Amers & Amers
[2021] FedCFamC2F 78
•23 September 2021
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISON 2)
Amers & Amers [2021] FedCFamC2F 78
File number: DNC 40 of 2020 Judgment of: JUDGE YOUNG Date of judgment: 23 September 2021 Catchwords: FAMILY LAW – parenting – concerning a child who is three years old – where the child lives with the mother and spends time with the father – where the mother is the primary carer of the child – where the child has been spending three nights a fortnight with the father – where the child is showing signs of anxiety upon separation from the mother – where the father’s conduct towards the mother constitutes coercive and controlling behaviour – where the father has made false allegations against the mother and her family – Court not satisfied it is in the best interests of the child to spend equal time with the parents – orders for the child to spend time with the father on a gradually increasing basis Legislation: Family Law Act 1975 (Cth), ss 60CC, 65DAA
Hague Convention on the Civil Aspects of International Child Abduction
Division: Division 2 Family Law Number of paragraphs: 59 Date of hearing: 8, 9 and 10 September 2021 Place: Adelaide Solicitor for the Applicant: Ms Franz of Darwin Family Law Solicitor for the Respondent: Ms Farmer of Withnalls Lawyers ORDERS
DNC 40 of 2020
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIAN (DIVISION 2)
BETWEEN: MR AMERS
Applicant
AND: MS AMERS
Respondent
ORDER MADE BY:
JUDGE YOUNG
DATE OF ORDER:
23 SEPTEMBER 2021
THE COURT ORDERS THAT:
1.All previous parenting orders be discharged.
2.The parties have equal shared parental responsibility for X born in 2018 (‘the child’).
3.The child live with the mother.
4.The child spend time with the father as follows:
(a)Commencing from the date of these orders:
(i)In week 1 from 9:00am on Saturday to 5:00pm on Sunday; and
(ii)In week 2 from 1:30pm on Wednesday to 10:30am on Thursday;
(b)Subject to the father having completed the Men’s Behaviour Change Program at B Family Services referred to in Order 18, commencing from the child’s birthday in 2022:
(i)In week 1 from 12:00pm on Friday to 5:00pm on Saturday; and
(ii)In week 2 from 12:00pm on Friday to 5:00pm on Sunday; and
(c)Commencing from February 2023:
(i)Each alternate weekend from after school or preschool on Friday, or if it is a non-school day or the child is not at school, from 4:00pm to before school on Monday; and
(ii)Each Tuesday after school or preschool until 4:30pm.
5.The child shall spend time with the parties on the following days of significance each year:
(a)With the mother from 9:00am on Mother’s Day to before school the following day;
(b)With the father from 9:00am on Father’s Day to before school the following day;
(c)With the mother from 9:00am or if a school day from after school on the mother’s birthday, to before school or if a non-school day to 9:00am the following day;
(d)With the father from 9:00am or if a school day from after school on the father’s birthday, to before school or if a non-school day to 9:00am the following day;
(e)With the parent with whom the child is not residing on the child’s birthday, from 3:00pm to 4:30pm;
(f)In odd numbered years, with the father from 12:00pm Christmas Eve to 2:00pm Christmas Day, and in even numbered years from 2:00pm Christmas Day to 2:00pm Boxing Day with all changeovers pursuant to this order to occur at the F Police Station;
(g)In odd numbered years, with the mother from 2:00pm Christmas Day to 2:00pm Boxing Day, and in even numbered years, with the mother from 12:00pm Christmas Eve to 2:00pm Christmas Day with all changeovers pursuant to this order to occur at the F Police Station.
6.For the purpose of all changeovers in accordance with Orders 4 and 5, changeover shall occur at B Family Services unless otherwise specified or agreed between the parties.
7.That the child’s time with the father in accordance with Orders 4 and 5 shall be suspended in the following circumstances:
(a)For the purpose of the child and the mother attending cultural festivities and ceremonies provided the mother notifies the father in writing not less than seven (7) days prior to the event; and
(b)For up to eight (8) weeks in any calendar year provided the mother notifies the father in writing not less than fourteen (14) days prior to the intended time spent.
8.During any period the child’s time with the father is suspended in accordance with order 7, the following orders shall operate:
(a)The child shall speak to the father by FaceTime each Wednesday at 5:30pm with the father to instigate the call to the mother’s mobile phone;
(b)The father shall spend make-up time with the child from 9:00am Saturday to 5:00pm Sunday for the two weekends prior and the two weekends after the mother’s attendance at cultural festivities or ceremonies in accordance with order 7(a).
Communication
9.The parties will:
(a)Communicate only by email except in the event of an emergency when communication will be by telephone;
(b)Keep each other informed of their current contact details including their residential and postal addresses, telephone numbers, email address and Skype details and will inform the other of any change to any of those details within seven (7) days of any change; and
(c)Advise the other of any medical or other emergency involving the child whilst the child is in their care.
Travel
10.The child be permitted to travel intrastate and interstate with the mother for the purposes of Order 7(b) provided the mother notifies the father in writing not less than fourteen (14) days prior to the travel and provides itineraries, contact addresses and telephone numbers for the child whilst the child is intrastate or interstate so that the child can communicate with the father at all reasonable times.
11.The child be and is hereby restrained from leaving the Commonwealth of Australia or travelling with the father to the United States or elsewhere internationally until the child is at least eleven (11) years of age.
12.The parties, Mr Amers born in 1986 and Ms Amers and their servants and agents be and are HEREBY restrained by injunction, and irrespective of authenticated consent as contemplated in Part VII of the Family Law Act 1975 are restrained from removing or attempting to remove or causing or permitting the removal of X (female) born in 2018 from the Commonwealth of Australia.
13.It is requested that the Australian Federal Police give effect to the preceding order by placing the name of the said child on the Airport Watch List in force at all points of arrival and departure in the Commonwealth of Australia and maintain the child’s name on the Watch List until 24 July 2029.
14.Upon expiration of the period referred to in Order 13 and subject to any further order of a Court of competent jurisdiction, the Australian Federal Police will cause the removal of the child’s name from the Watch List.
AND THE COURT NOTES:
A.If after the expiration of the period set out in Order 13 above any parent seeks that the child’s name remains on the Watch List for a period beyond the period specified that party must file and serve an application and an affidavit setting out the evidence which supports that application in the Federal Circuit and Family Court of Australia.
AND IT IS FURTHER ORDERED:
Copies of information
15.A copy of these orders authorises the child’s school and medical practitioners to provide to each of the parties:
(a)A copy of school reports, school newsletters, school photo application forms, parent/teacher interview notices and any other information regarding the educational needs of the child; and
(b)A copy of medical reports including any referrals, information regarding any medical condition suffered by the child, treatment information and any other information or material concerning the health and wellbeing of the child.
Injunctions
16.That each party be hereby restrained and an injunction issue restraining the parties as follows:
(a)From video or audio recording changeover interactions between the parties FaceTime communications between the parties and/or changeover interactions between the parties;
(b)From discussing the court proceedings with the child or allowing the child to read or view any court documents;
(c)From physically disciplining or restraining the child or permitting a third party to do so;
(d)From abusing, insulting, belittling, rebuking or otherwise denigrating the other party or the other party’s partner or member of that party’s family in the presence of or within the hearing of the child or any of them and each party is to remove the child from the hearing of anyone else who may be denigrating the other party or that party’s partner or family;
(e)From exposing the child to abuse (including verbal abuse) or family violence and that the parties will take all measures necessary to remove the child from any act of family violence should such circumstances arise;
(f)From posting to any social media account negative or derogatory comments including photos or information in relation to the child, the parties or these proceedings;
(g)From communicating with the other party except in accordance with these orders for issues in relation to the child and each party shall ensure their communication remains polite and respectful;
(h)From using the child as a conduit to pass messages to the other party;
(i)From consuming marijuana 12 hours prior to or during any time spent with the child;
(j)Smoking in the presence of or vicinity of the child and/or permitting any other third party to do so;
(k)From consuming alcohol to excess 12 hours prior to any commencement of time spent or during any time spent with the child;
(l)From watching or exposing the child to any pornographic material during any time spent with the child; and
(m)Permitting the child to remain in the presence of the mother’s nephew Mr Z without the mother at all times being present.
Parenting courses
17.The parents will undertake and complete the B Family Services ‘Circle of Security’ parenting program or with a similar program provider as follows:
(a)Each parent within seven (7) days of the date of these orders are to contact B Family Services NT and enrol in the course;
(b)The parents will attend all sessions of the course and comply with all reasonable directions of the course providers;
(c)At the conclusion of the course each parent provide the Court and the other parent with a certified copy of the certificate of completion.
18.The father will undertake and complete the B Family Services ‘Men’s Behaviour Change Program’ as follows:
(a)The father within seven (7) days of the date of these orders is to contact B Family Services NT and enrol in the course;
(b)The father will attend all sessions of the course and comply with all reasonable directions of the course providers;
(c)At the conclusion of the course the father provide the Court and the other parent with a certified copy of the certificate of completion.
Hair follicle testing
19.Upon the written request by either party, the other party shall undergo a hair follicle drug analysis process as soon as practicable with an accredited laboratory such as Mobile Drug & DNA NOTING THAT the hair follicle drug analysis test be carried out with no less than 3cm of hair.
20.That after such request and until such time as the hair follicle drug analysis test has been completed, the parties are hereby restrained from:
a.Cutting, shaving or bleaching their hair; and
b.Using any chemicals or treatments in their hair other than commercially available shampoo and/or conditioner.
21.The requesting party shall meet the cost of the hair follicle drug analysis testing pursuant to order 19 and if the test result is positive for the presence of any illicit substances the party that undertook the test shall reimburse the requesting party the full cost of the hair follicle drug analysis test within fourteen (14) days.
22.There be a maximum of one hair follicle drug analysis test undertaken by each of the parties in any six month period and the parties are hereby restrained from requesting the other party undergo a hair follicle drug analysis test more frequently than once per six month period.
23.The party that undertook the hair follicle drug analysis test shall email the requesting party a copy of the test results from the hair follicle drug analysis test within twenty-four (24) hours of receipt of the test results.
Mediation
24.That from January 2024, the mother and the father shall return to mediation if any increase or change in the child’s overnight time and school holiday time spent with the father is sought.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under a pseudonym Amers & Amers has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
JUDGE YOUNG:
This is a parenting case about X who is a little more than three years old. X currently lives with her mother and spends time with her father from Friday afternoon to Monday morning on alternate weekends. In addition, she spends Wednesday afternoons with her father.
The father seeks an order that the child spend three days and three nights a week with him. The mother originally sought an order that the child not spend overnight time with the father. During the trial she changed her position to seek an order that the child spend one night each week with the father until early 2023 when she proposes a return to the current arrangements.
The parties met online in 2016 when the father lived in City J, USA and the mother in Darwin. In 2017 the father moved to Australia and began working in mid-2018 when his visa conditions allowed it. The father is currently employed in the public service. The mother is an artist and entertainer.
The father, a US citizen, is of Country C and D descent. The mother is of Aboriginal and European descent. Both parties emphasised the importance to them of their family and cultural inheritances.
The parties separated in late 2019 when the child was about 16 months old. The father commenced proceedings in January 2020. On 9 March 2020 orders were made by consent that the child spend time with the father on alternate weekends from 9:00AM Saturday to 9:00AM Monday and every second Wednesday until Thursday morning. On 24 March 2020 further orders were made by consent that the child live with the mother and spend time with the father on alternate weekends from Friday 4:00PM until the following Monday at 8:00AM along with special days. On 21 September 2020 an order was made for the preparation of a family report. On 30 April 2021 an order was made setting the matter down for trial.
The relationship between the parties is marked by a very high level of distrust and hostility. The mother alleged earlier in the proceedings that the child was at risk of sexual abuse by the father. She notified Territory B Family Services of her concern which resulted in an investigation. The outcome of the investigation was that her concern was not substantiated. The mother has not pursued that claim in the trial and acknowledges there is no evidence to support her concern. However, the mother asserts, and I accept, that her anxiety that the child is at risk of abuse is genuine.
The father has made claims that members of the mother's family have been the victims of sexual abuse or are perpetrators of sexual abuse. It is not in dispute that the mother’s nephew, her sister’s son, was found guilty of a sexual offence against his sister in 2016. Despite the Court seeking details of the matter, the precise nature of the offence was not put in evidence by the parties. However, it was agreed that the nephew served 6 months of a sentence of imprisonment. At the time of the offence the nephew was said to be 19 or 20 years of age and his sister was 9 years of age.
The mother gave evidence about her response to this crime. She did not attempt to minimise its significance. She said that she maintains a very good relationship with her sister and sometimes leaves the child in her sister’s care. She said she does so only on the basis that the nephew is not present. She said she would consider it to be a betrayal of her trust should that occur. She said her sister has agreed and understands her feelings. The nephew no longer lives with the mother's sister, but visits from time to time. I am satisfied the mother is highly protective of the child, and she is not at risk of sexual abuse from the nephew or anyone else while in the mother's care.
The father also alleged that the mother's father is a “paedophile”. He alleged that the mother was the victim of child sexual abuse. He alleged that the maternal grandmother is a drug addict. He alleged that the mother's sister is an alcoholic. He seeks injunctive orders to limit the child's contact with the maternal grandfather and to prevent the mother taking the child to indigenous land E, which is the home of the Aboriginal side of the mother’s family. The mother denies each of these allegations.
Credibility
I am not satisfied the father is a reliable witness and I do not accept his evidence unless it is uncontentious or is supported by independent evidence. I formed an adverse view of the credibility of the father because of aspects of his evidence, which I am satisfied were deliberately false. In relation to the father's claim that the maternal grandfather is a paedophile, he said he based this claim on one incident concerning a 13 year old girl, who was related to the mother and usually resided in indigenous land E. The girl had come into the parties’ household because of difficulties in her home area. The father said in his trial affidavit that he, the mother and members of the maternal family were at the mother’s sister’s house on one occasion. He said he saw the girl:
…acting inappropriately with [the mother’s father]. She sat in between his legs and put her head near his crotch area. The interaction between [the mother’s father] and [the girl] looked and felt wrong, and we stopped it.
The mother denied that anything of this kind had taken place.
In his oral evidence the father was asked to give a detailed description of what he had observed during this alleged incident. He said the family had been watching television or a video. He said he saw the girl get up from a chair or the floor and go to where the maternal grandfather was sitting on the couch. He said the girl knelt on the floor facing the maternal grandfather, between his legs and bent down and put her head in his crotch area and began stroking his crotch and upper inner thigh area with her head. When it was pointed out that that claim was different to the claim in the affidavit, in particular that he had said there that the girl “sat” between the mother’s father’s legs, he said his claim in the affidavit was incorrect. He acknowledged that he had instructed his solicitor that the girl had "sat" between the mother’s father’s legs but that because he was in a hurry when providing the instructions he had made a mistake.
As noted, the mother denied that any such incident had taken place. I accept her evidence. I do not accept the father's evidence about this matter in any respect. I am satisfied that the claim is deliberately false.
There are other instances when I found the father's evidence to be untrue. One such instance concerned an incident on 6 September 2020 at changeover of the child at the F police station. At that time the father was subject to a domestic violence restraining order preventing him from approaching or harassing the mother, along with various other restraints. The mother had given an undertaking to the court in similar terms.
Both parties agreed there had been an unpleasant incident. The father alleged that after changeover the mother had left her car and, unprovoked, assaulted him, in the course of which her phone was broken. He said he had filmed the incident on his telephone and was able to provide evidence to the Court if required.
The mother said that after changeover the father placed the child in a child seat on the back seat of his car but did not restrain her. The mother said that while she sat in her car after the changeover the father approached her and began filming her on his phone. She said she saw that the child was in the father's car unattended and unrestrained with the door open. She was concerned that the child may fall and be injured. She said she left the car to go to the child while filming on her own phone. She said when she did so the father took her phone out of her hands and threw it and it broke.
The father, despite asserting that he had film supporting his version of the incident, chose not to provide his film evidence. The mother on the other hand, showed the film from her phone, which supported her version of events. The film showed that she was sitting in her car with the window up when the father approached her on the driver’s side, filming her and speaking. The mother’s film showed her exiting her car and walking towards the child with film of the child standing on the back seat of the car, unrestrained, with the door open, looking alarmed. The father could be heard saying repeatedly, while he filmed the mother, “harassing, harassing, harassing…”. The film then ceased.
I am satisfied the father was in breach of the domestic violence restraining order by initially approaching the mother after the changeover had taken place. There was no justification for him to do so or to film her in those circumstances, and I am satisfied he did so to harass her. I am satisfied the evidence he gave about this incident is false.
There are other incidences of the father giving false evidence. In his trial affidavit he claimed that the mother consumed cannabis regularly, as did he. It was put to him that he had never raised such a claim previously or to the family consultant but rather had claimed that the mother abused alcohol. He said that in his interview with the family consultant he had not had time to raise the claim with her. I do not accept that and I am satisfied his claim that the mother regularly used cannabis is false. Nevertheless, the mother did say and I accept, that she had used cannabis during the relationship on a very limited number of occasions but did not do so regularly.
Another claim made by the father which I am satisfied is false concerned an incident on 17 August 2021. The father alleges that by coincidence he happened to be in Suburb G, near where and at the time, when the mother's older child from a previous relationship, Y, got off his school bus. The mother said she believed the father was stalking her and some kind of argument ensued. This was also at a time when the father was subject to a domestic violence restraining order prohibiting for him from approaching the mother. The father said that on this occasion the mother produced a knife and threatened to stab him and used racially insulting words. He then attended on the police and made a report and sought a restraining order. The police did not pursue the matter.
The mother categorically denied this claim, and I accept her denial is truthful. I am satisfied the father's claim is deliberately false.
Family violence
The father's claims against the mother are unrestrained and extreme. At times they appear to have been harassing and intended to involve the police or the authorities in relation to the mother.
There are other examples of the father harassing the mother. On six occasions he called the police to request them to undertake a welfare check on the child while she was with the mother. The most recent of these occasions was in August 2021, a few weeks before trial. In relation to one of these occasions the mother annexed a series of SMS messages between her and the father. The mother had asked the father for permission to attend a particular town outside Darwin for a cultural event where she was due to perform. The father withheld his permission unless the mother was prepared to agree to the child spending more time with him. He then asked for photographs of the child. The mother did not reply. The father said that if the mother did not reply to him he would call the police to undertake a welfare check, which he did. The police apparently attended on the mother and nothing untoward was found.
The father's pattern of behaviour is coercive and controlling. I am satisfied it constitutes family violence.
Relationships of the child to her parents
The relationship between the child and the mother is very good. The evidence revealed that the child sees her mother as her primary carer. I accept that the mother is a child-focused and competent parent.
The relationship between the child and the father is less clear. The only real objective evidence is the observations of the family consultant in the preparation of the family report. When the family consultant undertook her first observation of the child with the father, the child was upset and the father was unable to settle the child. The child had to be returned to her mother. The family consultant then arranged a second observation when the child appeared comfortable with the father and expressed no ambivalence about him. The family consultant concluded that there was a strong relationship between the child and the father.
The mother has claimed that before and after spending time with the father the child displays anxiety. She said the indications of this are that the child has disturbed sleep, has sometimes regressed in her toilet training and has "toileting accidents". It was put to the mother in cross-examination that an explanation for the child's behaviour – which was not challenged by counsel for the father – was that the child could be reflecting the mother's anxiety about the child spending time with the father. The father denied that the child showed any ambivalence or anxiety when she was with him.
I accept the mother's evidence about the child displaying anxiety before and after spending time with the father. I am unable to say whether this might be the result of the child being aware of her mother's own anxiety, which I accept exists, or something about the child's relationship with the father. It might also be relevant that this child has recently turned three years old and is spending three nights block time away from her primary carer, her mother, to whom she is strongly attached. The family consultant expressed the view that the earlier consent orders which commenced when the child was about 16 months old, providing for the child to spend a block of three nights a fortnight with the father, were probably inappropriate. Having regard to the child's age the family consultant suggested that a more appropriate order was for more frequent time of shorter duration with the father.
While the child has been spending three nights a fortnight with the father for a considerable time, I am not persuaded that it is an appropriate order at this stage. I am satisfied that the mother is genuinely anxious about the father. I am satisfied that the mother's anxiety has been aggravated by the father's conduct which I have found constitutes coercive and controlling behaviour. While there is no evidence that the child has been subject to sexual abuse by the father and the mother has resiled from that claim, it is clear that there are genuine reasons why the mother is anxious about the child spending time with the father. Not only is there the coercive and controlling behaviour to which I have referred but there is a high level of hostility and conflict and repeated false claims by the father about the mother.
The mother has acknowledged a history of anxiety and depression for which she has sought psychological intervention. The father's conduct in a context where he is aware of the mother's history shows indifference or, at best, a lack of awareness about how his conduct might affect the mother's parenting capacity. I am satisfied the father lacks empathy and insight into the effect of his behaviour on the mother and, also, on the child, both directly through exposure to family violence, such as the episode at F police station, but also indirectly through a deleterious effect on the mother's parenting capacity by reason of his behaviour.
None of these matters provide reassurance about the relationship between the child and the father. On the contrary, they reinforce concerns, particularly about whether or not the child is experiencing some degree of anxiety about the father or the time she spends with him.
Need for adjustment of the child’s time with the father
In my view, there needs to be an adjustment of the time the child spends with the father to increase its frequency and reduce its duration until the child is older. Subject to conditions set out below, I consider that the time then should be increased to what the mother proposes in early 2023, that is, a return to block time of three nights a fortnight.
The only witness apart from the parties was the family consultant who prepared the family report. The family report provides a detailed history of the matter, including the claims and counterclaims of the parents against each other. I do not propose to canvass those matters in more detail. However, the family consultant was of the view that the level of mistrust and hostility between the parties was very high and was unlikely to diminish in the foreseeable future. She was of the view that changeover needed to occur at a children's contact centre and that any equal time or arrangement approaching equal time was inappropriate for this young child given the parent’s inability to effectively communicate or co-parent in a high conflict relationship.
Initially the family consultant recommended that if the mother’s claims were accepted then the child should spend only daytime with the father, as was the mother’s position at the time she spoke to the family consultant. In her oral evidence the family consultant clarified that she meant this as an interim measure. Further, at trial the mother’s position was that the child spend one night a week with the father but extending to three nights a fortnight in early 2023 and the family consultant expressed the opinion that this was appropriate. I accept the family consultant's opinions.
I consider that both parties would benefit from attending an attachment focused parenting program such as the Circles of Security program run by B Family Services.
I also consider that the father should attend a men’s behaviour change program of the kind operated by B Family Services. I intend to order that any increase in the child’s time with the father is conditional on his completion of these courses.
Other matters
Both parents emphasised the importance to their respective identities of their cultural and linguistic backgrounds. The child’s Aboriginal heritage is discussed below. The father said that his Country C/Country D/US background is important to him. He emphasised his Country H linguistic heritage and said the child is learning Country H language. He said he wished to travel to the United States with the child so that she could meet his family members, to whom he is close.
Ideally the child would be able to enjoy all aspects of her rich cultural and linguistic heritage. However, the mother gave evidence, and I accept, that the father has threatened in the past to take the child from her and return to the United States. While the United States is a signatory to the Hague Convention on the Civil Aspects of International Child Abduction I have reservations about the father’s intentions. He said he is in the process of obtaining or has obtained a US passport for the child. His hostility to the mother may provide a motive for rash action on his part. The mother sought a long airport watch list order and an order that the child not travel to the US with the father until she is approximately 11 years old. I propose to make an airport watch list order as sought by the mother. In relation to travel after that I consider that as the father may have a US passport for the child caution is required. I propose to make an order that the child is not permitted to travel to the United States or elsewhere internationally with the father until she is at least 11 years old. If the father has a definite proposal for travel before that, including any proposal for financial or other security to ensure his likely return, he may apply to the court.
The legislative pathway
In deciding a parenting case the court is required to follow the legislative pathway set out in Part VII of the Family Law Act 1975 (Cth) (the Act). In identifying the issues and making the findings above, I have borne in mind each of the elements of the pathway. However, my express conclusions in relation to each element are set out below.
In determining what is in the best interests of a child the Court must consider the matters in subsections (2) and (3) of section 60CC of the Act.
Turning to subsection 60CC(2), the primary considerations in determining the best interests of the child 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.
When applying section 60CC(2) factors, the Court is to give greater weight to the consideration set out in (b).
I am satisfied that there is benefit to the child in having a meaningful relationship with both her mother and father. It is not in dispute that the child is strongly attached to her mother and she has a good relationship with her father. However, in my view given the high level of distrust and hostility between the parties and the child’s young age it would be beneficial for both parents attend an attachment based parenting program such as Circles of Security offered by B Family Services.
In my view (b) is also engaged. I am satisfied that the father’s coercive and controlling behaviour constitutes a risk of harm to the child. In my view the risk may be mitigated if the father attends the Men’s Behaviour Change Program offered by B Family Services.
I will now turn to the additional considerations in subsection 60CC(3) of the Act.
In relation to (a), the child’s views, the child is too young to express a view.
In relation to (b), the nature of the relationship of the child with her parents and any other persons, the child is strongly bonded to the mother who has been her primary carer. In the second observation by the family consultant the child was seen to be comfortable with her father.
In relation to (c), the extent to which each of the 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
(iii) to communicate with the child
the evidence was slight. It appears that given the level of mistrust and hostility between the parents little constructive communication has taken place.
In relation to maintenance of the child under part (ca), no issue was raised.
In relation to (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 their parents or any other child or other person with whom they have been living, I do not propose to order substantial changes in the child’s circumstances but I consider that some temporary changes are necessary to the time the child spends with the father in order to address some indications of anxiety on separation from her mother.
In relation to (e), the practical difficulty and expense of the child spending time with and communicating with a parent and whether that will substantially affect the child’s right to maintain personal relations and direct contact with both parents, this was not raised as an issue.
In relation to (f), the capacity of each of the child’s parents to provide for the needs of the child, including emotional and intellectual needs, regrettably the level of mistrust and hostility between the parents is potentially harmful to the child emotionally. The orders I make are intended to ameliorate this risk.
In relation to (g) the maturity, sex, lifestyle and background of the child and of either of the child’s parents, and any other characteristics of the child the Court thinks are relevant, there is nothing requiring further consideration.
In relation to (h), the child is an Aboriginal child. The mother’s paternal family are from indigenous land E and the mother is strongly linked to her paternal family and culture. She intends to maintain that link through participation in family and cultural activities and to engage the child in those activities. The father has sought an injunction to prevent the mother travelling to indigenous land E with the child. The father alleges that the prevalence of child sexual assault in Aboriginal communities in indigenous land E is such that there is an unacceptable risk to the child in doing so. The father did not bring forward any evidence to support his claim. The practical effect of the father’s proposal would see the child substantially deprived of her right to enjoy her Aboriginal culture. While I accept that there is some risk to the child of sexual assault in indigenous land E communities, as there is to children in all Australian communities, I am not satisfied it is an unacceptable risk. The mother is, I am satisfied, highly protective of the child and keenly aware of the issues and risks. The injunctive order sought by the father is not justified.
In relation to (i), the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child’s parents, both parents love the child but the poor relationship between the parents hinders their capacity to do what is best for the child.
In relation to (j), any family violence involving the child or a member of the child’s family, I am satisfied there has been family violence which has been described.
In relation to (k), family violence orders have applied in the past but not currently.
In relation to (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 children, I have given this consideration in the orders I propose to make.
In relation to (m), any other fact or circumstance that the Court thinks is relevant, there is no other such fact or circumstance.
As the parents agree on shared parental responsibility there will be an order accordingly. The Court is thus required by section 65DAA of the Act to consider whether the child spending equal time or substantial and significant time with each parent is in the best interests of the child. I am not satisfied that it is in the best interests of the child to spend equal time with each of the parents. I am satisfied the child is primarily attached to her mother and would struggle with equal time given her age and developmental level. Further, the level of distrust and hostility between the parents is such that co-operative parenting is not possible and I am not satisfied such a regime is reasonably practical having regard to the matters in section 65DAA(5), particularly (b) and (c).
I certify that the preceding fifty-nine (59) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Young. Associate:
Dated: 23 September 2021
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