Barclay & Agnas
[2022] FedCFamC2F 1644
Federal Circuit and Family Court of Australia
(DIVISION 2)
Barclay & Agnas [2022] FedCFamC2F 1644
File number(s): PAC 2857 of 2020 Judgment of: JUDGE BOYLE Date of judgment: 29 November 2022 Catchwords: FAMILY LAW – Children – Progression of time with the mother – parental responsibility – Aboriginal & Torres Strait Islander Families List Legislation: Family Law Act 1975 ss. 4, 60CC, 61DA Division: Division 2 Family Law Number of paragraphs: 60 Date of hearing: 10, 11, 12 October 2022 Place: Sydney Counsel for the Applicant: Mr Russo Solicitor for the Applicant: Dean Lawyers Counsel for the Respondent: Mr Schroder Solicitor for the Respondent: Rafton Family Lawyers Counsel for the Independent Children's Lawyer: Mr Sperling Solicitor for the Independent Children's Lawyer: Ark Law Lawyers ORDERS
PAC 2857 of 2020 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: MS BARCLAY
Applicant
AND: MR AGNAS
Respondent
INDEPENDENT CHILDREN'S LAWYER
order made by:
JUDGE BOYLE
DATE OF ORDER:
29 November 2022
THE COURT ORDERS THAT:
1.The Father have sole parental responsibility of the child X born in 2013 (“the child”), in relation to decisions concerning the long-term care, welfare and development of the child, other than for issues relating to Aboriginal culture.
2.The Mother and Father have equal shared parental responsibility for issues relating to Aboriginal culture.
3.The Father shall advise the Mother, in writing, of any such significant issues that may arise from time to time, including but not limited to issues about health, education or proposed relocation prior to the making of any decision, unless in circumstances of an emergency.
4.The child live with the Father.
Spend Time
5.The child spend time with the Mother as agreed, but failing agreement as follows:
(a)on a supervised basis, at the City B Children Contact Centre service (“the Centre”) from 2.30pm to 4.30pm on the first Saturday in each calendar month and from 9am to 11am on the Sunday immediately following provided that if the Centre is not open on the first Sunday of that calendar month, time shall occur on the first weekend in each month that the Centre is open on both Saturday and Sunday.
(b)That following the Mother attending on 6 occasions pursuant to order 5 (a) the Mother shall spend time with the child from 2.30pm to 4.30pm on the first Saturday in each calendar month and from 9am to 11am on the Sunday immediately following unsupervised, and that changeovers shall occur at the Centre provided that if the Centre is not open on the first Sunday of that calendar month such time will occur on the first weekend in each month that the Centre is open on both Saturday and Sunday to facilitate changeovers at the Centre.
(c)That following the Mother attending on 6 consecutive Saturday and Sunday periods in Order 5(b):
(i)during school terms the Mother shall spend time with the child from 2.30pm to 4.30pm on the first Saturday in each calendar month and from 9am to 1pm on the Sunday immediately following in each calendar month unsupervised and that changeovers shall occur at the Centre provided that if the Centre is not open on the first Sunday of that calendar month such time will occur on the first weekend in each month that the Centre is open on both Saturday and Sunday to facilitate changeovers at the Centre.
(ii)during all school holidays the mother shall spend time with the child on the first weekend of the school holidays from 3pm to 6 pm on Saturday and from 9am to 1pm on the Sunday immediately following unsupervised, and the Mother shall collect and return the child to the Father or his representative at McDonalds at C Street, Suburb D, or such other place in Sydney as agreed in writing between the Mother and the Father.
(d)Further times as agreed between the parties from time to time in writing.
6.That for the purpose of time in Order 5:
(a)Each party shall contact the supervised Contact Centre within 7 days to arrange an appointment for assessment for suitability and attend the appointment;
(b)Each party must comply with any appointment made by the Centre and comply with all reasonable rules of the contact centre and comply with all reasonable requests or directions of the staff of the contact centre;
(c)The Mother and Father shall each pay one half of the fees nominated by the Contact Centre for the provision of its service; and
(d)In the event that the Centre is not able to accept such referral the parties do all such things to arrange for such time to be supervised by E Contact Centre at City B or such other supervising organisation as agreed between the Mother and the Father.
7.That the Father and Mother do all acts and things and sign and execute all documents necessary to authorise any school at which the child attends or any medical practitioner upon whom the child attends to provide all requested information in respect of the child to the other party and to discuss all issues relating to the wellbeing of the child with the other party.
8.That the Father and Mother shall do all things and sign all documents necessary to authorise and direct any school attended by the child to discuss with each of the parties the child’s school attendance and progress, furnish reports, photos and copies of correspondence, newsletters or other material produced by the school and distributed to parents or relating to the child.
9.That the Father and Mother shall ensure that the other is kept informed as soon as practicable of:
(a)any medical problems suffered by the child whilst in their respective care which require:-
(i)treatment by a medical practitioner for a major medical issue, including any medication prescribed;
(ii)if the child is hospitalised.
(b)any other matter relevant to the child’s welfare.
Notification of Change of Details
10.The Mother and Father shall notify the other at least 7 days before any change to their address, landline telephone number, mobile telephone number, email address, facsimile number or postal address including the details of such new address or number.
11.That the mother and the Father shall keep the other informed of particulars of others who reside at that address.
12.The mother may attend events at X’s school to which parents are invited, and she shall advise the father not less than 7 days by email of her intention to attend the event.
Non-Denigration
13.That the Mother and Father are restrained from criticising or speaking badly of the other parent, or other parent’s family, including any parents partner and other children and that this restraint be in the presence of or the hearing of the child and includes any written communication including electronic means of communication.
14.Both the Father and Mother shall use their best endeavours to ensure no third party denigrates, criticises, or speaks in a derogatory fashion about the other parent or any parent’s partner or family either to or in the presence of the child.
15.That each parent is restrained from showing the child any document prepared for the purpose of these family law proceedings.
16.That the Mother shall refrain from questioning the child about the father or from discussion the family law proceedings with the child.
17.Each parent shall be restrained from posting about the proceedings or the other parent on social media and ensure no third person does so.
Communication between the Mother and Father
18.That otherwise than as provided for in these orders for the purposes of the Mother and Father communicating with each other in relation to matters regarding the children, the Mother and Father shall communicate:
(a)By email or text in the case of non-urgent matters; and,
(b)By telephone or text if it is an urgent matter or a matter requiring an immediate response.
19.The Father have sole parental responsibility for the purposes of the Australia Passports Act 2005 (Cth) such that the Respondent Father is accordingly authorised to obtain any passport and travel document required to facilitate the child X born 2013 travelling overseas.
20.That pursuant to Section 65Y of the Family Law Act (Cth) the Father be permitted to remove the child from the Commonwealth of Australia at his discretion for the purpose of international travel for not more than four weeks without the consent of the Mother provided that the Father notifies the Mother two weeks prior to any travel of the destinations and dates of leaving and return for such overseas travel.
21.That the mother be and is hereby restrained from any illicit drug, or non-prescribed medication in the period of 24 hours prior to her time commencing with the child until the conclusion of the same.
AND THE COURT NOTES THAT:
A.The mother intends to engage in counselling through F Counsellors to assist her in re-establishing and maintaining her relationship with X.
B.The Father intends to continue counselling with Mr G to assist him to best meet X’s needs.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under a pseudonym Barclay & Agnas has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
JUDGE BOYLE:
Background
X is the only child of the parties. She is now aged nine years. She has lived with her father since her parents separated on 30 July 2019.
X did not see her mother for a year following separation. Orders were made for supervised time, which commenced in mid-2020. COVID-19 lockdowns interfered with supervised time occurring from mid-2021. The last supervised visit occurred in early December 2021.
FaceTime was organised during a lockdown from July 2021, supervised by the paternal grandmother. FaceTime ceased in February 2022.
Both parents have re-partnered. X has a younger brother, H, from her mother’s relationship with Mr J.
X is an Aboriginal child through her maternal family. Both parents support X identifying as an Aboriginal child.
The parties agree on a number of matters:
·that X will live with her father;
·that there should be equal shared parental responsibility with respect to decisions about X’s connection to her Aboriginal culture;
·that X should have a relationship with her mother;
·that time between X and her mother resume through the supervised centre in City B, progressing to unsupervised daytime periods;
·that the mother can communicate with the school, and obtain information about the child’s progress and school events, and attend such events upon giving the father notice.
There is no agreement about:
·whether there should be overnight time between X and her mother;
·whether there should be equal shared parental responsibility for matters other than Aboriginal culture.
During the course of the hearing the parties took significant steps to narrow the dispute between them. I accept that they both did this mindful of X’s interests, and considering what might work best for her. The parties have very different perspectives about these matters. I accept that they both love their daughter. They both want her to have a relationship with her other parent, and her extended family. They both want her to be a proud Aboriginal child, with knowledge of her culture and heritage.
DOCUMENTS RELIED ON
Each party filed a case outline document identifying the documents they relied on.
The Law
Section 60CC of the Family Law Act 1975 sets out factors the court must consider in determining what is in a child’s best interests. In this matter the primary considerations are of importance. That is, the benefit to the child of having a meaningful relationship with both of her parents; and the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence. The legislation is clear that in applying the considerations the need to protect the child should be given greater weight.[1] The additional considerations[2] will be referred to where relevant to the particular issues.
[1] Section 60CC(2A)
[2] Section 60CC(3)
Issues
·What, if anything, is the impact of the mother’s use of prescription and non-prescription medication on her parenting capacity?
·Is there a risk to X in spending overnight time with her mother, and if so can any risk can be ameliorated?
·Whether the orders should provide for time once each month during school terms, or throughout the year to continue during school holidays?
·Does the father support X’s relationship with the mother, and her family?
·Should the parents have equal shared parental responsibility for X?
·Should the father should be able to obtain a passport for X, and travel overseas with her?
What if anything, is the impact of the mother’s use of prescription and non-prescription medication on her parenting capacity?
A number of issues have been raised with respect to the mother’s conduct during the course of the relationship, and following separation. The mother agrees that in the past she self-medicated with marijuana to address problems of anxiety and stress. Her evidence is that anxiety and stress are ongoing problems for her.
After X’s birth the father described the mother as undergoing mood changes. She was taken to the K Hospital for a mental health assessment after a nurse attended at the home, and the mother did not answer the door. The police were called by the nurse attending due to concerns for the mother’s mental health. The mother blamed the paternal grandmother and the nurse for calling the police, according to the father. The mother suggested that there was a misunderstanding with the nurse. This does not explain why she was taken to K Hospital for an assessment.
There is evidence produced by Medicare that she has had mental health care plans, and attended appointments with respect to those plans. She has provided no evidence of any report, or notes of any clinician or counsellor who has treated her. That means it is not known what, if any, diagnosis has been made, nor what her prognosis might be.
The mother’s evidence is that has been prescribed medicinal marijuana and Valium. Her evidence is that both these substances are to be taken on an as needs basis. She says she uses marijuana to assist her sleep. This usually happens in the evening, in the later part of the week. She has anxiety, which occurs acutely when she is in situations such as a large crowd. At those times she can feel overwhelmed, and Valium assists her cope. There is no medical evidence provided in support of these matters.
The father has raised his long-standing concerns with respect to the mother’s drug use. When he was cleaning up the mother’s belongings following separation in July 2019 he found a pipe. He understands that the pipe is used to smoke ice. The mother denies use of ice.
Orders were made by consent on 9 October 2020 for the parties to undergo urinalysis drug testing, as requested by the Independent Children’s Lawyer. The father has complied with 12 out of 13 requests. He did not comply with the request on 23 December 2021, which was made when his solicitor’s office was closed for the Christmas break. I accept he did not undertake that test because he was not aware of the request. All his test results have been negative.
The mother has not complied with orders for drug testing. She has also been requested to undergo drug testing on 13 occasions. She has complied with one request. She provided the sample for the test outside the time prescribed in the orders. The test showed the presence of benzodiazepine and cannabinoids, and it was referred for further testing. Further testing did not support the presence of benzodiazepine. The presence of cannabinoids was confirmed.
By not complying with the requests for urinalysis testing as ordered the mother has made it impossible to assess her use of prescription, or non-prescription, drugs over the past 2 years. The report writer gave evidence in relation to the difficulty for children if a parent is affected by marijuana or Valium. These drugs can impact a parent’s emotional and physical availability for children.
The mother says there are no problems in her parenting of her son H, and therefore the court should not be concerned about medication consumed by her. This is not an answer to the issues for X. H is two years old. I have no evidence about the particulars of the mother’s parenting of H. She lives with H’s father, who assists in his care. I accept that there is no evidence of any involvement by the Department of Communities and Justice (DCJ) in her parenting of H. That is not indicative of her parenting capacity for X.
I have evidence from the father, his partner and the paternal grandmother about X being a child who requires active supervision and attention. It is clear from the reports of supervised time that she is a busy and active child. The report writer engaged with her through AVL, due to the restrictions required by the pandemic at that time. She described X’s behaviour as being hyperactive.
I accept that X is a child who requires the person parenting her to be available and focused. On the evidence I do not know what the mother’s capacity for that is, as I do not know anything specific about her consumption of marijuana or Valium. Nor do I know if she consumes other substances. Her failure to complete testing as requested has made it impossible to make an assessment of her capacity.[3]
[3] Section 60CC (3)(f)
The mother has made allegations with respect to the possibility of sexually inappropriate behaviour by the father towards X. This was entirely based on matters raised by a former partner of the father, Ms L. Ms L is not a witness in these proceedings. The mother reported those matters to the DCJ in March 2020. The allegations were investigated. No further action was taken by DCJ and the police. The mother’s evidence is she now has no concerns about X. It is unclear whether she ever held concerns. The allegations made by her to police caused an investigation, where both the father and X were interviewed. There are impacts on children of such investigations.
The court is required to protect children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence. That needs to be weighed against the benefit of a child having a meaningful relationship with the child’s parents.[4] The legislation is clear that protection of the child takes priority over the benefit of a meaningful relationship.
[4] Section 60CC(2)
The evidence provided by the mother does not assist in understanding her current mental health issues, nor use of substances and the impact of those on her parenting, and therefore the risks that may exist for X in her care.
Is there a risk to X in spending overnight time with her mother, and if so can any risk can be ameliorated?
The father and Independent Children’s Lawyer (ICL) agree that after a period of supervised time, there should be movement towards daytime periods unsupervised. Neither of them seek orders for overnight time. The mother seeks that time progresses to overnight time, including one week during school holidays.
I accept that in this case overnight time involves a higher level of risk than shorter daytime periods. The mother’s evidence is that she uses marijuana particularly in the evenings to assist with her sleep. She takes it for stress. I have no evidence of what the effect of stress is on her functioning, nor the effect of marijuana on her functioning. That supports the contention that overnight time would be problematic[5].
[5] Section60 CC(2)(b)
Additionally, the father and ICL refer to the risk that the mother will make inappropriate comments to the child about her father.[6] The mother has made Facebook posts critical of the father. This has continued despite orders for that not to occur. Having read the posts, and having had the opportunity to view the mother in the witness box, I accept that the mother gets frustrated, and cannot contain her emotions. When frustrated she feels a need to vent. It appears that she makes posts in that context. I accept that when frustrated the mother does not think about the consequences of the posts on anyone, including X.[7]
[6] Section 60CC(3)(i)
[7] Section 60CC(3)(f)
The mother concedes that once posts are made online they are there to be found in the future by X. I accept this would be harmful for X. It would expose her directly to her parent’s conflict. It has the potential to undermine her relationship with her father, and her mother. The mother’s behaviour suggests she cannot contain herself emotionally at times. If X is in her care for longer periods, such as overnight, it would increase the risk for X of direct exposure to her mother’s emotional dysregulation.
The mother and her partner have attended events at City B on about four occasions since X has been living there with her father. The father became aware through other people that the mother was in City B. She did not tell him. The father’s evidence is that he “kept a low profile” with X, so that they did not run into her. He did not tell X the mother was in City B. The mother did not consider what the impact might be on X of her seeing them in the street. It would likely have been very confusing and upsetting for X that her mother had come to where she lives and not sought to spend time with her. The mother suggested she advised the father on at least one of those occasions. She provided no evidence that occurred.
I note that the supervision reports of time between X and her mother are generally positive. There is reference, however, to the mother becoming upset and crying at various times. On at least one occasion, X was seen to comfort her mother. This is not helpful for X. This could place her at risk of emotional harm, by her feeling responsible for her mother’s emotional needs. The report writer has suggested, both in the report and in her evidence, that one-on-one counselling would be of assistance to the mother. The mother has not yet taken up that suggestion. She indicated to the court that she intends to do so through F Counsellors.
On the evidence before me I am not satisfied that the risk to X of overnight time can be ameliorated. I accept the submission by counsel for the father that it would require “a leap of faith” which is unsupported by any evidence.
Whether the orders should provide for time once each month during school terms, or throughout the year to continue during school holidays?
The orders sought by the ICL and father differed on time arrangements. Both sets of orders provide for time to occur once each month on Saturdays and Sundays ongoing, and holiday time with X to occur on the first weekend of each school holiday period from 3pm to 6pm on Saturday, and 9am to 1pm on Sunday. The holiday time occurs in Sydney, and the monthly time occurs in City B. The hours are to accommodate one party travelling to the other, and returning home the following day. It is agreed that it is a five hour drive. The father seeks that term time does not continue during school holiday time. The ICL seeks that the monthly time continue during school holidays.
The parties have previously had difficulty in understanding arrangements. They will be assisted by orders that are simple and clear. Travel between the parties is 5 hours each way. It would not assist the parents’ relationship if travel is undertaken between City B and Sydney, and time does not occur. Orders where time might sometimes occur on consecutive weekends may be confusing to carry out, and cause interruption for X. The effect of the orders as sought by the father is that time occur on a regular basis. When monthly visits are suspended by school holidays, there will be a school holiday visit.
The report writer emphasised that time occur on a stable, predictable basis. Any confusion would not be helpful for X. I propose making the orders sought by the father, as it is likely to be more reliable, and is therefore a better arrangement for X.
Does the father support X’s relationship with the mother, and her family?
The mother argued that the father has failed to support X in having a relationship with her, H, and the maternal grandmother. There is no challenge to the father’s evidence that following separation he proposed supervised time. The mother rejected this proposal. There was no agreement for unsupervised time. X did not see her mother until orders were made for supervised time after the proceedings commenced.
In the circumstances it is difficult to be critical of the father’s behaviour. He sought that time happen in a way that was safe for X. The mother had no time, rather than accept supervised time, which was ultimately ordered.[8]
[8] Section 60CC(3)(c)
There have been issues with FaceTime occurring. Orders provided for the paternal grandmother to supervise FaceTime between X and her mother. She did so until February 2022. Her evidence is that she ceased supervising the time because X’s behaviour became difficult. This made it impossible for her to supervise the calls. The grandmother was concerned that because the mother was posting negative things about her, the father and the father’s partner on Facebook, she may say similar negative things if unsupervised during calls with X.
The paternal grandmother is not a party to these proceedings. I accept that she agreed to supervise FaceTime to assist X have a relationship with her mother. The parent’s poor relationship meant that it was not appropriate for the father to supervise the calls. The paternal grandmother fulfilled this role for a period in excess of a year. Her evidence is that it became difficult to facilitate the FaceTime contact as X sometimes shut herself in a room with the mobile phone. At other times X ran around the house with the mobile phone, and would not sit down and engage with the mother. The grandmother referred to X’s frustration when the mother did not call when expected. The paternal grandmother had to manage this.
It is difficult to be critical of the grandmother not being prepared to continue supervising time. She asked the mother to provide a supervisor. This did not happen, and FaceTime ceased occurring. I accept that the paternal grandmother made real efforts to facilitate FaceTime for X’s benefit. I do not accept that FaceTime ceasing can be blamed on the father, as was argued.
The mother gave evidence that she was confused about the effect of orders for supervised time. She had thought that after a particular number of visits, time would move to unsupervised. This was the reason supervised time at E Contact Centre stopped. I accept that the father made enquiries of the service to recommence supervised visits. The service attempted to make arrangements with the mother, which unfortunately did not result in supervised time resuming.
For the above reasons I do not accept that the father has failed to support X’s relationship with her mother. He, supported by his mother, have attempted to have time occur between X and her mother on a predictable, reliable basis.
The father, his mother and his partner have committed to a long-term engagement with a counsellor Mr G. They have done so to learn strategies to better support X. X has had a lot of instability in her life. Changes have included: living with both parents; living with her father; time with her mother occurring on an irregular basis; the disruption caused by the COVID-19 pandemic; the move to City B with a new school, and new friends; living with her father’s partner; having a baby brother. All these changes have had an impact on her. X has had behavioural problems at school, and in social settings. The work with Mr G is directed at giving the adults skills to support X. I have before me records from the school which suggest the work done by the paternal family has been effective. X’s behaviour at school has improved.
I accept that engaging with the counsellor has assisted the adults better understand X’s needs. The father’s diligent involvement with counselling supports the contention that he is able to put X’s needs first. He readily acknowledged that X needs her mother, and her brother, in her life. I accept he is committed to this occurring in a way that is safe for X.[9]
[9] Section 60CC (3)(i)
Should the parents have equal shared parental responsibility for X?
Parental responsibility means making decisions about the long-term interests of children. It involves matters such as where a child goes to school, what religion might be practised by a child, and making decisions about significant health issues. It is a matter that is often of great significance to parents, as they can feel excluded if they do not have the same decision-making entitlement as the other parent. As a practical matter it is often less significant.
The presumption that it is in the best interest of a child for an order for equal shared parental responsibility does not apply if there are reasonable grounds to believe that a parent has engaged in family violence[10]. The mother was convicted of an assault on the father on 18 November 2019.
[10] Section 61DA
The court is required to consider whether an order for equal shared parental responsibility is in the child’s best interests. Making joint decisions about childrens’ long term interests requires effective communication by parents. Effective communication should be civil, and done in a timely way. This is particularly important with decisions about medical treatment. Parents need to be able to reflect on the merits of the other parent’s views. It is not helpful for children if decisions are not made because parents cannot communicate. This is obviously so if it were to prevent medical treatment, or enrolment at a particular school.
Both parents agree that their capacity to communicate is poor to non-existent. Whilst I hope that may improve overtime, hope is not a basis upon which to make an order.
The parties have been able to agree that there should be equal shared parental responsibility about issues relating to X’s Aboriginal culture. X is at a primary school with many Aboriginal students. The father and his partner referred to elders attending at the school as part of the weekly curriculum. City B is on the country of the N people. The elders support and teach the children about Aboriginal culture, and Dreamtime stories. The father has asked, through his solicitor, for information about the mother’s Aboriginal heritage. He has not received a response. The mother told the report writer that her mother’s family is from the Region O, and Town P.
It is agreed the mother can communicate directly with the school. She will be able to have an input into X’s education. She can be engaged with X’s understanding of her Aboriginal culture and heritage, and provide information to those assisting X about her cultural background. The mother will be able to attend school events, including those related to Aboriginal culture, upon giving notice to the father. This will give X an opportunity to enjoy her culture with her mother, in addition to the time they spend together.[11]
[11] Section 60CC (3) (h)
The father has been making decisions for X which, I am satisfied, are in her best interests. He will be required to inform the mother of issues relevant to X’s welfare and health, so that she is aware of what is happening for her daughter.
Family Violence
The father described the mother’s behaviour at times during the relationship as erratic, and emotionally dysregulated. He gives evidence of violence towards him, in particular at separation on 30 July 2019. The father alleges that the mother threatened to burn down the paternal grandparent’s home. At that time the parties were living in a granny flat on that property. He alleges that she referred to wanting to pay someone a thousand dollars to slit the father’s throat. When police attended at the home they were concerned that the mother was under the influence of a substance. They describe her as being aggressive with them.
The mother was charged with an offence of stalk /intimidate/intent to cause physical harm, and a common assault. A provisional apprehended violence order was granted for the protection of the father and X. On 18 November 2019 an order was made for an apprehended domestic violence order for the protection of father and child for a period of two years. Her criminal matters were dealt with following a defended hearing. The mother was convicted and placed on a bond.
The father’s evidence is that there were incidents of violence at times during the relationship, initiated by the mother. He refers to her stabbing him in 2014 with a kitchen knife, which required surgery. In January 2018 the mother went to her mother’s home after a dispute with her, and smashed windows at the property.
The mother denies that she was the aggressor in the events of 30 July 2019, or at all in the relationship. Her evidence is that the father has been aggressive towards her verbally, physically and sexually. These matters were not pursued in cross examination of the father.
This hearing was not conducted in a manner that would permit extensive findings on family violence. I accept that there was family violence in the relationship perpetrated by the mother, and note the conviction of the mother by the Local Court for assault.[12]
[12] Section 60CC (3) (j) and (k)
Whether the father should be able to obtain a passport for X, and travel overseas with her
The father wants to obtain a passport for X for the purposes of overseas travel. He seeks to have the sole discretion with respect to that travel, provided he gives the mother two weeks’ notice of the dates of the travel.
The orders sought by the father are supported by the Independent Children’s Lawyer. The mother opposes the order.
There is no suggestion that the father is a foreign national, or holds a passport for another country, or has an entitlement to live anywhere other than Australia. He lives with his mother and partner. They both provide assistance and support for his care of X.
The mother’s concern is that the father may remove the child from Australia for an extended period. The father made clear he is seeking the order for the purposes of holiday travel. I accept the father’s evidence. I propose making orders that permit the father to obtain a passport, and travel overseas with X, provided that he does not remove the child from Australia for a period longer than four weeks.
Conclusion
The parties have resolved many matters during the course of these proceedings. The orders are intended to provide X with the opportunity to have an ongoing relationship her mother, and maternal family, that is safe for her. It is hoped that this will conclude further litigation between the parties: being at the centre of conflict between her parents is not in X’s interests. Maintaining a relationship with her mother is important in connecting X to her Aboriginal heritage and culture. The father supports X having those relationships, and connections.
I certify that the preceding sixty (60) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Boyle. Associate:
Dated: 29 November 2022
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