Arnett and Carlin and Anor

FEDERAL CIRCUIT COURT OF AUSTRALIA

ARNETT & CARLIN & ANOR

[2021] FCCA 1070

Catchwords:
FAMILY LAW – Parenting – whether a child aged 6 should remain living with her father or commence living with her mother – where the child has lived with the father in City B for two years and the mother has been living in Sydney and has spent restricted time with the child – where a change of residence would require a significant adjustment by the child – where there is nothing about the child’s circumstances which suggest that this would be in the child’s best interests – where the issue of the time the child should spend with the mother is a vexed one – where the child enjoys spending time with her mother but where the attitude of the mother and her partner to the father and the mother’s fixed belief that the paternal grandfather poses a risk of harm to the child raises a concern that the child’s relationship the father may be undermined if she spends extensive time with the mother – where the maternal grandmother who lives in City B is also a party and seeks separate orders about the child spending time with her - orders made as proposed by the Independent Children’s Lawyer for the child to spend time with the mother and maternal grandmother as a group with that time to take place in City B and with the child to sleep at the maternal grandmother’s home - whether orders should be made restraining the mother and maternal grandmother from bringing the child into contact with the mother’s partner and the maternal grandmother’s partner respectively who both have convictions for offences of violence – where the risk posed to the child by the partner and step-grandfather is not sufficient to justify a restraint when weighed against other considerations – where both parents seek an order for sole parental responsibility – where the parents do not speak to each other – order made for the father to have sole parental responsibility for the child.

Legislation:

Family Law Act 1975 Cth ss.60CC, 61DA

Cases cited:

Mazorski & Albright (2008) 37FamLR 518

Applicant:

MS ARNETT

First Respondent:

MR CARLIN

Second Respondent:

MS FOSTER

File Number:

NCC 82 of 2019

Judgment of:

Judge Terry

Hearing dates:

15, 16 & 17 February

& 4 March 2021

Date of Last Submission:

4 March 2021

Delivered at:

Newcastle

Delivered on:

20 April 2021

REPRESENTATION

Counsel for the Applicant:

Mr Willoughby

Solicitors for the Applicant:

Craney Family Solicitors

Counsel for the First Respondent:

Mr Bithrey

Solicitors for the First Respondent:

Roberts Legal

Counsel for the Second Respondent:

Mr Sundstrom

Solicitors for the Second Respondent:

NLS Law

Counsel for the Independent Children’s Lawyer:

Mr Boyd

Solicitors for the Independent Children’s Lawyer:

Legal Aid NSW Newcastle Family Law

ORDERS

All previous orders regarding the child X, born in 2014, (“X”) are discharged.
The father shall have sole parental responsibility for X.
X shall live with the father.
X shall spend time with the mother and the maternal grandmother as follows:
(a)On the 2nd, 5th and 8th weekend of each school term from after school on the Friday until 5.00pm on the Sunday;
(b)From 9.00am on the 1st Saturday until 9.00am on the following Wednesday of each of the school holidays, excluding Christmas holidays;
(c)During the Christmas school holidays from 9.00am on 21 December until noon on 25 December in even numbered years and from noon on 25 December until 9.00am on 29 December in odd numbered years, and from 9.00am on 22 January until 9.00am on 26 January in each year.
The time X shall spend with the maternal mother and grandmother shall occur in the City B area, unless the parties otherwise agree in writing.
X shall be accommodated overnight at the home of the maternal grandmother, unless the parties otherwise agree in writing.
To give effect to the change-overs for time spent pursuant to order 4.i, the maternal grandmother shall collect X from her school at the conclusion of the school day on the Friday and shall return X to the father or his nominee at the McDonalds Restaurant Suburb C at 5.00pm on the Sunday unless the parties, otherwise agree in writing.
Change-overs on other days shall commence and conclude at the McDonalds Restaurant Suburb C, unless the parties otherwise agree in writing.
X shall have telephone (or Skype/Facetime) communication with the mother each Tuesday between 6.00pm and 6.15pm and with the maternal grandmother each Thursday between 6.00pm and 6.15pm, unless the parties otherwise agree in writing, with the mother and the maternal grandmother to initiate the calls and with the father to ensure that X is available to take the calls and is afforded privacy during the calls.
Each of the parties is restrained from denigrating the others in the presence of X, by direct means, or via social media, or from authorising any other person to do so.
Each of the parties shall ensure that their mobile phone contact numbers are notified to the other parties, with any change to those numbers being notified within 24 hours.
The father may apply for a passport for X and travel internationally with X or allow the X to travel internationally provided he gives the mother notice of the destination, dates of departure and return and some means to contact X when he is overseas notwithstanding the consent of the mother has not been obtained.
The mother is restrained and an injunction is granted restraining her from taking X to medical professionals except in the event of an emergency without the written consent of the father.
The father shall be permitted to travel with X outside the Commonwealth of Australia during periods of time when X is living with the father and the following shall apply in respect of such travel:
(a)The parties shall do all acts and sign all necessary documents to ensure that at all times X has a valid passport.
(b)Otherwise than as required under these Orders the father shall have the possession of X’s passport at all times.
(c)The father shall give to the mother at least twenty-eight (28) days’ notice in writing of his intention to travel overseas with X including providing the mother with a detailed itinerary, the dates and times of the intended travel and a contact telephone number for the mother to communicate with X by telephone during the overseas holiday.
(d)Upon the father providing to the mother the said notice in writing referred to in this Order, the father shall be permitted to remove X from the Commonwealth of Australia for the purpose of such overseas holiday.
(e)The father shall return X to the Commonwealth of Australia at the conclusion of such overseas travel.
If the mother fails to sign and return a passport application to the father within 14 days of the father sending the application to the mother by registered post to her last known address then the father may apply for a passport for X without the mother’s consent having been obtained.

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

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT NEWCASTLE

NCC 82 of 2019

MS ARNETT

Applicant

And

MR CARLIN

First Respondent

MS FOSTER

Second Respondent

REASONS FOR JUDGMENT

Introduction

These reasons for judgment were delivered orally and have been corrected from the transcript. Grammatical errors have been corrected and an attempt has been made to render the orally delivered reasons amenable to being read.
These proceedings concern X, who is six and a half. She is living with her father, but that has not always been the case. It came about as a result of orders made in February 2019 following an incident at the father's home in January 2019.
Prior to that X had lived primarily with her mother and it was clear throughout the trial that the mother simply could not understand and deeply resented the fact that she had gone from being the child's primary carer in 2018 to someone who was now distrusted and sidelined in the child's life.
The mother submitted that she had parented X well prior to January 2019. She submitted that there were broad ranging concerns about the father's parenting capacity and about the paternal grandfather's behaviour to X and that X should be returned to her care.
The mother is 25. She was living in City B up until the end of 2018, but prior to the proceedings commencing she formed a relationship with Mr D and at some point in early 2019 she began living with him in Sydney.
The mother and Mr D have a daughter, E, who was born in 2019, and Mr D has a son, F, who lives with him and who, it emerged during the evidence, believes that the mother is his mother, and F also lives in their home.
Mr D is employed as a factory worker. The mother is engaged in home duties and said that she was better placed than the father, who is employed, to care for X on a day-to-day basis.
The orders sought by the mother were that she have sole parental responsibility and that the child live with her and spend time with the father during the school holidays. She did not propose any time between the father and X during school terms, although her counsel conceded in submissions that it would be open for the Court to make an order for that to occur.
The father is 28 and he lives in City B. When the proceedings commenced he was living with the paternal grandparents. In August 2019 the mother made allegations about the paternal grandfather and following this the father moved to separate accommodation. He denied that there was any merit in the allegations but said that he wished to ensure there were no ongoing allegations. In December 2020 he resumed living at the paternal grandparents' property. He said that he intended to look for separate accommodation in due course but it would be nearby to where he was currently living.
The father is employed by Employer G as a labourer, and he works, I think, at present from 6.30 am to 3.30 pm, although his hours of work have changed. He said that he had every second Monday off.
X is at school and when the father is not available to care for her because of work his parents drop her off and pick her up from school and take her to other activities and appointments.
The father is not currently in a relationship, at least that is his case, and I have no reason to disbelieve it.
He was in a relationship with Ms H for a period in 2019. The mother alleged in her trial affidavit that this relationship had not ended. However she provided no concrete evidence which would allow the Court to make a finding that it continued. She simply speculated that it might be based on some social media posts.
The father proposed that the child continue to live with him and that he have sole parental responsibility for her. He said she had been safe in his care for the last two years and was settled with him and that there was no justification for unsettling her with a change of residence. He said that there was simply no evidence that the paternal grandfather posed a risk of harm to the child.
The father struggled with the issue of the time the child should spend with the mother and in the end adopted the proposal of the Independent Children's Lawyer which I will refer to shortly. His concerns about the child spending time with the mother arise out of the issues with Mr D, and his criminal history. He has been charged with and in some cases convicted of offences of violence. He is also concerned that his relationship with X will be undermined if she lives with her mother because of the mother's antagonism to him, her mistaken beliefs about the child not being properly looked after and her beliefs about the paternal grandfather.
The third party in the matter was the maternal grandmother who applied to be joined as a party partway through the proceedings. She sought orders about the child spending time with her. In her proposal at trial she sought orders that the child spend time with her each alternate weekend from 5.00pm on Friday until 5.00pm on Sunday, for three nights in the shorter school holidays and for four nights in the Term 4 school holidays. She also sought an order about the child spending time with her on Christmas Day and an order for telephone communication.
The maternal grandmother lives in City B with the maternal step-grandfather, Mr J, and with her children, who are aged 19, 18 and 11. She is an office worker although she is currently on leave.
The step-grandfather is a contractor for Employer K and in 2020 he was ordained as a pastor in the church he and the maternal grandmother attend. However he has a significant criminal record involving offences of violence and he was convicted of assaulting the paternal grandfather on 7 January 2019.
The Independent Children's Lawyer, supported by the father's counsel, proposed that Mr Foster not be permitted to be present if the child spent time with the maternal grandmother.
During closing submissions the maternal grandmother's counsel said that the maternal grandmother was firm in her position that she wanted the Court to make the orders she sought and that she wanted those orders regardless of which parent the child lived with. However her counsel said that she could live with the orders proposed by the Independent Children's Lawyer and that if the Court decided to make them she would make that work.
The Independent Children's Lawyer proposed that X live with the father and that he have sole parental responsibility for her. He proposed that the child spend time with the mother and the maternal grandmother on the second, fifth and eighth weekend of each school term from Friday to Sunday and that she sleep at the paternal grandmother's home. There was also a proposal for short block periods during school holidays.
It was proposed that the mother's time with the child, insofar as that was worked out with the maternal grandmother, occur in City B unless otherwise agreed in writing and that the mother and maternal grandmother be restrained from allowing the child to come into contact with Mr D and Mr Foster or having any communication with them. The Independent Children's Lawyer also proposed that there be telephone and video communication and a non-denigration clause.
In her affidavit and during the proceedings the mother raised a concern about whether the father's brother Mr L, who lives near the father, was a fit person to be permitted to have any contact with the child. During final submissions her counsel said the mother sought a restraint about him having contact with the child.
The final thing to note about the orders proposed by the parties is that during final submissions, although the father's counsel said that the father joined with the Independent Children's Lawyer in the orders that were sought, the father also sought a passport order and an order that the mother and the maternal grandmother be restrained from taking the child to medical professionals except in the event of an emergency or with the father's consent in writing.

The evidence

The evidence was given by the mother and Mr D in her case and by the father in his.
The maternal grandmother and maternal step-grandfather gave evidence in the maternal grandmother's case.
A family report was prepared by Ms M, a senior family consultant, and she also conducted a Child Dispute Conference in February 2019.
All of the witnesses were cross-examined.
A tender bundle was prepared and marked for identification and at the end of the hearing each party submitted a list of the documents they wished the Court to read.
There were a number of credit issues with the mother’s evidence. One problem was that her affidavit was replete with information which was designed to cast the father, his associates and his family in a poor light which either derived from social media entries or had no foundation at all. The mother made a bare assertion, for example, that the father had driven while intoxicated on one occasion. She made no attempt to explain why she was saying that or the basis for that conclusion.
I also have reservations about the validity of the conclusions she drew from the social media entries. She said for example as follows:
Mr Carlin has knowingly lied about his relationship with Ms H, the true events about the incident on 7 January 2019, his heritage in that he claims to be Aboriginal, his living arrangements, his use of drugs and alcohol, his family’s anti-social relationships, his involvement in X’s life prior to these proceedings, the dates when our relationship ended, his fear of Mr D and his affiliation with a motorcycle gang, who I believe he distributes drugs for. I am concerned for X’s wellbeing and safety as she has been brought into contact with this gang.[1]
[1] Mother’s affidavit paragraph 303
There was no evidence at all to support those assertions and the mother made a number of throwaway scurrilous comments with simply no support for such strong statements. An example is the following:
Mr Carlin and Mr L like to brag about how she’s just like them, started drinking underage, and loves a cold VB beer just like her uncle Mr Carlin and father. Mr Carlin once stated that X will love vodka because she carries his Country O blood. I do not want my daughter to be around alcoholics and turn out like them.[2]
[2] Mother’s affidavit paragraph 308
The mother was not always reliable in the evidence she gave. She told the family consultant in February 2019 that she was not aware that Mr D had a criminal record. During cross-examination she said she was aware of it but she did not think it was her place to disclose it to the family consultant.
The evidence in the mother’s affidavit about the 7 January 2019 incident was not straightforward and accurate. She made admissions in the witness box about it being her intention to take the child that day.
The mother’s evidence also contained some significant omissions. For example in the context of making an allegation about the paternal grandfather she referred in her affidavit to the child telling her that she did not like it when the paternal grandfather kissed her. She agreed, and this is in the documents as well, that what the child actually said was that she did not like it when the paternal grandfather kissed her on the cheek, which puts quite a different complexion on the statement.
There was a submission at the end of the trial that Mr D was also an unsatisfactory witness, particularly as to his criminal history. I accept that submission and I will refer to that later when discussing his history.

Background

X, born in 2014, is the parties' only child but it is very difficult to make any concluded findings about the start and end date of the parties' relationship and when and if they lived together. Their assertions about that were just totally in contrast.
The father said that the relationship commenced in 2013 and that the parties lived together at the paternal grandparents' home. The mother said that the relationship did not commence until 2014 and she did not agree that she lived with the paternal grandparents, although she made some allegations about their behaviour which suggests she was certainly there at various times.
There was a dispute about whether the parties were in a relationship and if so of what kind when X was born, and there was also a dispute about whether they lived together in a rental property where the father said they lived from March 2015 to October or November 2017.
The mother said that just never happened. However there was some documentary evidence to support that part of the father's case in the form of a rent reference request which appears to be dated April 2016. It refers to the father and mother as the tenants of the property and makes positive comments about the state of it, which contrasts with the evidence in the mother’s affidavit that she only visited the father at that home and that when she visited it was filthy and untidy.

In cross-examination the mother said the rent reference should be disregarded because the agent was a friend of the Carlins.
I cannot make findings about the nature of the parties’ relationship or about where the parties lived at various times. I prefer the father's evidence generally; he was a more reliable witness, but sometimes people get dates and times a little bit wrong, and I am not even going to attempt to make findings about the nature of the relationship at various times or about where the parties lived.
There was a dispute about when the relationship ended. The father said that the parties ceased to live together in the rental property in November or December 2017 and that he moved back in with his parents, and the mother said that at that time she rented her own place. There was a bit of common ground there, and there was no dispute that X lived with the mother.
What happened during 2018 is another issue I cannot make findings about. The mother said that the relationship ended in December 2017. She said she continued to spend time with the father after that but only so that X could spend time with him. She said that this may have made him think a relationship existed after they broke up.
It appears that the father did think a relationship continued to exist, and he put the end of the relationship toward the end of 2018.
Again, there are snippets which suggest the father's evidence is more reliable. For example the maternal grandmother talking about minding X while both parties went to the gym, but I am not going to attempt to make findings about any of that. It will not help me and it is just too factually complex.
There is no doubt that in the second half of 2018 the mother formed a relationship with Mr D who lives in Sydney. Again there was a dispute about the dates. Mr D said that the relationship started in August 2018 and they became life partners in October 2018. The mother said the relationship commenced in October.
Anyway, that relationship certainly commenced. It appears from the father's evidence that he was initially unaware of that and harboured a hope that his relationship with the mother was ongoing, but by late November, early December it was clear to the father that the mother was in a relationship with Mr D.
The father said that from late November 2018 he and the mother agreed to X spending three days a week with him. The mother did not concede that. To add to the complications, the maternal grandmother said that for 21 days straight in December 2018 X lived with her, although she did say that X also spent time with the father as per his agreement with her daughter.
It was common ground that the mother allowed the father to collect X on 25 December 2018 and that the father agreed to return the child to her shortly afterward but in due course changed his mind, and it was common ground that on 3 January 2019 he told the mother that he was not going to return the child until the parties attended mediation.
The father said that he was very concerned about what was happening in her life. He alleged that she was filthy when he picked her up on Christmas Day and that she told him she did not like Mr D.
The father withheld the child and the mother asked to visit the child, and on 7 January 2019 she went to the father’s home to do that.
The mother was somewhat coy about what her intentions were when she went to the father's home but I am satisfied based on her admissions during cross-examination that she had formed a plan to remove the child from the father's home and that once she got there and had the child in her arms she took steps to do so.
An altercation followed in which the father took the child from the mother and the mother was forcibly put out of the father’s home. The mother alleged that the father, his sister in law and the paternal grandmother assaulted her as she tried to leave. That is not supported by the evidence but I will discuss that later in the family violence section of the judgment.
In any event, the mother ended up outside the home and a call was put through to the maternal grandmother, or to Mr D, I am not sure which. As a result the maternal grandmother, Mr Foster and Mr D all turned up on the paternal grandparents’ doorstep. Mr Foster hammered on the door and forced the door and assaulted the paternal grandfather. Mr D stood outside yelling threats.
Police were called and provisional ADVOs were taken out against Mr D, the mother and Mr Foster for the protection of the father, the child and the paternal grandfather and Mr D and Mr Foster were charged with criminal offences.
The child remained with the father and on 14 January 2019 the mother filed an application seeking the return of the child to her care.
The father filed a response seeking that the child remain with him.
On 27 February 2019 Ms M conducted a Child Dispute Conference. After talking to the parties at length she said that the father’s proposed orders appeared appropriate in the current circumstances and among other things noted that the mother did not have accommodation and was paying off rental arrears.
Following the preparation of the Child Dispute Conference Memorandum orders were made by consent for the child to live with the father and spend time with the mother each Sunday from 9.00am to 5.00pm. The mother was restrained from bringing the child into contact with Mr D or Mr Foster.
The mother continued to spend time with the child in accordance with those orders until on or about 17 August 2019.
After the mother went to spend time with her on this occasion the mother took her to a doctor in relation to some respiratory issues and it appears that at that point she decided that the father was not taking good enough care of the child and she was not going to return her.
She alleged that shortly afterwards the child made statements to her which caused her to be concerned that she was at risk of sexual harm from the paternal grandfather and said that this added to her resolve not to return the child.
The father promptly filed an application for a recovery order and on 21 August 2019 the mother was ordered to return the child to the father and her unsupervised time with the child was suspended.
On 11 September 2019 an order was made for the child to spend time with the mother supervised by P Families, a private organisation that supervises time at a variety of locations such as parks and swimming pools. That time commenced and the mother travelled up from Sydney to spend time with the child and she usually brought F with her.
A family report had been ordered and it was released in November 2019. Following the release of that report, which recommended the child remain with the father, the maternal grandmother sought leave to intervene in the proceedings. She sought orders about the child spending time with her separate to the child’s time with the mother.
Orders were made for the child to spend time with the maternal grandmother each alternate Sunday from 9.00 am to 2.00 pm and on Christmas Eve. That was subsequently altered to be each alternate Saturday from 9.00am until 2.00pm at the maternal grandmother’s request.
The parties could not reach an agreement about what should happen and as a result the matter was listed for trial and a trial took place in February 2021.
In June 2020 the time the mother was spending with the child supervised by P Families ceased. The mother had a falling out with Ms Q who runs that service and Ms Q said that she was not willing to continue to supervise. The father proposed some alternatives but no agreement could be reached. As a result the mother was not able to spend time with the child for quite a lengthy period although her FaceTime communication with her continued.

X’s best interests

Any orders I make about X must be determined by treating her best interests as the paramount consideration and to determine her best interests I must have regard to the matters in section 60CC (2) and (3) of the Family Law Act.
There are additional considerations in section 60CC (3) and primary considerations in section 60CC (2) and as I often do I am going to start with the additional considerations.
I am going to start by noting a couple that are not going to help me.
Discussing the child’s maturity, sex and background as a separate consideration will not assist me and nor will discussing the attitude of the parents to the child and the responsibilities of parenthood. I could make some comments under that heading but they would only replicate comments made when dealing with other considerations.
The first relevant consideration is the views of the child and the weight to be given to those views.
The family consultant noted that X was a happy child who was meeting her developmental milestones. She was five at the time of the report interviews and the family consultant said, and the parents both agreed, that this was how she normally presented. The family consultant also said that she presented as a confident child.
The family consultant went on to say:
X’s views in regard to future parenting arrangements and the parties’ proposals were not sought due to her young age and given she did not wish to discuss anything related to her family. This is not surprising given X’s last experience of 7 January 2019 when all the significant members of her family were in the same location.
I therefore have no independent evidence about the child’s views.
The maternal grandmother reported that the child occasionally said that she did not want to go home at the end of a visit. That may be true. Children say those things in the moment and then when they are in a different moment they say or do other things. However what I considered notable in the evidence was that neither the mother nor the maternal grandmother said that the child was pressing them about coming to live with them or was making complaints about living with the father.
I must consider the nature of the child’s relationship with each of her parents and any other relevant persons.
The family consultant observed good relationships all round. She said as follows:
X appears to have close relationships with both parents and both sets of grandparents. However, her relationship with Mr D is limited given the mother and Mr D have been in a relationship for less than a year and X has only seen Mr D when the mother took her to Sydney once or twice during her day visits and then when she retained X for 3 days in August 2019.[3]
[3] Family Report paragraph 132
I am also going to include the family consultant’s report of her observation of the interaction between the father and the child. She said as follows:
In observation between the child and the father, the child was observed to be happy to be reunited with the father after her observation sessions with the mother and maternal grandmother. The father sat on the floor with X and easily joined in her play with the dolls’ house. X involved the father in her play and they created a story with the various dolls. A warm, familiar and comfortable interaction between X and the father was observed.[4]
[4] Family Report paragraph
The only reason I am including that and not including the information about the observation between the mother and the child is because the mother, throughout the trial, raised issues about the father and his relationship with the child. I accept that the child has a close and loving relationship with the mother as well.
The mother said that X had a close and loving relationship with F, her step-sibling. That may be true. They are relatively close in age. However they have spent quite limited time together.
I accept that the child has a good relationship with the maternal grandmother. She has always been part of her life. Observations at the family report interviews suggested that she also had a good relationship with the maternal step-grandfather although she had not seen him recently.
I must consider the extent to which each parent has taken or failed to take the opportunity to spend time with the child, make decisions about the child or communicate with the child.
In parts of the mother’s affidavit she suggested that there were periods prior to January 2019 when the father did not see much of the child. The mother’s evidence was not reliable and I cannot make a finding that this was the case and in any event the relevant matter is that since January 2019 his commitment to the child and his keenness to spend time with her cannot be questioned.
I must consider the financial support of the child.
The mother raised some issues about this in her affidavit. She alleged the father threatened to “dob her in” to Centrelink if she claimed child support and that he never supported her financially. The father gave evidence of providing some support. Again, because of the mother’s unreliability as a witness, I cannot make findings about that issue and moreover it was not explored during cross-examination to any great extent.
I must have regard to practical difficulty and expense of the 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.
The mother is living in Sydney and the father is living in City B. That causes some practical problems in terms of the mother spending time with the child. She has to get up here. She has to bring F and she now has a baby to travel with as well.
The practical problems are not insurmountable. Travelling by train is an alternative option to travelling by motor vehicle and the mother has done the travel on numerous occasions. That sort of distance (City B to Sydney) does not prevent an order being made for alternate weekend time. It does not make that too onerous or too difficult and it does not prevent regular time occurring between a parent and a child.
In any event there is nothing I can do about the practical difficulties because the mother has chosen to live in Sydney and the father wishes to remain in City B and that is just the way it is.
I must consider the likely effect of any change in the child’s circumstances.
The mother proposes that the child live with her in Sydney. Not only would that be a change of place, it would require a change of school. It would also mean that X would go from being an only child in the father’s household to the middle child of three in the mother’s. She would have to find her feet in that dynamic. She does not yet have a relationship with Mr D. She would have to form one with him and she would be competing for his attention with the other children.
X has a good relationship with the mother and she may weather that change. Children sometimes have to adapt to such changes. The mother pointed out that X had to adapt to a change when she came into the father’s care in January 2019 and the father said that she had adjusted to that so the Court should be satisfied that she would adjust if the Court made an order for her to live with the mother.
X might adjust, but if the change was accompanied by a reduction in her time with the father such as the mother proposed and possibly by denigration of the father and non-respect for his role in the child’s life, the child may have difficulty coping with that change.
There is also reason to be concerned about the mother’s stability. She is in a relationship with Mr D but Mr D has had issues in his relationships in the past; not recently, but they have occurred. It would be very unsettling for X if she went to live with the mother and the mother’s relationship with Mr D did not last. That is a concern because the mother is dependent upon Mr D for her housing. She was behind in her rent in December 2018 when she was living in City B. There is some prospect of instability for the child if she went to live with the mother.
I must consider the capacity of each parent and any other person, including a grandparent of the child, to provide for the needs of the child including her emotional and intellectual needs.
I am going to start with the father although he is the respondent because so many issues were raised about him.
In terms of any objective evidence, the father is taking good care of X on a day to day basis. She is attending school regularly. She is making satisfactory progress and she has friends. The father was a fairly laconic witness but he impressed as child-focused and caring. He was asked for example about the possibility of X walking to school and he remarked that he, “did not want to see her doing that just yet at her age.”
The father was challenged about whether in reality he was much involved with the child at all or whether the paternal grandparents were doing most of the caring. There is nothing to suggest however that he is taking a back seat in X’s life.
The grandparents certainly help out. They take the child to and from school. They have taken her to a number of medical appointments when the father has been working. They took her to a counselling session or two after the 7 January 2019 incident.
The fact that they have that involvement with the child and are providing that assistance does not mean that the father is not involved in his child’s life. It is important for the child that he earns an income and provides for her financially. He is doing that and he is accepting the assistance on offer to care for the child when he is at work.
The mother raised concerns about the father’s parenting capacity in terms of his alleged frequent attendances at a hotel and his alcohol consumption and this is an area where she relied heavily on Facebook or social media posts and even on just bare assertion without any foundation at all.
The father said that he liked a social drink but he was not a problem drinker and there is nothing in the evidence to suggest that the father has a problem with alcohol consumption in that he has ever come to the attention of the police, at the hotel or anywhere else; that he has workplace issues; or that he has convictions for offences to do with alcohol use.
Apart from a very old offensive behaviour charge the father’s only conviction is for driving unlicensed, which appears to have arisen out of not paying fines.
The father did a CDT test on 29 August 2019 which did not show excessive alcohol use. It is only a tiny snapshot but apart from conclusions to be drawn from social media posts, which are not always reliable and can involve a level of boasting, there is just nothing there to support a finding that the father is a problem drinker and there is nothing at all to found a suggestion that he is, or has been, a drug user.
The maternal grandmother referred to something X had said which suggested the father was drinking. It is alleged to have happened in late 2019, and in the light of all the other evidence, which does not support a finding that the father has a problem with alcohol, I do not place weight on that as tipping the matter back in favour of the mother’s allegations.
The mother made other complaints about the child’s care. She said as follows:
During my supervised time with X, she often came with bruising on her body which I took photos of. Given that my visits were on a Saturday, and the limited time I had, I was unable to take X to the doctor to be examined. [5]
[5] Mother’s affidavit paragraph 108
Pausing to add that, given that it was during supervised time, she wouldn’t have been able to do that anyway, but she went on to say:
All I could do was take photos and make a report to FACS.
The mother also complained that the child had chronic head lice and dark rings under her eyes and she said that she did not believe that she was receiving proper treatment for her asthma.
The mother has made numerous complaints to the Department of Communities & Justice and to the police which have resulted in the police doing six welfare checks in relation to X.
In May 2020 the mother complained to the police and the Department about alleged cigarette burns on X. They were investigated by the Department. X made no disclosures when interviewed that anything had happened to her which suggested that she had been deliberately harmed, let alone burnt with a cigarette.

The police have been to the father’s home six times. I think the DF interviews might have been another time, but the police have been there six times to do welfare checks. There is nothing in their reports about those visits to suggest that they have ever had a concern when they have attended about the father being under the influence, the home being unkempt, the child being unkempt or the father being rude or aggressive to them.
Two case workers from the Department did a home visit in May 2020 when the cigarette burn allegations were made. They did not consider that there was any need to take any action in regard to what they had been told.
There is nothing in the objective evidence to suggest that the child is not being properly cared for on a day to day basis. There is nothing from the school, or from the police, or from the Department to suggest that she is being neglected in any way.
The father is also making sure that X does some extracurricular activities including sports and the paternal grandparents assist in taking her to those activities.
The father said that he had no knowledge of X ever being diagnosed with asthma and there is nothing in the doctor’s records to suggest that she has been, so there is no evidence to suggest that she has asthma and it is being neglected.
I am satisfied the father is well able to provide for the needs of the child on a day to day basis. He is ensuring that she attends school and I am satisfied that he is providing appropriately for her emotional needs in that he is not standing in the way of her having a relationship with her mother.
The father did not make complaints about the mother’s capacity to care for the child on a day to day basis and it seemed to be generally accepted that the mother was a capable parent in that regard.
The father’s concerns were about Mr D and about the mother’s capacity to provide for the child’s emotional needs arising out of concerns her making complaints to the Department, exposing the child to unnecessary physical examination and doctor’s visits over the risk of sexual harm allegations and taking steps which could undermine the child’s relationship with him.
An issue which was raised during the trial but which does not concern me having read the P Families notes in detail is about the mother’s capacity to care for X as well as her other children.
There were occasions during the P Families visits when F ran off and the mother had to retrieve him and Ms Q had to engage with X. However there is nothing in the notes to suggest that the mother ignored X or failed to be responsive to both children.
I do not accept that the mother’s capacity to care for two, and now three, children, is a relevant issue in the case. She was a capable parent to X in terms of her day to day care when X lived with her and the fact that she now has two additional children to care for does not alter my view about her capacity to provide for X’s day to day needs.
I must have regard if the child is an Aboriginal child, to the child’s right to enjoy his or her Aboriginal culture, including the right to enjoy that culture with other people who share that culture, and the likely impact of any proposed parenting order under this Part will have on that right.
The mother is Aboriginal. She is R through her mother and S through her father who is currently living in Queensland and who has not had a big role in her life.
Mr D is also indigenous; he said that he belonged to the T, U and V people.
The father said that he was also Aboriginal and that his mob were the W mob, so on any view the child is an Aboriginal child.
The important issue is that all of the parties respect the fact that the child is an indigenous child, and in their own way have taken steps to make sure that she is connected to her Aboriginal culture. None of them can be accused of disrespecting the child’s Aboriginality.
The mother raised some concerns about this issue. She was concerned that prior to the father retaining the child she was attending the Y Preschool, which is an Aboriginal preschool, and that the father unenrolled her from there and enrolled her at a preschool in Suburb C.
There is nothing to suggest however that he did that because he wanted to cut off her connection with her Aboriginality and I do not consider that is a relevant matter in the case.
The mother is a proud Aboriginal woman and it is important for the child to have her mother as a role model in that regard, but the father is also Aboriginal and he and his family do not disrespect the child’s Aboriginal culture or seek to distance her from it and she can be involved in events in respect of the specific mobs from which her Aboriginality derives by spending time with different members of her family.
I hasten to add, though, that there was not a lot of evidence about specific events the child had been involved in which related to the mother’s groups, and the maternal grandmother seems to have been mainly doing things in that regard.
I do not consider the child’s aboriginality a significant issue in terms of me making a determination about where she lives.
I must consider any family violence involving the child or a member of the child’s family.
There were a number of aspects to this in this case.
It was not particularly explored in cross-examination, but in the mother’s affidavit she made allegations about the father perpetrating family violence during their relationship.
She referred to stalking and verbal abuse and to the father obtaining her password and checking her social media accounts and smashing her phone when he could not get access to her accounts.
She alleged that there was an occasion when he has pushed her and broke her belongings. She said that he often entered her house uninvited, that there was occasion when he broke a window to get into her house and that there was an occasion when he was caught looking through the bedroom window.
The difficulty with all of that evidence is that the mother was not a reliable witness. She was prone to make statements which simply were not supported by any objective evidence, and when she completed the intake procedure for P Families so that she could commence the supervised time with X, she told Ms Q that there had been no issues of that sort in the relationship.
I cannot be satisfied on the balance of probabilities, or even be suspicious about the possibility, that the father was violent to the mother during the relationship.
The mother also alleged that she had observed some family violence between the paternal grandparents. That was not explored during cross-examination that I can recall. The mother also made some other comments about the paternal grandmother which were just throwaway comments and I cannot make a finding that there is any truth in any of them.
The mother also alleged that on 7 July 2018 the paternal grandmother physically attacked her. That was not explored at trial and I cannot make a finding that it occurred.
The occasion when family violence definitely occurred was on 7 January 2019 when the mother went to see X.
I am satisfied that she attempted to remove her from the house. The father took the child from her. The mother alleged that while she was in the house the father assaulted her. She said that the father came at her with great force, pulled her back into the house when she was trying to leave, pulling her hair forcibly causing her pain in her scalp, pulled her shirt again and was punching her in the back of the head.
The mother also alleged that Ms Z, Mr L’s wife, began hitting her and that the paternal grandmother grabbed her from behind. She alleged she was punched all over her body by the paternal grandmother and Ms Z but mainly to the head.
The mother said that she tried to open the door but they ripped her across the living room and she was eventually thrown out of the house by the father and Ms Z. She said that she thought she was going to die.
The father denied that he hit the mother at all. He said that he took X from her forcefully but thereafter he had X in his arms so he wasn’t hitting anyone.
There was no dispute that Ms Z and the paternal grandmother did exert some physical force on the mother. I say there was no dispute because the mother made a complaint to the police, as did the Carlins, about what had happened. The police viewed a video the mother took and said it did not support her version of events. The mother declined to take part in a recorded interview but the Carlins did take part. The paternal grandmother and Ms Z admitted manhandling the mother but said they were trying to remove her from the house, not detain her.
The police could not be satisfied based on the evidence available to them that the father had assaulted the mother or that Ms Z or the paternal grandmother had done so and I cannot find on the balance of probabilities that this occurred.
There was, however, later on after the mother was put out of the house, family violence committed by Mr D and Mr Foster and I will refer to that later when discussing specific issues about them.
The final issue about family violence that I need to remark on is that the mother raised at trial a concern about family violence that had occurred between Mr L, the father’s brother who lives not far from where the father lives, and his wife Ms Z.
The mother said that she had seen Mr L hit Ms Z in the face. I don’t know whether the mother has actually seen anything, but there is evidence in the police records of Mr L being violent to his partner, and I accept that this has occurred. However Mr L does not live with the father or the paternal grandmother; he has been living with his wife Ms Z in a separate residence.
The father said that X was greatly affected at the time by the incident in January 2019. He said she screamed for a considerable period of time during the incident and was very upset afterwards and he told the family consultant in November 2019 that she still talked about the incident. He said that for a time she did not want to go to sleep in her bed and had nightmares and that she had some counselling for a short period.
I accept that evidence. It is credible given the severity of the events that occurred but there was no evidence that X was currently suffering from any effects of being exposed to that incident.
I must consider whether there are any family violence orders.
An ADVO was made against Mr D and Mr Foster, and the mother I think at one point, to protect the child, the father and the paternal grandfather, and a final order was made to protect the paternal grandfather after Mr Foster and Mr D were convicted of criminal offences in regard to him.
Initially X was one of the protected persons named on the ADVOs, but at some point she was removed as a protected person.
I must consider whether it is preferable to make the order least likely to lead to further proceedings.
An order that the child lives with the mother is the order most likely to lead to further proceedings. I am concerned that she might withhold the child. She has done it once before. She also failed on some occasions to comply with the court order about Mr D not coming into contact with the child. She has made many reports to the police and the Department alleging harm to the child. There is nothing to suggest that further allegations of this nature will not be made in the future, and the risk of them being made is increased if the child is in the mother’s sole care for a lengthy period of time.
The family consultant identified a further issue of concern namely:
The distance between the parties and the high levels of distrust between all the parties in the extended family involved in the matter.[6]
[6] Family Report paragraph
Those things increase the risk that proceedings might occur again in the future no matter what order the Court makes. In my view the concern is highest if the child lives with the mother but even if an order is made for the child to live with the father there could be further incidents which lead to further proceedings in the Court.
I must consider any other relevant matter.
I wanted to touch here the mother’s relationship with the maternal grandmother, which is relevant because of the orders proposed by the Independent Children's Lawyer.
It would appear from the mother’s affidavit that the maternal grandmother was 15 when the mother was born. The mother said that they had a good relationship generally, not a turbulent one. The maternal grandmother told the family report writer that, “The relationship was a bit fractured” at the time of the family report interviews, but at trial both the mother and the maternal grandmother said that the relationship was currently okay. The mother said that she just went through periods when she liked to keep to herself.
I had a little bit of concern about the orders proposed by the Independent Children’s Lawyer on the basis that they might prove unworkable if the mother and the maternal grandmother had a poor relationship. However it does appear that generally they have a reasonable relationship. It is not a case where there is any evidence of police callouts or of ADVO’s having been taken out between them. I am satisfied that although their relationship may have it’s close and it’s not so close moments, they do not have a poor relationship, and the mother has been willing, at various times, to leave X in the maternal grandmother’s care.
I now return to the primary considerations and the first one is the benefit to the child of having a meaningful relationship with both of her parents.
It would clearly be beneficial for X to have a meaningful relationship with both of her parents. Both of her parents, in their own ways, are more than capable of having a relationship with her which is significant, valuable, and important to her.[7]
[7] Mazorski & Albright (2008) 37FamLR 518
What I need to consider though is whether the child’s relationship with one of her parents might be at risk if she lived primarily with the other one.
I am satisfied that the father can be depended on to ensure that X had a continuing good relationship with her mother. He did not run a negative case against her. He showed no sign of antagonism to her when he was in the witness box or during the family report interviews and on each occasion when problems have arisen with the mother’s spending time with X it has been due to the mother’s actions.
The first of those occasions was the incident on 7 January 2019. The mother formed the view that she would remove the child from the father’s care. She attempted to do so. There was a melee in the house, and the mother ended up outside the house. Instead of going away and bringing a Court application to have the child live with her, which given the child’s care history might, at that point, have been successful, the mother called on Mr D and Mr Foster, both of whom have priors for offences of violence, to come to the house.
A violent incident then occurred where Mr Foster assaulted the paternal grandmother and Mr D yelled out threats, which resulted in them both being charged, ADVO’s being taken out including an ADVO to protect the child, and the Court making an order for the child to remain with the father.
An order was made for the child to spend unsupervised time with the mother but that ceased after the mother retained the child in August 2019. Following that an order was made for supervised time. That ended in July 2020 when the mother had a falling out with Ms Q leading to that service declining to assist her, and then she did not take up the father’s proposals for alternative supervisors and made no proposals of her own in that regard.
The only person who has caused a problem in terms of the mother spending time with the child since January 2019 is the mother herself.
I have considerable concerns about the mother’s attitude to the father and what might happen if X lived primarily with her.
The mother ran a very negative case against the father. She loaded up her affidavit with complaints about him based on Facebook posts, hearsay, speculation or no evidence at all. She withheld the child in August 2019 based on things the child said about the paternal grandfather, which on any objective view did not support a finding that the child was at risk of sexual harm from him.
Notwithstanding the fact that careful consideration of the child’s statements would lead to that conclusion and that the child made no disclosures to the counsellor the mother took her to see or to the doctor the mother took her to see, and that the doctor could not find any sign of sexual abuse, the mother continued at trial to say that she believed the matter had not been properly investigated and that she did not resile from her view that the child was at risk of sexual harm from the paternal grandfather.
She was insistent at trial that the father was failing to provide for the child’s medical needs and was causing her physical harm despite there being no evidence to support it. She was also insistent at trial that if the child lived with her she should only spend time with the father during school holidays.
It was very evident that the mother had a strong belief that the trajectory the matter had followed in the Court system was unfair. There is a considerable risk that if the child lives with the mother there will be further allegations and further withholding or that there will be negative comments made about the father to the child, which, if the child was only seeing the father during school holidays, could ultimately eat away at her trust in the father.
Mr D’s attitude to the father is also poor and hostile. He vented about the situation on Facebook, and the fact that he is present in the home adds to the risk that if the child lived with the mother in Sydney her relationship with the father could be under threat.
There is also the issue of the mother not complying with Court orders. For a short period she did not comply with the restraint on Mr D not spending time with the child, and she withheld the child in August 2019.
I have numerous concerns about what might happen if the child lived with the mother in terms of her being able to maintain her relationship with her father.
I might add that although the maternal grandmother was far less strident, and was rightly identified by the Independent Children's Lawyer’s counsel as a good witness, indeed she was described as ‘impressive’, I also have some concerns about her attitude to the father.
There is some evidence to support a finding that she shares the risk of harm concerns about the paternal grandfather. She may not do things which seek to undermine the child’s relationship with her father in such an overt or strident way, but any negativity about the father which is expressed in her household could also cause the child distress.
The second primary consideration, and it takes primacy over the first because of section 60CC(2A), is the need to protect the child from physical or psychological harm from being exposed to or subjected to abuse, neglect or family violence.
This is a significant issue in the case in respect of Mr D and Mr Foster, and I will also discuss here in more detail the allegations about the paternal grandfather and finally about Mr L.
Mr D has a concerning criminal record. At the family report interviews he said that, “Everyone had a past,” and that there was an incident when he was 18 and a fraud charge which was due to proceed to Court the next day. He denied that there were concerns about his behaviour and he put the issues down to police issues and cultural issues.
However he has a significant criminal record, starting in 2003 in the Children’s Court when he was 14 and was charged with destroy and damage property and entering a building.
He has convictions for break, enter and steal, and larceny. He has been charged with robbery in company and although that charge was withdrawn he was convicted of disposing of property, theft, serious indictable offence, and placed on nine months’ probation.

The difficult issue then becomes whether there should be any restraint on Mr D and Mr Foster having any contact with the child as the Independent Children’s Lawyer proposed.
Mr Foster has a very poor criminal history. His assault on the maternal grandmother was only four years ago and his actions in 2019 suggests that he retains the propensity to lose control and behave in a very violent and threatening way in certain circumstances.
However in terms of the risk he poses within the maternal grandmother’s home, I do bear in mind that the assault on her happened in 2016 and that she did not tolerate it for a single moment. She left the home and called the police, and I have no reason to believe, having seen her in the witness box, that she would remain in a violent relationship if anything like that happened in the future.
If the child were there when a serious and violent incident occurred it would be very distressing for the child and she could come to risk of harm. It is not out of the question for children to get caught up in that situation and be injured. However I have to consider the practicalities of the situation and whether the risk of harm is unacceptable given the benefit to the child of spending meaningful time within the maternal grandmother’s family unit.
There is an impracticability in requiring Mr Foster to be away for the entire weekend from Friday to Monday while the child is at the maternal grandmother’s home. To date the maternal grandmother has only had to manage that for a limited period, and she has done it by either leaving Mr Foster asleep at home and taking the child out or by having him leave the home.
In theory he could go and stay somewhere else for those weekends but it is not practical. There is risk of breaches, and the child, although she was present at that assault on 7 January 2019, did not present at the family report interviews as being frightened of Mr Foster.
I am concerned about Mr Foster but it is not as if there is evidence of ongoing family violence in the home between him and the maternal grandmother. There are practical difficulties with an order for time to occur three times during each school term and for a period during the school holidays if Mr Foster is not allowed to be there and it would increasingly come to seem very unnatural for the child.
I am not satisfied that the risk of harm posed by Mr Foster is such that I should make an order restraining the maternal grandmother or the mother from allowing the child to come into contact with him.
Mr D poses a different problem. He has been violent to domestic partners. I cannot rule out the possibility that he may be violent to the mother. I cannot rule that the possibility that the child may be present and exposed to such an incident even if the mother is in City B staying in her own accommodation or is staying at the maternal grandmother’s.
However if I make the orders that are proposed the mother will be spending quite limited time with the child. The Independent Children’s Lawyer proposed that an order be made that the child sleep at the maternal grandmother’s home and there are considerably practical difficulties in a long-term order for the child to have no contact with Mr D.
Mr D and the mother have a child and there is also F, who is part of that family unit. There will be birthday celebrations and family events at which Mr D would be expected to be present. If the mother has to keep X away from him it will not be possible for her to attend, perhaps, E’s birthday parties or some other event involving her siblings.
Things are going to seem unnatural to her and in my view, although there is a risk of Mr D being violent to the mother, the risk of X being exposed to that if she spends time with the mother under the Independent Children’s Lawyer’s orders and sleeps at the maternal grandmother’s home are limited, and the risk is not unacceptable when weighed against the benefit to the child of being a meaningful part of the family unit the mother has chosen to create for herself and within which she has a child who is X’s sibling.
I am not going to make an order restraining the mother from bringing the child into contact with Mr D.
I am concerned about the possibility of the mother and Mr D, even in the limited time available, making negative comments about the father or the paternal grandfather. I can make a non-denigration order but I cannot entirely remove that risk. If those problems continue then it may be that the matter will come back to court, but it may be that, given that orders have been made, the mother will be sensible and that things can go ahead smoothly in the future. I do not know, but I have to take a risk to make sure that the child maintains her connection with the mother.
The orders proposed by the Independent Children’s Lawyer are not ideal in terms of the restriction they impose on where the time is to take place, the requirement for the child to sleep at the maternal grandmother’s home and the restriction on the amount of time which is to occur. They are not ideal if matters settle down or if the mother separates from Mr D, but I cannot do better at the moment than make the orders proposed by the Independent Children’s Lawyer.
If things settle down the mother and father may be able to negotiate a different arrangement. I do not consider that the father is likely to be unreasonable in that regard. I do not know if the mother and father will be able to do that, given the mother’s current attitude to the father, but sometimes things change in ways that are quite amazing. The possibility exists for them to negotiate something different. If they cannot of course then they may ultimately need to come back to Court if circumstances change.
The next issue I have to deal with is that the father sought an order that he be permitted to travel internationally with the child and obtain a passport for her.
We are all still living in hope that those days will return. The Court commonly makes those kind of orders when it makes final orders because it doesn’t like people coming back and taking up Court time making discrete applications for passports.
No issues were raised in the case that the father was a flight risk and was likely to live overseas. That seems very unlikely given how embedded he is in his family in City B. I am satisfied that it is appropriate that I deal with the father’s application and I am going to make the usual order for a passport to issue and for the father to be able to travel provided he gives the mother notice of destination, dates of departure and return and some means to contact the child when he is overseas.
I cannot make an order at the moment for the mother to have a similar right to travel but she may achieve that in the future if things settle down between her and the father.
Finally the father’s counsel sought an order that the mother be restrained and an injunction be granted restraining her from taking the child to medical professionals except in the event of an emergency without the written consent of the father.
That was raised by the father’s counsel in submissions. It was raised after the mother’s counsel had made submissions but he did not seek to make any submissions in reply about it and neither did the Independent Children’s Lawyer’s counsel.
There have been occasions when the child has been taken to the doctor and to a hospital, including by the maternal grandmother in May 2020. I do consider that it would be appropriate to make that restraint, because it is important that the child not be taken to medical professionals in an attempt to garner evidence which might support another application to the Court. The child needs to be taken to medical professionals only because she is genuinely ill, and except in the event of an emergency the father should be the one who is organising for that to occur and I intend to make that order.

I certify that the preceding two hundred and eighty four (284) paragraphs are a true copy of the reasons for judgment of Judge Terry

Associate:

Date: 28 May 2021

[2021] FCCA 1070

20 April 2021

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