Barry & Barry

[2022] FedCFamC2F 776

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

(DIVISION 2)

Barry & Barry [2022] FedCFamC2F 776   

File number(s):	BRC 1428 of 2017
Judgment of:	JUDGE YOUNG
Date of judgment:	30 May 2022
Catchwords:	FAMILY LAW - parenting - concerning three children aged 17, 15 and 11 years - where the children live with the mother and spend time with the father - where the children aged 17 and 15 years will spend time with the father as they wish - orders sought in respect of the child who is 11 years - where there are allegations of domestic and family violence against the father - where there is a protection order against the father and the protected person is the mother - where there are allegations of illicit substances  use by the father - whether the father exposed the children to family violence or neglect - court satisfied youngest child should spend time with the father – father to undergo drug testing
Legislation:	Family Law Act 1975 (Cth) ss 60CC & 61DA
Division:	Division 2 Family Law
Number of paragraphs:	45
Date of hearing:	25, 26 and 27 May 2022
Place:	Darwin
Counsel for the Applicant:	Ms Barnes
Solicitor for the Applicant:	McCarthy Family Law
Counsel for the Respondent:	Mr Seewald
Solicitor for the Respondent:	Guy Sara and Associates Lawyers
Counsel for the Independent Children's Lawyer:	Ms Murphy
Solicitor for the Independent Children's Lawyer:	Pippa Colman & Associates Law Practice

ORDERS

BRC1428/2017

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)

BETWEEN:

MS BARRY

Applicant

AND:

MR BARRY

Respondent

INDEPENDENT CHILDREN'S LAWYER

ORDER MADE BY:	JUDGE YOUNG
DATE OF ORDER:	30 MAY 2022

THE COURT ORDERS THAT:

Parental Responsibility

1.That all previous Orders and parenting plans be discharged.

2.The mother have sole parental responsibility for the major long term issues of the children X born in 2005, Y born in 2006 and Z born in 2010 (“the children”).

3.The mother shall consult with the father about any decisions to be executed in accordance with Order 2 as follows:-

(a)She shall inform the father of the decision to be made, and her views in relation to such position, including the provision of any supporting documentation relevant to the decision to be made;

(b)The father shall respond within seven (7) days to the mother in respect of such decision;

(c)The mother shall inform the father within a further seven (7) days of the decision made.

Time

4.The children live with the mother.

5.Z spend time with the father as agreed, and failing agreement as follows:-

(a)Each alternate Saturday between 9am and 5pm for the period of six (6) months following the date of these Orders.

6.Upon the mother’s receipt of the one hair follicle test within the six (6) month period, provided that it produces a negative result, Z spend time with the father as agreed, and failing agreement as follows:-

(a)From 5.00pm Friday until 3.00pm Sunday each alternate weekend;

(b)The mother is at liberty in a further six (6) month period, to require a second hair follicle test from the father, after the overnight time has commenced in accordance with order 6(a);

(c)Order 6(a) will be suspended if the father fails to comply with Order 8 in respect of drug testing.

(d)The father is to provide to the mother, within 24 hours of these Orders, his residential address, the names of any persons residing in that residence, and before overnight time commences, confirmation that Z has her own bedroom and providing photographic evidence of such bedroom;

(e)The father is to keep the mother informed within 24 hours of any change of residence, any change to the persons with whom he resides, and, if the child Z no longer has her own bedroom.  

7.All changeovers shall take place as agreed between the mother and father in writing, and failing agreement at the Service Station located at the C Street exit on the D Highway.

Drug Testing

8.As set out in Order 6, the mother is at liberty to request from the father two hair follicle tests within a period of twelve (12) months from the date of these Orders, and for the purpose of same the following shall apply:-

(a)The mother shall inform the father in writing of the request he undertake a hair follicle test;

(b)The father is to submit himself for hair follicle testing within seven (7) days of such request being made to an accredited clinic;

(c)The father is to provide a sample of no less than three centimetres as a minimum of body hair required for such a test over the period of twelve months from the date of these Orders, and for the avoidance of doubt, the father is at liberty to provide a sample of body hair providing the testing institution indicates it is able to test body hair;

(d)Once the request is received, the father is restrained, and an injunction granted restraining the father from cutting, shaving, straightening or dying his hair, and or body hair, until the completion of the hair follicle test.

(e)The father bears the cost of such testing;

(f)The father shall provide to the mother within 48 hours of receipt any test results received by him.

Mental health

9.The father shall engage with a qualified psychologist in relation to his mental health, difficulties with emotional regulation, and difficulties in his domestic relationships, and shall remain engaged with that professional for as long as is recommended by the treating professional.

10.The father shall provide a copy of the Family Report of Ms E dated 16 November 2021 and the F Services Report dated 17 May 2022 to that psychologist.

11.The father shall forthwith enrol in and complete a Mens Choosing Change program.

Restraints

12.That each party be restrained from:-

(a)Using or being under the influence of illicit drugs including in the presence of the children, or permitting any other person under the influence to be in the presence of the children.   The term presence also refers to within the same residence or location as the children;

(b)Exposing the children to family violence;

(c)Consuming alcohol in excess during any period when the children are in their care or in any twelve (12) hour period preceding their time with the children.   For the purpose of this Order it shall be deemed excessive if any at time during the aforementioned periods the parent’s blood alcohol concentration exceeds the legal driving general blood and alcohol limit;

(d)Discussing these proceedings and Orders with the children.

Other

13.That the Independent Children’s Lawyer be discharged.

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 Barry & Barry has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

REASONS FOR JUDGMENT
Ex Tempore

JUDGE YOUNG

1. This is a parenting application concerning three children: X, who is 17 years old, Y, who is 15 years old and Z, who is 11 years old.  No orders others than those relating to parental responsibility are sought in respect of X or Y. The parties agree, and the Independent Children’s Lawyer (ICL) accepts, that X and Y will spend time with their father according to their wishes.  The substantive aspect of the trial is thus concerned with the arrangements for Z. 

2. It is convenient to start with the orders sought by the ICL because they are largely, if not entirely, adopted by the mother.  The ICL seeks orders as follows:

   (a)the mother have sole parental responsibility;

   (b)that Z lives with her and spends time with the father on alternate Saturdays from 9 to 5 for a period of six months and on the condition of the receipt of two negative hair follicle tests for illicit drugs over a period of six months;

   (c)that on the receipt of the negative hair follicle tests, Z spend Friday to Sunday on alternate weekends with her father, suspended if the father fails to comply with the negative testing requirement; and

   (d)that the father is to engage with a psychologist in regard to his emotional regulation and complete a Men’s Behaviour Change program. 

   The mother seeks identical orders, except that she seeks that the two hair follicle tests be conducted over a 12-month period. 

3. The father seeks equal shared parental responsibility.  In his Outline of Case he sought orders that Z spend time with him on alternate weekends from Friday to Sunday. I note in his evidence that he proposed that arrangement be each weekend. The father presently resides in Suburb G, a part of Greater Brisbane.  He seeks orders that if he relocates to the Region H, Z live with him week-about with the mother, block holiday time and special days.

4. The chronology of this matter is of some significance in understanding the events.  The father was for many years a transport worker, living in City J with the mother and the children.  In March 2016 he was referred to the K Recovery Centre, a therapeutic and assessment centre in the Country L, after he failed an occupational test for a transport worker.  The father produced a report from the K Recovery Centre which demonstrated that his employers were concerned about tests conducted on the father that showed elevated levels of CDT, that is, a test for alcohol misuse. At least one psychiatrist conducted that assessment and it was noted in the report that the father suffered some cognitive deficiencies resulting from high stress levels, alcohol use, and a remote head injury.  The remote head injury is not otherwise referred to. 

5. In October 2016, some months after the psychiatric assessment, the father slipped and fell returning from work in City J and suffered a significant head injury.  He was eventually certified unfit to be a transport worker and lost his transport licence. The family returned to Australia in 2016, which also marked the end of the relationship between the father and the mother.

6. The mother initially relocated to Sydney with the children, but in 2017 she relocated to the Region H where the father was living.  The mother initiated proceedings in 2017 and final orders were made under the Family Law Act1975 (Cth) (“the Act”) on 20 November 2017 providing:

   (a)that the parents have equal shared parental responsibility;

   (b)that the children live with the mother; and

   (c)that the children spend six nights a fortnight with the father. 

   That arrangement appears to have continued for a reasonably lengthy period however, on 2 July 2019 the mother obtained a protection order against the husband in a Queensland Magistrates Court. She alleged that the father had sent harassing emails to her, her employer and/or associates of her employer.

7. In November 2019 the father reported that he was unable to care for the children during the time that they were to spend with him under the 2017 orders. Shortly after that the children began living in the mother’s care.  On about 14 July 2020 Y went to live with his father after very seriously assaulting the mother.  The materials refer at various points to Y having a diagnosis of Attention Deficit Hyperactivity Disorder (ADHD), Tourette’s Syndrome and Autism Spectrum Disorder (ASD).  It is not in question that Y has been at times a very difficult child and adolescent. He, at times, has an explosive and violent temper.

8. In August 2020 while Y was living with his father and the father’s partner, Mr M, there was an altercation at the father’s residence. It appears that Y was struck, though it is somewhat unclear.  There is a reference in the material to Y being hit with a belt. At other times there is a reference to the father throwing a fork at Y and that he received a scratch from the fork.  Again, the circumstances are a somewhat unclear.  The Department of Child Safety (“the Department”) became involved at that point and the child safety officer notes record the father as yelling and being verbally abusive to the child safety officer concerned.  The child safety officers concluded that Y was not safe in the father’s home and Y returned to live with his mother.  In the Department records, there were concerns raised about whether the father was abusing substances or misusing alcohol.

9. It is unclear to me, but it may be that at that time the father was alleged to have assaulted Mr M. The father conceded at one point that he did punch Mr M.  Whether it was arising precisely out of that episode or around that time, I am not sure.  Y’s time with his father resumed, it appears, about a year later in September 2021. 

10. On 30 September 2020 the mother filed an initiating application.  She sought orders that the children live with her, that they spend alternate weekends with the father, and, significantly, that the father be subjected to hair follicle testing, as she raised a concern that he may have been using illicit drugs, specifically methamphetamine. 

11. In October 2020 Z was involved in a car accident with the father.  The father said that he was taking her to school and, in substance, Z was being difficult, had taken her seatbelt off inside the car and was moving into the backseat.  He said that he was distracted while in a car park and put the brakes on, presumably suddenly. Z was then thrown into the windscreen, which was broken.  Z appeared slightly injured and she was hospitalised for a short period.  The mother received information at that point from the father’s partner that the father had been under the influence of methamphetamine when the accident occurred.  No doubt that excited the mother’s concern, and the mother put the text messages she received in evidence.  I do not necessarily give those messages great weight.  The author of the messages was not called as a witness.  It is clear that the messages were sent in the context of a conflict between the father and his partner, and it is unclear to me that those should be treated as reliable evidence of what they report.  Nevertheless, the mother was concerned and her concern in the circumstances is easily understood.

12. In about November 2020, X and Z began to spend time with the father on alternate weekends.  It seems that the father was then resident on the Region H. It appears that there was some conflict, particularly with X, over that period and it appears that X was going through her own difficult period through 2020. 

13. In February 2021 the father said that he did not propose to contest the mother’s application and would consent, effectively, to what she sought.  There was correspondence between lawyers about that and, as it appears from the material, it is not in question that was the position that was reached.  The father, however, resiled from his agreement and the proceeding continued.

14. In October 2021 the mother received text messages from the father’s then partner, Mr N, alleging that the father had exposed the children to family violence and drug misuse.  In November 2021 Mr N obtained a protection order against the father after an episode in September 2021 when there was a fight between the father and Mr N.  It is unclear precisely who started the fight but a witness, according to the police report, said the father was acting very aggressively and had Mr N in a headlock.  The father gave evidence that Mr N had, in fact, assaulted him.  Regardless, it is not in question that Z was present, at least in the residence, when the assault took place.  The father said that Z was not aware of the fight as she was in another part of the residence and did not see what happened.  Whether that is true or not is unclear to me.  As the Court Child Expert (“CCE”) pointed out in her report, according to the events recorded by the police, a neighbour was certainly alerted by the fighting outside the residence and attempted to intervene.  It seems it was a contretemps of some significance and it might be doubted that Z was unaware of what happened.

15. A protection order was made with Mr N as the aggrieved and the father as the respondent on 3 November 2021.  On 28 January 2022 it appears that there was a further fight between the father and Mr N after the father alleged that Mr N had been unfaithful to him.  That incident is the result of a pending proceeding for contravention of a protection order, which I understand will be heard later in the year. 

16. In relation to credibility, I have reservations about the credibility of both the mother and the father.  Both are clearly hostile to each other and I am satisfied that their hostility at times coloured the evidence, particularly the father’s.  I do not accept the evidence of either party without reservation unless it is independently corroborated.  This is a case where there is abundant documentary independent evidence. Having regard to that material it has not been difficult to make broad findings. 

17. The forensic issues for resolution are as follows:

    (1)the existence of family or domestic violence between the father and his partners and the exposure of the children, particularly Z, to that violence;

    (2)the allegations concerning the father’s use of illicit drugs;

    (3)the questions arising about the father’s mental health;

    (4)the stability of the father’s housing; and

    (5)the safety and wellbeing of Z.

    Family Violence or Domestic Violence

18. There is some evidence of family violence between the father and the mother, which I will refer to later, but the evidence of the father’s violence towards his partners does not easily fit within the definition of “family violence” in the Act which I will recite:

    For the purposes of this Act, family violence means violent, threatening or other behaviour by a person that coerces or controls a member of the person’s family or causes the family member to be fearful.

19. The father was the respondent to domestic or family violence applications in respect of three former partners: the mother, Mr M and Mr N. He has been charged with contravention of those protection orders against each of those persons.  He pleaded guilty to a contravention of the order protecting the mother which consisted of sending harassing emails to the mother and her work associates. The contravention also consisted of sending emails to the mother that contravened the terms of the order, which permitted communication about the children but not otherwise. There is a hearing due later in the year concerning a contravention application of the order protecting Mr N.

20. As I have mentioned, on one occasion on 29 September 2021 Z was present in the residence of the father when the father and Mr N began fighting.  A neighbour intervened and the police were called.  It is unclear whether Z was exposed to that but one might suspect that as a neighbour intervened and the police were called, Z would have likely been aware of the incident. There is however no evidence of that. The police attended the father’s residence and, according to the police report, syringes and alcohol wipes were found strewn on the ground at the front of the residence. The father said the syringes and the alcohol wipes were not his.  He seemed, at different times, to suggest that they were Mr N’s or they may have belonged to another person living in the residence.  However, the father suggested in his evidence that he had suspected Mr N was using drugs, specifically methamphetamine, prior to that event.  He said noticed a change in Mr N’s demeanour, suggesting the use of illicit drugs.  Nevertheless, after the event on 29 September 2021 the father resumed his relationship with Mr N and that relationship continued until either December 2021 or January 2022. 

1. As noted, the father also concedes that he punched his former partner, Mr M, during an argument.  There is further evidence of family violence involving Y.  Y has some significant behavioural difficulties and on one occasion he assaulted the mother.  I have already referred to the incident at the father’s residence in August 2020 which involved the Department of Child Safety. There is also a protection order made on 2 July 2021 for the protection of the mother which resulted in a contravention and the prosecution of the father for the breach of that protection order. 

2. There was another incident referred to in evidence when the mother said that the father had spat on her and spittle fell on her arms and leg during an argument about a small amount of money.  The father says that he did not spit at or on the mother, but effectively turned his head and spat in the other direction.  Given my reservations about the credibility of both parties, I do not believe I can make a finding about exactly what happened, but even on the father’s version of events his behaviour was offensive and inexcusable.  He said in evidence that X was present during that episode.

   Drug use

3. In relation to drug use, the father acknowledged that Mr M and Mr N, his former partners, have used illicit drugs.  There was evidence that Mr M smoked cannabis with X, having prevailed upon X to buy cannabis for him.  The father was aware of that, at least after the event, but appears to have continued to permit the children to visit.  The father suspected Mr N of methamphetamine use until 29 September 2021 and, after that date, he was at least aware of the presence of syringes in the residence. These, implicitly at least, might be suspected of being used for the injection of illicit drugs. The father was after that time, in my view, on notice that Mr N was a user of illicit drugs and, nevertheless, resumed a relationship with him.  Having regard to the suspicions these events raise about the father’s own drug use, the father was ordered to undergo a hair follicle test at the request of the ICL.  A request was made on 13 January 2022 but not complied with and a further order was necessary. The father complied with that order on 27 April 2022 and the results were negative.  The father offered various excuses for not having complied with the ICL’s request in January. Having regard to my finding about his credibility, I do not accept his excuses.  I am left with a serious suspicion that the father’s delay in testing was deliberate to ensure that a hair follicle test would return a negative result.

   Mental health

4. In relation to the father’s mental health, the father was admitted to the Region H Hospital in November 2020. I understand this was because he felt overwhelmed with the stress of his relationship difficulties and possibly the legal proceedings.  There is no further information about this.  However, the father said in evidence that he is taking a prescription medication called Fluoxetine, which the Court Child Expert (“CCE”) indicated was a medication for depression.  The father denied any diagnosis of depression and said that he was prescribed Fluoxetine for anxiety.  There is no medical evidence about the condition which resulted in the prescription of Fluoxetine but I am satisfied that the father has suffered at different times from some significant mental health stressors. However, I am left in a state of some uncertainty about his exact mental health status. In evidence the father demonstrated an unusual level of irritability and emotionalism.  All in all, I have reservations about the father’s mental health. 

5. There are some indications that the mother has suffered from depression at different times and also allegations between both parties of alcohol abuse.  There is not enough evidence for me to make findings about those particular matters.

   Housing

6. The father’s housing is also an issue of significance.  The father appears to have been living in unstable housing for some time. He has lived with his partners and for relatively short periods while the relationship lasted, but otherwise he has not had adequate housing.  He is presently living with his partner, Mr O, in Mr O’s father’s home.  That has been the case since about January 2022.  The instability in the fathers living arrangements appears to be the result of difficult financial circumstances and the difficulty of the father finding steady employment.

   Family reports   

7. There are two family reports prepared by the CCE dated 16 November 2021 and 17 May 2022.  In the first report the CCE, Ms E, noted that there were indications the children had been exposed to the conflict between their parents.  Y refused to engage with her at all.  She observed that X was, “intelligent, emotional and overwhelmed”.  Z did not engage at all with the CCE after X left the interview.  Apparently something had occurred during the interviews and X left.  The result was that Z was not interviewed and the CCE was unable to gain any insight into Z’s wishes.  The CCE observed in that first report that X was displaying a clear loyalty to her father, had adopted his narrative, and she was satisfied that X at least had been exposed to adult issues and the issues arising in these proceedings.  The CCE summarised her views and concerns about the father as follows:

   Given information from the parties, police, Region H Hospital and DCYJMA, I have concerns that Mr Barry is presenting with a number of risk factors that he perhaps does not have insight into how they may be affecting the children and his functioning and behaviour.  It has been outlined in this family report the concerns raised about Mr Barry possibly engaging in drug misuse, about his own mental health and emotional regulation, and about domestic violence in two previous relationships with partners who have been identified by Mr Barry as having mental health concerns and drug misuse issues.

   I am concerned, given these factors, that Mr Barry is being impacted on by poor mental health, personality vulnerabilities and/or drug misuse and that this is impacting on his relationship choices and ability to keep the children safe.  Furthermore, it is evident that some of his emotional regulation issues have meant that he has been abusive to Child Safety officers and led him to refuse support for managing Y’s behaviour.  My concern is that Mr Barry continued to deflect blame to Ms Barry and did not recognise how these factors would have impacted on the children and how they might cause alarm to Ms Barry.

8. In the second report Y engaged and spoke to the CCE.  He said he found the conflict stressful and did not want to engage further.  X and Z were interviewed together.  The CCE observed that X and Z spent some 10 minutes in the toilet together, immediately before the interview.  She said that despite her efforts to persuade Z to speak to her alone she, Z, would not speak without X being present.  The CCE’s description of the interview with X shows X dominating and directing Z’s responses.  X was protective of Z but also demonstrated loyalty to her father.  The CCE accepted that Y and X loved their father and want to spend time with him.  She was satisfied, however, that each of the children had witnessed discord between the father and his partners and, as I have already noted, that Z was present in the residence on 29 September 2020 when there was a fight between the father and Mr N.

9. The CCE considered that the father had exposed the children to family or domestic violence either through poor choice in relation to his partners or his own tendency to use physical force.  The CCE suggested:

   If the Court identifies a level of acceptable risk from Mr Barry towards Z given her young age it is possible Z could spend day time with her father or in line with her wishes rather than overnight time. 

   I accept the CCE’s observations, opinions, and the broad thrust of her concerns and recommendations.

10. The CCE was cross-examined.  She expressed distinct doubt that the father was capable of repressing his hostility towards the mother so as to permit him to co-parent effectively with the mother.  The CCE expressed the view that requiring the mother to consult with the father would, in effect, permit the father to abuse that to harass or coerce her and thereby undermine her parental capacity.  I have some reservations about that opinion, particularly as it is not in question that the father is involved with the children’s lives and they are likely to spend time with him.  It is, of course, a major matter to make an order that effectively deprives one parent of parental responsibility.  However, having listened to the father in evidence, I am satisfied his hostility to the mother is deeply ingrained and unlikely to change.  He portrayed himself as a “victim” of the mother, and indeed, of each of his partners.  I am satisfied that the father has little insight into the effect of his behaviour on others, his former wife and his children.  I accept the CCE’s view about these matters.

    Legislative pathway

11. In deciding a parenting matter, the Court is required to follow the legislative pathway set out in the Act. Section 61DA of the Act states that the presumption of equal shared parental responsibility does not apply where there is a finding of family violence. In his case, I am satisfied that the father has committed family violence against the mother, both through the events that led to the imposition of the protection order and the events that led to the contravention of that protection order for which he was found guilty. I am satisfied that there should not be an order for equal shared parental responsibility for these reasons and for the reasons advanced by the CCE.

12. Section 60CC, subsection (1) provides that in determining what is in the child’s best interests the Court must consider the matters set out in subsections 60CC(2) and (3). The primary considerations as set out in 60CC(2) in deciding the best interests of a child are:

    (a)the benefit to the child of having a meaningful relationship with both of the child’s parents.  In the context of this case, that effectively means the benefit to Z of having a meaningful relationship with her father; and

    (b)the need to protect the child from physical or psychological harm from being subjected to or exposed to abuse, neglect or family violence. 

13. I am satisfied that subsection 60CC(2)(b) is engaged in this matter.  I am satisfied that the father has exposed Z to violence towards his partner and to a household where methamphetamine is consumed by his partner and possibly by the father himself. In my view, if not family violence, this constitutes neglect.  I am satisfied the father has limited insight into his conduct and the mother’s legitimate concerns.  The father’s belated drug testing, albeit a negative result, gives rise to a suspicion and a consequent risk that the father may use illicit drugs, specifically methamphetamine which I consider is unacceptable. That risk may be mitigated by testing over the 12-month period proposed by the mother. 

14. I have regard to the additional considerations in subsection 60CC(3) of the Act.

15. In relation to subsection 60CC(3)(a), the wishes of the children, the CCE acknowledged that the children loved their father. However, it must be noted that Z, who is the relevant child, has not expressed a clear view about the father and her relationship with him. As noted, her engagement with the CCE was interrupted during the preparation of the first report by X leaving the interview. Her interaction with the CCE in the second interview was deliberately managed by X, and the picture of Z’s views is ambiguous.

16. In relation to subsection 60CC(3)(b) and the nature of the relationship of the child with each of the child’s parents, there is no question that both parents love the children and the children love their parents.  The relationship in particular of Y with his mother has been troubled at times and it is clear that his mother has not been able to adequately manage Y’s behaviour at times. At the moment the children are living with their mother and it is clear that she has provided a stable home and house for these children and her parenting capacity does not appear to be anything other than adequate.  The picture of the children’s relationship with their father is more complex for the reasons that I have described.  It is clear, that the children love their father and wish to maintain a relationship with him but the question is raised by the findings in this case about whether that can be done safely, particularly with Z who is only 11 years old.

17. Subsection 60CC(3)(c) relates to the extent to which each of the child’s parents has taken or failed to take the opportunity to participate in making decisions about major long term issues, to spend time with the child and to communicate with the child.  There is no question that the children, including Z, have spent time and communicated with their father.  At one point there was a question directed to the father in cross-examination about what major long term decisions he had made about the children or in conjunction with the mother and he was unable to indicate any, so the evidence about that is slight.

18. Subsection 60CC(3)(ca) relates to the extent to which each of the child’s parents has fulfilled or failed to fulfil the parent’s obligations to maintain the child.  There was very little evidence about that, though it appears that the father’s capacity to pay child support has been limited by a period of unemployment.

19. Subsection 60CC(3)(d) concerns the likely effect of any changes in the child’s circumstances, including the likely effect on the child of any separation from either of his or her parents.  There is no significant change in circumstances contemplated beyond some variation in Z’s time with her father.

20. Subsection 60CC(3)(e) relates to the practical difficulty and expense of the child spending time with and communicating with each parent.  The father, as I have said, lives in Suburb G, which is part of Greater Brisbane.  There was some evidence that when the traffic is good the road journey between the Region H and Suburb G is about one and a half hours and when the traffic is heavy it is about two hours.  In any event, the parties seem to have agreed that when time is to take place they would meet at a midpoint between the residence of both parents.

21. Subsection 60CC(3)(f) concerns the capacity of each of the child’s parents to provide for the needs of the child, including emotional and intellectual needs.  It is not in issue that the mother is capable of providing for the children’s emotional and intellectual needs. However, it is also clear that the children have been exposed to the intense conflict between the parents. I am satisfied having heard the mother give evidence that to some degree her hostility to the father must be evident to the children, and to that extent she bears some responsibility.  The father and his capacity has been largely the subject of the evidence in this case and I have reservations about his capacity to provide for the needs of the children, including their emotional and intellectual needs, for the reasons that have been discussed.

22. I do not propose to say anything further about subsection 60CC(3)(g) and subsection 60CC(3)(h) is not applicable.

23. Subsection 60CC(3)(i) concerns the attitude to the child and the responsibilities of parenthood demonstrated by each of the child’s parents.  This issue was, of course, closely related to the question of capacity of each of the parents, and I will not say anything further about that. 

24. Subsection 60CC(3)(j) relates to any family violence involving the child or a member of the child’s family. There is, as mentioned, an existing protection order for the protection of the mother against the father which will last until 2024. There has also been a finding of guilt against the father following a contravention of that order. I am satisfied that there has been other violence, whether or not it can be characterised as family violence, between the father and his two previous male partners. Whether or not that constitutes family violence, I am satisfied that for the purpose of section 60CC(2)(b) it at least constitutes evidence of neglect, resulting in the involvement of the Department of Child Safety. The inferences I draw from the relevant protection orders are essentially those inferences drawn by the CCE. That is, the father either lacks judgment in the choice of his partners or shows a tendency to use violent or threatening behaviour. In a sense, it does not matter whether it is one or both of those. I am unable to make a precise finding. More significantly, I am satisfied that the father lacks insight into his own behaviour and the effect of that behaviour on others, particularly his children. His irritability under cross‑examination, his lack of insight during that cross-examination was notable.

25. In regard to subsection 60CC(l) and (m) I do not propose to say anything more.

I certify that the preceding forty-five (45) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Young.

Associate:

Dated:       14 June 2022