ARTHUR & ICARUS - [2010] FamCA 115

FAMILY COURT OF AUSTRALIA

ARTHUR & ICARUS

[2010] FamCA 115

FAMILY LAW – CHLDREN – With whom a child lives

APPLICANT:

Ms Arthur

RESPONDENT:

Mr Icarus

INDEPENDENT CHILDREN’S LAWYER:

Dina Lioumis

FILE NUMBER:

PAC

6006

2007

DATE DELIVERED:

5 February 2010

PLACE DELIVERED:

Sydney

PLACE HEARD:

Sydney

JUDGMENT OF:

Stevenson J

HEARING DATE:

18 & 23 December 2009

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Mr Thomas Jones
Garfield Barwick Chambers

SOLICITOR FOR THE RESPONDENT:

James Papas Solicitors

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER:

Ms Conte-Mills

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER:

Legal Aid New South Wales

Orders

All existing orders in relation to the child D, born on … March 2005 (‘the child) are discharged.
The parties have equal shared parental responsibility for the child.
The child will live with the mother all time times other than the periods prescribed in order 4, during which she will live with the father.
The child will live with the father as follows:
1.each alternate weekend during school term time in 2010 from the conclusion of school on Friday until the commencement of school on Monday or Tuesday in the event that this period falls on a long weekend
2.each alternate weekend during 2011 and all subsequent years, in school term time, from the conclusion of school on Friday until the commencement of school on Tuesday
3.for one consecutive period of seven days in each of the April, July and September/October school holidays in 2010, commencing at the conclusion of school and concluding at 5:00pm on the seventh day
4.from 27 December 2010 until 3 January 2011 and from 14 until 23 January 2011
5.for one half of all school holidays commencing at the end of Term 1 in 2011, being the first half in odd-numbered years and the second half in even-numbered years, subject to order 5.
5.1 The child will spend time with the mother from 3:00pm on Christmas Eve until 12:00noon on Christmas Day when she is with the father for the first half of the Christmas holidays.
5.2 The child will spend time with the father from 3:00pm on Christmas Eve until 12:00noon on Christmas Day when she is with the mother for the first half of the Christmas holidays.
6.1 If the child is in the care of the father on Mothers Day weekend, he will return her to the mother at 5:00pm on that Saturday.
6.2 If the child is in the care of the mother on Fathers Day weekend, she will deliver her to the father at 5:00pm on that Saturday.
The parents will effect changeovers at the child’s school whenever possible and otherwise at McDonalds Restaurant at L.
8.1 The mother will ensure that her son M ARTHUR at no time stays overnight in her home if the child is present.
8.2 The mother will be personally present at all times when the child is in the company of M ARTHUR.
The parties will forthwith utilise a communication book in order to exchange information about the child’s schooling, extracurricular activities, medical treatment and general well-being
That pursuant to s.65DA(2) and s.62B, the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders and details of who can assist parties adjust to and comply with an order are set out in the Fact Sheet attached hereto and these particulars are included in these orders.
That all material produced on subpoena be returned.

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

FAMILY COURT OF AUSTRALIA AT SYDNEY

FILE NUMBER: PAC 6006 of 2007

MS ARTHUR

Applicant

And

MR ICARUS

Respondent

REASONS FOR JUDGMENT

the proceedings

Mr Icarus and Ms Arthur are the parents of a little girl, D, who was born in March 2005 and is now four years old. Each party sought orders for residence and that the child spend time with her other parent.
Initially, both the mother and the father sought that the child spend only limited supervised time with her other parent. By the end of the trial the mother’s position had shifted significantly, until she supported the position of the Independent Child’s Lawyer (‘the ICL’). This proposal was that the child live with her mother and spend time with her father each alternate weekend from Friday afternoon until Monday morning and for block periods of seven days in school holidays. Ultimately the father proposed that the child live with him and spend time with her mother from 9:00am until 5:00pm for a maximum of two days per week, on occasions when she was not at work.
Unfortunately, there are reasons for real concern as to the ability of each parent to provide for the child’s needs. The court expert, Dr R, said in his oral evidence:
“I have always had major concerns about the parenting capacity of both parents”
He said also:
“Ultimately DOCS may have to take over.”
For reasons which appear below, I share Dr R’s concerns and pessimism about the capacity of both parents to provide adequately for D’s needs in both the short and long term.

Background

The mother, who is now 44, and the father, who is now 53, met in 2003 and began to live together in January 2004. Their only child, D, was born in March 2005.
The mother has three children by a previous marriage, to Mr Arthur, being:
M Arthur born in 1990 (19)
K Arthur born in 1992 (17)
S Arthur born in 1994 (15).
The father has three children from a previous marriage:
C (33)
E (27)
N (25).
It appears that the father is not in regular contact with his children.
On the father’s own account, he spent most of the time between 1977 and August 2000 in custody. He was incarcerated for offences including armed robbery, escape from lawful custody, resist arrest, assault police, car theft and drug possession. Obviously, his lengthy period of almost continuous imprisonment meant that he did not participate in the raising of his children.
After the father was released from prison in August 2000 he lived in …, … and …. He was employed as a machine operator and truck driver.
In about 2002 the father started his own business and lived on a small rural property at F. He entered into a relationship in about 2002 and lived with this partner for approximately one year.
According to the father this woman took assets of his business, including a computer, when she left their home. He said that the business was then thrown into financial turmoil and ceased to trade completely in 2004.
Until 2003 the father was known by his birth surname of “…”. He changed his name by deed poll in that year.
After this separation and the collapse of his business, the father experienced what he described as a “mental breakdown”. For some months he lived in abandoned houses in the suburban area. In 2003 he suffered a serious head injury. He said: “I was hit from behind – a baseball bat and a sawn off shotgun were produced but I don’t know what hit me”.
The father eventually went to live in L with a friend who owned a hotel. He obtained medical treatment from a general practitioner and a psychiatrist, who prescribed antidepressants and anti-anxiety medication.
The parties met after the father moved to L in 2003. At that time the mother operated a business a short distance from the hotel where the father lived. The mother lived with her husband at this time.
The mother left her former husband and began to live with the father in January 2004. The mother and Mr Arthur commenced litigation over their three children. On 10 September 2004 final orders were made in relation to K and S. These orders provided that the girls live with their mother and that she “use her best endeavours to ensure that [K] and [S] are not brought into contact with their brother [M] unless supervised at all times by a responsible adult but not by the father or members of his family”.
This order addressed serious concerns for the girls’ safety after an incident in December 2003, when M sexually assaulted S. Officers of the Department of Community Services and the Joint Investigation Response Team interviewed both S and K in January and February 2004. Both girls disclosed that M had subjected them to inappropriate sexual activity.
In September 2005 the mother began to work at a Service Station. Her business had proved to be unprofitable and ceased to trade. She resigned from her job at the service station early in December 2009. She said that she may resume this work after a short break and she could seek employment in personal services.
On 11 April 2006 final orders were made in relation to M, which provided that he live with his paternal grandparents. He had been living with his paternal grandparents, and a paternal uncle, for some time previously. As appears below, he was a very troubled boy with multiple behavioural and emotional problems.
In December 2006 the father was charged with stealing a lawn mower, for which he was convicted and fined. Also in 2006 he was charged with stealing a motor vehicle and possession of a prohibited drug. He was sentenced to imprisonment but received good behaviour bonds on appeal.
On 2 September 2007 an incident occurred which resulted in the mother being charged with assaults of the father, K and D. She pleaded guilty to the assault of K but contested the charges in relation to the father and D. She was convicted in August 2008 and placed on three good behaviour bonds. An apprehended violence order was made against her for the protection of the father, K and D. An apprehended violence order had been made on 10 January 2008 against the father for the protection of the mother, K, S and D.
The parties separated after this incident on 2 September 2007. On 26 September 2007 interim orders were made by consent, which provided that D live with her mother and spend time with her father for three hours each Monday, Tuesday and Wednesday. The orders provided that changeovers take place at L Police Station.
On 28 May 2008 these orders were varied to provide that D spend time with her father from 11:00am to 4:30pm each Monday and Friday, with changeovers at L Police Station. The father had sought an interim order that the child live with him. On 19 June 2008 he filed an application for a review of these interim orders, which was dismissed on 18 July 2008.
In August 2009 the father moved into his current residence at L. The mother lives at an address in V which she does not wish to disclose to the father.
On 25 November 2009 the interim orders of 28 May 2008 were varied by consent. The effect was that D’s time with her father increased to include an overnight stay from 11:00am on Tuesday until 9:00am on Wednesday in each week. At the conclusion of the trial on 23 December 2009 I ordered, by consent, that D spend the following periods with her father:
·    5:00pm on 25 December 2009 until 5:00pm on 27 December 2009
·    5:00pm on 4 January 2010 to 5:00pm on 8 January 2010
·    5:00pm on 15 January 2010 to 5:00pm on 19 January 2010
·    5:00pm on 24 January 2010 to 5:00pm on 25 January 2010
The changeover point was varied from a police station to McDonalds Restaurant at L.

Approach to these Proceedings

The principles which govern the determination of these proceedings are substantially set out in Part VII of the Family Law Act. Section 61C provides that each of a child’s parents has parental responsibility until the child attains the age of 18 years, unless the court makes an order which alters the statutory conferral of joint parental responsibility.
If a parenting order is made, a statutory presumption arises that it is in the best interests of a child for each of his or her parents to have equal shared parental responsibility: section 61DA(1). This presumption must be applied unless there are reasonable grounds to believe that a parent or a person who lives with a parent has engaged in abuse of the child or family violence: sections 61DA(2) and 61DA(3). This presumption may be rebutted if the Court is satisfied that its application would conflict with the best interests of the child: section 61DA(4)
When this presumption is applied, the Court must first consider making an order for the child to spend equal time with each parent, if such an order is consistent with the best interests of the child and reasonably practicable. If equal time is not in the best interests of the child or reasonably practicable, the Court must then consider making an order for the child to spend substantial and significant time with each parent, if such an order is consistent with the best interests of the child and reasonably practicable: section 65DA(1) and 65DA(2)
The concepts of “substantial and significant time” and “reasonable practicability” are addressed in sections 65DAA(3), 65DAA(4) and 65DAA(5). The definition of “substantial and significant time” seems to have the aim of bringing to a child the benefit of major involvement of both parents in his or her life and allowing the child to share events of special significance with each parent. In assessing “reasonable practicability” the Court must have regard to the distance between the parents’ homes and their capacity to communicate and cooperate with each other, as well as the impact on the child of such an arrangement
If neither equal nor substantial and significant time would promote a child’s best interests, then the outcome is to be determined in accordance with the child’s best interests. The process by which a child’s best interests are ascertained involves a consideration of the objects and principles set out in section 60B and the primary and additional considerations set out in section 60CC.

The Evidence and Witnesses

The parties were the only witnesses in their respective cases. Neither the mother nor the father created a favourable impression in the witness box. The mother was shown to be liberal with the truth and, in my opinion, the father glossed over the significance of his extensive criminal history. I treat the evidence of each of the parties with considerable caution.
I had the benefit of a report dated 10 May 2009 and oral evidence from the single expert, Dr R. A complaint was made on behalf of the father that the ICL failed to provide Dr R with certain material from the subpoenaed documents. The proceedings were adjourned to ensure that Dr R had a full opportunity to read and consider all of this material. The father’s lawyer also informed me that his client lacked confidence in Dr R and sought the appointment of an alternate expert.
I rejected these criticisms and declined to appoint a new expert. I note that the father’s lawyer put nothing to Dr R in cross-examination to suggest that he lacked expertise or objectivity or that his report was flawed in any other way. In cross-examination Dr R said firmly: “Nothing in the subpoenaed documents makes me resile from anything in my report” and “my recommendations stay the same but there are likely to be major concerns for the child in adolescence”. In these circumstances I place significant weight on the evidence of Dr R.
A large volume of material from the subpoenaed documents was tendered in evidence. It is impossible for me to refer to all of this material in these reasons. I have extracted from these documents the evidence which seems to me to have most bearing on the child’s best interests.

The Primary Considerations: Section 60CC(2)

section 60CC(2)(a): the benefit to the child of having a meaningful relationship with both of the child’s parents;

Dr R assessed that D has a “close, loving relationship with each of her parents”. He considered that both the mother and the father “care a great deal about [the child]”. Taking into account his view of their respective limitations as parents, he said ultimately “I thought the best way would be for them to share the load”.
The evidence indicated that the child currently has a meaningful relationship with each of her parents. She has recently begun to stay overnight with her father, which should assist in strengthening the father/daughter relationship.
Dr R considered that the mother “can manage young children but she encounters difficulties in guiding them through their teenage years”. As appears below, history demonstrates clearly that this assessment is correct. On the other hand, Dr R described the father as “[not] very skilled in an interpersonal sense and [he] has very little life experience or parenting experience”.
In a more formal sense, Dr R expressed these opinions in his report as follows:
“Even though both parents care a great deal about her they both have extreme limitations. Although I am not aware of any specific psychiatric illnesses affecting either parent I have concerns regarding their personality styles as [the father] has antisocial personality features and [the mother] dependent personality features.”
Essentially, Dr R was of the view that neither parent can meet D’s needs. The mother is likely to encounter difficulties as D enters her teenage years and the father is an inexperienced parent with limited interpersonal skills. It thus seems that at different stages of her life, the child is likely to need input from one parent to compensate for the deficiencies in the other, to the extent that this balance can be achieved. For that reason alone, I am of the view that she would benefit from having a meaningful relationship with each of her parents.
section 60CC(2)(b): the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.
As noted, the mother was convicted of an assault of the child after the incident on 2 September 2007. On this occasion she obviously subjected D to physical abuse. The child is also likely to have suffered psychologically from this physical and verbal altercation, involving both of her parents and her half-sisters.
In my view the parties’ acrimonious relationship and lack of respect for each other may well place the child at risk of psychological harm in the future. Regrettably, nothing in the evidence suggested that there is any likelihood of an improvement in the ability of the mother and the father to communicate and cooperate regarding their child.

The Additional Considerations: Section 60CC(3)

section 60CC(3)(a): any views expressed by the child and any factors (such as the child’s maturity or level of understand) that the court thinks are relevant to the weight it should give to the child’s views;

D is only four years old and any views which she may express as to her living arrangements would carry little or no weight.
section 60CC(3)(b): the nature of the relationship of the child with:
(i)each of the child’s parents; and
(ii) other persons (including any grandparent or other relative of the child);
As noted, Dr R assessed that the child has a “close, loving relationship” with each of her parents. He was of the view that she “would continue to develop a strong relationship with [her father]” if there was an ongoing arrangement for her to spend two days per week with him. He recommended the introduction of overnight stays as a means of strengthening the father/child relationship. As noted, that step has now been taken.
section 60CC(3)(c): the willingness and ability of each of the child’s parents to facilitate, and encourage, a close and continuing relationship between the child and the other parent;
There have been several occasions when the mother failed to make the child available to spend time with her father in accordance with court orders. A striking example related to the interim orders made by consent on 25 November 2009.
The final hearing was due to commence on that date but was adjourned to 18 December 2009, to allow Dr R to examine and consider subpoenaed documents. These orders introduced overnight time on Tuesday and provided that changeovers take place at the child’s preschool.

The mother failed to make the child available to the father on 1 and 8 December 2009. She claimed that she did not do so on 1 December 2009 because the father had been served with an apprehended violence order application on 27 November 2009 and she was fearful of his reaction. She made no attempt to tell the father that she would not hand the child to him in accordance with the orders.
The mother’s excuse for failing to make the child available to spend time with her father on 8 December 2009 was that the director of the preschool refused to allow the centre to be used for changeovers. She failed to inform the father that the child would not be made available, nor did she make any attempt to arrange an alternative changeover point. It is surprising, to say the least, that the mother would act in this manner with a final hearing due to commence in less than three weeks.
On the positive side, the mother did make the child available on 15 December 2009, after intervention by the ICL. Further, the child’s relationship with her father has developed while she has been in the primary care of her mother. Dr R said “it wasn’t clear in my mind that she would not support the child’s relationship with her father”. Overall, it was my impression that the mother will not impede the father/child relationship. She may not encourage time beyond court orders for the child with her father but I do not consider that she would undermine their relationship.
Essentially, the father’s willingness and ability to facilitate and encourage a close and continuing relationship between the child and her mother is untested. The oral evidence of Dr R left me with concerns as to the extent to which the father has this willingness and/or ability. Dr R said: “I formed the view that he has a great deal of anger with her. He prompted the child to make negative statements about her. I did not think there was much support for her.” On the other hand, there was nothing specific to suggest that the father would fail to obey orders of this court. His lengthy history of disregard for the criminal law, however, leaves me with some disquiet as to his respect for the legal system generally.
section 60CC(3)(d): the likely effect of any changes in the child’s circumstances, including the likely effect on the child of any separation from:
(i)either of his or her parents; or
(ii)any other child, or other person (including any grandparent or other relative of the child), with whom he or she has been living;
Dr R described the likely impact of a change of residence on the child from her mother to her father. In his oral evidence he said:
“It would be a major change for her, a great shock, a major readjustment in her thinking, she would suffer the loss of living with her mother and sister. She would feel loss and anxiety.”
He then said:
“A lot of the overall outcome would depend on the level of care he could provide and how much support he could provide for the relationship with the mother”
and referred to his assessment that the father harbours a great deal of anger toward the mother. The obvious inference is that Dr R had real reservations about the level of support for the mother/child relationship which the father would offer, as a residence parent.
If there is a change of residence to her father, the child would be entrusted to the care of an inexperienced parent. As noted, he had little or no involvement in the raising of the three children of his marriage.
I acknowledge that the father participated in the care of K and S while they lived with him and their mother. I accept that they did well at school during this time. I accept also that he helped them to deal with their sexual abuse by M and the subsequent investigations. The fact remains, however, that he has never cared alone for a small child.
section 60CC(3)(e): the practical difficulty and expense of a child spending time with and communicating with a parent and whether that difficulty or expense will substantially affect the child’s right to maintain personal relations and direct contact with both parents on a regular basis;
The mother lives at V and the father’s home is at L. In terms of distance and expense, there has been no difficulty with changeovers. Nothing in the evidence suggested that any such problems will arise in the future.
section 60CC(3)(f): the capacity of:
(i)each of the child’s parents; and
(ii) any other person (including any grandparent or other relative of the child);
to provide for the needs of the child, including emotional and intellectual needs;
It is obvious that there are sound reasons for concern as to the capacity of each of the child’s parents to provide for her needs. I have referred already to Dr R’s opinion as to the limitations on the capacity of each of the parties. I have no reason at all to question his assessment.
Other matters emerged in the evidence which give rise to considerable concerns as to the capacity of each of the parents. It seems that they have each led troubled lives, involving bouts of mental illness. Officers of the Department of Community Services were extensively involved with the Arthur family, prior to the separation of the mother and her former husband. The father has had a lengthy acquaintance with criminal activity and the penal system.
The mother provided to Dr R an account of her relationship with Mr Arthur and the reasons why their son M went to live with his paternal grandparents. This account was strikingly at odds with the history which emerged from documents produced on subpoena by the Department of Community Services (‘DOCS’). Dr R reported:
“[The mother] said that she had had a very close relationship with [Mr Arthur]. They were very connected with each other. She and him had been together and had three children. [Mr Arthur] had worked as a […] driver. The three children had all been developing well and there were no problems with them. She separated from [Mr Arthur] in 2003. She didn’t cope well after her father died and this affected the marriage significantly. She said she was very vulnerable and [the father] was persistent and a relationship developed with [the father]. The marriage with [Mr Arthur] ended. She then went to live with [the father] and helped him buy a […] shop with her inheritance from her mother. When she moved in with [the father], [M] went to live with [Mr Arthur’s] parents, his paternal grandparents, which she thought was a good decision.”
In a Child Protection Summary Report dated 7 January 2003, a DOCS officer wrote that M, K and S had been in the care of their paternal grandparents for the previous twelve months. The parents regularly stayed at the home of Mr and Mrs Arthur Senior with the children, while they spent these weekends at their other house. This report stated that the parents were homeless and had begun to stay at the L premises more frequently.
The report continued that the children had witnessed an incident of violence between their parents late in 2002. When interviewed the children told DOCS workers that their parents were “fighting each day” and that they were “scared of them”. They also referred to their parents’ regular drinking and to their mother’s “violent outbursts”. The report referred to an apprehended violence order against the mother for the protection of her husband.
In a Child Protection Summary Report dated 19 March 2003 a DOCS officer expressed concerns as to the mother’s mental health and alcohol abuse. The officer also stated a concern that K, who was then twelve, was permitted to associate with a 23 year old neighbour and swim in a pool with him and his friends on a regular basis.
A secondary Risk Assessment Report dated 14 May 2003 stated that S told a DOCS officer that her mother was “often sad and then angry and then was okay”. She also said that her mother had started drinking beer three weeks earlier and described incidents of violence between her parents.
This report noted that M commented on his parents “drinking and fighting” which he said made him “fearful”. He indicated a clear wish to remain with his grandparents.
Before this point, the mother and her former husband were obviously leading a chaotic life and failing to care for their children. When interviewed for this report, however, Mr and Mrs Arthur Senior indicated that the mother was “making an admirable effort at the shop and was drinking less”. They said that M had recently managed to control a soiling problem.
Medical records were produced on subpoena from a Hospital in regional New South Wales, which is a psychiatric facility. These records show that the mother was scheduled on 25 April 2001, from L Hospital, and discharged from the psychiatric facility the following day.
The discharge summary stated:
“Presentation: [The mother] was brought to [the psychiatric facility] on a schedule from Dr [B] at [L] Hospital. She had presented to [L] Hospital with her husband following a period of alcohol consumption, suicidal thoughts and violent behaviour towards her husband.
Management and Progress: History was taken from [the mother] and her husband.
Issues: 1. 5 year history of excessive alcohol consumption.
2.   childhood sexual assault
3.   family issues – has never felt close to her parents
4.   father’s recent death and death of her brother on her birthday last year
5.   episodes of ‘rages’ for five years now when she becomes verbally and physically aggressive, particularly towards her husband, labile mood after expressing suicidal thoughts. Has occasionally held a knife to her wrists. These episodes often involve alcohol consumption. Can last hours to a day. [The mother] tends to dissociate herself during these episodes and simply states she cannot remember any of it afterwards.”
In cross-examination the mother conceded that most of these details were correct. The only qualifications which she offered were that she did not remember saying that she had issues with her parents and she denied that her “rages” lasted for hours.
In his oral evidence Dr R said:
“I read that she had told two psychiatrists at [the psychiatric facility] that she was sexually abused as a child. I felt this was reasonably consistent with her presentation of dependency, alcohol problems, making some odd decisions, for example leaving [Mr Arthur] and forming a relationship with [the father].”
Dr R then said:
“The [psychiatric facility] admission notes in 2001 suggest that she did not have a happy home life. I think she was minimising issues from her childhood when she spoke to me.”
It is plain that the mother did not cope with the care of her three children at the time of this involvement of DOCS. Obviously, Mr Arthur was similarly lacking in capacity but I am not concerned with him as a parent in these proceedings.
It is equally plain that the mother’s alcohol consumption and “rages” must have impacted on her capacity to provide for the needs of M, K and S. Her mental health seems to have been fragile at times and, on one occasion, to have been of sufficient concern to warrant a scheduled admission to a psychiatric hospital. There was no evidence, however, of any more recent psychiatric admissions or consultations.
There are sound reasons for concern about the adequacy of the mother’s supervision of her children. On her own account, K began a relationship with her boyfriend “H” in December 2007, when she was 15 years old. The mother allowed “H” to live in her home as a boarder. K gave birth to their child in November 2009, when she was 17 years old. It thus seems that the fears for her future, which a DOCS officer expressed in the report of March 2003, were well founded. In December 2008 K and her partner moved into their own home in L.
It is also of concern that the mother enlisted the help of a “support person”, one LM, who sent pornographic messages to K and S. Obviously, she did not make an accurate assessment of his character and, again, failed to properly protect her daughters.
The incident on 2 September 2007 reflects poorly on the mother, in terms of a propensity to lose self control. K described the events in a statement to police dated 6 September 2007. She said that the father took her, S and D to a football match in Parramatta. When they returned home an argument developed between the mother and the father. K intervened to support him. The mother screamed at her to “get out” and slapped K hard on her face, which resulted in her falling to the floor. She kicked D out of the way, causing her face hit the front door. Not surprisingly, D began to scream.
K went on to describe the mother hitting and biting the father. When she screamed at him and the three girls to “get out”, they packed bags and drove to the coast. The mother obtained a recovery order a few days later and the children were returned to her.
K was clear in her police statement that the mother smelled of alcohol on this occasion. The mother denied that she had been drinking but I have suspicion that she was under the influence of alcohol on this occasion. It certainly appears that, in the past, the mother has acted in a similarly violent manner while under the influence of alcohol. The evidence, however, is insufficient to justify a finding to that effect.
In her statement to police dated 23 September 2007, the mother admitted that she slapped K’s face and hit and bit the father. She made no mention whatsoever of any violence on her part in an affidavit which she swore in support of an urgent application for a recovery order (exhibit 3). She painted a picture of a violent assault upon her by the father and an “abduction” of the children by him. She went so far as to swear that she believed that he had “been planning this abduction for some time”. She attributed to him a motive of “punish[ment]” of her and the financial benefit of having the children in his care.
I have referred to Dr R’s opinion that the mother has “dependent personality features”. One consequence is that she has relied heavily on K and S to assist her with the care of D. As noted, K has left the mother’s home and established a family unit with her partner and their baby. This load will now fall to S, which was of concern to Dr R. He said: “the fragility of the situation is now borne by [S]”.
On behalf of the father, it was suggested that the mother’s employment at the service station is an impediment to her capacity to provide full-time care for D. That proposition did not find favour with Dr R. He said: “I think work is therapeutic for her. It provides a structure and a role. The benefits outweigh the disadvantages.”
I should mention that the mother has a profound hearing impediment, from which she has suffered since childhood. She is very skilled at lip-reading. Having observed her in the witness box, and on occasions during the proceedings when she was unrepresented, I have no doubt that she copes very effectively with this disability.
The father admitted that his “history is appalling”, a description which is certainly borne out by his criminal record. His criminal history commenced in the Children’s Court in 1971, when he was 15 years old, and continued until his last conviction in 2006. As noted, he has spent a total of about 23 years in prison.
Despite this very concerning criminal history, the father seemed to expect that he would simply be taken at his word that he is a reformed character. Since his last release from prison, the father has committed three stealing offences and come to the attention of police on several occasions. I must have concerns that he may relapse into criminal behaviour and be incarcerated again. If he were D’s residence parent, that scenario could only be extremely detrimental to her stability and well-being.
Counsel for the mother spent considerable time in cross-examination putting to thef ather the contents of police records (‘COPS entries’). The contents of these documents would suggest that he was a dealer in methamphetamines (“ice”) and that he controlled prostitutes in the area of C Street. The father largely denied these allegations.
The father admitted that he had been arrested in possession of “ice” twice in 2003. He denied that he was a supplier of this drug or that he controlled prostitutes. While I have suspicions that he did engage in both of these unsavoury activities, the evidence is insufficient to justify a finding to that effect.
There was evidence which would suggest that the father has a problem with anger management. The COPS entries contained several references to angry, abusive outbursts on the part of the father. I take into account only two incidents, in respect of which he made admissions about his behaviour.
He admitted that a COPS entry dated 12 October 2007 was “a verbatim account of what happened”. At the end of this incident he verbally abused police officers, in their station, using most offensive language.
This COPS entry concluded with an account of what occurred at L Police Station. It read, in part:
“Police informed [the father] that they would not be charging anyone. Police told [the father] that they would be speaking to everyone involved in the matter. Police then said it could be a property dispute between him and his ex partner. [The father] now yelled at the police ‘they fuckin come and steal my stuff from my home’. Police stopped [the father] and asked him what he meant as he had now changed his story. [The father] was now yelling ‘what are you gonna fuckin stand there and do fuckin nothing’. Police said to [the father] ‘do not swear at me again’. [The father] said ‘you’re fuckin doing nothing’. At this time the sergeant warned [the father] to settle down. [The father] said ‘don’t tell me what to fuckin do’. The sergeant then ordered [the father] out of the station, [the father] was yelling abuse at police as he slowly left…….”
Obviously, this behaviour is unacceptable by any standards.
There was an incident in May 2004, at the end of which police subdued the father with capsicum spray. He required treatment from ambulance officers for the effects of the spray. The catalyst had been an altercation between the father and Mr Arthur.
The father has suffered from psychiatric illness in the past. In his own words, he “experienced a mental breakdown” in 2003/2004. While in this condition, he lived in abandoned houses for about six months. Currently he sees a psychiatrist, Dr Z, every four months and takes medication for anxiety and depression.
All of these matters raise serious concerns as to the capacity of each of the parties to provide for D’s needs and reinforce Dr R’s conclusion in this regard. Regrettably, there is little reason for optimism as to any improvement in relation to either parent.
section 60CC(3)(g) the maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the child and of either of the child’s parents, and any other characteristics of the child that the court thinks are relevant;
D is a little girl who will turn five years old in a few weeks. She has lived for the whole of her life with her mother and her sister S. Her other sister, K, lived in this family unit until December 2008.
D is therefore accustomed to living in a predominantly female environment. She has so far spent little time as the sole child of a single father. In my view, this change would require a major adjustment on her part. I stress that I would make the same observations if the gender roles were reversed. My focus is on the practical impact of a change of residence for D, in terms of this consideration.
section 60CC(3)(h):          if the child is an Aboriginal child or a Torres Strait Islander child:
(i)       the child’s right to enjoy his or her Aboriginal or Torres Strait Islander culture (including the right to enjoy that culture with other people who share that culture); and
(ii)     the likely impact any proposed parenting order under this Part will have on that right;

D is not a child of Aboriginal or Torres Strait Islander heritage.
section 60CC(3)(i): the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child’s parents;
section 60CC(3)(k): any family violence order that applies to the child or a member of the child’s family, if:
(i)the order is a final order; or
(ii)the making of the order was contested by a person
The primary concern about the attitude of both the mother and the father, in terms of this consideration, is their poor relationship and high level of conflict. In my view they are equally responsible for this situation, which does nothing to advance D’s best interests. They seem to be incapable of taking their focus off their battle with each other and concentrating on how they can give the best to their child. As noted, the parental capacity of each of them is seriously limited in this way.
I should say that it was my impression that both the mother and the father genuinely want the best life possible for D. Unfortunately, the limitations which I have identified mean that they are hamstrung in achieving that objective.
section 60CC(3)(j): any family violence involving the child or a member of the child’s family;
section 60CC(3)(k): any family violence order that applies to the child or a member of the child’s family, if:
(i)the order is a final order; or
(ii)the making of the order was contested by a person
I have referred already to the incident on 2 September 2007, which led to the mother’s conviction for assaults of K, D and the father. The mother alleged that the father directed physical violence at her in February 2005, when she was heavily pregnant with D. She made a vague allegation of other violent incidents in her oral evidence but did not provide any particulars. She agreed that there was no reference to any other incidents of violence on the part of the father in her affidavit.
There have been apprehended violence orders in force at various times since the parties’ separation. At the end of the trial, I was uncertain as to whether there are any final apprehended violence orders operative at present.
section 60CC(3)(l): whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to the child;
I am far from confident that any order which I might devise will reduce the likelihood of further proceedings. As Dr R opined, it may be necessary for the State child protection authority to intervene in D’s life at some future point.
section 60CC(3)(m): any other fact or circumstance that the court thinks is relevant.
No relevant matters arose in the evidence in the context of this consideration.
Section 60CC(4) Without limiting paragraphs (3)(c) and (i), the court must consider the extent to which each of the child’s parents has fulfilled, or failed to fulfil, his or her responsibilities as a parent and, in particular, the extent to which each of the child’s parents:
(a) has taken, or failed to take, the opportunity:
(i)to participate in making decisions about major long‑term issues in relation to the child; and
(ii)to spend time with the child; and
(iii)to communicate with the child; and

(b) has facilitated, or failed to facilitate, the other parent:
(i)participating in making decisions about major long‑term issues in relation to the child; and
(ii)spending time with the child; and
(iii)communicating with the child; and

(c)has fulfilled, or failed to fulfil, the parent’s obligation to maintain the child.

It seems to me that the mother has failed to do all she could to facilitate the father’s involvement in decisions as to major long-term issues in D’s life and in spending regular time with her. I have referred to the fact that she has not made the child available to spend time with her father on occasions. There was nothing to suggest that she has consulted the father about any major decisions in relation to the child. On the other hand, the child has developed a loving, positive relationship with her father while in the care of her mother.
The father has maintained a strong commitment to the child. I an entirely convinced that he wishes to play a significant role in her life. He does not pay child support but his only income is social security benefits.

The Presumption of Equal Shared Parental Responsibility

The competing applications and submissions of the parties were silent as to this presumption. I will thus assume that neither parent suggested that the presumption does not apply or has been rebutted. The ICL specifically sought an order that the parties have equal shared parental responsibility for the child.
I am firmly of the view that the mother and the father should have equal shared parental responsibility for D. I have referred a number of times to my view that there is a strong prospect that the child will need input from both of her parents to compensate for and balance their respective limitations. I appreciate that they are antagonistic to each other but, as the ICL submitted, they can resort to a communication book to make arrangements for the child.
I am then required to consider whether an equal time arrangement would be reasonably practicable and in the child’s best interests. Neither Dr R nor the ICL supported a regime of equal time. In my view, there are sound reasons to conclude that such an arrangement would be unworkable and otherwise contrary to D’s best interests.
Firstly, neither parent made this proposal and I doubt that they could accommodate such an arrangement. Their mutual hostility would prevent the necessary level of cooperation.
Secondly, the child has only just begun to spend overnight periods with her father, the longest of which so far has been for a continuous period of four days. It thus seems very likely to me that she would suffer the adverse consequences, which Dr R predicted with a change in residence, if an equal time arrangement was suddenly introduced.
Thirdly, I have reservations that the father has the capacity to care for the child in an equal time arrangement at this stage. He may well develop these skills in due course.
I am then required to consider whether it is reasonably practicable, and in the child’s best interests, for her to spend substantial and significant time with each of her parents. In my opinion, there are reasons which militate against such an arrangement at this point in the child’s life.
Firstly, her time with her father has been of short duration until relatively recently, so the concerns of Dr R as to a major change would still have relevance. Secondly, there would still be difficulties with a lack of cooperation between the mother and the father.
It seems to me that an arrangement for substantial and significant time with each parent ultimately would be in her best interests. It is a goal for which to aim, rather than a reality which can presently be implemented.
It seems to me that the child’s best interests will presently be served if she continues to live primarily with her mother and spends increasing periods with her father. Realistically, a move away from the primary care of her mother would be highly confusing and distressing for the child. I am conscious of Dr R’s opinion that “there are likely to be major concerns for [the child] in adolescence” but “[her] prepubescence is about five years away”. It thus appears that the child can remain in the primary care of her mother for the medium term, until the stage when, historically, the mother has demonstrated vulnerability as a parent.
I have taken into account the father’s lack of experience as a parent and his anger with the mother in reaching this conclusion. I have also had regard to my concern that he may relapse into criminal behaviour and again be incarcerated. At this point in the child’s life, I cannot with confidence entrust her primary care to her father.
The father sought orders to the effect that D have no contact whatsoever with Mr Arthur or M Arthur. The only evidence in relation to Mr Arthur dated back to 2003 and 2004. I know nothing of his present circumstances, thus I do not propose to make such an order.
M Arthur is now a member of the Australian Defence Force. The mother last saw him in about July 2009. She said that she agrees that there is reason for concern about the child being alone with him and offered to be present at all times while they are together. She said that she would not permit M to stay overnight in her home. Orders to that effect were sufficient to allay the concerns of the ICL and I agree with this approach.

I certify that the preceding one hundred and ten (110) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Stevenson

Associate:

Date: 5 February 2010