Andic & Bilici (No 2)
[2023] FedCFamC1F 1088
•15 December 2023
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Andic & Bilici (No 2) [2023] FedCFamC1F 1088
File number(s): SYC 5103 of 2020 Judgment of: KARI J Date of judgment: 15 December 2023 Catchwords: FAMILY LAW – CHILDREN – Oral application for adjournment made by the father – Where the final hearing was listed to be heard on an undefended basis - Where the father did not personally attend the final hearing and appeared by telephone – Application dismissed.
FAMILY LAW – CHILDREN – Parental Responsibility – Family Violence – Where the mother has made serious allegations of family violence perpetrated by the father – Where the father concedes that he was found guilty of an offence against the mother – Where the presumption of equal shared parental responsibility is rebutted – Orders for the mother to have sole parental responsibility of the child.
FAMILY LAW – CHILDREN – With whom a child lives and spends time with - Where the mother has remained the primary carer of the child since the commencement of proceedings in 2020 – Where the father has spent time with the child supervised by the paternal grandmother at all times since the commencement of proceedings - Whether time spending between the father and child should continue to be supervised by the paternal grandmother – Order for the father’s time to be supervised by the paternal grandmother – Orders providing for the child to spend special occasions with each parent.
Legislation: Family Law Act 1975 (Cth) ss 4AB, 60B, 60CC, 61DA, 69ZN, 102NA Cases cited: Andic & Bilici [2023] FedCFamC1F 757
Goode & Goode (2006) FLC 93-286
Division: Division 1 First Instance Number of paragraphs: 72 Date of hearing: 11 December 2023 Place: Sydney Solicitor for the Applicant: Phillip A Wilkins & Associates Respondent: Litigant in person Solicitor for the Independent Children's Lawyer: Mr Ullbrick as agent for Blumberg Family Lawyers ORDERS
SYC 5103 of 2020 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MS ANDIC
Applicant
AND: MR BILICI
Respondent
INDEPENDENT CHILDREN'S LAWYER
ORDER MADE BY:
KARI J
DATE OF ORDER:
15 DECEMBER 2023
THE COURT ORDERS THAT:
1.The mother shall have sole parental responsibility for the child X born 2019 (“the child”).
2.The child shall live with the mother.
3.The child shall spend time with the father as follows:
(a)Until the child commences school in 2025 each Saturday and Sunday from 10.30 am until 6.30 pm.
(b)Upon the child commencing school in 2025:
(i)Each alternate Saturday and Sunday from 10.30 am until 6.30 pm.
(ii)Each intervening Wednesday from the conclusion of school (or 3.00 pm if a non-school day) until 6.30 pm with the first of such occasions to take place in the second week of the first school term in 2025.
(c)On Father’s Day from 10.30 am until 6.30 pm in the event the child is not otherwise spending time with him.
(d)On the child’s birthday and the father’s birthday from the conclusion of school until 6.30 pm if a school day, or 10.30 am until 2.00 pm if a non-school day in the event the child is not otherwise spending time with him.
(e)On one occasion per year to celebrate a religious holiday from 10.30 am to 6.30 pm PROVIDED THAT the father provides the mother with 14 days written notice of which day he elects to spend with the child.
(f)At such other times as agreed between the parents in writing.
4.The child’s time with the father shall be suspended as follows:
(a)On Mother’s Day in the event the child is not otherwise living with the mother.
(b)For certain religious holidays each year.
5.Unless changeover is to occur at school and/or childcare, the father’s nominee shall collect the child from the mother at Suburb E train station at the commencement and conclusion of the child’s time with the father and the father shall not be permitted to attend changeover unless agreed in writing.
6.All time the child spends with the father in accordance with these orders shall be supervised by the paternal grandmother.
7.The father and mother shall communicate via text message in relation to matters relating to the child and the implementation of these orders.
8.Each parent shall:
(a)Notify each other as soon as practicable in the event of any serious illness or injury that requires medical intervention by a doctor or hospital concerning the child whilst in their care.
(b)Provide full particulars of any medical practitioner, health service provider or institution attended by the child.
(c)Provide any such authority and direction necessary to enable the other party to obtain all necessary information concerning the child from such medical practitioner, health service provider or institution.
9.Each parent is hereby authorised to obtain from each of the child’s schools’ copies at their own expense of all notices, letters, school reports, school photographs, newsletters and announcements of school activities or otherwise pertaining to the education of the child.
10.The mother shall keep the father informed of any childcare, daycare or school the child may attend upon from time to time.
11.Each parent shall be permitted to attend the child’s school, childcare, or daycare for the purposes of school functions including but not limited to award assemblies, school carnivals, parent/teacher nights and any other event to which parents are ordinarily invited provided the father does not approach the mother at any such event.
12.The father shall be permitted to contact the child’s school, daycare and or childcare centre for the purposes of seeking an update about the child’s progress.
13.The father shall ensure the child’s attendance upon any extracurricular activities including training, games or events at such times the child is in his care and the mother shall keep the father informed in a timely manner of any extra-curricular activities the child may be involved from time to time.
14.That the appointment of the Independent Children’s Lawyer be discharged, save and except as to any appeal.
15.That the proceedings otherwise be dismissed as finalised.
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 the pseudonym Andic & Bilici has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
KARI J:
INTRODUCTION
These are parenting proceedings relating to the parties’ four year old child, X.
The proceedings have been before the court since the end of July 2020. They were commenced by the mother in circumstances where she sought an urgent recovery order for the child, who had been retained by the father. At the time, the child was one year of age.
The child has remained in the mother’s primary care since the making of the recovery order, and he has spent supervised time with the father on two occasions each week. The father’s time has, at all times, been supervised by the paternal grandmother.
The final hearing in the matter has been heard on an undefended basis as a consequence of orders made on 23 August 2023 as a result of the father’s then ongoing non-compliance and unwillingness to prosecute his case in this court with due diligence.
These reasons shall deal with:
(a)The father’s application for an adjournment of the final hearing made orally on 11 December 2023, which was refused with reasons to be published when finalising the parenting proceedings; and
(b)The substantive parenting proceedings.
BACKGROUND
The short background of the parties and their relationship is as follows:
(c)The father was born in 1994 and he is 29 years of age.
(d)The mother was born in 1995 and she is 28 years of age.
(e)The parties met at work and shortly thereafter commenced a relationship in 2015.
(f)In 2015 the parties began living together.
(g)The child, X, was born in 2019.
(h)In 2019, the father was involved in an accident and suffered significant injuries.
(i)The parties separated in early 2020.
The mother’s case is that the parties’ relationship was punctuated by serious family violence in all its various forms as defined in s 4AB of the Family Law Act 1975 (Cth) (“the Act”). In her trial affidavit filed on 20 October 2023 the mother particularises incidents which began almost immediately after the parties’ relationship commenced and continued up until an incident which led to the parties’ separation in early 2020. The incidents can be summarised as follows:
(a)In 2015, the mother alleges that the father was driving at high speed with the mother in the motor vehicle. The father crashed the vehicle (the paternal grandmother’s car). The mother says that she was “terrified” and distressed prior to the accident and after, as she was fearful for her safety. She says that the father was dismissive of her distress and became angry with her. She says that in the aftermath of the accident the father told her “it was nothing, your screaming is more traumatising than the actual accident”.[1]
(b)In 2015, the mother asserts that the parties were in the car together when the father became angry with her, accusing her of “staring and checking out other men”. The mother says that in his anger the father punched the steering wheel and smashed the windscreen from inside the vehicle whilst the mother was sitting in the passenger seat.[2]
(c)In 2016, the mother alleges that the parties argued when she confronted the father over her suspicions that he was flirting with a girl; the father was 21 at that time. The mother says that the argument then descended into an argument over religion and she asked the father “is it because I am not converting to [your religion]?”. The mother says that the father responded by slapping her with an open hand across the face; then slapping her again when she fell backwards. The mother says that the father then got her in a headlock and tackled her to the ground. The mother says that she was screaming at the father to let her go. She says the father was using words to the following effect “you made fun of my religion you disrespected my religion, I will not be with a fucking atheist, fuck you”. The mother says that after this incident she went with the father to the home of the paternal grandmother and informed her and the paternal aunt that the father had hit her. The mother says that both were unsupportive of her.[3]
(d)In 2016, the mother alleges that the parties argued. On this occasion she says the father smacked her with an open hand across the face causing her to fall to the floor. She says the father slapped her face again. The mother says that she suffered bruising from this incident. She says that afterwards the father apologised to her.[4]
(e)In late 2016, the mother alleges that the parties argued and during the course of the argument the father became angry and poured a large cup of coke over the mother’s head.[5]
(f)In 2019, when the mother was heavily pregnant, she alleges that the father became angry after hearing about an overseas news event. The mother asserts that the father yelled at her before punching a hole in the wall of the living room, which she later had to patch. The mother says she was scared during this incident. She says that she went into the laundry to escape the father and locked the door. She says that the father followed her and punched a hole in the laundry door.[6]
(g)In 2019, the mother alleges that the parties were again involved in a car accident as a result of the father recklessly driving at a high speed whilst she was in the car. The mother’s pregnancy was almost full term at the time of the accident, with the child born less than a week later.[7]
(h)In early 2020, the incident that led to the parties’ separation took place. The mother alleges that the father became angry with her for not waking him to take his pain medication (following his accident in 2019). The mother says that the father then yelled at her for smoking and began packing the child’s baby bag and threatened to take the child with him to his mother’s home. The mother says that she was crying and distressed. The mother asserts that the father:
… smacked me […], he had me over the sink, he held it there for a few seconds with force and was yelling into my ear. He let go, I checked my lip, it was split from inside. I told him “look what you did, you split my lip” he said “go wash it out with water”. I said “No I am calling the police” he replied “do it” and whilst I was on the phone to police, he was on the phone to his mother speaking [Country D language]…[8]
[1] Mother’s trial affidavit filed 20 October 2023, paragraph 22.
[2] Mother’s trial affidavit filed 20 October 2023, paragraph 23.
[3] Mother’s trial affidavit filed 20 October 2023, paragraphs 24 – 26.
[4] Mother’s trial affidavit filed 20 October 2023, paragraph 29.
[5] Mother’s trial affidavit filed 20 October 2023, paragraph 30.
[6] Mother’s trial affidavit filed 20 October 2023, paragraph 31.
[7] Mother’s trial affidavit filed 20 October 2023, paragraph 32.
[8] Mother’s trial affidavit filed 20 October 2023, paragraph 41.
As a result of the incident in early 2020, the father was arrested and charged with a range of charges. In addition, an Apprehended Domestic Violence Order (ADVO) was made. A further two ADVOs were made; one in mid-2020, expiring in late 2020 and the other in late 2020 expiring in late 2022.
Following separation, the parties continued to live together for about a month. The mother says that thereafter the father retained the child. The mother says that she spent time with the child every day, including to feed and bathe him, and that he was mainly cared for by the paternal grandmother.
In mid-2020 the father was charged with breaching the ADVO. Thereafter the mother obtained legal advice and commenced these proceedings on 29 July 2020.
At a hearing on 30 July 2020 a Judge of the Federal Circuit and Family Court of Australia (Division 2) made ex parte orders, significantly including orders:
(a)For the child to be recovered to the mother.
(b)For the child to live with the mother.
(c)Restraining the father from removing the child from the mother’s care.
On 24 August 2020 a Child Dispute Conference took place with a Family Consultant of the court.
At a hearing on 24 August 2020, orders were made including:
(a)An order appointing an Independent Children’s Lawyer (“ICL”); and
(b)Orders by consent between the parties for the father to spend supervised time with the child each Wednesday and Saturday from 9.00 am to 12 noon, with such time to be supervised by the paternal grandmother in her home.
An interlocutory hearing took place on 28 October 2020. The focus of that hearing was the child’s time spending with the father. At the hearing orders were made which among other things provided for:
(a)The parties to each complete a post separation parenting course;
(b)The preparation of a Family Report; and
(c)Continuing the parenting arrangements provided for in the orders of 24 August 2020.
The Family Report was prepared by Dr B and is dated 11 October 2021. I shall return to the same later in these reasons.
On 16 June 2022 the proceedings were transferred to Division 1 of the Federal Circuit and Family Court of Australia.
The proceedings first came before me on 28 April 2023 for case management. At that time the father was represented, however his solicitor had filed a Notice of Intention to Withdraw the day prior (27 April 2023).
On 1 May 2023 the matter again came before me. Again, the father’s solicitors indicated an intention to cease acting. The father also personally appeared at the hearing virtually by Microsoft Teams. The father indicated to the court that he was in Country D and that he intended to return to Australia by mid-2023. The father additionally advised the court that he wished to obtain new legal representation. As a result, the proceedings were again adjourned for further case management to 29 June 2023.
On 28 June 2023 the father’s solicitors formally withdrew from the proceedings.
At the hearing on 29 June 2023, the father again appeared self-represented. On that occasion, as recorded in the notations, concerns were raised with the father by the court about his engagement with the proceedings. Notations were also made (as explained to the father during the hearing), in the following terms:
C. The court has indicated to the Father today that in the event that he does not comply with any of the orders made today, then the court will give consideration and is likely to make orders to strike out his Response for Final Orders and list the matter to proceed on an undefended basis NOTING the Father would have no application before the court and nor be able to call any evidence but he would be able to cross examine any witnesses at any such final hearing.
The father was then ordered to file and serve a Notice of Address for Service, an Amended Response for Final Orders and an affidavit. The proceedings were then adjourned for further case management to 2 August 2023.
The hearing on 2 August 2023 did not proceed as I was unwell. Instead, it was adjourned to 23 August 2023.
Inexplicably, the father did not comply with the orders for the filing of an Amended Response for Final Orders and an affidavit. As a result, at the hearing on 23 August 2023 the following orders were made (Andic & Bilici [2023] FedCFamC1F 757):
1.That the oral application of the Father made today to adjourn the proceedings to enable him to obtain legal advice and comply with the orders of 29 June 2023 is dismissed.
2.That the Response for Final Orders filed by the Father on 17 August 2020 be dismissed.
3.That pursuant to s 102NA(1)(c)(iv) the provisions of s 102NA(2) shall apply to any final hearing in these proceedings.
4.That the proceedings be listed for a final hearing on an undefended basis on 11 December 2023 at 10.00 am with the court to advise closer to the hearing date whether the hearing is to occur in person or by Microsoft Teams.
5.That no later than 4.00 pm on 20 October 2023 the Mother do file and serve any Amended Application for Final Orders and one consolidated Trial Affidavit.
6.That the Independent Children's Lawyer make arrangements for the expert family report writer, [Dr B] to be available to give evidence at 2.15 pm on 11 December 2023.
7.That no later than 4.00 pm on 6 December 2023 each the Mother and the Independent Children's Lawyer do file and serve a Case Outline Document, with such Case Outline Document to include the following (divided under headings):
a.Those documents to be relied upon;
b.The specific Orders sought (if different to those set out in the Application/Response);
c.A short chronology of significant events;
d.A summary of the issues in dispute;
e.A concise summary of argument (with specific reference to any statutory considerations);
f.A list of any relevant authorities, together with submissions as to their relevance; and
g.A list of objections to evidence upon which rulings are required.
The father was present at the hearing on 23 August 2023, including for the delivery of my oral ex tempore reasons at the conclusion of the hearing. Following the hearing, I published my reasons, and the same were circulated to the parties and the ICL by email from my chambers on 1 September 2023.
The mother and the ICL complied with the orders for the filing of documents in accordance with the orders made 23 August 2023. Those documents, together with the Family Report of Dr B comprise the evidence before the court for the purposes of the final hearing.
On 27 November 2023 my chambers wrote to each of the parties by email confirming that the final hearing would proceed on a face to face basis at 10.00 am on 11 December 2023 in the Sydney Registry.
THE ADJOURNMENT APPLICATION
The final hearing proceeded on 11 December 2023. Prior to coming onto the bench at the commencement of the hearing, I was informed by my associate that the father was not present and that the legal representatives present would update me about those matters. The hearing commenced at 10.12 am. The father was not present. After taking appearances, the mother’s solicitor informed that there had been communications with the father and that he had indicated that he had mistaken the time of the hearing. The court then made arrangements to telephone the father at 10.16 am and thereafter he appeared by telephone.
Once the father appeared by telephone, he indicated to the court that he had made an error about the hearing time. During the father’s submissions it also became clear that he had not obtained legal representation in accordance with the Commonwealth Family Violence and Cross Examination of Parties Scheme (“the cross examination scheme”). The father ultimately made an oral application for an adjournment of the final hearing. While the father’s submissions were convoluted and difficult to follow, as best as can be understood the father sought an adjournment to some time later in the day and/or another day as he expressed an ongoing intention to obtain legal advice.
The father’s application for an adjournment was refused. I set out below the reasons for that refusal as follows:
(a)I have had regard to Division 12A of the Act and in particular the principles for conducting child-related proceedings set out in s 69ZN, which provides:
Principle 1
(3)The first principle is that the court is to consider the needs of the child concerned and the impact that the conduct of the proceedings may have on the child in determining the conduct of the proceedings.
Principle 2
(4)The second principle is that the court is to actively direct, control and manage the conduct of the proceedings.
Principle 3
(5)The third principle is that the proceedings are to be conducted in a way that will safeguard:
(a)the child concerned from being subjected to, or exposed to, abuse, neglect or family violence; and
(b) the parties to the proceedings against family violence.
Principle 4
(6)The fourth principle is that the proceedings are, as far as possible, to be conducted in a way that will promote cooperative and child‑focused parenting by the parties.
Principle 5
(7)The fifth principle is that the proceedings are to be conducted without undue delay and with as little formality, and legal technicality and form, as possible.
(b)Those principles have been considered in the discussion that follows.
(c)Despite the father’s protestations, and platitudes, I do not accept that the father simply made an error about the hearing time. Rather I am satisfied that the father was calculated in failing to appear in the hope of obtaining an adjournment which would further delay a resolution of the proceedings. I am satisfied that is so given the recent history of the matter before me together with the circumstances of the hearing in August 2023 where the father was present at the hearing when I made the orders listing the matter to the final hearing together with hearing my oral reasons. In addition, on 1 September 2023 the father was provided with a copy of my reasons from the hearing on 23 August 2023 and the orders made that day. Moreover, the father received email communications from my chambers on 27 November 2023 confirming the arrangements for the final hearing and the date and time.
(d)In addition, the father had failed to take up the opportunity afforded to him to obtain legal representation pursuant to the cross examination scheme. What this meant is that the father would not be permitted to personally cross examine the mother. The mother’s solicitor and the ICL each indicated that they did not require the mother to give oral evidence. This meant that the delay in the hearing would serve no utility so far as any oral evidence of the mother was concerned.
(e)While the mother’s solicitor indicated with some reluctance that the mother did not oppose the adjournment application, it was apparent to me from the presentation of the mother as she sat in the body of the court room during the hearing, that she was distressed about the unfolding events and the possibility of an adjournment. Indeed, given the serious allegations of family violence made by the mother and the findings I have made about the same later in these reasons, I consider it open to me to infer that the mother took this course so as not to do anything to enflame the father.
(f)The ICL strongly opposed the adjournment application, submitting that the father had been given every opportunity to engage in the proceedings, and that there could have been no mistake about the arrangements, date and time of the hearing. The ICL’s view was that the proceedings needed to be brought to finality in the best interests of the child, bearing in mind that they had been before the court for approximately three and a half years. I accept those submissions.
(g)From a case management perspective any adjournment of the matter would have resulted in an adjournment well into the new year given my existing sitting commitments.
THE FINAL HEARING
Having refused the father’s application for an adjournment of the final hearing, the final hearing proceeded, with the father appearing by telephone.
The mother relied on the documents that she had filed in accordance with the orders made in August 2023, namely her:
(a)Amended Application for Final Orders filed 20 October 2023;
(b)Affidavit filed 20 October 2023; and
(c)Outline of Case filed 6 December 2023.
The ICL relied on the Case Outline filed 7 December 2023.
The court had the benefit of the Family Report of Dr B dated 11 October 2021. Of note, the report writer comments as follows:
(a)Both parents raised concerns with respect to the mental health of the other parent and the impact of the other parent’s mental health on the capacity to care for the child.
(b)Both parents reported conflict and family violence during their relationship, with the report writer commenting that there were no current risks identified since the parent did not have any contact with one another and there was an ADVO in place.[9]
[9] Family Report dated 11 October 2023, paragraph 35.
(c)The parents’ presentation would suggest:
That they might both struggle to regulate their emotions should they have face to face contact, particularly if any concerns about [the child’s] wellbeing arose between them. [The mother’s] account would indicate that [the father] was quite controlling towards her once they separated and [the child] was living with him.[10]
(d)The parents stated they did not wish to have any contact with each other and the paternal grandmother “acts as the intermediary between them”.[11]
(e)That while the mother presented as “emotionally distant and somewhat tentative in her interactions with [the child]” at times, she was affectionate towards him.[12]
(f)The child did not display anxious or inappropriate behaviour during the interviews and appeared “very happy” to see his father and the paternal grandmother, and the father gave the impression that he “was eager to demonstrate his skills and commitment to [the child].”[13]
(g)The appearance of a “very warm relationship” between the child and the paternal grandmother suggesting “that she has played a significant role in his upbringing.[14]
(h)That the father appeared capable of caring for the child for short periods of time by himself, however his capacity to care for the child unaided may be impacted by his chronic pain.[15] Also noting that the father’s injuries and medication may also impact on the father’s “ability to do things like bathe [the child] or get up to him at night”.[16]
(i)With respect to the co-parenting relationship between the parties, the parties each spoke about each other in a way that demonstrated they “still have limited trust in each other”.[17] The report writer comments that “[i]t is probable that, without the sensible counsel of others, they might easily escalate their conflict over [X]. Realistically it is difficult to envisage how they might be able to manage equal shared parental responsibility.”[18]
(j)A recommendation that, in the event the mother was granted sole parental responsibility, the father be permitted to consult with the child’s day care centre, school or any medical professional.[19]
(k)A recommendation that the child live with the mother, subject to any concern with respect to the mother’s mental health or functioning arising from subpoena material.[20]
(l)A recommendation that the paternal grandmother continues to manage handovers and be present during the time spent between the father and child, with a further recommendation that such time is gradually increased.[21]
[10] Family Report dated 11 October 2023, paragraph 35.
[11] Family Report dated 11 October 2023, paragraph 63.
[12] Family Report dated 11 October 2023, paragraph 67.
[13] Family Report dated 11 October 2023, paragraph 67.
[14] Family Report dated 11 October 2023, paragraph 71.
[15] Family Report dated 11 October 2023, paragraph 71.
[16] Family Report dated 11 October 2023, paragraph 72.
[17] Family Report dated 11 October 2023, paragraph 73.
[18] Family Report dated 11 October 2023, paragraph 73.
[19] Family Report dated 11 October 2023, paragraph 74.
[20] Family Report dated 11 October 2023, paragraph 75.
[21] Family Report dated 11 October 2023, paragraph 76.
Neither the mother’s solicitor nor the ICL wished to make any further submissions, preferring instead to rely on the material that had been filed and the report of the expert. The father indicated a desire to cross examine Dr B. That request however was refused taking into account that the father was not present in court to prosecute his case. In addition the father was not able to articulate the purpose and/or focus of any questions that he wished to put to Dr B. I accordingly took the same view to that request (and for the same reasons) as the oral application for an adjournment.
I accept the observations, opinions and recommendations of the expert save and extent as reflected in the discussion that follows.
Thereafter I drew the father’s attention to the orders sought by the mother, taking him carefully through her proposals as contained in her Case Outline, as follows:
1.The mother shall have sole parental responsibility for the child [X] born […] 2019.
2.The child shall live with the mother.
3.The child shall spend time with the father as follows:
(a)Until the child commences school in 2025 each Saturday and Sunday from 10:30am until 5:30pm.
(b)Upon the child commencing school in 2025:
(i) each alternate Saturday from 10:30am until 5:30pm.
(ii)Each alternate Wednesday from after school or 3pm until 6:30pm.
(c)From 10:30am until 5:30pm on Father’s Day in the event the child is not otherwise spending time with him; and
(d)At such other times as agreed between the parents in writing.
4.The child’s time with the father shall be suspended as follows:
(a)On Mother’s Day in the event the child is not otherwise spending time with the mother.
(b)[On certain religious holidays] each year.
[…]
5.Unless changeover is to occur at school and/or childcare, the father’s nominees shall collect the child from the mother at [Suburb E] Train station at the commencement and conclusion of the child’s time with the father and the father shall not be permitted to attend changeover unless agreed.
6.All time the child spends with the father in accordance with these orders shall be supervised or in the presence of the paternal grandmother.
7.The father and mother shall communicate via text message in relation to matters relating only to the child and the implementation of these orders.
8.Each parent shall:
(a)notify each other as soon as practicable in the event of any serious illness or injury that requires medical intervention by a doctor or hospital concerning the child whilst in their care.
(b)provide full particulars of any medical practitioner, health service provider or institution attended by the child; and
(c)provide any such authority and direction necessary to enable the other party to obtain all necessary information concerning the child from such medical practitioner, health service provider or institution.
9.Each parent is hereby authorised to obtain from each of the child’s schools’ copies at their own expense of all notices, letters, school reports, school photographs, newsletters and announcements of school activities or otherwise pertaining to the education of the child.
10.The mother shall keep the father informed of any childcare, daycare or school the child may attend upon from time to time.
11.Each parent shall be permitted to attend the child’s school, childcare, or daycare for the purposes of school functions including but not limited to award assemblies, school carnivals, parent/teacher nights and any other event to which parents are ordinarily invited provided the father does not approach the mother at any such event.
12.The father shall be permitted to contact the child’s school, daycare and or childcare centre for the purposes of seeking an update about the child’s progress.
13.The father shall ensure the child’s attendance upon any extracurricular activities including training, games or events at such times the child is in his care and the mother shall keep the father informed in a timely manner of any extra-curricular activities the child may be involved from time to time.
(As per the original)
The father was then called upon to make oral submissions. Throughout his submissions the father vacillated between histrionics, criticising the unfairness of the process to repeatedly claiming he had been denied the opportunity of obtaining legal advice. The father additionally made scandalous allegations, all without foundation or merit, effectively inferring that the court and I had been racist in my attitude towards him, his culture and his faith and in addition towards him as a male. I reject those baseless accusations made by the father. As I explained to the father during the course of the hearing, his actions/inaction and choices in the context of the proceedings have consequences. Those consequences include the court proceeding to finalise the proceedings without the father having an application before the court.
In addition, I reject the father’s protestations that he did not understand various aspects of the proceedings and the final orders promoted by each the mother and the ICL. I have this view in circumstances where:
(a)The father was clearly able to articulate that which was important to him, but incongruously professed not understand any matters he denied, and/or that he did not appear to agree with and/or that he did not like.
(b)Despite repeatedly advising the court that he did not have material before him the father had an accurate knowledge and was able to articulate the differences between the final orders sought by each the mother and the ICL.
The father ultimately made submissions, which in summary can be distilled to:
(a)There being no opposition to the mother’s proposal that the child continue to live with her.
(b)The father wanting to spend every weekend with the child, and every Wednesday evening, with no request made for overnight time at the present moment.
(c)The father making no submissions about the continuation of the supervision of his time by the paternal grandmother.
(d)The father wanting to share parental responsibility with the mother.
(e)The father wanting the opportunity to celebrate his culture and faith with the child, including but not limited to religious holidays.
(f)The father wanting to spend time with the child on the child’s birthday and the father’s birthday.
(g)The father requesting that he home school the child.
(h)The father requesting that the child be circumcised.
(i)The father stating it was “unreasonable” for the parents not to communicate at school events and he should not be precluded from approaching the mother at such events.
In reply to those submissions the mother, through her lawyer was amenable to orders for time spending between the father and the child specifically for a religious holiday (with other cultural / religious based requests for time to be considered on a case by case basis), the child’s birthday and the father’s birthday.
In response to questions from the bench, the father made admissions in relation to the charges which are of some significance (in circumstances where none of the parties chose to put any records before the court despite subpoena to NSW Police). The father indicated during the hearing that all but one of the charges were dismissed. The father told the court that while he entered a plea of not guilty, he had been found guilty of one offence against the mother, however no conviction was ultimately recorded.
The ICL largely supported the mother’s orders sought, however:
(a)The ICL proposed that time spending be on both days of the weekend once the child commenced school, and every Wednesday;
(b)The ICL had initially promoted a progression to overnight time once the child was high school age, however that position was abandoned; and
(c)The ICL promoted a consistent handover time at the conclusion of the child's time with the father at 6.30 pm.
THE LEGAL FRAMEWORK
Part VII of the Act is where the legislative provisions concerning parenting cases can be found. The purpose of the legislation is to provide a pathway for the court when making parenting orders. The central focus underpinning the legislation is to make parenting orders which are at all times in a child’s best interests.
A parenting order can encompass and deal with all aspects of a child’s care, welfare and development, or any aspect relating to the parental responsibility for a child.
In making any parenting order the court must have regard to the aims of the legislation set out in s 60B(1) of the Act, which provides as follows:
(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, 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.
(Emphasis added)
The principles underpinning the aims of the legislation are contained in s 60B(2) of the Act which provides:
(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).
(Emphasis added)
In determining what is in a child’s best interest, the court is to have regard to a long list of considerations set out in s 60CC of the Act. Those considerations are separated into primary considerations and secondary considerations.
The primary considerations to which the court is to give greater weight are:
(2) The primary considerations are:
(a)the benefit to the child of having a meaningful relationship with both of the child’s parents; and
(b)the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.
(Note omitted)
The additional considerations are:
(3) Additional considerations are:
(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;
(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);
(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
(iii)to communicate with the child;
(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;
(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;
(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;
(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;
(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;
(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;
(i)the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child’s parents;
(j)any family violence involving the child or a member of the child’s family;
(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;
(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;
(m)any other fact or circumstance that the court thinks is relevant.
The legislative pathway to be adopted in a parenting case has been identified by the Full Court in Goode & Goode (2006) FLC 93-286.
The Act provides a presumption that parents should have equal shared parental responsibility for their children. However, the presumption of equal shared parental responsibility is specifically rebutted if there are reasonable grounds to believe that a parent (or a person who lives with a parent) 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. [22]
[22] Family Law Act 1975 (Cth), s 61DA(2).
Family Violence is defined in s 4AB of the Act as follows:
(1)For the purposes of this Act, family violence means violent, threatening or other behaviour by a person that coerces or controls a member of the person’s family (the family member), or causes the family member to be fearful.
(2) Examples of behaviour that may constitute family violence include (but are not limited to):
(a) an assault; or
(b) a sexual assault or other sexually abusive behaviour; or
(c) stalking; or
(d) repeated derogatory taunts; or
(e) intentionally damaging or destroying property; or
(f) intentionally causing death or injury to an animal; or
(g)unreasonably denying the family member the financial autonomy that he or she would otherwise have had; or
(h)unreasonably withholding financial support needed to meet the reasonable living expenses of the family member, or his or her child, at a time when the family member is entirely or predominantly dependent on the person for financial support; or
(i)preventing the family member from making or keeping connections with his or her family, friends or culture; or
(j)unlawfully depriving the family member, or any member of the family member’s family, of his or her liberty.
(3) For the purposes of this Act, a child is exposed to family violence if the child sees or hears family violence or otherwise experiences the effects of family violence.
(4)Examples of situations that may constitute a child being exposed to family violence include (but are not limited to) the child:
(a)overhearing threats of death or personal injury by a member of the child’s family towards another member of the child’s family; or
(b)seeing or hearing an assault of a member of the child’s family by another member of the child’s family; or
(c)comforting or providing assistance to a member of the child’s family who has been assaulted by another member of the child’s family; or
(d)cleaning up a site after a member of the child’s family has intentionally damaged property of another member of the child’s family; or
(e)being present when police or ambulance officers attend an incident involving the assault of a member of the child’s family by another member of the child’s family.
If the presumption of equal shared parental responsibility is to be applied, then the court is required to consider whether the child should spend equal time with each of their parents, provided that any such equal time arrangements are in the child’s best interest and are reasonably practicable.
If the presumption as to equal shared parental responsibility is rebutted, then the court is required to make orders that are in the child’s best interests with reference to those factors set out in s 60CC of the Act.
PARENTAL RESPONSIBILITY
The legislative pathway requires the court to determine the question of parental responsibility as a precursor to determining those orders that are in a child’s best interests.
The mother has asked the court to make an order that provides her with sole parental responsibility for the child.
The mother has made serious allegations of family violence. On their face, I consider that those allegations in all the circumstances are sufficient to rebut the presumption that the parties share parental responsibility. Here, however, the court also understands from the admissions made by the father during the hearing that he was found guilty of a charge relating to the mother. The father contends that while he was found guilty there was no conviction recorded for a reason that was not clear to the court at the time of the hearing. While it would have been preferrable to understand which charge exactly the father was found guilty of, and the circumstances of that charge, it is however sufficient for present purposes to know that the father was found guilty of an offence relating to the mother. I consider that this single act of family violence, which is not in dispute is sufficient to rebut the presumption of parental responsibility such that it vest solely in the mother.
BEST INTEREST CONSIDERATIONS
I propose to discuss those considerations found in s 60CC of the Act that have played a role in my deliberations about the parenting arrangements for the child.
As I have earlier identified, there does not appear to be any disagreement that the child should continue to live with the mother and that there be a continuation of supervised time spending between the child and the father, as supervised by the paternal grandmother. By inference, this is also an acceptance on the father’s part that the mother has been the child’s primary carer for the majority of his young life and that she is best placed to continue in that role.
Implicit in the father’s acceptance that the child should continue to live with the mother, is an acceptance that the mother is adequately and appropriately meeting the child’s needs. I also consider that I am able to infer that this is the case from the father’s lack of meaningful engagement in these proceedings, as it would be incongruous for the father to have behaved as he has in these proceedings if the father genuinely believed the child to be at risk in the mother’s care.
I have otherwise had regard to the serious allegations made by the mother, and the admission of the father that he was found guilty in relation to at least one act of family violence perpetrated by him against the mother, albeit with no conviction recorded.
While it is difficult in all of the circumstances for me to make findings, I consider that I am able to infer that on the balance of probabilities the father likely committed various of the acts about which the mother complains. I have come to this view again as a result of the father’s failure to meaningfully engage in the proceedings, to put his version of events and to have his version of events tested through the trial process.
In circumstances where I am satisfied that there has been at least one act of family violence and likely others (as particularised earlier in these reasons), the need to protect the child from harm; psychological and physical is an active consideration.
Inferentially, the mother does not advance a case that the father presents an unacceptable risk of harm to the child. Instead, the mother appears willing, as she has from the time the child was returned to her care, to facilitate a relationship between the father and the child so long as there are appropriate safeguards in place; in this instance in the form of supervision by the paternal grandmother.
The events since the child was returned to the mother’s primary care which have resulted in supervised time spending between the father and the child, give the court some confidence that the paternal grandmother is a stabilising presence who is able to facilitate the relationship between the father and the child in a safe manner; this is despite the mother’s criticisms throughout her affidavit about the paternal grandmother failing to act protectively of her during the relationship and in response to the various incidences of physical violence perpetrated against her by the father.
In all of those circumstances I consider that it is appropriate that the father continue to spend time with the child, provided that all such time is supervised by the paternal grandmother.
The child is otherwise presently too young, and he certainly was at the time that Dr B interviewed him in late 2021 to express views as to his living and time spending arrangements.
I have had regard to the significant role the paternal grandmother has played in the child’s life. In her Case Outline the mother acknowledges this to be the case and endorses Dr B’s observations that the child and the paternal grandmother have a warm relationship.[23]
[23] Mother’s Case Outline filed 6 December 2023, p.8.
During the hearing the father told the court that the mother is presently living with the paternal grandmother and that he often spends time with the mother and the child in the paternal grandmother’s home. While that was not information that the mother had deposed to, on any view it is clear that the mother, with the assistance of the paternal grandmother, has been able to manage the father’s time spending with the child. That has included the parties shifting the day that the father spends time with the child from that earlier ordered in the proceedings.
I also observed, during the course of the hearing, the mother’s willingness to accommodate the father’s requests made orally by him for time spending to celebrate important cultural and religious celebrations, the child’s birthday and the father’s birthday. Those observations again give me confidence that the mother, despite her own experiences of the father, is committed to facilitating a relationship between the father and the child, which includes providing an open avenue to enable the child to embrace his cultural heritage.
I am conscious that the mother has suffered from significant mental health difficulties. I accept that she has been diagnosed with complex PTSD and trauma. I am equally satisfied that the mother is appropriately obtaining professional support to manage her diagnoses and that she is appropriately complying with her treatment regime and seeking support as needed; including taking prescription medication to manage her symptoms. This is to the mother’s credit.
In all of those circumstances I consider it appropriate to make those orders sought by the mother, save and except as follows:
(a)I consider that time spending move to both Saturday and Sunday of alternate weekends, together with each intervening Wednesday once the child has commenced school in the 2025 school year.
(b)I consider it appropriate to take up the mother’s proposals made during the hearing and in response to the father’s requests for there to be time spending on at least one occasion to celebrate a religious holiday, together with time spending on the child’s and the father’s birthday, concluding at 6.30 pm as promoted by the ICL for consistency.
For all of those reasons I make those orders that appear at the commencement of these reasons.
I certify that the preceding seventy-two (72) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Kari. Associate:
Dated: 15 December 2023
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