00 a.m. on 24 January 2018;
(vi)From the 2018-2019 year for two separate weeks of the long summer holiday each year by agreement and failing agreement from 10:00 a.m. on 27 December to 10:00 a.m. on 3 January, and from 10:00 a.m. on 17 January to 10:00 a.m. on 24 January each year;
(vii)For the festivals of (omitted) and (omitted) by agreement, with the father to advise the mother of the dates he seeks to spend time with the child at least 14 days in advance and such time may include overnight time, provided that the child is regularly spending overnight time with the father pursuant to these orders;
(viii)From after school to 6:00pm on the day before the child’s birthday should his birthday fall on a school day;
(ix)From 2:00 p.m. to 6:00p.m. in even numbered years and from 10:00am to 2:00pm in odd-numbered years on the child’s birthday should it fall on a weekend day when the child would not usually be spending time with the father pursuant to these orders;
(x)From after school until 6:00 p.m. on the father’s birthday should it fall on a school day, and from 2:00 p.m. to 6:00 p.m. should it fall on a non-school day;
(xi)Subject to the policies, practices and decisions of CPEC, when the child is attending at CPEC for treatment and/or education;
(xii)At other times by agreement between the parties in writing.
Changeover shall take place:
a. at the child’s school where the father’s time commences after school or concludes before school;
and, at all other times
b. at a venue to be agreed between the parties in writing, and failing agreement, at the McDonalds Restaurant on the corner of (omitted) and (omitted) in (omitted).
The father’s time with the child shall be suspended each year if the following days fall on days when the child would usually be spending time with the father pursuant to these orders:
a.      on Mothers’ Day from 9:00 am;
b.      on the mother’s birthday from after school to 6:00 p.m. should it fall on a school day and from 2:00 pm to 6:00 p.m. should it fall on a non-school day;
c.      On the Easter weekend from after school on Thursday to 6:00 pm on Easter Sunday;
d.      From 6:00 pm on Christmas Eve to 10:00 am on 27 December each year;
e.      on the child’s birthday from 2:00 p.m. to 6:00 p.m. if it falls on a weekend day.
Until the assessment is provided to the mother, and the father has complied with paragraph 12 hereof, the father be and is hereby restrained by injunction from taking the child to his home.
For the sake of clarity, each time the father changes his place of residence or his motor vehicle he shall obtain and provide to the mother a new assessment from CPEC or like organisation stating that his new home and/or motor vehicle is appropriately accessible for the child, and until he does so, paragraph 6(b) of these orders shall apply.
The father be and is hereby restrained by injunction from driving in a motor vehicle with the child unless:
a.      he has a current drivers licence and has provided proof of that licence to the mother;
b.      he has fitted to that vehicle an appropriate child restraint; and
c.      the vehicle is registered and has been approved by CPEC as accessible and suitable for the child.
The father shall disclose his address to the mother forthwith and shall advise her of any change in his address within 7 days of such change, and the mother shall not disclose the father’s address to any third party without the express consent of the father.
The mother shall disclose her address to the father forthwith and shall advise him of any change in her address within 7 days of such change, and the father shall not disclose the mother’s address to any third party without the express consent of the mother.
The father shall provide appropriate meals for the child when the child is in his care.
The mother shall ensure that the child is not wearing a cross or any other religious item when he is collected by the father pursuant to these orders.
The parties shall communicate:
a. in writing via email and/or a communications book which shall travel with the child; and
b. in the event of an emergency only, via mobile telephone with each party to provide a number to the other party for that purpose.
In the event that the mother wishes to travel away from the Melbourne Metropolitan Area with the child overnight, she shall notify the father in writing at least 14 days prior to her departure and shall provide to him a full itinerary including all travel and accommodation details.
The father shall pay for:
a.      Any modes of communication, transport and home modifications that the child might require while in his care;
b.      An annual home and vehicle assessment by a CPEC or other qualified Occupational Therapist;
c.      Any communication or mobility aids and therapeutic or play equipment that the child may require during the time he is spending with the father; and
d.      Half of all CPEC fees in relation to the child’s treatment and education.
The mother shall authorise all health, therapeutic and educational practitioners involved with the child to communicate with the father directly and provide to him information in relation to the child’s treatment.
The father shall be at liberty to obtain all medical reports in relation to the child at his own expense.
The parties are hereby restrained by injunction from:
a. abusing, insulting, belittling, rebuking or otherwise denigrating the other or any member of the other’s family in the child’s presence or hearing, and from allowing him to remain in the presence or hearing of any third party who is engaging in such conduct;
b. discussing these proceedings or any parenting disputes or issues in the child’s presence or hearing, and from allowing him to remain in the presence or hearing of any third party who is engaging in such conduct.
Each party shall notify the other as soon as practicable in the event of the child suffering any serious illness or injury while he is in their respective care and each shall authorise any medical or dental practitioner who treats the child to communicate and consult with the other parent.
Each party shall advise the other of any medication prescribed for the child, including the dosage prescribed, and ensure that such medication travels with the child.
The wife shall authorise any school in which the child is enrolled to provide to the husband at his expense all information, notices, photographs, reports and like materials and he shall be named as a contact person in the records of such school or organisation in the event of any emergency involving the child.
Both parties, and the child’s grandparents, shall be at liberty to attend any school functions, extra-curricular activities or events to which parents are usually invited.
The Order of Judge O’Dwyer, dated 26 July 2013 appointing the Independent Children’s Lawyer is discharged.

IT IS NOTED that publication of this judgment under the pseudonym Albert & Addison is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLC 3928 of 2013

MR ALBERT

Applicant

And

MS ADDISON

Respondent

REASONS FOR JUDGMENT

Introduction

This is a parenting matter concerning the care arrangements for X born (omitted) 2009 (“X”).
X was born with cerebral palsy and lives with significant physical disabilities. He does not speak, although he can communicate with the assistance of a PODD[1] book, he experiences seizures, has difficulties swallowing such that he must be fed appropriately by another person, and he is able to move around only if carried or using devices such as a push chair or wheelchair. He is entirely dependent on the adults in his life for his most basic needs and will need constant care for the rest of his life.
[1] Pragmatic Organisation Dynamic Display
X’s parents are Ms Addison (“Ms Addison” or “the mother”) and Mr Albert (“Mr Albert” or “the father”).
They agree that X should continue to live with Ms Addison, who has cared for him all his young life. Ms Addison lives with her parents who provide her with support in the care of X.
They are also agreed in relation to some other ancillary matters which will be reflected in the orders I make, although they never provided a minute of consent orders to the court in relation to those matters.
The issues in dispute in this matter can be summarised as follows:
A.     Whether the parties should have equal shared parental responsibility for X or whether that responsibility should rest with Ms Addison alone.
B.     Whether Mr Albert has the capacity to care for X given his own health issues.
C.     Whether Mr Albert poses a risk to X’s safety by way of his connection to a motorcycle club.
D.    What should be the amount of time that Mr Albert spends with X and what should be the circumstances under which he spends it?

Background

Ms Addison is 24 years old. She lives with her parents and X in Melbourne’s suburbs. She is engaged full-time in the care of X and is in receipt of Centrelink benefits.
Mr Albert is 30 years old. He too lives in Melbourne.
He suffers from scoliosis, a condition which causes curvature of the spine, resulting in significant pain and some mobility issues.
The parties met interstate, commencing their relationship in 2008.
X is the only child of the relationship.
In mid-2009, Mr Albert surrendered himself to interstate police, confessing to a number of offences relating to robbery and firearms during the time when he was affiliated with what is often called “an outlaw motor cycle gang” (“the motor cycle club”).
He also made statements implicating other members of the motor cycle club in various criminal activities.
As a result of charges arising from that surrender, Mr Albert was sentenced to five and a half years imprisonment, serving three and a half years, and being released on parole in (omitted) 2012.
The mother moved to Melbourne with her parents before X’s birth and took him interstate to visit his father in prison on at least 15 occasions until (omitted) 2011.
The parties’ relationship ended in 2011 while the father was still in prison after he sent the mother a letter which she interpreted as threatening.
After Mr Albert was released from prison, he changed his name and relocated to Victoria where he has now completed his parole. The court is unaware of his new identity.
In order to understand more about his son’s needs, Mr Albert has undertaken studies in (qualifications omitted). At the time of trial he was seeking employment as a (occupation omitted).
He currently spends time with X pursuant to interim orders made by consent on 14 August 2014, which provide for X to spend time with his father for two hours per fortnight at a play centre supervised by his maternal grandmother, and for four hours each Tuesday at the Cerebral Palsy Education Centre (“CPEC”) when X is receiving treatment and education.

Procedural History

These proceedings commenced when Mr Albert filed an Initiating Application on 20 May 2013 in which he sought orders that X live with the mother and spend time with him.
On 2 July 2013 the matter came before Judge O’Dwyer and interim orders were made by consent providing for supervised time between the father and X. Judge O’Dwyer also made Orders for the preparation of a memorandum after section 11F counselling.
The mother filed a Response on 23 July 2013 seeking that X live with her and spend time with the father on a supervised basis. The Mother also sought that the Father undertake specialised training so that he could adequately understand and manage X’s particular needs.
The section 11F Child Inclusive Conference was held on 26 July 2013 and a memorandum was prepared for the Court by Family Consultant C.
The matter returned for Mention before Judge O’Dwyer on 26 July 2013, and again orders were made by consent in relation to the Father’s education regarding X’s particular needs, and the supervised time he was to spend with X. Judge O’Dwyer also made Orders appointing an Independent Children’s Lawyer.

On 20 November 2013 the matter was listed for Mention before Judge Jarrett, who made orders with directions for filing further material, and an order for the preparation of a Family Report.
The Family Report prepared by Family Consultant Ms P (“Ms P”) was released to the parties on 12 March 2014.
On 30 April 2014 the matter was listed for Mention before Judge Baumann, who made directions for filing further material, and further orders in relation to the Father’s education regarding cerebral palsy and X’s special needs.
An Interim Hearing was held before Judge Baumann on 14 August 2014, with interim orders again being made by consent.
The matter returned for a Directions Hearing before Judge Baumann on 8 December 2014 with His Honour making Orders that the matter be transferred to my docket.
On 21 January 2015 the matter appeared before me for the first time for a Directions Hearing, where I set the matter down for trial on 4 May 2015 and issued trial directions, including Orders for the preparation of an updated Family Report and a report from the Cerebral Palsy Education Centre (“CPEC”) regarding the Father’s capacity to care for the child.
The updated Family Report of Family Consultant Ms P was released to the parties on 7 April 2015.
Reports from several practitioners at the CPEC were filed on behalf of the father well before trial.
An Amended Response was filed by the mother on 1 May 2015.
She also filed a Trial Affidavit on 1 May 2015, some 10 days after the deadline set out in the trial directions issued on 21 January 2015.
The father filed his trial material within the directed time.
The trial began on 4 May 2015, with both parties appearing in person, and the Independent Children’s Lawyer being represented by counsel.
I declined to accept the mother’s Trial Affidavit into evidence because of its late filing.
The matter continued on 5 May 2015 and was then adjourned part-heard until 4 June 2015 due to the father being ill.
The witnesses were the parties, Ms P, and Ms K, an occupational therapist at the CPEC (“Ms K”). All witnesses underwent cross examination.
At the end of the trial on 4 June 2015 I reserved my decision.

Issues and Evidence

Before addressing the issues as they are set out above, it is necessary for me to consider whether the father has committed acts of family violence, as any findings made in that regard will inform my decisions in relation to the questions of equal shared parental responsibility, how much time the father should spend with X and the conditions under which he should spend that time.

Family Violence

The mother alleges that while the father was in prison, he threatened her life and that of X. As a result, she applied for, and was granted, an ex parte Interim Intervention Order on 4 October 2011.
S.53 of the Family Violence Protection Act 2008 (Vic) reads as follows:
FAMILY VIOLENCE PROTECTION ACT 2008 - SECT 53
Court may make interim order
(1) The court may make an interim order if—
(a) a person has applied to the court for a family violence intervention order and the court is satisfied, on the balance of probabilities, that an interim order is necessary pending a final decision about the application—
(i) to ensure the safety of the affected family member; or
(ii) to preserve any property of the affected family member; or
(b) to protect a child (whether or not the child is an affected family member) who has been subjected to family violence committed by the respondent; or
(c) a person has applied to the court for a family violence intervention order and the parties to the proceeding have consented to, or do not oppose, the making of an interim order for the application; or
(d) a family violence safety notice has been issued for an affected family member and the court is satisfied, on the balance of probabilities, there are no circumstances that would justify discontinuing the protection of the person until a final decision about the application.
I note that at the time the Interim Intervention Order was made, Mr Albert was in prison in another state with about a year left to run on his non-parole period and could not possibly have harmed Ms Addison or X personally. Even in those circumstances the magistrate appears to have thought an Interim Order necessary for Ms Addison’s protection.
The alleged threats are contained in a letter written to the mother by the father and dated 9 June 2011, and the original copy of that letter was tendered at trial. The letter itself does not contain a direct threat, but it says the following:
“Ms Addison the things I said to you on the visit about bringing a person into our son’s life I stick by them (sic) words a (sic) 100%. Ms Addison you know I love you and X with all my heart and soul. To think or to hear or see someone else is going to be apart (sic) of my son’s life that is a BIG NO NO for me (capitals in the original). I said that to you when we met and I believe I made it very clear to you.”
It is the mother’s evidence that during the conversation referred to in the letter Mr Albert threatened her life, the life of anyone with whom she might form a new relationship, and even that of X himself.
The father acknowledges that the material in the letter was inappropriate and says that he now regrets sending it.
I have no doubt that that is the case in the context of this hearing, but he had time to compose the letter (and himself) after Ms Addison’s visit, and the writing of the letter was not a spur-of-the-moment activity.
While no specific threats are made in the letter, and despite the protestations of love for Ms Addison and X contained in it, its tone can only be described as menacing.
The very fact that he sent the letter is an indication that, at least at that time, Mr Albert had little ability to contain himself and no insight into the possible impact of the letter on Ms Addison.
Ms Addison gave further evidence at trial of harassing behaviour from Mr Albert while he was in prison to the extent that she was forced to change her telephone numbers to escape that harassment.
Ms Addison’s evidence at trial was that while there was no physical violence in her relationship with Mr Albert, he was very manipulative and emotionally abusive. She said that she had lost friends because of his behaviour and that she had not told him that she was visiting her parents for two years, before and after X’s birth, because she was afraid of his reaction.
Her description of Mr Albert’s behaviour after his release from prison revealed a relationship where Mr Albert “called the tune”, and she described their discussions about X’s care as “conditional”, an example of which she gave at trial being that Mr Albert would tell her he would give her money only if she allowed him to see X.
She expressed the view that it would be most appropriate if she and Mr Albert had “minimal contact” as she felt uncomfortable in his presence. She said that Mr Albert was “fine” when things were going well, but if something she said was not acceptable to him then he became “difficult” and she became “anxious”. As an example she described an incident at CPEC after the end-of-year Christmas play when Mr Albert was reluctant to leave when she asked him to.
Ms Addison also gave evidence of Mr Albert behaving in an intimidating, aggressive and otherwise inappropriate manner at the hospital where X underwent surgery in late January 2015.
Mr Albert denies that behaviour.
On 21 January 2015 X was admitted to hospital to have surgery on his hips.
It is the mother’s evidence that her experience of the period when X was hospitalised, some ten days or more, was marred by the father’s intimidating, coercive and controlling behaviour.
At trial she said that he “demanded” to see X at the hospital on the day of his surgery and that he had sent her abusive emails at that time.
Mr Albert says that he “requested” to see X at the hospital and denied that his behaviour was abusive.
It should be noted that Mr Albert did spend time with X on most days while X was hospitalised.
On 29 January, after an incident between the parties at the hospital, Ms Addison attended the police station located opposite the hospital to report Mr Albert’s behaviour.
Under cross-examination at trial, Mr Albert denied having “stood over” Ms Addison at the police station, and said that he did not recall Ms Addison asking a police officer to ask him to leave. However he had just agreed with the proposition that he had left when the police officer had asked him to.
He further denied calling Ms Addison a “f….ing dog and bitch!” when she was leaving the station.
After making an appointment at the Magistrates Court, Ms Addison filed an Application and Summons for an Intervention Order on 5 February 2015, naming Mr Albert as the Respondent.
On that day, an Interim Intervention Order was issued on an ex parte basis and the matter was listed for a contested hearing on 24 June 2015. I have already set out the legal requirements in relation to magistrates making Interim Intervention Orders at paragraph 43 above.
Clearly the magistrate on 5 February 2015 believed that such an order was necessary for Ms Addison’s protection pending the final hearing of that matter.
The court is unaware of the outcome of the hearing held on 24 June 2015.
Mr Albert’s evidence in relation to these matters is essentially that he is a reasonable man and has always attempted to negotiate his time with X in an appropriate manner. He did concede however that the letter which led to the parties’ separation was inappropriate.
His version of events at the hospital when the parties argued about his continuing presence after the mother had asked him to leave is very different from that of the mother.
He says that the parties communicated well in relation to X’s time in hospital and that any conflict between them was essentially the mother’s fault.
It was his evidence both in his trial affidavit sworn 20 April 2015 and in his oral evidence at court that the mother had consistently refused to allow him to see X when he was released from prison in 2012, and it was that refusal which led to the conflict between them.
He says that now the mother is attempting to minimise the time he spends with X while he wishes to extend that time, and that while that difference of opinion has led to some conflict, he denies that his behaviour is in any way overbearing or abusive.
However, when asked under cross-examination about an “argument” between the parties witnessed by Ms K in the carpark at CPEC, Mr Albert denied that it had been an argument, saying that it had been a “discussion about me having more time”.
The evidence provided by the mother in relation to Mr Albert’s behaviour as contained in her Affidavit of 23 July 2013, and her viva voce evidence at court, is particularised and convincing, while I find the father’s evidence, contained in his Affidavit of 20 April 2015 and his viva voce evidence, somewhat dismissive and self-serving.
I was able to observe both parties under cross-examination in the witness box, where the mother’s evidence was cogent, insightful and child-focused, and the father’s was a little defensive and appeared to be based on a sense of his own entitlement as X’s father rather than on X’s best interests or Ms Addison’s concerns about his behaviour.
For all those reasons, where the mother’s evidence conflicts with that of the father in relation to the father’s behaviour, I prefer the evidence of the mother.
In all those circumstances, I am satisfied that Mr Albert has engaged in family violence as defined by the Act in the form of threatening and intimidating behaviour, verbal abuse, and coercive and controlling behaviour, and that he has little insight into the effect of that behaviour on Ms Addison and X.

A. Whether the parties should have equal shared parental responsibility for X or whether that responsibility should rest with Ms Addison alone.

S.61DA of the Family Law Act 1975 (“the Act”), provides as follows:

(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.

There is no suggestion that X has been subjected to child abuse in any direct sense.
However, I have already found that Mr Albert has engaged in acts of family violence and therefore the presumption does not apply.
That is not the end of the matter. I must now decide whether it is in X’s best interests for his parents to share parental responsibility for him.
At trial it was the evidence of Ms P, the family consultant who prepared the family reports in this matter, that communication between the parents in this case was extremely poor. It was her opinion that they were unable to make joint decisions without conflict arising between them. She said that Ms Addison had made well considered decisions in relation to X’s welfare so far and that she “had not failed X in any way”.
When parents cannot communicate without conflict it cannot be in a child’s best interests to force them to communicate about the major issues and decisions to be made in a child’s life.
X’s almost overwhelming physical needs mean that particular and specialised decisions will have to be made about his ongoing care throughout his life.
Those decisions will sometimes have to be made in circumstances of emergency where consultation between the parents is not practical or possible.
The parties are agreed that X will continue to live with his mother. Given his multiple disabilities it is likely that he will do so for the rest of his mother’s life.
The mother complains that the father’s personality is such that he is insistent on his own way and that consulting about decisions in relation to X’s care is difficult and unpleasant because of the father’s aggressive and unreasonable behaviour.
It is often the case that people who behave in that way are oblivious to the impact it has on those who are its subject, and while Mr Albert did not act in an intimidating or aggressive manner at court, I confirm that where his evidence in relation to his behaviour outside court conflicts with the mother’s, I prefer her evidence.
In those circumstances, where the child has significant special needs, where there is practical difficulty in the parties consulting in an emergency about those needs, where communication between them often leads to conflict, and where Ms Addison has been X’s primary carer all his life and will remain so, I find that it is in X’s best interests for his mother to have sole parental responsibility for his care.
However, I find that it is in his best interests for his father to be consulted about the major decisions about his life where practicable, and I will make orders for that consultation accordingly.

B. Whether Mr Albert has the capacity to care for X given his own health issues.

Mr Albert suffers from scoliosis, which, as already stated, results in a curvature of the spine with attendant pain and some restriction of movement.
Because of X’s disabilities and related special needs, Ms Addison is concerned that Mr Albert may not be able to physically cope with attending to X’s needs.
X’s needs are of course extensive and far beyond those of an able-bodied child. He uses a standing frame and supportive chair, and has arm and leg wraps which assist with regulating the movement of his limbs.
In her report dated 23 May 2014, Ms K says the following:
X is a four year old boy who currently resides full time with his mother and maternal grandparents. X has been diagnosed with Cerebral Palsy-spastic quadriplegia which impacts on all areas of growth and development. X's Cerebral Palsy means he has difficulty coordinating and controlling all movements. X requires the assistance of trained adults and supportive equipment to participate in all daily routines including self care and play. X is unable to use speech to meet his communication needs and uses a PODD (Pragmatic Organisation Dynamic Display) communication book to express his thoughts, ideas, wants and needs. X requires assistance from a trained communication partner to scan through the pictographs in his communication book with X responding “Yes” or “No” with his head to get his message out.
X's Cortical Vision Impairment means that X’s eye nerves and structures are intact however his brain has difficulty in interpreting visual information from his eyes impacting on his vision.
Ms K then goes on to provide an assessment of Mr Albert’s home in terms of its accessibility for X and I will return to that matter later in these Reasons.
Ms C, the General Manager at CPEC who prepared a report dated 13 June 2013, says in that report that the specialised skills needed to assist X require intensive and ongoing attendance at the CPEC learning and therapy group.
The mother’s evidence is that she witnessed the father suffer “ongoing pain and discomfort” during the relationship[2].
[2] Affidavit of the mother sworn and filed 23 July 2013 para 2(a).
In a report dated 30 January 2015 and tendered to the court, Mr K, Mr Albert's Orthopaedic Surgeon, says the following about Mr Albert’s condition as he found him on 29 January 2015:
He is currently quite active in helping take care of his 5-year-old son with cerebral palsy who recently underwent surgery for his hips. Currently Mr (Albert’s)[3] function on a day to day basis is actually quite good and his only restriction is really that of pain. However, it is not surprising that any prolonged activity does cause him quite significant pain in his back given the amount of deformity. I do not think he would be suitable at present to do any labour-type work as this would just not be realistic given the function of his back[4].
[3] Mr Albert’s current name is redacted in the copy of the report filed with the court
[4] Letter of Mr K, Orthopaedic Surgeon at (omitted) Health, to Dr S at (omitted) Family Medical Centre dated 30 January 2015 para 6.
And later:
Long term, I think that this deformity will probably likely slowly worsen. This could cause a more restrictive pattern to lung function down the line.[5]
[5] Ibid para 8
In these circumstances, where X’s needs are far above those of able-bodied children, especially in terms of his movement and feeding, the evidence is that Mr Albert might find the physical stamina needed to look after X on his own for long periods to be beyond him.
It appears from Mr K’s report that Mr Albert’s condition is likely to deteriorate further over time.
The evidence of Ms K at trial was that Mr Albert had attended CPEC to acquaint himself with the actions and processes necessary to care for X.
She said that in her opinion, Mr Albert’s skills in that area had improved, and that he was now able to safely transfer X unsupervised.
She recommended caution in extending the time spent between X and his father, saying that X needs to become comfortable with time being unsupervised, and that while Mr Albert had been using the PODD to communicate with X, he was not yet recognising when X wanted to be proactive in communicating with him.

Ms K said that X needs to be confident not only that he can communicate with his father but that he will be heard. That would involve Mr Albert recognising his vocalisations, and that process of recognition takes time.
It was Ms K’s opinion that at the time of trial, the father needed to gain more experience in spending time alone with X and he needed to further develop his skills in relation to X’s physical needs.
I do not find that Mr Albert’s own physical disability will prevent him entirely from spending significant time with X on his own, especially in circumstances where he has suitable equipment to assist him, but that the duration of that time, and its development to overnight time, will need to be carefully assessed.

C. Whether Mr Albert poses a risk to X’s safety by way of his connection to a motorcycle club.

Ms Addison expresses a fear that Mr Albert might be the subject of retributive action from the motor cycle club’s members as a result of his actions in mid-2009, and that X might be at risk because of that situation.
As already stated, Mr Albert moved to Melbourne and changed his name after he was released from prison.
While the police assisted him to move and provided him with identity documents, he was not in the Witness Protection Program. He served out his parole period in Melbourne and there is no evidence before this court of any subsequent criminal activity on his part.
There is also no evidence at all before the court that any person has attempted to harm Mr Albert in any way since that time.
The only hint of any repercussions from Mr Albert’s past came when his time with X was being spent at a venue which was close to a gymnasium. Mr Albert’s evidence at that time was that he wished to change the venue for his time with X because the gymnasium was owned by members of the motor cycle club. The venue was changed and nothing more was heard of this issue.
Just for the sake of completeness, I note that here is no evidence that anything at all out of the ordinary occurred while X was spending time with his father at that venue.
Mr Albert has been spending regular time with X for over two years, and there has never been the slightest suggestion that he has been subjected to any action or indeed any risk from members of the motor cycle club while X is with him.
In those circumstances I cannot find that Mr Albert poses a risk to X’s safety by way of his connection to the motorcycle club.

D.What should be the amount of time that Mr Albert spends with X and what should be the circumstances under which he spends it?

Mr Albert currently spends time with X pursuant to orders made by Judge Baumann on 14 August 2014.
Those orders provide for X to spend time with his father for two hours on each alternate Sunday at a play centre supervised by the maternal grandmother, and each Tuesday from 9:30 a.m. to 1:30 p.m. at CPEC.
Orders agreed to at trial would provide for Mr Albert to continue that regime until his home is assessed by CPEC as having appropriate devices and accessibility for X, after which he would proceed to unsupervised time.
In his Outline of Case Document the father seeks orders for time with X in the following terms:
(a)Three weekends in every calendar month from 9:00 a.m. Saturday until 5:00 p.m. Sunday;
(b)On Religious days, the child’s birthday and Father’s Day from 9:00 a.m. until 5:00 p.m.;
(c)Half the term and half the summer school holidays;
(d)As otherwise agreed between the parties.
The mother’s Outline of Case Document seeks the following orders:
3. The father spend time and communicate with the child on a gradually increasing basis as follows:
(a)     For the first six months:
i.From 11:00 a.m. until 1:00 p.m. each Sunday with time to be supervised by the maternal grandmother at the (omitted) Play Centre, (omitted);
ii.From 10:00 a.m. until 12:00 p.m. each alternate Wednesday commencing 13 May 2015 with time to be supervised by the maternal grandmother at the (omitted) Play Centre, (omitted);
iii.From 9:30 a.m. until 2:30 p.m. each alternate Friday commencing 22 May 2015 with time to occur during the child’s session at the Cerebral Palsy Education Centre (“CPEC”).
(b)Thereafter for a period of two months unsupervised:
i.    For a period of no more than three hours each Sunday;
ii.     For a period of no more than three hours each alternate Wednesday; and
iii.   From 9:30 a.m. until 2:30 p.m. each alternate Friday commencing 22 May 2015 with time to occur during the child’s session at CPEC.
(c)Thereafter from the time referred to in paragraph 3(b):
i.    From 10:00 a.m. until 4:00 p.m. each Sunday
The mother then asks for orders that X spend time with his father on X’s birthday and the father’s birthday, for the religious holidays of (omitted) and (omitted), with all of that time to be spent at the (omitted) Play Centre in (omitted).
Further, the mother seeks an order that if the father provides her with his current address, and evidence that he has “access to a roadworthy vehicle, an appropriate car seat, current driver’s licence and appropriate home equipment, the Father be at liberty to spend time with the child as per paragraph 3(b) and 3(c) at his residential address”.
She also sought orders for X to spend time with his father if he were to be hospitalised.
The orders sought by the Independent Children’s Lawyer included the following:
4. Until the father discloses his residential address to the mother and maternal grandmother the child spend time with the father as follows:
a) from 11:00 AM until 1:00 PM each alternate Sunday with time to be supervised by the maternal grandmother at such play centre as may be nominated by the mother (save for (omitted) Play Centre)
The court is now asked to decide how much time X should spend with his father and under what circumstances.

The Law

The law in relation to parenting matters is found in Part VII of the Family Law Act 1975 (“the Act”).
The Objects and Principles of Part VII are set out in s.60B as follows:
Section 60B(1): The objects of this part are to ensure that the best interests of children are met by:
(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; and
(b) protecting children from physical or psychological harm from being subjected to, or exposed to, abuse and neglect or family violence; and
(c) ensuring that children receive adequate and proper parenting to help them achieve their full potential; and
(d) ensuring that parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of their children.
Section 60B(2): the principles underlying these objects are that (except when it is or would be contrary to a child’s best interests):
(a) children have the right to know and be cared for by both their parents, regardless of whether their parents are married, separated, have never married or have never lived together; and
(b) children have a right to spend time on a regular basis with, and communicate on a regular basis with, both their parents and other people significant to their care, welfare and development (such as grandparents and other relatives); and
(c) parents jointly share duties and responsibilities concerning the care, welfare and development of their children; and
(d) parents should agree about the future parenting of their children; and
(e) children have a right to enjoy their culture (including the right to enjoy that culture with other people who share that culture).
S.60CA states in unequivocal terms that when a court is deciding whether to make a parenting order, it must regard the best interests of the child as its paramount consideration.
S.60CC then sets out the factors a court must take into account when deciding what orders would be in a child’s best interests and I will address each of these in turn.
There are two primary considerations set out in s60CC(2). These 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.
The meaning of the term “meaningful relationship” has been addressed in several cases that have come before this court and the Family Court of Australia.
In an oft quoted passage from the judgement of Brown J in Mazorski v Albright (2008) 37 FLR 518, Her Honour said at paragraph 26:
A meaningful relationship or a meaningful involvement is one which is important, significant and valuable to the child. It is a qualitative adjective, not a strictly quantitative one.
In Tait & Dinsmore (2007) FamCA 1383, Cronin J considered the distinction made by Kay J in Godfrey & Sanders (2007) Fam CA 102 between an optimal relationship and a meaningful relationship, and said, at paragraph 170:
Kay J distinguished between the optimal relationship and the meaningful relationship. … The distinction is clear. An optimal relationship is one which is second to none, unmatched and unequalled. That cannot be what the legislation intended. To be a meaningful relationship, it must be healthy, worthwhile and advantageous to the child… Those adjectives mean that children need their parents to lead by example about self-discipline. Children need to learn to develop the ability to relate to others. They need to learn about the privileges and responsibility which will devolve upon them as parents. Those are fundamental parts of the meaningful relationship.
That is, in the context of this case, if the relationship between X and each of his parents can be said to be important, significant, valuable, healthy, worthwhile and advantageous to him, and each of his parents provides a positive role model for him, then the benefit to X in maintaining and developing that relationship must be a primary consideration of the court in considering what is in his best interests.
X’s needs are very complex and he requires constant care, but if his parents are able to meet those needs in a positive, co-operative and practical way, then on my reading of the above passages, one would have to say that he had a meaningful relationship with each of them and that that relationship is beneficial for him.
Ms Addison has cared for X all his young life. She has performed those duties diligently in very difficult circumstances, and it is not in dispute that she is the most significant figure in her son’s life.
Mr Albert says he wants to be a hands-on father for X, to have him stay at his home as any able-bodied child of separated parents might, and that he is committed to his parental duties for the rest of his life.
He has persisted in his desire to spend time with X for many years, and while he has not spent large amounts of time with him on any specific occasion, his completion of (omitted) studies, and his regular attendance at CPEC for sessions with X to learn how to address his needs, shows that he is prepared to spend time and effort in educating himself about the salient issues so that he can be a meaningful part of X’s life.
The need to keep X safe is exacerbated by his disabilities. He is unable to do anything to ensure his own safety and it is unlikely that he will ever have that ability.
That means he is completely reliant on others to care for him and ensure his safety.
In this matter, X’s safety is perhaps the most important issue.
s. 60CC(2A) states that when applying the considerations set out in subsection (2), the court is to give greater weight to the consideration set out in paragraph (2)(b).
That is, the need to ensure X’s safety must be taken as more important than the benefit to him of developing and maintaining a meaningful relationship with both parents when I am considering what orders to make in his best interests.
s.60CC(3) then sets out 14 additional considerations to which the court must have regard as follows:
(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;
X does not speak, and his communications are restricted. We do not know what his views are in relation to the amount of time he should spend with his father, and even if he were able to articulate those views, his young age means that the court would not give them great weight.
(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);
X has a close and loving relationship with his mother, who, as I have said, is the most significant figure in his life. He is almost completely dependent on her for his most basic physical and emotional needs and no criticism of the quality of her care was raised at all in these proceedings.
Ms K’s evidence was that X knows his father and enjoys seeing him.
The reports from CPEC indicate that the relationship between father and son is developing slowly of necessity, and that Mr Albert has made steady progress.
Mr Albert clearly loves his son and wants to be the best father he can be taking X’s circumstances into account.
There is little reason why his relationship with his son should not continue to develop positively as long as Mr Albert has X’s needs and interests at the forefront of his mind.
X also has a constant and loving relationship with his maternal grandparents, with whom he and his mother live. The maternal grandmother in particular, assists the mother with his day-to-day care.
(c) the extent to which each of the child’s parents has taken, or failed to take, the opportunity:
(i) to participate in making decisions about major long‑term issues in relation to the child; and
(ii) to spend time with the child; and
to communicate with the child;
For X’s first three years of life, Mr Albert was in an interstate prison serving a five year sentence for robbery and firearms offences. In those circumstances it was impractical for the parties to consult in any real way about the decisions to be made about X’s care.
For that reason, the task of making those decisions fell on Ms Addison for those first three years.
For the same reasons, X was entirely dependent on Ms Addison in those years for any face-to-face relationship he had with Mr Albert.
To her enormous credit, for about 18 months, Ms Addison travelled from Melbourne to the city where Mr Albert was incarcerated so that X could spend some time with him. Ms Addison says she did so on about 15 occasions.
That fact shows considerable persistence by Mr Albert and especially by Ms Addison in ensuring that Mr Albert spent time with X, albeit in a very restricted manner.
As already stated, Ms Addison ceased those visits in May 2011 as a result of a letter sent to her by Mr Albert. He then had no contact with X until he was released and moved to Melbourne.
When Mr Albert relocated to Melbourne in late 2012 he instructed solicitors to write to Ms Addison requesting to see X on X’s birthday and since that time he has continued to seek to spend time with X in a regular and organised fashion.
All of that evidence leads to the conclusion that both parties have taken every possible opportunity to be involved in X’s life as much as possible.
(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;
For at least the first three years of X’s life, Ms Addison bore the entire burden of his financial support while Mr Albert was in prison some 18 months or so later.
For his whole life Ms Addison has supported him using Centrelink benefits and specific funding which has assisted her in providing for his special needs.
The level of financial support provided by Mr Albert since his release from prison has been a matter of some dispute in these proceedings.
As previously stated, when Mr Albert moved to Melbourne, he changed his identity. The mother’s evidence is that this fact made it difficult for her to receive child support through the Department of Human Services (Child Support) (“The Child Support Agency”).
It is her evidence that the father did not provide financially for X’s support at all during the first four years of his life.
At trial it was the mother’s evidence that she had been in touch with the Child Support Agency since January 2010, a couple of months after X was born, in an attempt to have Mr Albert’s child support liability assessed. She said:
“So only just in the last so many months now that I have actually had that little bit of information because child support said it – I have explained to me that he changed his name and they said, “Well, there’s nothing we can do unless he lodges a tax return,” which clearly isn’t going to happen because he’s not working so it has been around in circles.”
Annexed to the father’s Trial Affidavit is his Child Support Payer Transaction Statement for the period 4 January 2010 to 5 February 2015.
That statement shows a payment of $113.34 in August 2014 and then four further payments amounting to $166.25 between August 2014 and January 2015. It appears from that statement that Mr Albert’s child support liability, at least for that period, was assessed at $33.25 per month. These appear to be the payments referred to by Ms Addison at trial.
I note from the statement that the payments have been made in an irregular pattern and that there were periods where he did not pay for two months, and that at 14 February 2015 he owed the sum of $66.50 of which $33.25 was overdue. Mr Albert paid that full sum on 25 February 2015.
At trial the father tendered three handwritten receipts, signed by the mother and stating that they were for child support: two in the sum of $150 dated 15 December 2013 and 29 December 2013, and the other in the sum of $70 dated 6 April 2014.
The orders made by consent before Judge Baumann on 14 August 2014 provide for the following:
“3. The father pay to the mother via her solicitors a contribution towards the out-of-pocket expenses in relation to the child involvement with CPEC set in the sum of $400.00 per term, such contribution to be paid at the commencement of each term.
4. On account of the above order, the father pay to the mother via her solicitors the sum of $200.00 by 5:00 PM 21 August 2014.”
The mother’s evidence was that her out-of-pocket expenses for X’s sessions at CPEC amount to $1525 per term, but that while she was able to use some of the funding she receives for X towards those expenses so that she only paid $750, that funding has now been spent and she is required to pay the entire amount. It is her evidence that she paid $762.50 in first term 2015 and that she would like the father to pay an equal half share of those expenses. However, the father chooses to rely on the court orders of 14 August 2014, as he is entitled to do, especially as those orders were made by consent.
On the basis of all that evidence, it appears that Mr Albert has paid some child support since his release from prison, albeit on an ad hoc and irregular basis, at least until mid-2014.
His evidence at trial made clear that he relies on the Child Support Agency’s Assessment to set the amount he pays for X’s support.
(d) the likely effect of any changes in the child’s circumstances, including the likely effect on the child of any separation from:
(i) either of his or her parents; or
(ii) any other child, or other person (including any grandparent or other relative of the child), with whom he or she has been living;
Mr Albert seeks to have X stay with him for extended periods and eventually overnight.
That of course would separate him from his mother and maternal grandparents, with whom he has spent virtually every night of his life. As far as I can tell, the only times X has been separated from his mother overnight have been when he has been hospitalised.

Therefore, any overnight time away from his mother is likely to have a significant impact upon him.
That does not mean that he can never spend overnight time with his father, but simply that such overnight time will need to be gradually introduced so as to account for X’s special needs.
(e) the practical difficulty and expense of a child spending time with and communicating with a parent and whether that difficulty or expense will substantially affect the child’s right to maintain personal relations and direct contact with both parents on a regular basis;
This factor is usually discussed in the context of the distance between the homes of a child’s parents.
In X’s case, the practical difficulty and expense of him spending time with his father is centred on his physical needs.
At the time of trial, it was not in dispute that Mr Albert’s home is not structured in such a way as to be accessible for X.
In fact, the report of Ms K dated 23 May 2014[6] states as follows:
[6] This report is annexed to an affidavit sworn by Ms K on 24 April 2015 and filed on 29 April 2015
“X’s father Mr Albert is currently seeking increased access visits with X and in preparation for this requested a view of his premesis (sic) – [the address has been redacted]. A review of the bathroom and front entrance was completed on 23^rd May 2014.
Bathroom:
The bathroom currently contains a vanity, bath and stepped shower with glass sliding panels.
Bath:
The bath is accessible from the side to enable the use of a supportive bath chair for X. Measurements and installation of an appropriate bath chair will be required prior to X using the bath.
Shower:
The current shower is not accessible for X due to the step entry, glass sliding doors and narrow space. As X grows he will become too heavy to transfer in and out of the bath requiring the use of the shower chair and accessible shower. X would need a stepless shower base with a shower curtain or single panel door. The shower would require a hand-held shower hose and be a width and length to enable a carer to assist X to wash seated in a supportive shower chair.
When shower access is required it is recommended that:
·   removal of bath
·   relocation of shower and vanity to enable shower of at least 1100 mm x 1100 mm to be installed
·   stepless shower installed with single panel door or shower curtain
Front Entrance:
The front entrance of the property has 2 small steps in to the front door. X currently uses a pusher for mobility and will be prescribed a manual wheelchair in the next 12 months.
It is recommended that portable threshold ramps be installed the front steps to reduce the need to tilt and lift X’s pusher and wheelchair.”
Clearly there will be expense involved in making Mr Albert’s house accessible for X.
X also needs specialised equipment to assist in his transport and in controlling his movements – equipment that costs money.
So far, the burden of those costs has fallen on the mother, apart from any amounts the father has paid pursuant to the orders of Judge Baumann of August 2014.
She says – and I agree with her – that if Mr Albert is to spend regular time with X at his residence, he should acquire his own set of that equipment, in the same way that other children of separated parents often have a bicycle, toys, sporting equipment or particular clothes at each parent’s home.
Mr Albert says the mother should provide any necessary equipment that is portable so that it travels with X. He says that as he is in receipt of Centrelink benefits he cannot afford to pay for his own equipment. I note in that context that at the time of trial Mr Albert had obtained a (qualifications omitted) and that he was seeking employment in the (employment omitted).
Ms Addison, too, is in receipt of Centrelink benefits, and as she has had the entire burden of providing X with the equipment necessary for him to have any real quality of life thus far, I think it is appropriate that X’s father has his own set of equipment.
That situation will ensure that X is never disadvantaged by one or other parent failing or forgetting to provide equipment to the other, and will remove a possible source of conflict between the parents.
(f) the capacity of:
(i) each of the child’s parents; and
(ii) any other person (including any grandparent or other relative of the child);
to provide for the needs of the child, including emotional and intellectual needs;
Again, this factor is at the core of these proceedings, although the issue of whether Mr Albert has the capacity to meet X’s physical needs is perhaps the most contentious matter.
The mother is, quite understandably, concerned about the safety of the parties’ son. For X’s time with his father to be an optimal experience for him, Ms Addison needs to be satisfied that X’s father is fully able to meet his physical needs.
At trial she expressed some scepticism about this issue saying that the father does not take direction very well and she feared that he might unintentionally harm X.
In their report dated 31 March 2015, which is annexed to an affidavit sworn 24 April 2015, Ms M, Speech Pathologist at CPEC, and Ms C, General Manager at CPEC, say the following
“Mr Albert has demonstrated that he can safely manage X’s additional needs resulting from his Cerebral Palsy. Since August 2014 Mr Albert has attended X’s early intervention group program once a week and his skill levels in all areas of care for X has (sic) continued to develop. He is able to use X’s communication book to interact with his son, he can set him up in his specialised equipment using a standing frame and supportive chair. This included putting on and taking off his Ankle Foot Orthoses (AFO) and arm and leg wraps. He now appears to have warm and personal relationship with his son and X appears happy to spend time with his father at CPEC.
Mr Albert’s ability to assist X to eat and drink, and to prepare foods that are safe for X, was reviewed at CPEC on Friday 6th March 2015. Mr Albert demonstrated an understanding and ability to safely assist his son X to eat and drink. Mr Albert has demonstrated:
·   He understands and can safely position X in his supportive seating and correctly apply his varying pieces of equipment and supports required to assist X to maintain a safe, stable position for eating and drinking.
·   Mr Albert can prepare food that is of consistency that is safe for X to eat and drink.
·   Mr Albert can safely assist X to eat and drink.”
That evidence was unchallenged at trial.
A report from CPEC physiotherapist, Mr B, annexed to an affidavit filed 20 March 2015, provided some detail about the skills Mr Albert had developed over four sessions at CPEC in 2013, although Ms C’s report dated 8 November 2013, also annexed to an affidavit sworn 20 March 2015, states clearly that at that time, Mr Albert had some way to go in learning the specialised skills necessary for a carer to feed X.
The report of CPEC physiotherapist Ms Q, dated 5 August 2014 and annexed to an affidavit sworn 20 March 2015, indicates that at that time, Mr Albert had not yet attained the ability to feed X appropriately and that X had said, using his PODD, that he was anxious about his father assisting him to eat and that his father needed more help to do this.
Ms Q also noted that Mr Albert needed to be more responsive to X’s attempts to communicate with him rather than trying to guess what he wanted and asking him “yes/no” questions.
Further, Ms Q stated that despite having been shown how to transfer X to and from the floor and in and out of a chair/pusher safely, Mr Albert continued to lift X, and required repeated instructions and prompting during his sessions.
In a separate joint report dated 5 August 2014, and annexed to an affidavit sworn 20 March 2015, Ms T, Ms M, and Ms Q, say the following:
“Mr Albert will require further instruction and opportunities to learn to be able to assist X to play with his switches. Mr Albert needs further support to continue to learn and develop his skills using X’s communication book to assist interaction with him. Mr Albert will also require further support and opportunities to practice facilitating X in active transfers and to become confident in using all of X’s equipment.
During the speech pathology session, Mr Albert sometimes dismissed the advice provided, referencing his disability course as providing him with the information he needs to care for his son. While the specific content of this course cannot be commented on, X’s needs are very specific and unique to him. It is not appropriate to use generalised information to assist X and is important that Mr Albert learn the specific needs and strategies used with X. Some of the strategies Mr Albert shared were not appropriate for X and appeared to be the strategies that would be used with an adult with an intellectual disability not a child with a physical impairment.”
In light of those reports, the evidence of Ms M and Ms C as set out in paragraph 193 above gives the court some confidence that Mr Albert has been able to develop the skills he will need in order to meet X’s physical needs when he spends time with him unsupervised.
However, it is in the area of X’s emotional needs, that the court has some considerable concern.
There is no evidence that Ms Addison is not capable of meeting X’s emotional needs, and she has shown the ability to do so over many years now.
Mr Albert on the other hand, has exposed X to conflict between him and Ms Addison, and the second paragraph of the joint report set out in paragraph 199 above supports the concerns expressed by Ms Addison that Mr Albert does not “take direction easily” and that he thinks that he knows more about what is best for X than any professional treating him.
There is also Ms K’s evidence that Mr Albert had not developed the ability to fully listen to his son and that he was a little impatient in attempting to understand what X was trying to say.
That evidence gives the court some concern about Mr Albert’s capacity to meet X’s emotional needs.
(g) the maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the child and of either of the child’s parents, and any other characteristics of the child that the court thinks are relevant;
Given the concerns raised in the report as set out in paragraph 199 above, the evidence of the mother about the father’s intimidating and forceful personality, and my own observations of him in the witness box, I can only conclude that Mr Albert is not a particularly mature 30-year-old. It is to be hoped that he can develop the maturity needed to be flexible and patient in relation to his son’s needs, and indeed to Ms Addison’s situation, so that X’s needs are placed first.
By contrast, Ms Addison presents as a very mature and insightful 24-year-old who has shown that she is able to prioritise X’s needs ahead of her own.
The other issue to mention here is that Ms Addison and her family are of the (religion omitted) faith, while Mr Albert is a (religion omitted).
That means that X should have exposure to both his parents’ religious and cultural traditions, and although Mr Albert has complained that X has come to his time with him wearing (omitted), it would appear that each parent is prepared to respect the other’s religious faith and to allow X to spend time with each parent during the important festivals associated with those traditions.
I have already discussed the fact that X has particular physical needs and I will not repeat that discussion here.
(h) if the child is an Aboriginal child or a Torres Strait Islander child:
(i) the child’s right to enjoy his or her Aboriginal or Torres Strait Islander culture (including the right to enjoy that culture with other people who share that culture); and
(ii) the likely impact any proposed parenting order under this Part will have on that right;
This factor is not relevant in these proceedings.
(i) the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child’s parents;
Both parents clearly love this little boy and want the best for him.
The mother has cared for him since birth, and has done everything in her power to ensure that she understands his severe disabilities and is able to provide him with the best possible quality of life.
In that process, she has relied on and complied with advice and training provided to her by qualified professionals and she has always put X’s needs ahead of her own.
As a parent I simply cannot fault her.
The father has taken some quite extraordinary measures in order to learn how to meet his son’s needs. He has obtained (qualifications omitted) and has attended at CPEC whenever possible in order to learn specific ways in which he can assist X. He is to be commended for that commitment to his son’s well-being and development.
However, the father appears to have several personality traits which may affect his parenting capacity.
There is evidence that when he does not get his own way in relation to the time he spends with X, he has resorted to threats and intimidation of X’s mother. That does not reflect well on his attitude to his responsibilities as X’s father.
In addition, there is evidence that he has been reluctant to take the advice of qualified professionals in relation to his son’s special needs, rather believing that he knew more than they about what was required to assist X simply because he was X’s father and had obtained a (qualifications omitted).
If Mr Albert is to be the father he says he wants to be, he will need to listen, not only to the professionals who care for X, but to X himself, as while X has significant difficulties in communication, the evidence shows that with time and patience it is quite possible to understand him.
Mr Albert says that he puts X’s needs and best interests first, but the tone of his affidavit material is very much focused on his rights as X’s father and his own needs, and that tone was evident throughout the trial.
For instance, there was a very telling and poignant moment during the trial when Mr Albert stated that he might not like to care for X after school because X might be tired and that would impact on the quality of the time that he spent with him.
Ms Addison responded quietly but in a rather exasperated manner that she faced that situation every day. She said it was simply her daily life experience.
Mr Albert needs to understand that while X has a right to a meaningful relationship with him, that does not mean that he can dictate the terms of that relationship.
He needs to understand that parenting involves so much more than spending “quality time” with a child.
(j) any family violence involving the child or a member of the child’s family;
I have already discussed the issue of family violence in paragraphs 42 to 78 of these Reasons and have found that there have been multiple instances of non-physical family violence involving the mother, some of which the child has witnessed.
While there is no evidence of physical assault by Mr Albert against Ms Addison, there is ample evidence of verbal abuse, threats, intimidation, and harassment by Mr Albert. All of those behaviours are abusive and form a pattern of family violence over many years, and particularly in the years since separation.
(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, taking into account the following:
(i) the nature of the order;
(ii)     the circumstances in which the order was made;
(iii)   any evidence admitted in proceedings for the order;
(iv)    any findings made by the court in, or in proceedings for, the order;
(v)     any other relevant matter;
There have been two family violence orders made against Mr Albert as discussed in paragraphs 42 to 44 and 65 to 68 of these Reasons, one in 2011 and one in 2015.
I note in this context that the first Order was made in circumstances where the father could not possibly have harmed the mother personally, but where the magistrate nevertheless saw fit to make the Order on an ex parte basis for the protection of the mother.
I can only infer from that circumstance that the magistrate was satisfied that Ms Addison was at risk of harm from Mr Albert (at least in terms of verbal abuse) and/or his associates.
The second Interim Intervention Order against Mr Albert was also made ex parte, only three months before trial and again I note the requirements of the Family Violence Protection Act 2008 in relation to the making of interim orders. The court is unaware of the outcome of that Application or whether any evidence was given at its final hearing.
(l) whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to the child;
The orders I propose to make will gradually and progressively extend the time X spends with his father, provided that the father is able to provide suitable accommodation for him. That time will extend to overnight time in the future.
If the father is able to provide that accommodation, if he continues to learn how to meet his son’s needs, and he learns how to be flexible and less centred on his own rights in his interactions with X’s mother, the orders I propose to make are unlikely to lead to further proceedings in relation to X.
(m) any other fact or circumstance that the court thinks is relevant.
There are three further issues which I have taken into account in coming to this decision.
First, the father’s time with X has until now been supervised by the maternal grandmother. That has not prevented X from attending play centres with his father or going to the movies with him, and the evidence of the professionals involved in X’s care gives the court some confidence that Mr Albert is able to take care of X on his own.
For those reasons, I do not propose to make further orders for X’s time with his father to be supervised.
Second, the father wishes X to have the name “Albert” included in X’s surname. He says that X deserves to grow up knowing his cultural background and identifying with his paternal family.
However, “Albert” is not the name now used by X’s father. He changed his name when he moved to Melbourne in 2012, and the court is unaware of his new name. Mr Albert was reluctant to use his current name in court and insisted on the trial being conducted using his former name.
X already has the name of “X” and I can see little benefit to him in adding the name “Albert” either before or after the surname “Addison”.
Mr Albert gave the impression at trial that he wanted his name included in that of his son not for X’s benefit but to satisfy his own needs.
I therefore do not consider it in X’s best interests to have his father’s former name added to his own and I will not make an order to that effect.
Third, in her oral evidence, Family Consultant Ms P was adamant that any extension of Mr Albert’s time with X should progress slowly because of X’s need to experience as little stress as possible.
She said that his communication skills were still developing and that his attempts to communicate are tiring for him. She was very clear that the reason for a slow rate of extension of time was not to prevent the father-son relationship but to “solidify the transition”.
It was her evidence that overnight time should not commence until at least the end of X’s first year at school because he needed to settle at school and she thought that X might cope with overnight time once he turned seven.
Ms P said that the relationship between X and his father would grow and strengthen over time but that the relationship needs to be paced appropriately to take account of X’s development and needs.
For instance, it was her evidence that while X might be coping well with spending several hours with his father in the company of his maternal grandmother, he would need to get used to spending time with his father alone.
It was in this context that she recommended an initial continuation of the time spent on the weekend with an incremental increase in the time spent into the future.

I will therefore craft orders that will ensure that the increase in time between X and his father is based on X’s very specific needs and not on what might be considered a usual contact regime between the child and his father.

Conclusion

Ms Addison has been responsible for X’s care all his life, and essentially for 24 hours a day, albeit with the assistance of her mother. She impresses as an extremely mature, insightful, resilient and caring parent to him.
X’s parents are both relatively young, with X having been born when Ms Addison was 18 years old and Mr Albert was 24.
Mr Albert has a chequered past, but there is no evidence that he has committed any criminal offence since he was released from prison in (omitted) 2012.
He impresses as a man who loves his son dearly, who is prepared to put time and energy into learning all he can about his condition, and who wants to be the best father he can be.
The only things preventing the fulfilment of that wish are the father’s sense of entitlement, and his impatience in relation to the very necessary steps that must be taken in relation to the development of his relationship with X.
That relationship is developing well. Mr Albert will be X’s father for the remainder of his life, and he should keep his focus on the steps necessary to provide X with the best quality of life possible, rather than on what he wants and sees as his entitlement as X’s father.

I certify that the preceding two hundred and fifty-four (254) paragraphs are a true copy of the reasons for judgment of Judge Small

Date: 18 January 2016

[2016] FCCA 62

18 January 2016

Key Legal Topics

Areas of Law

Family Law

Legal Concepts

Injunction

Procedural Fairness

Natural Justice