APETTO & PILIO

FAMILY COURT OF AUSTRALIA

APETTO & PILIO

[2014] FamCA 1073

FAMILY LAW – CHILDREN – Best interests – with whom the child shall live and spend time – where the child has a meaningful relationship with both parents – where the child has been exposed to family violence and needs to be protected from further psychological harm – where the child is, and has been, under enormous pressure to choose between her parents – children’s views – where the child feels greater pressure to please the mother and meet the mother’s emotional needs – where the mother has failed to comply with past orders – where the mother’s difficulties in setting boundaries for the child represents a real risk to a safe journey for the child through adolescence – where there is a real risk that the relationship between the child and father will not be carefully and consistently supported by the mother – where the child has achieved a degree of stability by living with the father over the last two years – where the order least likely to lead to further proceedings is the one that sees the child continue in the present arrangement – child to live with the father – child to spend substantial time with the mother – where the overnight time the child spends with the mother is to take place in the presence of one of the maternal grandparents.

FAMILY LAW – CHILDREN – Parental Responsibility – where in view of the difficulties of communication and history of conflict between the parents, it is more appropriate for the father to have sole parental responsibility – orders made accordingly.

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

APPLICANT:

Mr Apetto

RESPONDENT:

Ms Pilio

INDEPENDENT CHILDREN’S LAWYER:

Legal Aid (NSW)

FILE NUMBER:

(P)NCC

105

2007

DATE DELIVERED:

3 December 2014

PLACE DELIVERED:

Newcastle

PLACE HEARD:

Newcastle

JUDGMENT OF:

Cleary J

HEARING DATES:

4, 5, 6 and 7 August 2014

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Mr Graham

SOLICITOR FOR THE APPLICANT:

Mason Lawyers

COUNSEL FOR THE RESPONDENT:

Mr Duane

SOLICITOR FOR THE RESPONDENT:

NLS Law

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER:

Mr Mooney

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER:

Legal Aid (NSW)

Mr Scally

Orders

The father shall have sole parental responsibility for the child X born … 2003 (“the child”).
The father shall authorise the school to release to the mother, at her cost if any, copies of school reports, newsletters, applications for school photographs and other documents relating to the progress and welfare of the child at school, which have been provided to the father.
The father is to advise the mother of:
(a)any medical emergency affecting the child, including but not limited to admission to hospital;
(b)specialist medical treatment required for the child; and
shall authorise provision to the mother, at her cost if any, any reports generated by medical specialists or hospitals in relation to those matters.
The father shall advise the mother before the end of the 2015 school year of the High School to which the child shall progress in 2016 .
The child shall live with the father.
The child is to spend time and communicate with the mother, in the absence of agreement or otherwise, as follows:
(a)from 4.00 pm Friday to 4.00 pm Sunday each alternate weekend;
(b)for the first half of all end of term 1, 2 and 3 school holidays in even numbered years and for the second half of all end of term 1, 2 and 3 school holidays in odd numbered years;
(c)for the first seven days of each Christmas school holiday period in even numbered years and for a period of seven days commencing seven days after the final day of term 4 in odd numbered years; and
(d)for the final 14 days of each Christmas school holiday period.
That the parties facilitate these orders by meeting at McDonalds Restaurant, … for the purposes of changeover unless otherwise agreed.
All overnight time that the child spends with the mother must take place in the home of the maternal grandparents, or in a residence or property where one or both of the maternal grandparents are present overnight.
That the mother be restrained from attending the child’s school without the express written permission of the father given in advance NOTING that permission should not reasonably be withheld by the father for the mother to attend school concerts, sports carnivals and other events to which parents are invited to attend of that character.
That the mother be restrained from taking the child to any psychologist, psychiatrist or other professional therapist without the prior express written permission of the father.
That each party is restrained from denigrating the other party or any member of the other party’s household and/or extended family and shall use their best efforts to ensure that third parties are similarly restrained.
That each party is restrained from discussing these Court proceedings in the presence or hearing of the children and from permitting the child to remain in the presence or hearing of another person discussing these Court proceedings with the exception of the Independent Children’s Lawyer.
The father is to cooperate with a request from the Independent Children’s Lawyer for the child to attend, at a mutually convenient time, a meeting with the Independent Children’s Lawyer and the family consultant, Ms C, for these orders to be explained to the child appropriately.
The mother may, if she wishes, provide copies of the reports of the family consultant dated 6 February 2013 and 5 November 2013 to any persons in the context of a therapeutic relationship between the mother and a professionally qualified expert, including her current drug and alcohol counsellor.
If Mother’s Day does not fall on a weekend when the child is to spend time with the mother pursuant to these Orders, then the child shall spend the whole of the Mother’s Day weekend from 4.00 pm Friday until 4.00 pm Sunday with the mother as an additional weekend.
If Father’s Day falls on a weekend when the child would otherwise spend time with the mother pursuant to these Orders, that time is suspended for the whole of the Father’s Day weekend without compensatory time.
Each parent shall permit and facilitate the child having telephone communication with the other parent at any reasonable time when the child is living with or spending time with that parent and in the case of the mother, the mother shall telephone the child on a number provided to her by the father and the father is to ensure that the child is available and has privacy to take the mother’s call each Wednesday at a time between 6.00 pm to 6.30 pm with the mother to initiate the call.
Each party shall keep the other informed of their current residential address and contact telephone number.

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

FAMILY COURT OF AUSTRALIA AT NEWCASTLE

FILE NUMBER: (P)NCC 105 of 2007

Mr Apetto

Applicant

And

Ms Pilio

Respondent

And

Independent Children’s Lawyer

REASONS FOR JUDGMENT

Introduction

These are competing applications for parenting orders for one child, a girl aged almost 11 years.
The parties have been separated for about 10 years. For the past two years, the child has lived with the father. Prior to that, she lived primarily with the mother and spent substantial time with the father on an irregular basis.
The applicant is the father, aged 42. His household, just north of Newcastle, consists of himself and the child. The paternal grandfather stays at the house at least once a week. A friend of the paternal family stays at the house as required. That friend is employed by the father, both to babysit the child and also to clean the house.
The respondent is the mother, aged 35. She is a member of the household of the maternal grandparents in an inner western suburb of Sydney. The mother lives in a self-contained area within their home. The other members of that household, in addition to her parents, are the maternal uncle (aged 40) and his three children aged eight, six and three.
The distance between the two households is about 170 kilometres; approximately two and a half hours driving time.

The Applications

Each parent seeks an order for sole parental responsibility and for the child to live with them.
In relation to time and communication with the other parent, the father proposes alternate weekends and half school holidays with the mother, with the time to be supervised by a maternal grandparent.
The mother proposes alternate weekends and half school holidays with the father, with a restraint on the child being brought into contact with the paternal grandfather.

history of Relevant Events

The parties began a relationship in 2000 on the far north coast of New South Wales. They lived together off and on over the following four years. In 2001 the mother was hospitalised for substance abuse. She has, at times, since struggled with abuse of alcohol and the use of illicit drugs.
In February 2002 the parties moved down the coast to the area north of Newcastle, where the father presently lives. Not long after the move they separated, but continued to have some interaction. The mother became pregnant during a period when the parties described themselves as ‘separated’.
The child was born in 2003 and the parties began living together again from that time in a property at a coastal town, closer to the coast. For the first few months of her life, the child was cared for by both parents.
In approximately May 2004 the father made a request to the maternal grandparents. He asked if the mother could move into the holiday home owned by them further up the coast. The maternal grandmother apparently agreed to this proposal and the mother and the child moved into the holiday home. The father remained living in their home.
The mother obtained an interim Apprehended Violence Order (‘AVO’) against the father, which was dismissed on a final basis. The father did not see the child for about four months as a result of those proceedings.
On 19 July 2004 the father alleges that in an angry confrontation between the parents, the mother threatened him with scissors.
In December 2004 the mother moved with the child to the home of the maternal grandparents in Sydney. The father did not see the child for about nine months, and not before court orders were made enabling him to see her.
On 16 August 2005 the father made his first application to the Federal Circuit Court (then known as the Federal Magistrates Court) in Newcastle.
On 28 September 2005 interim orders were made by consent for the child to live with the mother and spend time with the father every second Monday. The mother and the child then moved to a town on the central coast of

New South Wales.
In February 2006 the parties reached an agreement that they would share parental responsibility and that the child would spend time with the father on Monday and Tuesday nights.
On 19 May 2006 the father says the mother assaulted him in his house and stabbed him in the sternum with a pair of haberdashery scissors while he was holding the child on his hip. The mother then advised the father that she was moving back to the far north coast or further up into Queensland. The father was opposed to this course and the parties ultimately reached an agreement that there would be counselling and that the mother would not relocate.
On 10 July 2006 the father asserts that the mother was drunk and emotionally uncontained. She came to the house to collect the child at 10.30 pm that night, although she had been due to arrive at 5.00 pm. As it was late, the father agreed that the mother could stay for the night. The following morning, there was an argument between the parties and the father says the mother attacked him, reaching towards his face with her fingernails saying, “You love kicking the mother of your daughter out”.
The father, in a statement to police made three days later, described the mother’s actions as “pretty full on - she was showing no restraint.” [1] He said he blocked kicks and punches and in doing so was having to make contact with the mother’s chest, arms and legs. The father said he was also trying to protect the child. He alleges that the mother picked up a pair of scissors from the kitchen bench and started to swing them towards the left side of his body. She then decided to remove items of property from the home, breaking and dislodging many items in the process.
[1]Exhibit 5
Later in the morning the father alleges that the mother hit him in the side of the head; he then took her car keys and bag down to the car and directed her to leave. As the mother left, she is alleged to have yelled, “Woman basher, woman basher, go and find a boyfriend you faggot.” The father then rang the police. There is no reference to this incident in the affidavit of the mother, but the father was cross-examined in relation to his allegations of attacks by the mother on him in 2004 and 2006.
There was then another period of six months when the mother did not permit any time between the child and the father.
On 15 December 2006 the matter was transferred to the Family Court with interim orders made for the child to live with the mother and spend time with the father once per fortnight on five occasions; thereafter progressing to overnight on Monday nights, with time to be spent in the home of the paternal grandparents. The mother was restrained from changing the child’s primary residence away from the home of the maternal grandparents.
On 30 March 2007 further interim orders were made by consent for the child to live with the mother and spend time with the father from 10.00 am Monday until 4.30 pm Tuesday each week.
In May 2007 the mother again applied for an AVO against the father. At that time she had lost her driver’s license for driving with the prescribed content of alcohol in her blood. She suspended the father’s time with the child as she was unable to drive.
On 23 May 2007 the father filed a Contravention application.
On 26 June 2007 the mother says the father assaulted her. She suspended his time with the child. Charges were not proceeded with and the mother returned to live in Sydney with the child. Orders were made for the parties to attend anger management counselling and Unifam parenting courses.
During 2007 and into 2008 the father filed several more Contravention applications.
On 20 February 2008 the mother was convicted, fined and disqualified from driving for 12 months for driving with a mid-range PCA and driving with her license suspended.
On 9 May 2008 orders and reasons for judgment were made for the child to spend time with the father on weekends and have telephone communication with him two nights a week. There were findings of multiple failures by the mother to make the child available for time with the father.
In 2009 the child started Kindergarten at the school which she still attends, near the father’s home.
On 5 March 2009 orders were made by consent for the child to live with the mother, for the parents to have equal shared parental responsibility and for the father to spend time with the child on alternate weekends, one Wednesday per fortnight, for school holidays and other special times.
In April 2009 the mother asked the father to take the child more often, which he willingly did.
From April 2009 the child spent time with the father more frequently and for long periods of time.
In June 2011 the child told the father that the mother did body piercing at home and that the child had seen her doing it.[2]
[2]Affidavit of father filed 19/06/2014, pars 44-57
In July 2011 the mother rang the father at 3.00 am saying she was ill and that an ambulance was coming. The father attended her home, found the child distressed and the father says the house was “uninhabitable”, although he stated in his oral evidence that the mother had not long moved into that property.
On 26 January 2012 the mother’s then partner informed the father that the mother had physically assaulted him. The father became concerned about the child being exposed to domestic violence in the mother’s home.
On 26 April 2012 the mother stopped sending the child to spend time with the father due to her allegation that the paternal grandfather had bitten the child during the Easter school holidays. There was a bite mark on her skin but the child was not otherwise injured.
Subsequently, the father and paternal grandfather acknowledged that the paternal grandfather had bitten the child as a means of discipline, after she had bitten two of her cousins while all the children were in his care.
On 18 May 2012 the father filed a further Contravention application.
Later in May 2012 there was a dispute between the parents over the mother’s wish to change the child’s school.
On 1 August 2012 the Federal Circuit Court made an order for a child inclusive conference.
On 29 August 2012 the child told the father that the mother and her new partner were fighting. The mother was, at the time, living with him in Sydney.
On 3 September 2012 the parties and the child were interviewed by a family consultant who prepared a Memorandum for the court. The child was described by the family consultant as being under pressure with the mother being “adult focused” and unable to understand the child’s perspective.
On 11 September 2012 the father filed a fresh Initiating Application in the Federal Circuit Court. He sought residence of the child with him and orders relating to school attendance and restraint on the mother’s conduct.
On 19 September 2012 there was an interim order by the Federal Circuit Court for change of residence from the mother to the father. The child has lived with her father fulltime since that time.
On 29 September 2012 the mother called the father when affected by alcohol. The child was thereafter reluctant to see her mother for a period of time.
On 13 October 2012 the father was advised by police that the mother had alleged that he had threatened to kill her. The police did not charge the father. At around this time, the mother moved back in with the maternal grandparents in Sydney
On 9 November 2012 the mother filed a Response for the child to live with her and to spend alternate weekends, half school holidays and special times with the father.
On 20 November 2012 the mother admitted herself to the Detox Unit at a hospital close to her parents’ home.[3]
[3]Exhibit 7
On 26 November 2012 the mother commenced a counselling relationship with a Drug and Alcohol Counsellor/Social Worker at an inner city hospital in Sydney. That therapeutic relationship is continuing.
On 5 February 2013 the child reported to the family consultant, during interviews for a family report, that “Her mother was bashed up by [the mother’s then partner]”.
On 11 February 2013, the first Family Report was released recommending that the child stay living with the father.
On 10 March 2013 the mother contacted the father by phone and abused him with the child being present and hearing..
On 16 May 2013 an updated Family Report was ordered. Those interviews took place in October 2013.
In August 2013 the Principal of the child’s school wrote to the mother directing her attention to the need for compliance with court orders while the child was at school.[4]
[4]Affidavit of father filed 19/06/2014, Annexure ‘JA2’
The second Family Report was released in November 2013; the family consultant again recommended that the child continue to live with the father.
On 25 November 2013 the matter was transferred to this Court.
At that time the mother, by consent, was prevented from taking the child to a psychologist and the mother undertook to refrain from attending the child’s school, other than at times when parents would normally attend.

The matter came on for hearing before me for four days, commencing 4 August 2014.

The Issues

The issues which emerge are as follows:
·   The capacity of each parent to meet the emotional, financial, physical and psychological needs of the child;
·   The exposure of the child to family violence between the parents and between the mother and two subsequent partners;
·   The impact on the child of a change of circumstances;
·   Whether there is a need for supervision of time between the mother and the child;
·   Whether there should be a restraint on the child spending time with the paternal grandfather in the father’s household.

The evidence

The following documents were relied on:
a)Amended Initiating Application filed by father 31/01/2014;
b)Parenting Questionnaire filed by father 31/01/2014;
c)Amended Response filed by mother 30/01/2014;
d)Parenting Questionnaire filed by mother 30/01/2014;
e)Affidavit of mother filed 13/06/2014;
f)Affidavit of Mr P (mother’s brother) filed 13/06/2014;
g)Affidavit of Mrs P (maternal grandmother) filed 13/06/2014;
h)Affidavit of Mr A (paternal grandfather) filed 19/06/2014;
i)Affidavit of Ms R (child’s babysitter) filed 19/06/2014;
j)Family Report, Ms C dated 06/02/2013;
k)Updated Family Report, Ms C dated 05/11/2013.

The father

The father is aged 42, a marine tradesman by occupation and works both at night and during the day. He does not presently have a partner.

Family violence

The father was extensively cross-examined in relation to incidents of family violence alleged to have been perpetrated by him since separation. This was despite minimal reference to family violence, in global terms, in the mother’s affidavit.
In his affidavit, the father referred to two violent attacks on him by the mother in May and July 2006.[5] He was not seriously injured but the child was present on both occasions. Through her counsel, the mother denied ever having stabbed the father with scissors. The father resolutely held his position. When asked about reporting it to police, the father gave clear evidence that he had indeed told the police and showed them his injured chest, where there was a wound and a bruise on his sternum and trunk. He denied significant bleeding; just that the scissors had broken the skin. The proposition was put that he was exaggerating a previous incident where the mother had “waved” scissors in his direction. The father, whilst remaining calm, was very firm that it was “not an allegation, it’s a reoccurrence”.
[5]Pars 19 and 20 of these Reasons
He agreed that the mother had a head injury in 19 July 2004 and that she went to hospital for two stitches in her head. It was suggested to the father that he had inflicted that injury on the mother. He denied it and described the mother launching herself at him, he taking the scissors from her and placing her on the ground. He was very clear that he had used force, which he described as reasonable force, to take the scissors from the mother in order to prevent injury to himself. I accept his evidence in general terms, although it is possible that the events of each incident were combined.
Certainly on 13 July 2006 the father made a statement to the police about events on 10 July 2006, where he referred to the mother attacking him with some force and picking up a pair of scissors off the kitchen bench, “…[she] started to swing the scissors in slaying strokes towards the left side of my body. I kept calling out: ‘Get out I’m going to call the police’”.[6]
[6] Exhibit 5
The father has over the years made many successful Contravention applications after the mother has withheld the child.
He has maintained a steady commitment to the child, although his time with her was erratic, not by his choice, until residence with him was ordered two years ago.
The father understands the strength of attachment between the child and the mother and has not undermined it. In relation to the father, the child shows no signs of prioritising the father’s needs over her own, as she is assessed by the family consultant to do for the mother.

The paternal grandfather

The paternal grandfather presented as a loving and committed father and grandfather. In retirement, he makes himself available to assist the father in whatever way he can, supervising the child, cooking, washing, helping with the fishing nets.
He is a little bit concerned about the child’s reluctance to “walk outside in the sunshine”. Rather, she is a child who likes to stay inside playing electronic games. He is also now a little bit reluctant to ask her to do any task in the house, when he is supervising her in the absence of the father.

The biting incident in April 2012

On the relevant day, the paternal grandfather had been looking after the child and two of her cousins; the child had bitten two of the other cousins during the day. On the first occasion he scolded her and warned her not to do it. She then bit the other cousin. At that point the paternal grandfather bit the child. There was a tooth mark on her leg. He denied that the child had been upset about it at the time; rather she had been laughing. The paternal grandfather said he had bitten the child because he wanted her to experience the feeling of being bitten to understand that she should not do it. He told the father about the incident soon after and had been unaware that the child had complained to the mother.
The father had a discussion with the paternal grandfather about this incident and asked him not to use that form of punishment again, which was agreed to and there is no suggestion that it did happen again.
The mother regarded this incident as an unforgivable assault by the paternal grandfather on the child and seeks an order that she no longer be brought into contact with him. Whilst it is understandable that the mother was upset and perhaps affronted, her reaction is disproportionate to the impact on the child.
The mother took the child to a psychologist. It appears that remarks of the mother recorded by the psychologist that the paternal grandfather was “old and may have dementia” were made in the presence of the child. I may be wrong about that. However, there were apparently four consultations in May 2012 and the notes contain quotes from the mother and child inter mingled throughout.[7] In my view, the reaction of the mother did more emotional harm than the bite.
[7]Exhibit 16
From the Court’s perspective, the matter was first raised with the family consultant in September 2012.[8] The father stated at that time that the paternal grandfather’s action had been inappropriate and that he had given an undertaking not to do that again. The father reported that the child and the paternal grandfather continue to have a good relationship. The mother did not speak to the paternal grandfather about the matter, nor has she reassured the child that the parents agreed that that should not happen again and that it will not.
[8]Family Consultant Memorandum to Court dated 03/09/2012
There was nothing in the evidence of the father or the paternal grandfather that suggested that harsh corporal punishment is something that is used by either of them in relation to the child and the father appears to have done all that he could to speak to the child and the paternal grandfather, to understand what had occurred and to reach an appropriate conclusion about it.

The slap

The mother was equally upset by the child reporting that the paternal grandfather hit her. There was no injury.
This incident was referred to both by the father and the paternal grandfather as a “chippy slap” where the paternal grandfather had knocked or pushed the child’s hand with his hand to make her release the remote control for the television.
There is an inference from the evidence that the child exaggerated the telling of this incident either to elicit sympathy from the mother or simply to enjoy her reaction.

Ms R, housekeeper/carer for the child

Ms R is a mother and grandmother. She owns a cleaning business.
The father employs Ms R to clean the house and also to supervise and care for the child at times. Ms R looks after the child two or three days a week before and after school. She lives nearby.
However the relationship is a deeper one than an occasional babysitter. Ms R has known the child since she was two years old. Sometimes Ms R stays overnight. The child has stayed at her home overnight. She is a sympathetic ear for the child, who enjoys having a neutral confidante to whom she can confidently speak about both parents.
Ms R also attempts to assist the child with her homework, although at this time she is rather resistant to the academic side of school and is drawn to electronic games.
Ms R impressed as a kind and sensible woman who is sensitive to the needs of the child and respectful about the mother.

The mother

The mother is aged 36 and is presently employed in her parents’ business.
She lives in her parents’ home and stated strongly in her oral evidence that she knew her best place was with her parents in a stable environment with a supportive family.
The subject child is the only child of the mother and the central focus of her life.
The mother struggles with a variety of problems which she is working hard to overcome. She has had two relationships in the past four years affected by domestic violence. She was living with the more recent partner when he assaulted her. Her intention is not to commence another relationship in the foreseeable future. It is unlikely that the mother would forego adult companionship; that is not her history.
She has had problems with drug and alcohol abuse at least since 2001, but probably longer.
In 2008 the mother attended a centre near her parents’ home, which provides psychologists and counsellors (‘the Centre’) to people presenting with “relationship and alcohol dependence difficulties.” She only attended once at that time.
The mother is presently engaged with a drug and alcohol counsellor (a social worker) whom she commenced to consult after her detox admission to hospital on 26 November 2012. That counsellor has provided two reports of the mother’s progress, which are increasingly positive about her ongoing abstinence from alcohol, greater maturity and equanimity. Her drug screens have been clean.[9]
[9]Affidavit of mother filed 13/06/2014, Annexures I, J and K
In August 2013 the mother returned to the Centre for psychological assessment. A psychologist from that Centre identified the difficulties of the mother as follows:[10]
… symptoms of anxiety, depression, stress and coping difficulties, addictive behaviours, sleeping problems, anger management issues, fears and eating problems.
[10]Exhibit 13
The report offered a diagnosis for the mother of an Adjustment Disorder with Anxiety and a treatment plan, with reservations about the likelihood of the mother engaging with treatment; “…She may not be willing to make a commitment to therapy”.
The mother completed two parenting courses through the Centre.[11]
[11]Affidavit of mother filed 13/06/2014, Annexures I and J
The progress the mother has made is impressive. A reservation is that the only evidence of ongoing therapy, as recommended in the 2013 report of the psychologist, is a statement by the mother that she has been involved with the psychologist for counselling which has helped her.[12] I am left uncertain about ongoing treatment and the extent to which the drug and alcohol counsellor and the psychologist are aware of each other.
[12]Affidavit of mother filed 13/06/2014, par 55(c)

Mother’s conduct on 29 September 2012

One of the prompts for the mother to admit herself for detox in November was the event in late September 2012.[13] She phoned the father intoxicated and threatened him. The mother was served with an application for an AVO for the protection of the father and the child by police, who had been called to the mother’s residence by complaints of noise and domestic violence in the mother’s home.
[13]Affidavit of father filed 19/06/2014, par 104
The child was delivered to her paternal aunt who travelled with her to deliver her to the father. The child reported to the father that she had not stayed overnight in the maternal grandmother’s house (as she was supposed to) and that she had “seen bad stuff again”.
The child began refusing to speak to the mother on the phone and was in real distress, “If you make me go to Sydney I’m going to kill myself.” She was banging her head against the side of the house.[14]
[14]Affidavit of father filed 19/06/2014, par 110
At the end of October 2012 the child was prepared to see the mother again, on condition that her then partner, who had been assaulting the mother, was no longer a member of the household. After that visit the child was withheld from the father until he collected her from the mother at a hotel in Newcastle, where she was drinking with a crowd of others. Within a matter of two or three weeks, the mother had admitted herself to hospital and commenced drug and alcohol counselling.
The mother chose not to make a statement to police about the assault on her by her partner to which the child was a witness. The lack of protective focus by the mother for the child, as a member of her household when the incident occurred, is a limit on her capacity to understand and meet the child’s needs, in this case for safety and protection.

Relationship with the child

The mother is devoted to the child. She provides her with a variety of interesting and enjoyable activities and excursions. The mother is suffering from being prevented from providing fulltime care to the child as she wishes. Unfortunately, she is unable to hide from the child the strength of her wishes about that.
The mother has been unable to insist on the child returning to the father after periods of time together, when the child was reluctant to leave her. This is undoubtedly because the mother so much wanted the child with her.
The mother also tends to fight the child’s battles for her and regularly attends at the school. She is critical of the father for not doing likewise.
The parents are very different, the father encourages independence, the mother is protective; somewhat over-protective.

The maternal grandmother

The maternal grandmother has always worked in the family business. She now finds herself with her husband, her two adult children and three of her grandchildren as fulltime members of the household, with the subject child an occasional member. She presented as a concerned grandparent and an honest witness.
She conceded the mother had not complied with the orders and had taken the child to stay at a friend’s house overnight, telling her about it after the event.
The maternal grandmother gave evidence that she should have said to the mother, “There are orders and she should stay here”, but I consider that she was being protective of the mother and likely had said such a thing to her.
My impression was that the maternal grandmother was horrified by the violent incident involving the mother and her then partner, where the mother was injured and police were called. She was equally horrified by the past alcohol and drug use by the mother.
I accept unreservedly that the maternal grandmother is in a difficult position. As she said, the mother is an adult with control of her own life, but that she is there to support her and help her when she can. I do not doubt that that is what she will do for the mother and likewise for the child.
The maternal grandmother frankly conceded that there had been a lot of arguments with both her adult children, especially over alcohol. She may have indulged the mother by allowing discussions about all that the child might be able to do if she came back to live with the mother in the presence of the child; dancing, girl guides, other activities that might be appealing to her. She conceded that it could have been confusing for the child to believe that she was going to be involved in such activities, although the orders stated that she was living with the father.
The maternal grandmother was quite critical and dismissive of the father, “We don’t care too much about him anyway.” However she drew the line when it came to the mother’s recent allegation of possible sexual abuse of the child by the father. She said the mother had spoken about the child being at risk of sexual abuse about 12 months previously; she could not remember a complaint being made to the Department of Family and Community Services (‘the Department’). When asked whether she considered the child was at risk of sexual abuse she said, “I would hope not”. She was much more forceful when asked whether she harboured that suspicion about the father, “No I can’t imagine her father doing that”.
I consider that the maternal grandmother is warmly supportive of the mother and is hopeful that she will remain living in the household and that the child will also return. I also consider that she would be much more likely to enforce boundaries and to insist that the child spent time with the father in the way that the mother in the past has not.
There was an incident where the mother was unable, in her view, to get the child to get in the car to go back to the father’s home. The maternal grandmother said, and I accept, that she said to the mother, “You’ve got to tell her she has to go.” I also accept that the maternal grandmother has enforced compliance where the mother has been unwilling or unable to do so.

The maternal uncle

The maternal uncle experienced a traumatic breakdown of his marriage and he now has the fulltime responsibility for his three young children. He lives in the maternal grandmother’s home with the children. The former relationship between the maternal uncle and the father has unfortunately broken down. He was a straightforward witness, clearly taken up largely by his obligations to his own three children, but with affection for the mother, now also a member of the extended maternal family again. He agreed that he had spoken to her about issues of drug and alcohol in the past and commented positively, “She been clean quite a while”.
The maternal uncle is in the difficult position of having been advised by the Department that the mother is not to care for his children alone, but he is compliant with that. His children see their own mother on a schedule arranged by the Department.
He has the task of caring for all of his children and in particular one of his children who suffered a sexual assault by a partner of her mother. He would be an affectionate presence in the household for the child, but unlikely to be greatly engaged in her care and upbringing.

The family consultant

The family consultant held to her view that the mother had made significant gains, although she was concerned that the maternal grandmother had been unaware of the mother’s heroin use in the past.
The family consultant’s main concerns, expressed in her reports and repeated in her oral evidence, would be the mother’s inability to protect the child from her feelings and emotions. Given that the mother had raised the possibility of sexual abuse, there was also a concern that the child could come to believe that she had been sexually abused.
The family consultant expressed the firm view that school can be a benefit to a child and in this case, the school which the child has always attended represents a consistent safe place for her to retreat to.
The family consultant did reiterate her concern that the child had expressed a change of view in the most recent interviews, wanting to be “on mum’s side.” The family consultant believes, and I endorse her view, that her positive views about the father had been influenced.
The family consultant considered that the Court would have to be genuinely satisfied that the mother could support the relationship between the child and the father and protect the child from her own emotional state. I accept the significance of those aspects of capacity are relevant in this case.

Interestingly and logically, the family consultant said that more weight should be given to the child’s wishes if there had not been a decline in what she was saying about the father. I accept the logic of that position as being likely to be a truer reflection of a genuine change in the child’s wishes, rather than one made under pressure. I also accept the observation of the family consultant that the child was not in any way aligned against the mother by the father; that he must be therefore managing things reasonably well and allowing comfortable relationships between the child, the mother and other members of the mother’s family.
The child after all has said things such as “Mum and dad hate each other, but they are both lovely to me” and in July 2013, “Mum is like a cat, dad is like a dog, they don’t like each other but I think they are both lovely.” Had she maintained those positive views about her parents and then expressed a wish to live with the mother, it would be more likely that it was a genuine shift in her own feelings.

The law

The objects of the Act in relation to parenting Orders are to ensure that:
a)   Children have the benefit of both of their parents having a meaningful involvement in their lives to the maximum extent consistent with their best interests;
b)     Children are protected from physical and psychological harm;
c)     Children receive adequate and proper parenting to help them achieve their full potential; and
d)     Parents fulfil their duties and meet their responsibilities concerning the care welfare and development of their children.
These are applications for parenting orders pursuant to s 64B(2) of the Family Law Act 1975 (Cth) (‘the Act’). In deciding whether to make a particular parenting order in relation to a child, a Court must have regard to the best interests of the child as the paramount consideration. The way a Court determines what is in a child’s best interests is by considering the matters set out in s 60CC(2) and (3) of the Act.
There is also a presumption when making a parenting order that it is in the best interests of the child for the parents to have equal shared parental responsibility for the child. The presumption may be rebutted by evidence that equal sharing of parental responsibility would not be in the best interests of the child in question.
I have contemplated the issues of parental responsibility, residence, time to be spent and communication between child and parent as well as any other specific issues.
I have considered the mandatory factors and conclude that the following matters are relevant to the best interests of this child.

Section 60CC(2)(a) – the benefit to the child of having a meaningful relationship with both of the child’s parents

The child does have a meaningful relationship with both of her parents. She loves both of them and would like to be spending time with both of them. However she has come to feel responsible for the mother’s happiness. She knows that when she is not with the mother the mother feels sad. She knows that because the mother cries and says, “I’m going to miss you” every time she leaves the mother and the child reassures her, “I tell her not to worry”. However, despite these signs of the child meeting the mother’s needs rather than the reverse, there is a genuine relationship between the child and the mother and also with the father.
The father is well aware of that and expressed to the family consultant in the second Family Report that he was aware that if the child’s time with the mother was limited, the child would likely experience considerable distress.[15]

Section 60CC(2)(b) – the need to protect the child from physical or psychological harm or from being subjected or exposed to abuse or family violence

[15]Updated Family Report dated 05/11/2013, par 19

The child has been exposed to family violence. The two partners the mother has had since separation from the father have both been violent and the child has witnessed a serious violent assault on the mother by one of those men. The child has also been exposed to abuse in that the mother became angry with the child for refusing to speak to her on the phone or to return to her care towards the end of 2012, when the mother was still engaged in a violent relationship which was frightening the child. Clearly such exposure causes psychological harm.
The child has also been exposed to intense conflict between her parents all her life. She has been present in the father’s home when police have arrived to do welfare checks on the instigation of the mother. The child has not been found to be in any trouble or distress on any of these occasions. The mother has been a relentless presence at the school, raising complaints about the administration of medication and the extent to which the school was consulting her about the child’s progress.
The child has also been, in the past, taken to a psychologist for therapeutic intervention, but where there was resistance to seeking any information from the father for the benefit of the child.
Both parents used marijuana in the early years of their relationship and it is probable that the child was exposed to both of them being less available to meet her needs as a result.
The mother has had abuse of drugs and alcohol issues which culminated in her distress and voluntary hospitalisation in late 2012. That too has had an impact on the child and she needs to be protected from further psychological harm. That issue, keeping her safe, is to be given greater weight.

Section 60CC(3)(a) – any views expressed by the child and any factors that the Court thinks are relevant to the weight it should give to the child’s views

The child is a girl now almost 11 years. She has expressed a variety of views to each of her parents. However I accept the observation of the family consultant that the child is, and has been for many years, under enormous pressure to choose between her parents.
The child was seen by the family consultant on three occasions; in September 2012, on 5 February 2013 and on 8 October 2013. Those observations from the perspective of a professional observer, I take into account in respect to the child’s views.

First interview, 3 September 2013

At this time the child was living with the mother but was used to spending frequent and sometimes long periods of time with the father. Prior to that interview, the father had become concerned that the child was being exposed to domestic violence through the relationship between the mother and her first new partner.
In April 2013 the incident of the child being bitten as a form of punishment by the paternal grandfather had occurred and the child was withheld from the father by the mother for a period of time. Thereafter, the child was withheld from the mother for a period of time, as the father became concerned about the mother’s proposal to change the child’s school. A Contravention application had been filed by the father.
Shortly before the interview, the child reported to the father that she had seen a lot of fights between the mother and her second new partner.[16] The mother was living at least sometimes with him at the time of this interview.
[16]Affidavit of father filed 19/06/2014, par 101
The observation of the family consultant is that the child presented as an “engaging and articulate child with no outward appearances of anxiety”. The child was able to communicate to the family consultant that she had to “present in two different ways in each of her parent’s households”.[17] The child was able to express the worry she held about upsetting her parents and asked the family consultant that certain issues not be discussed. Because of the nature of the interview, the family consultant was able to accommodate that wish and apparently certain issues raised by the child were not included in the Memorandum.
[17]Memorandum dated 3 September 2012 under heading ‘Issues relating to the children’, p 3
In expressing her views, the child indicated that she loved both parents and did not want to choose between them. She did say that she wanted to spend the next week with the father. She also expressed no doubt in her own words, that she was calmer in the father’s household than in the mother’s household. She described herself as more “crazy” and sometimes “angry” in the mother’s household. In the father’s household, the child reported that “if she was in trouble, she and her father tended to sit and talk about how other people were feeling about things.” The child’s other worry was that she was happy at her current school and knew that the mother wanted her to move. As an underlying concern, she was apparently worried that her statements would make the mother upset and the child was concerned as to how she might react.

(2) Second interview, 5 February 2013

Between the first interview and this interview, life must have been quite tumultuous for the child. The father reports that the mother contacted him on 29 September 2012 drunk and abusive. The father reported the matter to police, who advised him that they had attended the mother’s home, after reports of noise and domestic violence.
The child’s view, as reported by the father, was that she did not want to see or talk to the mother for a while after this incident.
In October 2012 the father was advised by police that the mother had contacted them alleging that he had threatened to kill her. That matter was not investigated and I infer that the police were satisfied that such a threat had not been made.
The central thing that had happened for the child was that on 19 September 2012, soon after the first interview, an interim order was made that the child live with the father. The mother appears to have reacted with considerable force and distress to this development. She clearly found it hard to no longer be the resident parent.
On 20 November 2012 the mother admitted herself to a detox unit in a nearby hospital. She had by that time moved home to live with her parents in the family home in Sydney. To her great credit, the mother commenced a therapeutic relationship with a drug and alcohol counsellor. Against that background, are the following observations of the child made by the family consultant.
She was observed to be polite and cooperative, but somewhat less open than in the first interview. The family consultant had had the opportunity to read the child’s school records, which noted 46 days of absence in 2012; that the child was meeting most key learning areas to a basic level; and that she was at times withdrawn at school. Those records indicated that the child’s interactions were often immature and that “she is lacking somewhat in confidence”.[18]
[18]Family Report dated 06/02/2013, par 72
The child volunteered to the family consultant that she had seen the mother get “bashed up by [her second partner].” The child was clearly very much affected by what had happened. She said that she and the mother were in her room and that in the child’s opinion, her partner had thought the mother was shouting at the child but when he realised that she was not “that’s when the bashing happened.”[19] The child described herself in this way, “I was super worried and then I went to the toilet. It was very stressful”.
[19] Family Report dated 06/02/2013, par 73
I have no reason not to accept what the child told the family consultant she saw, which was the mother’s partner hitting the mother’s head against the wall, “and her head cracked pretty bad.” The child described the mother as shouting and the child feeling very worried. The mother told her to go to bed and that is what she did.
The child went on to explain to the family consultant that the mother had woken her up in the middle of the night following that incident and asked the child to sleep with her. She did. The child told the father and the Independent Children’s Lawyer about what had happened. She also said that she had seen the mother’s partner since that time, but did not want to talk about it, describing herself as scared.
In other areas of her life, the child said “Things were good” with her dad; that sometimes “… [the paternal grandfather] got a little bit crazy, but I like him”.
Again the child expressed views about her parents. She said she loved them both and wished they were back together, although acknowledging that both of them had advised her that that would not happen. She appears to have been feeling genuinely ambivalent. She said she did not know where she wanted to live; that if she lived with the father she would be a bit sad because: [20]
I’ll miss my mummy and if [I] lived with [my] mummy I feel bad still because I want to stay with both of them. I want them back together with my family and not the fighting family.
.
[20]Family Report dated 06/02/2013, par 77
The child was able to explain to the family consultant that she knew that the mother thought the father was a “jerk” because the mother had said that. She did not know what the father thought of the mother, “I don’t know I never hear him say anything.” She expressed quite a strong view that she wanted to live together with her parents.
The family consultant reflected that the child’s desire for her parents to return to live together was a developmentally appropriate one. Observations of the child with each of her parents confirmed the statements she had made. She is reported to have arrived with the father, at all times appearing to be happy and comfortable in his presence. She was excited to see the mother when she arrived and in conversation referred to her mother having “got pulled up by [her second partner]” during ice-skating the previous weekend. It seems likely that the relationship between him and the mother was still on foot at that time, despite the above alleged assault.
The mother had some difficulty separating from the child, but the child herself appeared able to cope with the mother’s concerns and worries about her, expressed in the child’s presence to the family consultant.

(3) Third interview, 8 October 2013

Between the second interview and this interview, tensions must have still been fairly high for the child in both households.
In April 2013 the mother filed a Contravention application alleging failure by the father to provide the child for time with her on four occasions. She also filed an Application in a Case asking for an interim order for the child to live with her. That Contravention application was withdrawn soon after.
In July 2013 an incident occurred at a changeover where police were called.
The observations of the child by the family consultant are rather concerning. The child is noted to have appeared distracted and had difficulty concentrating through the interview. She answered “I don’t know” to many questions and repeatedly asked for the interview to be ended. She is described as “considerably more closed in her engagement than on either prior occasion”.[21]
[21]Family Report dated 05/11/2013, par 57
For the first time the child made complaints about the father, “He bullies me and one time he did something to me.” She complained that the father had watched a movie “that she had seen many times and which bored her.” She could not identify any other problems or worries other than that the father told her what to do, although she knew what to do. She was very positive about the mother, “Great, she’s taking care of me and putting me to bed. She takes care of me, she loves me.” The child had no concerns about the mother’s household.
The child was able to explain that her parents were not getting on and that the mother thought that the father was not a good dad and that the child thought that too. She also said that the father did not think that the mother was a good mum, but she did not know why.
The child described herself as wanting to be “on mum’s side.” She said she liked the father when he was not being rude, although she was unable to say how he was rude. The child also went on to describe that she knew that when she was not with the mother, the mother felt sad. She understood that because the mother cried and said “I’m going to miss you” every time she left. The child explained to the family consultant that she reassured the mother, “I tell her not to worry”. This time the child’s strong statement was “that if the judge says she has to live with dad she would be really angry and mad”.[22]
[22]Family Report dated 05/11/2013, par 63
Despite this considerable change in her views, the observation of the child with the father is of a warm, comfortable and relaxed relationship. That same warm comfortable and relaxed relationship was also observed between the child and the mother and maternal grandmother.
There is some suggestion that the mother had discussed with the child what she needed to say in this interview, although nothing to indicate that she was told what to say. The mother explained to the family consultant that she had said to the child, “We have to go to court to see [the family consultant] and tell her what you want, what you feel and what makes you happy”.
I draw from these observations and expressed views that the child continues to love both her parents and to enjoy her relationship with each of them; that she feels a greater pressure to please the mother and to meet the mother’s need for the two of them to be together. It seems apparent that the child has felt somewhat defeated about how to contend with her family and has also felt some responsibility for trying to bring her parents together and improve their relationship.
The child is an only child. She knows how important she is to both her parents and the family on each side. Her critical statements about the father, which were completely inconsistent with the observations of the child with him, appear to be the beginning of the child no longer being able to cope with loving each of her parents and knowing that there will never be a time when they are all together again as a family.
The child is somewhat immature for her age and I accept has been under pressure for most of her life, created by the competition between her parents for her. I take her views into account in the context of the observations of her in three snapshots over time. I do not consider it appropriate to simply implement her expressed wish to live with the mother, or her assertion that she would be really angry and mad if she continued to live with the father.

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

The child is drawing close to adolescence. She relies on the calmness of the father and his ability to sit with her and talk over events. She does not have to worry about his needs. She appears to know that he is there to look after her.
She is drawn to the warmth and engagement with the mother. She is also emotionally burdened by meeting the mother’s needs. She worries about the mother being sad when she is not there.
The child also has an important relationship with all of her grandparents. In her mother’s home, she lives with her grandparents. She is their oldest grandchild and is obviously very dear to them.
Likewise the paternal grandparents, especially her grandfather, at this time have a great deal of day to day time with her and engage her in activities with her cousins.
The child also has an important relationship with her babysitter.

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

Each of the parents made decisions about the child. Unfortunately, particularly in the case of the mother, unilateral decisions; withholding her from school, withholding her from the father.
There is no doubt that both parents wish to spend time and communicate with the child as much as possible. The father was criticised for the hours that he spends working. However I consider that the father does spend regular time with the child, to talk to her about her life and her school work, to be with her at meal times and to arrange appropriate care for her through his father or her babysitter when he is not available.

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

The father has provided financial support for the child all her life.
The mother is presently working as an office manager in her parent’s business and presently also has the capacity to financially provide for the child.

Section 60CC(3)(d) – the likely effect of any changes in the child’s circumstances

Separation from the father

The child has achieved a degree of stability with the father over the last two years. Given the mother’s reluctance to comply with orders in the past, and her resentful view that she has been unfairly treated by losing residence of the child, there is a real risk that orders for time between the child and the father would not be strictly complied with and further, that the relationship between the child and the father would not be carefully and consistently supported by the mother.
There is a risk that the child would not only spend a lot less time with the father, with her paternal grandparents and her babysitter, but also she would be encouraged to regard the whole of the paternal family as less important that the maternal family.

Education

The child is in Year 5 at school, which is located not far from the father’s home, which she has attended since Kindergarten, with some disruptions.
Her attendance has been unsatisfactory in some years. The mother has retained the child with her at times rather than send her to school. Her academic progress has also been unsatisfactory until this year. Her half yearly report in 2014 indicates better outcomes.
If the child moved to live with the mother, she would probably attend the local primary school and she would miss her friends. I cannot be confident that the mother would insist on full attendance and punctuality.
For secondary school, the mother proposes an independent performing arts school with entry by application and audition. Assuming the child was offered a place, there is no evidence from the mother as to how fees would be paid.

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

The mother has a provisional license after having lost her license for driving affected by alcohol. The mother has had more than one charge of that kind. It seems likely that given her commitment to drug and alcohol counselling that the mother will retain her license. It should be noted, however, that in the past when she lost her license, she simply did not arrange for the child to see the father.
Each journey between the parent’s two homes is between two and three hours. It is not too expensive or too far for the child to regularly travel.

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

The father appears to have a better understanding of the child’s emotional needs to connect with all her important relationships.
The mother is assessed by the family consultant as adult focused; that is her own sense of loss and need of the child takes priority over the child’s needs. This is an extremely important factor. I have no doubt that the mother would involve the child in as many interesting activities such as dance and music and anything else the child expressed an interest in, would provide for her in terms of clothes and equipment, would champion her cause in any area of conflict including at school, but her difficulties in setting boundaries for the child and setting limits on her represents a real risk to a safe journey for the child through adolescence and an acceptance of the need for rules and boundaries, both at school and in her personal social life.

Section 60CC(3)(g) – the maturity, sex, lifestyle and background of the child and either of their parents

The child is an almost 11 year old girl. Her family is of Australian Italian descent. She is very much a part of her extended paternal and maternal families and has important relationships with her cousins on both sides, her aunts and uncles and grandparents.
She is assessed to not be particularly mature for her age and to have reached the end of being able to hope that her parents will reunite with her as a family. She is at the pre-adolescent stage where she is at risk of choosing one parent over the other, in order to feel more emotionally comfortable.

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

The father has taken a responsible attitude to the child. He maintained interest and commitment to her between separation in 2004 until 2012, when she came into his fulltime care. He made successful applications for the mother to be dealt with for contravention of orders, but continued to return the child to the mother unless there was a direct concern for her physical safety or exposure to violence in the mother’s home.
The mother has at times kept the child close to meet her own needs. One example of that is on the night when she was violently attacked by a partner, she woke the child during the night asking her to come into the bed with her for comfort for the mother. There is a very real risk that the child is still meeting the mother’s emotional needs.

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

There has been family violence involving the child. There was violence in the relationship between the parties and I am satisfied the mother has violently attacked the father on many occasions and that the father has at least responded to the mother by subduing her forcefully on more than one occasion.
The mother is presently committed to not forming any new relationship and it may well be that if she maintains her current therapeutic relationship, she will be in a better position to choose partners who will form respectful and non-violent relationships with her.
The mother was asked about her victims compensation claim. She conceded that the father had been charged with an assault on her and successfully appealed to the District Court. The matter was returned to a Local Court and determined; that determination was that there had been no assault. The mother’s response was that she agreed that that is what she had been told although, “I still think it wasn’t fair.” The mother also agreed that she had not let her solicitors know that the father had overturned the conviction and that the compensation payment she had referred to in her affidavit had been $1,500 and a subsidy for counselling.

Section 60CC(3)(k) – if a family violence order applies, or has applied, to the child or a member of the child’s family

There are no current family violence orders for the protection of either party or the child.

Section 60CC(3)(l) – whether it would be preferable to make the order that would be least likely to lead to the institution of future proceedings

During the course of the hearing, the mother indicated that she would wish to return to the Hunter area in order to be closer to the child if she continues to live with the father. Whilst understandable, there is uncertainty about the mother’s ability to meet the child’s needs during contact visits, if she no longer has the support of her parents by their provision of a home and employment for her and was no longer in easy contact with her drug and alcohol counsellor.
However I must decide this case on the evidence before me and that current position is that the mother does live in Sydney, supported and employed by her parents and has a therapeutic counsellor close by. She has made a significant improvement and her commitment to the process has endured for almost two years. It would be uncertain how long the mother, as a 35 year old woman, used to independence, can maintain living with her parents in their home.
There is no doubt that the father will continue to maintain his independent residence where the child has a settled life.
The order least likely to lead to further proceedings is the one that sees the child continue in the present arrangement and at the school that she has attended for the whole of her school life.
The mother showed a tendency throughout to exaggerate events adverse to the father and to minimise events potentially adverse to her. For instance, in relation to the topic of contraventions, the mother stated that she did not think she had been judged correctly by His Honour Justice Cohen who had dealt with them: “I still can’t understand how it happened. I was in an emotional state.”
The mother agreed that His Honour had found 18 contraventions against her, but went on to say this:
I don’t agree; I know the truth; I was very wrong done by with all due respect.
From those last four words, stated with such a tone of sarcasm, it was apparent what a live issue the mother’s resentment on this topic was.

Orders

Taking into account the matters raised above, I consider that the most appropriate course is for the child to continue to live with the father and in view of the difficulties of communication and history of conflict between them, it is more appropriate for the father to have sole parental responsibility. This is particularly so where the mother has been willing to flout court orders and insists on seeing the child at school and defying the reasonable directions of the school based on current orders.
A further consideration is the health of the child. She does have some difficulties as a result of small kidneys and the father has maintained her relationship with the medical specialist in that regard.
On behalf of the Independent Children’s Lawyer, orders were proposed in the alternative: either supervision of the mother or no supervision. It does seem to me that at almost 11, the child is entitled to enjoyable time with the mother, just the two of them. The mother has made a considerable improvement in her circumstances by refraining from alcohol, seeking appropriate therapeutic engagement and living in her parent’s home. She is also employed. She has made these efforts in direct response to her own uncontained behaviour in late 2012 and her strong wish to have the child back in her fulltime care.
I have found that the most suitable arrangements for the child are that she remain living with the father. It is, however, appropriate that overnight time be spent with one or both of the maternal grandparents present in their home. However, provision has been made in the orders for holidays away or overnight time in the home of friends and relatives, provided that one or both of the maternal grandparents are also present.
Of course the parents can come to another arrangement as time goes by and the child is older, but that will be a matter for the judgment of the father, who has sole parental responsibility, based on his observations and information provided to him by the mother and the child herself.
Accordingly no order for active supervision of the time between the child and the mother has been made, other than in respect of overnight time.
The mother sought an order that the child not be brought in contact with the paternal grandfather. I do not consider that there is evidence to support the child losing the benefit of a relationship with the paternal grandfather, who is a regular presence in her life and in the father’s home. The incident where the paternal grandfather bit the child is a reflection of his age and the parenting practices which were quite common a generation ago.
However given that there has been no repetition of that particular method of discipline, there is no reason to think that it would happen again and every reason to think that it will not. My impression of the paternal grandfather was that he was somewhat overwhelmed by the consequences of this incident and is a bit reluctant to impose any kind of restriction on the child, such as insisting that she complete her homework rather than playing the electronic games she loves. At those times when the paternal grandfather is supervising the child, there should be no restriction on him exercising that kind of authority.
Accordingly, no order has been made restricting time between the child and the paternal grandfather.

I certify that the preceding two hundred and thirteen (213) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Cleary delivered on 5 December 2014.

Associate:

Date: 3 December 2014

[2014] FamCA 1073

3 December 2014

Key Legal Topics

Areas of Law

Family Law

Legal Concepts

Remedies

Procedural Fairness